United States v. Rose

• Citation: 526 F.2d 745
• Decision Date: 12 December 1975
• Docket Number: No. 75-1412.,75-1412.
• Parties: UNITED STATES of America, Appellee, v. Charles E. ROSE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

526 F.2d 745

UNITED STATES of America, Appellee, v. Charles E. ROSE, Appellant.

No. 75-1412.

United States Court of Appeals, Eighth Circuit.

Submitted October 13, 1975.

Decided December 12, 1975.

Certiorari Denied March 29, 1976.

Edwin L. Noel, St. Louis, Mo., for appellant.

Barry A. Short, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before CLARK, Associate Justice,^* and LAY and ROSS, Circuit Judges.

Certiorari Denied March 29, 1976. See 96 S.Ct. 1497.

ROSS, Circuit Judge.

Charles E. Rose appeals his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). His alleged accomplices were tried separately and convicted. We affirmed their convictions in United States v. Kelley, 526 F.2d 615 (8th Cir. 1975), and the facts surrounding the offense are fully set forth in that opinion. Rose challenges the admission of certain evidence and denial of various motions by the trial court. We remand the case for further evidence on the issue of probable cause for the accused's arrest by state authorities.

Rose first argues that the court abused its discretion in denying his motion to transfer the trial to Kansas City. No prejudice has been shown to have resulted from denial of the motion, and we note that the district court appointed a Kansas City investigator to assist in preparation of the case. We find no abuse of discretion in denying the motion to transfer. United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971).

Rose contends that hearsay testimony of Gary Roberson, an alleged accomplice, was erroneously admitted. Excluding the contested hearsay, Roberson testified that he, Rose and the others planned to rob a bank in Moberly, Missouri. The next day Roberson met Rose and the others and they drove to Moberly, with Rose a passenger in the lead car and Roberson following in his own car. They went to a house in Moberly, then Roberson, Rose and two others left to observe the layout of the bank. He testified that they also drove through a planned escape route, then returned to the house. Rose and two others left and later came back with two cars which other testimony showed to have been stolen. Roberson, Rose and one of the others got in one car and went to the bank. Roberson testified that he held a gun on the bank guard while Rose and the other man stole the money from the tellers' cages. With Rose driving, they left the bank and drove to where the other stolen car was parked. There they switched cars and continued on the escape route; Rose still drove. They became lost and hid the money in a trash container, then Rose drove away in the car and the others returned to the house. When they arrived Rose was already there.

Rose contends that the evidence, excluding the hearsay statements, was insufficient to show that a conspiracy or concert of action existed between Roberson and the defendant. He also argues that the judge failed to rule that such a concert of action or conspiracy existed and therefore the jury could not consider that evidence, and that the judge failed to instruct the jury that the hearsay could only be used if this prerequisite existed. We considered the same contentions in United States v. Kelley, supra, and we reject them here for the reasons set forth in that opinion.

During trial Rose moved in limine to suppress testimony of his potential witness, Thomas Simmons, concerning a jury verdict of guilty of Simmons of the same robbery of the bank in Moberly. United States v. Kelley, supra. Rose now asserts that denial of the motion was reversible error. At the time of Rose's trial the jury had returned a verdict of guilty against Simmons, but judgment had not been entered thereon. Simmons' motions for judgment notwithstanding the verdict and for a new trial had not been ruled on. Rose made an offer of proof that if Simmons were to testify he would state that he had shared a cell with the accused in the Randolph County Jail on January 22, 1975, and that Rose was absent from his cell for about 20 minutes on that date. According to the testimony of an FBI agent who interrogated Rose, Rose was out of his cell for more than two hours on that date, during which time he made a full confession. The defendant's position is that Simmons' testimony would have impeached the FBI agent and established that Rose could not have made the confession attributed to him, since the confession would have taken more than 20 minutes. Simmons was not called as a witness because defense counsel feared that cross-examination might reveal the guilty verdict returned against Simmons, and he felt that this would suggest to the jury in Rose's case that Rose was guilty as well.

