496 F.2d 57 (2nd Cir. 1974), 691, United States v. Jenkins

Docket Nº:691, 712, 713, 739, 73-2414, 73-2458, 73-2459, 73-2461.
Citation:496 F.2d 57
Party Name:UNITED STATES of America, Appellee, v. Richard Albert JENKINS et al., Appellants.
Case Date:April 05, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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496 F.2d 57 (2nd Cir. 1974)

UNITED STATES of America, Appellee,

v.

Richard Albert JENKINS et al., Appellants.

Nos. 691, 712, 713, 739, 73-2414, 73-2458, 73-2459, 73-2461.

United States Court of Appeals, Second Circuit.

April 5, 1974

Argued Jan. 18, 1974.

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Emil H. Frankel, Stamford, Conn., for appellant Wilcox.

Thomas D. Clifford, New Haven, Conn., for appellant Hall.

J. Daniel Sagarin, Bridgeport, Conn., for appellant Jenkins.

Robert G. Oliver, New Haven, Conn., for appellant Morrow.

Andrew B. Bowman, Asst. U.S. Atty. (Stewart H. Jones, U.S. Atty., D. Conn., Bridgeport, Conn., of counsel), for appellee.

Before FRIENDLY and MANSFIELD, Circuit Judges, and ZAMPANO, District Judge. [*]

MANSFIELD, Circuit Judge:

After a jury trial before Judge Jon O. Newman of the District of Connecticut appellants were found guilty of robbing the Hayestown Avenue Branch of the Union Trust Company in Danbury, Connecticut, on September 14, 1972, in violation of 18 U.S.C. §§ 2113(a), (b) and (d), and 2(a) and (b). Jenkins and Wilcox were sentenced to 18 years and Hall to 8 years in prison. Morrow was sentenced, pursuant to the penal section of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5034, to the custody of the Attorney General for the period of her

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minority. Upon this appeal they contend that a plethora of errors mandate reversal. We disagree, and for the reasons stated below we affirm the judgments of conviction against Jenkins, Wilcox and Hall but we remand the judgment of conviction against Morrow in order that its form may be made to comply with 18 U.S.C. § 5034.

The prosecution of appellants arose out of the armed robbery of the Hayestown Avenue Branch of the Union Trust Company in Danbury, Connecticut, on the morning of September 14, 1972. The evidence, viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972), reveals the following:

At the time of the robbery some bank employees and several customers were present in the bank. According to these witnesses-- some 15 in all-- the robbery was carried out by approximately four or five persons, all of whom were Negro and at least one of whom was female. At 10:15 A.M., as Darlene Smith, a teller working at the bank's drive-in window, was attempting to serve a Negro male sitting in a stationwagon, another Negro male strode into the bank's lobby with a gun in one hand and in the other a can of spray paint which he quickly used to spray over the lens of the bank's surveillance camera. Seconds later this initial intruder, who was bearded from sideburn to sideburn and wore a brown felt hat with a piece of torn material on it and a shiny brown leather jacket, substituted a black pistol for his can of paint and stood in the center of the bank floor, forcing everyone to stand still. Thereupon a Negro female, clad in slacks and wearing a woman's stocking over her head, and a Negro male, wearing sunglasses and a shirt with crew neck, entered the bank, leaped over the teller counters and collected money from the bank's vault, where the bank manager and the head teller were located, and from the teller counters. The robber wearing sunglasses carried a snub-nosed revolver. Included in the money collected and put in a light canvas shopping bag held by the female robber were some bills which had been marked 'mutilated' and some 'bait money,' i.e., money whose serial numbers had previously been recorded.

The robbers remained in the bank for only a short period of time, a matter of several minutes. As they were leaving they instructed everyone in the bank to lie on the floor but, in their haste, they left behind a paper bag which later turned out to bear appellant Morrow's fingerprint on it. Immediately after the robbers had left John Patton, a bank customer, ran to a window and saw the robbers drive off in the Ford stationwagon which had been parked just minutes earlier at Darlene Smith's drive-in window. The car bore Connecticut registration plates matching those on a Ford stationwagon stolen earlier that morning.

The government offered both direct and circumstantial evidence to support its charge that appellants were the robbers. In addition to eyewitness testimony by some who were present at the robbery itself, proof was introduced to show that on September 1, 1972, two weeks before the robbery, Wilcox, Hall and Morrow, accompanied by Mrs. Hall, the Halls' baby and one James Bailey, arrived in Danbury in Wilcox's late model red and white Mercury Cougar bearing North Carolina license plates and began frequenting the residence of one Daisy Mae Blakney, 42A Virginia Avenue, Danbury. Several days prior to the robbery Roy Johnsen, the bank's head teller and Darlene Smith, one of the other tellers, had seen two Negroes parked outside the bank in an automobile matching the description of Wilcox's Cougar. On the night before the robbery Jenkins and his friend Corinne Shelly were joined by Wilcox at the Palace Theatre in Danbury.

