U.S. v. Bell

• Decision Date: 25 February 1987
• Docket Number: No. 86-2340,86-2340
• Citation: 812 F.2d 188
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald BELL, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 188

812 F.2d 188

UNITED STATES of America, Plaintiff-Appellee, v. Ronald BELL, Defendant-Appellant.

No. 86-2340

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 25, 1987.

Joe M. Egan, Jr. (Court-appointed) Kerrville, Tex., for defendant-appellant.

Michael R. Hardy, C. Larry Mathews, Jr., Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, and GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Ronald Bell, convicted by a jury of attempting to extort funds from a bank, challenges the jury verdict and raises two issues in this appeal: (1) that an identification of him by one witness was not credible, and that, without this identification, the evidence does not support his conviction, and (2) that even if this identification is credited, the evidence is insufficient to prove his guilt without attributing to him responsibility for the acts of his accomplice and that such attribution is improper because it was not authorized by the trial court's charge to the jury. We find no merit in either contention and affirm his conviction.

I.

About 10:20 a.m. on December 17, 1985, while Mark Haufler was at work in the Charles Schreiner Bank in Kerrville, Texas, his wife, Gaye Haufler, heard a knock at the door connecting her kitchen with the garage. She opened the door and found herself confronted by a man wearing a ski mask and an olive drab fatigue jacket, and holding a gun. He ordered Mrs. Haufler to be quiet, directed her to sit, and handed her a three-by-five-inch index card. Mrs. Haufler testified that the card contained the following message:

"Read this out loud. Do not look at me. You must cooperate. This is not a joke. There is another man actively involved today. If you and your husband do not cooperate, he is our insurance and he will come back and you will both pay."

The card also directed her to call what she believed was a local Kerrville telephone number and to describe the year, color, and model of vehicle her husband drove, then to call her husband at the bank and read him another message. The gist of the message to her husband, on other index cards handed her, instructed Mr. Haufler, an assistant vice-president and loan officer at the bank, not to contact the police, to assemble $100,000 in unmarked, small-denomination bills within thirty minutes, and then to wait at a pay phone in front of the telephone company building near the bank for further directions.

After Mrs. Haufler made these calls, her hands were bound with a plastic, self-locking electrical cable tie about one foot long. She was ordered into her family's large Chevrolet Suburban wagon, leaving her four-year-old daughter alone in the house, and forced to kneel in the floor well of the passenger seat. Her abductor then drove a short distance to an isolated area in the Texas hill country. There he strapped her to the car with additional cable ties. Mrs. Haufler, in the seventh or eighth month of pregnancy, was then abandoned.

Back in Kerrville, Mr. Haufler informed his supervisors about the call. Bank officers contacted local police and the Federal Bureau of Investigation (FBI) and began to assemble the funds demanded. Local police quickly established surveillance positions around the telephone company. Mr. Haufler went to the pay phone without the money but accompanied by another bank employee. When the phone rang, Mr. Haufler answered and said he did not have the money together yet. He was told to come back to the same phone with the money but not to have anyone else with him. Mr. Haufler had not mentioned that he had anyone with him, and he realized that he was being watched. Surveillance officers noticed a dark blue pickup truck with dual rear wheels and a door painted a different color than the rest of the vehicle parked at a convenience store with a clear line of sight to the phone.

Mr. Haufler returned in a few minutes with $100,000 drawn from bank funds and received another call, and he was then directed from pay phone to pay phone around town, receiving further instructions from the same caller at each phone, for about an hour, when he finally was directed to go to a scenic overlook point near town and to look for further instructions in a trash can there. Police followed at some distance in three unmarked vehicles, unwilling to use radio communications for fear that they might be overheard if an extortionist had a radio scanner that could receive police broadcasts.

