United States v. Jacquillon

• Decision Date: 01 November 1972
• Docket Number: No. 71-3572.,71-3572.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Camillo JACQUILLON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

469 F.2d 380 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. George Camillo JACQUILLON, Defendant-Appellant.

No. 71-3572.

United States Court of Appeals, Fifth Circuit.

November 1, 1972.

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Richard E. Norred, Shreveport, La. (Court-appointed), for defendant-appellant.

Donald E. Walter, U. S. Atty., David R. Lestage, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

WISDOM, Circuit Judge:

George Camillo Jacquillon, defendant-appellant, appeals from a conviction for bank robbery in violation of 18 U.S.C. § 2113(a). We affirm.

On March 5, 1971, a robber entered the Citizens National Bank in Morgan City, Louisiana, proceeded directly to a teller, and gave her a check drawn on the bank. When the teller informed him that there was no account in the name designated on the check, the robber presented a blank check and directed the teller to read the message on the reverse side. It read: "I have a gun. Give me all big bills or I will shoot you." The teller gave $5,000 in cash and a green bank money bag to the robber, who immediately left the bank.

A bank employee telephoned the police and stated that the robber, wearing a yellow jacket, had just left the bank and was running toward Tri-City Motors, located about a block from the bank. This information was immediately transmitted by radio dispatch to Officer Pierron. A radio malfunction, however, prevented his hearing a description of the clothes the robber was wearing. Officer Pierron quickly drove to the scene and soon observed Jacquillon in a yellow jacket running with a green bag from the Tri-City Motors parking lot. As Jacquillon began to run across the highway, Officer Pierron ordered him to stop. Jacquillon continued to run a few more yards but stopped when the officer repeated his command. Officer Pierron then arrested Jacquillon and seized the green bag. It was a Citizens National Bank money bag containing the stolen currency. Immediately after the arrest, a bank employee who had been following the robber arrived and identified Jacquillon as the man who robbed the bank.

Jacquillon was subsequently indicated by the grand jury and charged with bank robbery in violation of 18 U.S.C. § 2113(a). In response to a joint motion, the district court ordered Jacquillon to be examined by a psychiatrist to determine his competency to stand trial. After a hearing, the district court held that the examination indicated that Jacquillon was competent. At arraignment he entered pleas of not guilty and not guilty by reason of insanity. The district court granted Jacquillon's motion for a bifurcated trial, in which the merits and the issue of sanity would be tried separately. On December 7, 1971, the jury returned a verdict of guilty, and after a separate hearing, found that Jacquillon was sane at the time of the commission of the crime. He was sentenced to serve a term of twelve years.

I.

On appeal, Jacquillon alleges a number of grounds for reversal. We first meet the contention that there was no probable cause for arrest; that the evidence subsequently seized was the product of an illegal search; and that it should not have been admitted at trial. The standard to be applied in determining probable cause is whether at the moment of arrest the arresting officer had knowledge of facts and circumstances, obtained from trustworthy sources, that would be sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Jacquillon asserts that the fact that Officer Pierron observed him running with a bag from an area near the bank only minutes after the crime cannot provide the basis for a legal arrest.

Although the flight of the appellant alone is not sufficient to constitute probable cause, it is a fact to be considered. Johnson v. Middlebrooks, 5 Cir. 1967, 383 F.2d 386. The record reveals more than just his flight, however. Officer Pierron knew that the bank had been robbed minutes earlier and that the robber, a male, had been seen running toward Tri-City Motors, located only a block from the bank. Arriving at the scene, the officer observed Jacquillon running with a green bag from Tri-City Motors parking lot. The officer directed Jacquillon to halt. Jacquillon continued to run but stopped when the officer repeated his command. He was then arrested and the green bag was seized. There could be no absolute certainly at this point that Jacquillon was the robber. It is only necessary, however, that there be a reasonable basis for believing that the accused had committed an offense. In the instant case, the robbery, the robber's flight, and the officer's observation of Jacquillon running with a bag in the same area where the robbery occurred were substantially contemporaneous events. Viewing the situation as a whole, we think that there was probable cause for the arrest and that the seizure of the green bag was the product of a lawful search.