Early on the morning of September 14, 1972, several hours before the robbery, Jenkins obtained a .38 calibre silver plated gun with a pearl handle and a black gun with bullets from Corinne Shelly and Mary Council. Jenkins, Morrow,

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Wilcox and Hall then departed in two cars. Less than an hour later Wilcox, Hall and Morrow were seen at 42A Virginia Avenue, Daisy Mae Blakney's house. At some point during the morning a 1965 Ford Country Squire stationwagon owned by one James Cavanaugh was stolen from a Danbury parking lot. Within a half hour before the robbery a tall Negro male purchased a can of black spray paint in a paper bag from a Grant's store located in the same shopping center as the bank.

Shortly before 11:00 A.M., which was less than a half hour after the robbery, four or five black persons were seen to alight from a stationwagon, one carrying a dark bag, at a point about one mile from the bank and 620 feet from 42A Virginia Avenue (Daisy Mae Blakney's residence). They proceeded toward the latter address while the driver remained in the car and drove it away. Within a short time Wilcox, Morrow, Hall and Bailey arrived at 42A Virginia Avenue, Hall with a white handled gun protruding from his belt. There they were joined by Jenkins. By early afternoon Jenkins, who had worn a beard and an Afro hair style in the morning appeared with a clean-shaven face and clipped hair. Corinne Shelly, who had in the morning obtained the guns for Jenkins before the robbery, asked Jenkins if he had robbed the bank, to which he replied 'yes,' giving details as to the robbery.

Two hours after the robbery the stolen getaway stationwagon was discovered in Danbury, with a 'popped' ignition and the moter running, a short distance from the point where the four or five Negroes were seen to have left it. On the rear view mirror was appellant Hall's fingerprint. On the seat was a black plastic can-top, a Grant's sales slip (later identified as issued on the morning of the robbery by the Grant store near the bank) and a gold button. James Tallon, Chief of the Danbury Police Department, and Robert O'Neil, an agent of the Federal Bureau of Investigation, immediately began an investigation through the neighborhood where the car was discovered, which led them within an hour to the home of Daisy Mae Blakney at 42A Virginia Avenue. The officers were permitted to enter the Blakney home by a woman named Frances Gary, who was Mr. Blakney's sister and who rented the back bedroom of the first floor of the home. There were four rooms on the first floor, including a front bedroom, a kitchen, dining room, and then Gary's back bedroom. As they were led through the front bedroom and into the kitchen, Tallon and O'Neil observed several persons in the house including three Negro males and a female. Two of the males would not produce any identification while the third produced a North Carolina driver's license bearing the name Lyles. When O'Neil accompanied one of the males into the back bedroom rented by Frances Gary he observed a light green shopping bag leaning against one of the sofas in the room. Later, when he returned from the kitchen into the front bedroom to make a telephone call (with Frances Gary's permission) he observed a shotgun which was plainly visible behind a dresser in the corner.

On the basis of their observation of the shopping bag and shotgun, Tallon and O'Neil obtained a search warrant for the Blakney home, which they executed the next day, September 15, 1972, at 6:30 in the morning. In the course of this search, which extended to a detached garage, several incriminating items were discovered and seized, including a .38 calibre chrome plated gun with a pearl handle of the type obtained by Jenkins a few hours before the robbery, a paper cup containing six .38 calibre bullets, a shiny brown leather jacket and a brown felt hat, both of the type worn by one of the robbers, and a can of black enamel spray paint. One of the jacket's gold buttons was missing. The others matched the one button found in the stolen getaway car.

Following the robbery bank customers Abdella, Leiss and Evans were shown a number of photographs by the investigators. Both Abdella on the day of the

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robbery and Leiss five days later-- on September 19, 1972-- made a photographic identification of appellant Jenkins as the 'floorman,' i.e., the robber who had stood in the middle of the bank lobby during the robbery while others collected the loot. Evans, on the other hand, picked two photographs, one of appellant Wilcox and the other of a person named Arthur Sims, from the spread.

As a result of the investigation federal arrest warrants were issued for all appellants plus James Bailey, whom Tallon and O'Neil had observed in the presence of the others at the Blakney home shortly after...

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