Atkins v. United States

• Decision Date: 12 September 1962
• Docket Number: No. 16382.,16382.
• Citation: 307 F.2d 937
• Parties: Harold Jerome ATKINS and William Forte, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

307 F.2d 937 (1962)

Harold Jerome ATKINS and William Forte, Appellants, v. UNITED STATES of America, Appellee.

No. 16382.

United States Court of Appeals Ninth Circuit.

September 12, 1962.

Rudolph G. Kraft, Jr., and Eleanor M. Kraft, San Francisco, Cal., for appellants.

Brockman Adams, U. S. Atty., David J. Dorsey and Douglas M. Fryer, Asst. U. S. Attys., Seattle, Wash., for appellee.

Before ORR, HAMLEY and MERRILL, Circuit Judges.

ORR, Circuit Judge.

Appellants stand convicted on six counts of an indictment charging them with violations of the federal bank robbery laws, 18 U.S.C. § 2113, and a seventh count charging conspiracy to commit offenses prohibited by § 2113 in violation of 18 U.S.C. § 371. Appellants urge reversal of their convictions on the grounds that: (1) the prosecution failed to present substantial independent evidence of the essential elements of the crime of conspiracy; (2) extrajudicial declarations of each appellant were erroneously admitted; and (3) there was insufficient evidence to convict appellant Forte on any of the counts of the indictment.

To present the picture disclosed by the record we summarize the testimony and view it in the light most favorable to the government. Donald Hall testified that he met appellant Forte in the Hit and Run Room of the St. Regis Hotel in Seattle, Washington on May 10, 1958. Forte asked Hall if he wanted to make some money and drew a diagram on a napkin stating how he was going to rob a bank that was located in "Silvana." Forte outlined to Hall the method to be used in robbing the bank: a car would be stolen and driven to the town of Silvana; Forte's accomplice would go into the bank first; Forte would follow him into the bank and get the money; after robbing the bank they would catch a train at 10:38 and make their escape. Eight or nine days later Hall again met Forte in the Hit and Run Room and told him that he did not want to go through with the robbery of the Silvana Bank. This testimony was admitted by the Court for the jury's consideration only with regard to appellant Forte.

Hall also testified that he had met appellant Atkins in the early spring of 1958 and talked with him during the week of May 19, 1958 at the Hit and Run Room. At that time Atkins stated to Hall that the bank robbery would be "real easy" and he wished that Hall would come along since Forte and Atkins "had made a few dry runs and it looked like a cinch." This testimony was admitted by the Court against appellant Atkins on all counts and against appellant Forte only on the conspiracy count, subject to it being connected through later testimony.

Ralph Firman, a fireman for the Great Northern Railway, testified that he saw appellant Forte in the Ivanhoe Hotel in Vancouver, B. C. on May 13, 1958. At that time appellant Forte told Firman that he had cased the bank in Silvana and that he had a foolproof way of robbing the bank and getting away. Forte also stated that he was going to use the Great Northern train to escape by boarding it south of Silvana. This testimony was admitted by the Court only against appellant Forte.

On May 27, 1958, at about 10:30 a. m., a two-tone green, 1956 Ford, occupied by two men, stopped in front of the Silvana Branch of the Seattle First National Bank. The passenger stepped out of the car and entered the bank, carrying a brief case. He approached the teller's window, drew a revolver from his belt and pointed it at Rudolph Kylling, manager of the bank, and Mrs. Alice Jacobs, an employee of the bank. He ordered them to move back against the wall and to lie down on the floor. He then proceeded to take cash from the teller's cash drawer. This man was identified by Kylling and Mrs. Jacobs as appellant Atkins. The driver of the vehicle also entered the bank and crouched behind the planter, aiming a gun at the bank employees. This man was not identified by Kylling or Jacobs since their view of him was obscured by a planter.

George Engebretsen, a resident of Silvana, testified that at approximately 10:30 a. m. on May 27, 1958 he was at the post office, which is two doors from the Silvana Branch of the Seattle First National Bank. He was returning home along the highway, which runs in front of the bank and saw a two-tone dark green, two-door car going toward the bank and thought he recognized a friend of his in the car. He walked out to the highway to talk to him, but then noticed that it was not his friend. Engebretsen also testified that there was a passenger in the car. Engebretsen identified appellant Forte as the driver of the car.

On the afternoon of the robbery, May 27, 1958, F. B. I. agents found an abandoned two-tone green, 1956 Ford (which had been stolen from Root's Used Car Lot) about two miles south of Silvana, near the Great Northern Railroad tracks.

Ralph Firman testified that he saw appellant Forte on the night of May 27, 1958 at the Copper Door Tavern in Seattle, Washington. At this time appellant Forte asked Firman to go out to Forte's car where Forte told Firman that he had committed the robbery, and "it went off slick." Forte then reached under the seat of the car, pulled out a roll of money and gave $50.00 from the roll to Firman. Forte also threatened Firman by telling him: "If the FBI gets any line on me, I'll know who talked, and if I don't get you, Tony Atkins will." Forte also told Firman that he had stolen a 1956 Ford in Everett at six o'clock in the morning and during the robbery Atkins had told the people in the bank to "lay down on their stomach." This testimony was admitted against both appellants on all counts.

Forte again threatened Firman on June 3, 1958 and told him that someone would get to Firman and take care of him if he talked and that Atkins was not a small-time operator, but was a "pro." Forte then required Firman to reach over and pat a gun under Forte's shoulder and stated that if Firman said anything to the F.B.I., Forte would take care of him. Firman again saw Forte about a week later at which time Forte said that he didn't have any money and would have to alibi out because he couldn't run. This testimony was introduced against both appellants on all counts.

Donald Hall testified that he saw appellant Atkins at least two weeks after May 27, 1958 in the Hit and Run Room in Seattle and that Atkins stated that "he knew how to tumble off the train and that's why Bill Forte hurt his knee at the time." Atkins also stated to Hall that only three people, Hall, Atkins and Forte, knew of the robbery and if it ever came out who robbed the bank, that he would get Hall or somebody else would get him. This testimony was admitted against appellant Atkins on all counts and against appellant Forte only on the conspiracy count.

Hall also testified that he talked with appellant Forte about one or two weeks after May 27, 1958 in the Hit and Run Room. At that time Forte told Hall that the train was going pretty fast and this was why he fell off and hurt himself. This testimony was introduced against appellant Atkins only on the conspiracy, count; it was admitted against appellant Forte on all counts.

An examination of the record convinces us that the existence of the conspiracy was established by substantial evidence independent of the extra-judicial statements of the appellant. The robbery was committed by two men, who drove a two-tone green, 1956 Ford, one of whom was identified by two employees of the bank as appellant Atkins. Appellant Forte was identified by Engebretsen as driving a dark green, two-door car toward the bank at the approximate time of the robbery....