II.

The next contention is that the evidence presented at trial failed to show a "taking by intimidation", as alleged in the indictment and, alternatively, that evidence of intimidation, without additional evidence of "force and violence", could not support a conviction under the indictment as worded.

In relevant part, section 2113(a) prohibits taking "by force and violence, or by intimidation, . . . from the person or presence of another any property or money . . . in the . . . possession of, any bank . . . " 18 U.S.C. § 2113(a). The appellant argues that the evidence failed to show "taking by intimidation" because the teller did not see a weapon and was a "light-hearted, nonserious type of person." We find this argument unconvincing.

As used in section 2113(a), intimidation means to make fearful or to put into fear. United States v. Baker, 1955, S.D.Cal.C.D., 129 F.Supp. 684. Proof of actual fear is not required in order to establish intimidation. Rather, it may be inferred from conduct, words, or circumstances reasonably calculated to produce fear. In the instant case, the robber presented the teller with a note, which stated "I have a gun. Give me all big bills or I will shoot you." This tactic is frequently employed by armed robbers and is clearly intended to induce fear. See, e. g., United States v. Epps, 4 Cir. 1971, 438 F.2d 1192. The teller's testimony at trial shows that she was afraid. Certainly, it cannot be said that the jury exceeded the scope of its discretion in finding intimidation.

The appellant also argues that since the indictment alleges a taking by "force and violence and by intimidation," proof of intimidation alone is insufficient to support a conviction. (Emphasis added.) Section 2113(a), however, specifies that "force and violence" and "intimidation" are alternative ways in which the offense may be committed. The established rule of pleading in indictments is that such elements are to be alleged in the conjunctive, even though the statute is worded in the disjunctive. Cunningham v. United States, 5 Cir. 1966, 356 F.2d 454; Heflin v. United States, 5 Cir. 1955, 233 F.2d 371. Since proof of either element would support a conviction, we find no merit in the appellant's argument.

III.

We now turn to a consideration of the contention that the trial court committed error in its charge to the jury. At the outset, we note that Jacquillon's counsel failed to object at trial to the court's instructions but raises these errors for the first time on appeal. The Court, of course, may notice "plain errors or defects" affecting substantial rights even though they were not brought to the attention of the trial court. Fed.R.Crim.P. 52(b); Braswell v. United States, 5 Cir. 1952, 200 F.2d 597. As the plain error rule implies, its application is limited to exceptional situations involving serious deficiencies which affect the fairness, integrity, or public reputation of the judicial proceedings, United States v. Socony-Vacuum, 1940, 310 U.S. 150, 60 S.Ct. 811, 84 L. Ed. 1129, or which constitute obvious error, United States v. Atkinson, 1936, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555. This strict standard is necessary in order to promote efficient judicial administration and to prevent parties from gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial. Bearden v. United States, 5 Cir. 1968, 403 F.2d 782; Kyle v. United States, 5 Cir. 1968, 402 F.2d 443. The multiple and unrelated objections raised initially on appeal in the present case are antithetical to the purpose of the objection. Nevertheless, we have scrutinized the record and considered each of appellant's arguments. We find no plain error.

First, the appellant asserts that the trial court's charge to the jury, which referred to taking "by force or violence or by intimidation" is error because the statute specifies "force and violence." (Emphasis added.) Assuming the court's misquotation to be error, we are persuaded that it was harmless and had no substantial effect on the jury's verdict. The Government clearly based its case on proving taking by intimidation; it conceded that it could not prove "force and violence." The trial judge instructed the jury that intimidation was the alleged means of taking, and the proof was clearly directed toward establishing intimidation. Since the evidence of intimidation was overwhelming, we hold that the error did not contribute to the appellant's conviction.

The appellant also argues that the trial court committed plain error when it instructed the jury to "tear that cloak or shield away i. e. the presumption of innocence, or penetrate it by evidence which you believe credible and which does establish the guilt of the...