The general rule is that a witness' prior felony convictions are admissible for impeachment. E. g. Sears v. United States, 490 F.2d 150, 154 (8th Cir.), cert. denied, 417 U.S. 949, 94 S.Ct. 3077, 41 L.Ed.2d 670 (1974); United States v. Scarpellino, 431 F.2d 475, 479 (8th Cir. 1970). The District of Columbia Circuit does not allow such impeachment when the conviction is pending appeal. E. g. Fenwick v. United States, 102 U.S.App.D.C. 212, 252 F.2d 124, 126 (1958). However, the majority of courts which have passed on the issue allow use of convictions for impeachment with various restrictions, even though the case is on appeal. E. g. United States v. Shaver, 511 F.2d 933, 934 (4th Cir. 1975); United States v. Aloi, 511 F.2d 585, 596-597 (2d Cir. 1975); United States v. Franicevich, 471 F.2d 427, 429 (5th Cir. 1973); United States v. Allen, 457 F.2d 1361, 1363 (9th Cir.), cert. denied, 409 U.S. 869, 93 S.Ct. 195, 34 L.Ed.2d 119 (1972); United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir.), cert. denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949). Although we have never squarely decided the issue, see United States v. Williams, 484 F.2d 428, 431-432 (8th Cir. 1973), our opinion in Peterson v. United States, 508 F.2d 1222, 1223 (8th Cir. 1975), suggests that we favor the majority view. Since Rose's trial the Federal Rules of Evidence have come into effect. Rule 609(e) now clearly allows impeachment of a witness by a conviction which is being appealed. Although the rule was not in effect at the time of trial, we regard it as persuasive authority. Under these circumstances we hold that denial of the motion to suppress testimony of the finding of guilt in Simmons' trial was proper. We find no significant difference between the jury's finding of guilt and the entry of judgment thereon as far as probative value for impeachment purposes. United States v. Canaday, 466 F.2d 1191, 1192 (9th Cir. 1972); see United States v. Turner, 497 F.2d 406, 407-408 (10th Cir. 1974).

Rose was arrested by Kansas City police on Sunday, January 12, 1975, about 2 a. m. and taken to the Kansas City Jail where he was interrogated by the FBI at about noon. At that time he made an exculpatory statement, which was used at trial to impeach him. Rose was taken to the Jackson County Jail later on the 12th. On Monday, January 13, 1975, he was taken before a federal magistrate. Rose contends his January 12 statement should not have been admitted because of impermissible delay in taking him before a magistrate. Since the statement substantially agreed with the alibi defense presented at trial, we find that error in its admission, if any, was harmless.

On January 20, 1975, the accused was again taken before a federal magistrate for a removal hearing under Fed.R.Crim.P. 40. At that hearing the government presented no evidence and therefore the defendant was released because probable cause had not been established. However, Rose was arrested on a state warrant by the sheriff of Randolph County before he left the federal courthouse, and was then taken to jail in Huntsville, Missouri. He was never questioned by state officers, but was questioned again by the FBI on January 22, 1975, at which time he confessed to the bank robbery.¹ Rose contends it was error to admit the confession into evidence for two reasons. First he argues that at the time he confessed he was illegally detained under a federal-state working relationship, and secondly, he asserts that the government did not show that the state had probable cause to arrest him.

Rose's first challenge to his confession is apparently that United States authorities entered into an arrangement with Missouri authorities to keep him in state custody even though he could not have been kept in federal custody because of delay in indictment.² He relies on Anderson v. United States, 318 U.S. 350, 355-356, 63 S.Ct. 608, 87 L.Ed. 829 (1943). The question of an illegal working relationship was explored at the hearing on the motion to suppress, and federal and state officers denied any such relationship. There was no testimony, however, by the prosecuting attorney who signed the complaint. It appears that the accused was arrested on a state charge and the warrant for the arrest was issued on January 18, 1975, two days before Rose was released by federal authorities. The arresting officer testified that the warrants had been requested a week before that. Mere suspicion of a working arrangement does not justify reversal. Tucker v. United States, 375 F.2d 363, 370 (8th Cir.), cert. denied, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189 (1967); Young v. United States, 344 F.2d 1006, 1008-1011 (8th Cir.), cert. denied, 382 U.S. 867, 86 S.Ct. 138, 15 L.Ed.2d 105 (1965). We agree with the trial judge's holding that at this point there has been no adequate showing of an illegal working relationship similar to the one condemned in Anderson. This holding, however, is subject to whatever further proof may be introduced on remand for the hearing on probable cause for the state arrest.

Rose also contends that his motion to suppress the January 22, 1975, confession should have been granted since the government failed to prove that the state had probable cause...