Bell v. United States

• Decision Date: 11 January 1967
• Docket Number: No. 20883.,20883.
• Citation: 371 F.2d 35
• Parties: Roy BELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.2d 35 (1967)

Roy BELL, Appellant, v. UNITED STATES of America, Appellee.

No. 20883.

United States Court of Appeals Ninth Circuit.

January 11, 1967.

Harry J. Kreamer, Oakland, Cal., for appellant.

Cecil F. Poole, U. S. Atty., D. R. Urdan, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and HAMLEY and ELY, Circuit Judges.

MADDEN, Judge:

This is an appeal from a judgment of conviction, after a jury trial in the district court, of robbery of a bank which was federally insured and was a member of the Federal Reserve System.¹

The appellant and one Harold Williams were indicted for having, on October 28, 1965, robbed a branch of the Wells Fargo Bank in San Francisco. The appellant was tried separately from Williams. The prosecution presented evidence that, on the day of the robbery, the appellant appeared at a teller's window in the bank. The teller and two other witnesses described, at the trial, the clothing worn by the appellant, and testified that he had a goatee, and a scar on his face. He asked where he could open a checking account and was directed to the officer's platform of the bank. He moved to another teller's window and then, displaying a gun, leaped over the counter to where two tellers were standing and, pointing the gun in their direction, said, "Don't anybody move, don't make me kill anybody." He grabbed money from the tellers' cash drawers, stuffed it into his pockets, leaped back over the counter and ran out of the bank. Three tellers, at the trial, identified the appellant as the robber.

The Federal Bureau of Investigation was notified and began an investigation. It had heard that one Dixon had been "casing" banks for possible hold-ups and that Dixon was a make-up artist. Dixon's girl friend told the FBI that appellant and Williams had committed the robbery, narrating to the FBI the details of the action and telling them that appellant and Williams had been made up for the occasion. The FBI had learned that appellant, a few moments after the robbery, had wrecked the get-away car and called his girl friend to come and pick him up, and that he was still wearing some makeup when she picked him up.

The FBI knew that Williams had been captured at the scene of the robbery, identified as one of the hold-up men, and put in jail; that he had been wearing, during the hold-up, an item of clothing which he had received from the appellant; that appellant, in the evening of the day of the robbery, had caused his girl friend to send $300 by a Western Union messenger to Williams at the jail; that appellant, after the robbery, was driving Williams' automobile; that on November 1, two of the bank tellers had picked appellant's picture out of several pictures shown them and identified it as a picture of the robber.

On the evening of November 1, 1965, at approximately 8:35 p.m., the FBI arrested the appellant on the street in San Francisco. He was questioned for about an hour by FBI agent Padden, and admitted the robbery.

As we have stated above, the appellant was indicted, tried and convicted. At his trial the evidence recited above was introduced by the prosecution, as was also the oral confession which the appellant made to the FBI. In his appeal from that conviction, the appellant specifies only one alleged error, which he states as follows: "The admission of testimony about appellant's alleged oral testimony is hereby specified as error." Obviously, the reference in the specification of error to "appellant's alleged oral testimony" is a reference to the appellant's oral admission to the FBI agent that he committed the robbery, which admission was testified to at the trial by the FBI agent who heard it.

The appellant's argument is that the arrest of the appellant was illegal and that, therefore, the admission obtained from the appellant by the FBI shortly after his arrest was unconstitutionally obtained; that it was the fruit of a poisonous tree, the allegedly illegal arrest. He cites Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441. The Government concedes that if the arrest of the appellant was a violation of his constitutional right under the Fourth Amendment, his admission of guilt, made shortly after his arrest and while in custody, would be inadmissible in evidence. In view of the Government's concession we turn to a consideration of the validity of the arrest without expressing any view as to whether invalidity of an arrest is alone sufficient to render inadmissible the incriminating statements made after the arrest occurred.

The Government says that the appellant's arrest was not illegal; that the FBI had ample information to give it "reasonable grounds to believe" that the appellant had robbed the bank; and that, therefore, its agent could legally make the arrest. 18 U.S.C. § 3052. That being true, the Government says that Wong Sun has no application to this case.

We have recited what the FBI knew when it made...