United States v. Marx, 72-1773

• Citation: 485 F.2d 1179
• Decision Date: 03 October 1973
• Docket Number: No. 72-1773,72-1774.,72-1773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John William MARX and William Frederick Shriver, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

485 F.2d 1179 (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.

Argued and Submitted April 10, 1973.

Decided October 3, 1973.

Rehearing Denied November 12, 1973.

COPYRIGHT MATERIAL OMITTED

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.

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

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

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 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 reasoning and argument.

It is correct to conclude that § 2113(a) is not directed toward the crimes of extortion and obtaining money by false pretenses; still more is involved in this case than the above two crimes. Robbery is committed when a person:

. . . by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association. . . . § 2113(a).

Whether the bank was robbed depends upon whether or not Adams turned the money over to appellants in his capacity as an officer of the bank. To reach this determination we must first decide whether appellants intended to rob the Bank or Adams personally. While Adams was being held hostage Marx told him "we are not robbing you, but you represent a bank and we are going to use you and your family to get some of that bank's money." Corroborative of this intent was Marx's demand that Adams cash the check and then bring the check back. Obviously Adams could return the check only in his capacity as a bank officer. Appellants later told Adams' 13-year-old daughter that her father could get something from the bank they wanted — money. Appellants clearly intended to rob the Bank.

The second question is at what point did the Bank lose custody, control or possession of the money. Appellants argue that title and possession transferred when the money was turned over to Adams. We cannot agree, for it is apparent the Bank lost possession at the moment Marx took the money from Adams at the parking lot. Testimony of Lewis showed that the money given Adams belonged to the Bank. Barton testified she did not give Lewis marked bills because she was transferring money to a bank officer. Adams' excuse for cashing the check was because several good bank customers needed the money quickly. Without question Adams was given bank money for banking purposes, and thus not until Marx forcefully took it from him did the Bank lose possession and control. Appellants were therefore properly convicted of bank robbery. See United States v. Jakalski, 237 F.2d 503 (7th Cir. 1956), cert. denied, 353 U.S. 939, 77 S.Ct. 817, 1 L.Ed.2d 761; Rumfelt v. United States, 445 F.2d 134 (7th Cir. 1971), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 94.

Marx argues the trial court erred in refusing to instruct the jury on appellant Shriver's theory of defense, that being if a crime were committed it was the crime of extortion or obtaining money by false pretenses rather than the crime of bank robbery. Marx's trial counsel, however, informed the trial court he did not object to the court's proposed instructions and that Marx had no additional instructions to offer. Failure to object at trial to instructions given to a jury precludes objection on appeal; hence this issue has not been preserved for our review. Glazerman v. United States 421 F.2d 547 (10th Cir. 1970), cert. denied, 398 U.S. 928, 90 S. Ct. 1817, 26 L.Ed.2d 90. In addition, this contention has been answered by our prior discussion of the crime actually committed.

Marx next alleges error in admitting into evidence $3,000 in cash taken from his automobile six weeks after the crime. He urges that under two situations only can money be admitted: first, when there is proof of an unlawful taking completed with convincing identification of the property stolen; second, when a defendant impecunious prior to robbery has unexplained possession of large amounts of money after the robbery. The conclusion follows that as there is no proof of Marx's prior poverty nor that the $3,000 in his possession is an unusual amount of money, it is error to admit the money into evidence. We agree with Marx's statement of law, but the money can nevertheless be admitted on grounds of relevancy. For it to be admitted, all that is required is that it have enough rational connection with the issues to be considered a factor contributing to the deciding of the issues. United States v. Pugliese, 153 F. 2d 497 (2d Cir. 1945). Testimony of Lewis indicated the $49,500 consisted of $100 and $20 bills. The money found hidden in Marx's car trunk was all in $100 bills. Admission of this exhibit is relevant and has probative value to show similarity between money in Marx's possession and that stolen from the Bank. We cannot say the trial court abused its discretion in finding the $3,000 in cash relevant. United States v. Brewer, 427 F.2d 409 (10th Cir. 1970).

Both appellants charge error in the trial court's failure to set bond prior to trial. Their position is that as bank robbery is not a capital case, in light of recent Supreme Court decisions, the trial court committed reversible error in refusing to admit them to bail. We agree failure to set bail is error, but appellants should at that time have taken an...