In a trash can at the scenic overlook, Mr. Haufler found a typed three-by-five index card directing him to deposit the money in the trash can and to go back to town and wait at a pay phone for a call telling him where to find his wife. He obeyed these instructions, and the officers who followed him out into the countryside, unaware that he had dropped off the money, followed him back towards town. The officers decided to find out what instructions had been given at the overlook, and stopped Mr. Haufler, only then learning that the money had been left behind. Officers returned to the scenic overlook, some driving past and one pulling into the parking area. Several officers observed the distinctive dual-wheel pickup stopped at one end of the overlook parking area with one man in the truck's cab. One local officer driving past recognized Allen Bell at the wheel and also saw a man clad in a green fatigue jacket at the end of the scenic lookout parking area some thirty or forty yards from the truck. This officer believed that Allen Bell had recognized him and that Allen knew he was a police officer. Because other vehicles had pulled up near the trash can and departed, the officer who was in the parking area checked the trash can to see if anyone had removed the bag containing the money, but found that it was still there. The man wearing the green fatigue jacket was then seen to approach the dual-wheel vehicle, speak to the driver, and get into the truck. The dual-wheel pickup truck then left the scenic overlook area.

From a distance, one police vehicle followed the truck into town, staying far behind. The officers temporarily lost sight of the truck but soon located it again parked and empty. Shortly afterwards, two men approached and entered the truck, and one officer recognized the man then driving as appellant Ronald Bell and the passenger as his brother, Allen. Officers also determined that the truck was registered to appellant.

Meanwhile, Mr. Haufler continued to wait by the pay phone for news of his wife's location, but no call came, and officers were hesitant to take any action until they were certain Mrs. Haufler was safe. One officer watched the trash can waiting for a possible pick-up. Unbeknownst to everyone, Mrs. Haufler had broken free of her bonds while attempting to shift her position in the Suburban sometime after one o'clock that afternoon. Afraid to leave the vehicle because she thought her abductor might be watching, she waited until dusk, when she walked to a nearby road, flagged down a vehicle, and was given a ride into town. She contacted the police and described the man who had abducted her. One officer realized that the limited description she was able to give (because of the ski mask) was consistent with a description of appellant.

Aware that Mrs. Haufler was safe, police then spotted appellant's dual-wheel truck again, stopped it, and sought appellant's permission to search the vehicle, which he granted. The officers found a toy pistol, a real pistol, two loaded shotguns, a typewriter, two green fatigue jackets, and a bag full of plastic cable ties. Other officers retrieved the money and instruction card from the scenic overlook trash can and the plastic ties from the Suburban.

Further significant evidence at trial linked appellant to the extortion attempt. Mrs. Haufler identified him, in court, as the man she had seen walking by her house the day before she was taken hostage and testified that his eyes matched those of her kidnapper. Evidence was introduced showing that the typewriter found in appellant's truck was his sister's, but that he had kept the typewriter in his house for an extended period before the extortion attempt. Expert laboratory analysts from the FBI testified that all the plastic cable ties found in appellant's truck when he was arrested while in it came from the same manufacturer and some were even from the same mold as those used to bind Mrs. Haufler; that type samples from the typewriter found in the truck on that occasion were consistent with the type on the index card from the scenic overlook; and that blank index cards found in appellant's house were similar to the instruction card in the trash can.

In addition to this physical evidence, one of appellant's friends, Christopher Norris, testified that appellant had described to Norris, following a comment by Norris concerning lack of funds, a highly similar--although not identical--extortion scheme less than three weeks before Mrs. Haufler was seized. Norris had thought appellant was joking when he unveiled his scheme, but said that the scheme as related by appellant required two men and included taking a bank officer's wife hostage, extorting funds by requiring the bank officer to issue a false loan, communicating only with "three-by-five" index cards containing words cut out of publications and never speaking, wearing a ski mask, and ordering the bank officer to move from pay phone to pay phone to detect any police surveillance.

Additional testimony implicating appellant came from some San Antonio college students who had been returning together from a sorority retreat in a caravan driving down the interstate highway past Kerrville the day before the attempted extortion. After one of the students' vehicles--a pickup truck--had a flat tire near the scenic overlook,...