United States v. Sutherland

Citation463 F.2d 641
Decision Date05 September 1972
Docket NumberNo. 31044.,31044.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ben Herbert SUTHERLAND, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Donald J. Hand, San Antonio, Tex. (Court appointed), for defendant-appellant.

William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and RONEY. Circuit Judges.

RONEY, Circuit Judge:

For the second time a jury has convicted Ben Herbert Sutherland of three criminal charges relating to robbery of a San Antonio, Texas, bank. Finding that there was sufficient evidence to convict defendant of the offenses charged and that the defendant had a fair trial, we affirm.

On October 1, 1968, at approximately 2:00 P.M., the Northeast National Bank of San Antonio was held up by William Kump. Kump, who was brandishing a gun, had stuffed $5,457.00 in his paper bag and was fleeing through the bank's main entrance when he encountered a police officer who was anticipating his departure. Kump fired at the officer, but missed. Kump was then killed by the policeman's return fire. Subsequently, Sutherland was indicted for conspiracy to rob banks in violation of 18 U.S.C. § 371, for robbery of the Northeast National Bank in violation of 18 U. S.C. § 2113(a), and for robbery of the Northeast National Bank with a dangerous weapon in violation of 18 U.S.C. § 2113(d).

Sutherland was tried on those charges in March, 1969, and convicted on all counts. However, the conviction was reversed on appeal because the district court had permitted eyewitness in-court identification testimony to go to the jury after finding that photographs shown to the eyewitnesses by the FBI were impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970).

The defendant was again tried and was again convicted on all three counts.1 This time, however, with the eyewitness identification excluded, there was no evidence placing the defendant at the scene of the bank robbery. Accordingly, the defendant raises a strong question of sufficiency of the evidence. He also contends that reversible error was injected into his trial by (1) evidence of defendant's incarceration in an Arizona jail; (2) biased conduct on the part of the trial judge; (3) supplementary instructions, including the Allen charge; and (4) prejudicial newspaper publicity.

I. Sufficiency of the Evidence

It is now axiomatic that on reviewing the sufficiency of evidence to support a conviction the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942). Accordingly, all reasonable inferences are drawn, and all reasonable credibility choices are made, which support the jury's verdict. Gordon v. United States, 438 F.2d 858 (5th Cir. 1971). Although the evidence of guilt in this case is circumstantial, that does not change the standard for determining the sufficiency of the evidence. As we recently said in United States v. Warner, 441 F.2d 821, 825 (5th Cir. 1971):

"It is true that much of the evidence in this case is circumstantial, and that at one time some courts expressed the view that in criminal cases based on circumstantial evidence a special rule required the district court to grant the motion for acquittal unless the circumstantial evidence excluded every reasonable hypothesis other than that of guilt. The Supreme Court, however, has said that `circumstantial evidence * * * is intrinsically no different from testimonial evidence\' and that `where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.\' Holland v. United States, 1954, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166. The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial. Indeed, that is the prevailing rule in the federal courts today. See 2 C. Wright, Federal Practice & Procedure, § 467, at 258. To reconcile some older Fifth Circuit cases with the Supreme Court\'s clear holding in Holland, this Court has rephrased the substantial evidence test: in criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused\'s innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these differences, which some might term verbalistic, we are in agreement with our brothers in other circuits that whether the evidence be direct or circumstantial, the matter of the defendant\'s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt. See 2 C. Wright, Federal Practice & Procedure, § 467, at 259."

The evidence, stated favorably to the government, begins in the Summer of 1968 in the Maricopa County, Arizona, jail where Sutherland and Kump were cellmates. Charles Fortney, also a cellmate, testified that the occupants of the cell would have general "open forum type" discussions, led by the defendant, concerning bank robberies. These discussions were general and no specific plans were formulated. However, various situations were evaluated "to see if they were valid."An "ideal" situation would be a small suburban type bank with few people in the area and no bank guard. The robbery would "ideally" take place at a time when there was a minimum of traffic. The getaway car should be stolen from an area where the car would have been left standing for a while, such as a bowling alley or movie theatre. During the conversations Sutherland stated "that you go to the grocery store for groceries and you go to the bank for money."

While in jail Sutherland, who referred to Kump, a much younger man, as "Son," sought to persuade Kump to bail him out. On September 6, 1968, Kump bailed himself out of jail. On September 8, Kump bailed out Sutherland by paying $111 to a bonding company and posting $1,000 collateral. Kump gave the defendant about $900, which was half of the money Kump had left and they set out for San Jose, California.

While in San Jose Sutherland asked Chuck Boyle, owner of a drycleaning establishment in which Sutherland previously had worked, where he could get a gun. This inquiry was unproductive since Boyle was unable to provide a pistol. However, Sutherland had previously worked at the cleaners with Ruben Martinez, and according to Martinez, Sutherland probably knew that Martinez had a gun. Kump, who did not know Martinez prior to going to San Jose, sought to buy a pistol from Martinez. The sale was not made but shortly thereafter the gun was stolen. It was Martinez' stolen pistol which Kump had in his hand at his death.

Also in San Jose Kump became acquainted and enamored with Dessie Drake, and Sutherland with Elinor Helman. Although it appears that neither Kump nor Sutherland was working, they treated the women to expensive evenings.

In late September Sutherland and Kump departed, leaving behind varying impressions of where they were headed. Boyle believed they were going to Chicago, Kump's home, and Mrs. Helman was told they were going to Mississippi. In fact, the farthest east they got was Houston, Texas. From that point they went west to San Antonio, arriving there on September 26, 1968. The pair checked into the Gunter Hotel in downtown San Antonio on that date as "Joe McDonald & Son" from Houston, Texas, representing Western Electric. On September 28, they checked into the Park Plaza Motel giving the same misrepresentations.2 Kump took his luggage back to the Gunter on September 30, although both stayed at the Park Plaza that night. The morning of October 1 they checked out of the Park Plaza. At approximately 2:00 P.M. that day, the robbery was attempted.

Sometime after 1:30 P.M., Sutherland, using the name "Frank," attempted to call Boyle in San Jose but could only reach Boyle's secretary. The secretary testified that although the calls were made after 1:30 P.M. CDT, she could not say how long after. At 4:19 P.M. CDT, Sutherland called Boyle from the Gunter Hotel and requested that Boyle send him $85.00 so he could return to San Jose. Boyle refused but suggested Sutherland call Mrs. Helman. Sutherland called Mrs. Helman within six minutes after concluding his conversation with Boyle, but he called not from the Gunter Hotel but from the W. T. Grant Co. Mrs. Helman was unable to send the money. At 6:12 P.M. CDT, Sutherland again called Boyle and this time was successful in obtaining money for bus fare. Boyle obtained the money from Dessie Drake and wired it to Sutherland.

During one of the two calls to Boyle, Sutherland told Boyle that Kump was dead. The Government produced evidence that the only two newspaper articles concerning the robbery which appeared prior to the telephone calls to Boyle did not identify the dead bank robber. However, the devastating effect of this evidence was ameliorated by Boyle's testimony that Sutherland had said he had an intuitive feeling that the unidentified robber was Kump.

Sutherland received the Western Union money order at 9:38 P.M. CDT, and departed by bus at 10:30 P.M. CDT, for San Jose, taking with him Kump's luggage. When located and interviewed by the FBI on October 3 in San Jose, Sutherland could give no explanation of the reason he took Kump's suitcase.

The government produced other evidence by which it attempted to connect Sutherland with the bank robbery. Sutherland never indicated to any of the witnesses what business or occupation, if any, he was engaged in during this period. On September 27, Sutherland wrote to Mrs. Helman...

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