485 F.2d 1179 (10th Cir. 1973), 72-1773, United States v. Marx

Docket Nº:72-1773, 72-1774.
Citation:485 F.2d 1179
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John William MARX and William Frederick Shriver, Defendants-Appellants.
Case Date:October 03, 1973
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1179

485 F.2d 1179 (10th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

John William MARX and William Frederick Shriver, Defendants-Appellants.

Nos. 72-1773, 72-1774.

United States Court of Appeals, Tenth Circuit.

October 3, 1973

Argued and Submitted April 10, 1973.

Rehearing Denied in No. 72-1773 Nov. 12, 1973.

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[Copyrighted Material Omitted]

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James M. Gansinger, Denver, Colo., for defendant-appellant Marx.

David W. Duncan, Durango, Colo., for defendant-appellant Shriver.

Nathan G. Graham, U. S. Atty. (Robert P. Santee, Asst. U. S. Atty., on the brief), Tulsa, Okl., for plaintiff-appellee.

Before PHILLIPS, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

Appellants were charged in a three count indictment with robbing a Tulsa, Oklahoma, bank in violation of 18 U.S.C. § 2113(a), (d) and (e). 1

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Appellants were found guilty by a jury on each of the three counts. For purposes of sentencing both defendants, the trial court merged Counts I and II. On those merged counts Marx was given a sentence of 25 years and fined $10, 000, and on Count III he received a 42-year sentence. Shriver was given a like sentence on the merged counts and 40 years on Count III.

Under the evidence, the facts are uncontroverted. While Houston Adams, president of the Farmers & Merchants Bank and Trust Company (Bank), was returning home from an early morning walk on May 2, 1972, he was assaulted by two men. Brandishing a pistol, these men forced their way into the Adams' home and ordered Adams to awaken his

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wife and two teenage children. After gathering the family together, the men boldly stated that they were going to take money from the Bank. To effect this plan, Mrs. Adams was given a cashier's check for $49, 500 drawn on the Nevada State Bank and was ordered to forge the payee's signature. The check was then handed to Mr. Adams with instructions to take it to the Bank, negotiate it for cash, and leave the money in a local parking lot.

To insure that Adams would not inform authorities, a bomb was strapped to his left side. As a further incentive for obedience, the rest of the family was tied to a bed and a bomb was placed underneath the bed. Adams was warned that if he failed to follow instructions both bombs would be detonated. Adams and Marx then left the home in different cars, and Shriver remained at the home until both returned to the home.

Adams followed instructions as ordered. Upon entering the bank he endorsed the cashier's check, made it payable to himself, and presented it for payment to Jerry O. Lewis, the bank's vice president and chief cashier. Nothing was mentioned of the circumstances surrounding this unusual request. Lewis handed the check to Miss Barton, chief teller, who in turn gave Lewis $49, 500 in cash. After receiving the money, Adams promptly delivered it to Marx at the designated parking lot. Adams was next ordered to go back home for further instructions. Both then returned to the home in separate cars.

It was then decided Adams should return to work and act as if nothing had happened. Mrs. Adams and the children were set free, but to prevent notification of authorities the bomb was left strapped to Adams. His wife was reminded that if she wanted to collect life insurance money all she needed to do was call the police. The children were also warned against calling anyone if they wished to see their daddy again. Marx and Shriver then left the home. Several hours later the ordeal ended when Mrs. Adams received a telephone call informing her the bomb strapped to her husband was deactivated.

Marx and Shriver subsequently were arrested for robbing a federally insured bank. At trial all four members of the Adams family positively identified appellants as their assailants. Some members also testified that during the time appellants held them hostage Marx addressed Shriver by his correct first name. A taxi driver testified that on the day of the robbery he drove Marx to a street address near the Adams home. Government exhibits 12 and 13 were photographs of Marx's fingerprints found on the cashier's check. Exhibit 8 was $3, 000 discovered in the trunk of a car rented by Marx. This money was in the same denomination as that taken from Adams. From this and other evidence, appellants were convicted of bank robbery.

Appellants' most novel contention is that no bank robbery occurred and thus they were improperly charged and convicted. They argue that if any crimes were committed they were crimes of extortion, obtaining money by false pretenses, and kidnapping, none of which violates 18 U.S.C. § 2113. They suggest that to violate subsection (a) of that statute there must be a taking from an individual of property "belonging to, or in the care, custody, control, management, or possession of . . ." a bank, it follows that as Adams endorsed the cashier's check, he is ultimately responsible for its payment. Thus, appellants further argue, possession and title to the money are in Adams rather than the Bank. We cannot subscribe to this...

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