553 F.2d 1247 (10th Cir. 1977), 76-1023, United States v. Fay

Docket Nº:76-1023.
Citation:553 F.2d 1247
Party Name:UNITED STATES of America, Appellant, v. James Bernard FAY, Jr., and Joseph John Tiernan, Appellees.
Case Date:April 28, 1977
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1247

553 F.2d 1247 (10th Cir. 1977)

UNITED STATES of America, Appellant,

v.

James Bernard FAY, Jr., and Joseph John Tiernan, Appellees.

No. 76-1023.

United States Court of Appeals, Tenth Circuit

April 28, 1977

Argued and Submitted Nov. 18, 1976.

Page 1248

John P. Rupp and Kenneth S. Geller, Attys., Dept. of Justice, Washington, D. C. (Richard L. Thornburgh, Asst. Atty. Gen., and Ramon M. Child, U. S. Atty., Salt Lake City, Utah, with them on the Brief), for appellant.

George J. Romney, of Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, for appellee, James Bernard Fay, Jr.

Walter O. Cass, Denver, Colo., for appellee, Joseph John Tiernan.

Before SETH and HOLLOWAY, Circuit Judges, and CHILSON, United States Senior District Judge [*].

SETH, Circuit Judge.

The defendants were charged with conspiracy to rob a federally insured bank in Salt Lake City. Before trial, motions to suppress evidence were made by the defendants, and defendants sought to argue the motions before trial. The trial judge, however, refused to hear the motions before trial. The jury was impaneled and the Government put on a portion of its case. Nine Government witnesses testified. Judge Ritter, the trial judge, then excused the jury to consider the motions to suppress. The judge then also inquired whether the bank had actually been robbed. He was informed that it had not been robbed, and he thereupon without a factual hearing granted the motions to suppress.

After the motions to suppress were granted, the Government put on a witness to prove that the bank was federally insured. Also the Government put other witnesses on the stand, but in view of the ruling on the motion to suppress, they did little more than identify themselves. The trial judge then stopped the trial, and excused the jury from the courtroom. The defendants moved for a judgment of acquittal which was then argued. At the conclusion of the argument, the trial judge made several references to the fact that the bank had not been robbed, and that defendants had not entered the bank. He also stated: "There is no evidence that anybody did any act to effect the object of the conspiracy. None. Bring the jury in." The jury was told that a judgment of acquittal would be entered by the court. The motions were then granted by the entry of a "judgment of acquittal." The Government has taken this appeal urging, of...

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