Evans v. United States

• Decision Date: 23 December 1963
• Docket Number: 17225.,No. 17224,17224
• Citation: 325 F.2d 596
• Parties: Charles EVANS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

325 F.2d 596 (1963)

Charles EVANS, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17224, 17225.

United States Court of Appeals Eighth Circuit.

December 23, 1963.

Robert H. Berkshire, Omaha, Neb., for appellant.

Theodore L. Richling, U. S. Atty., Omaha, Neb., for appellee.

Before VOGEL, MATTHES and MEHAFFY, Circuit Judges.

VOGEL, Circuit Judge.

Charles Evans, the appellant herein, was charged in two indictments returned in the United States District Court for the District of Nebraska. Indictment No. 0744 contained three counts alleging violations of 18 U.S.C.A. §§ 2113(a), (b) and (c) in that the appellant individually and in concert with Richard Lee Davis and Charles Edward William Saxton did commit the crimes of bank robbery as defined in the foregoing sections. In indictment No. 0802 appellant was accused of transporting in interstate commerce stolen money of a value exceeding $5,000 in violation of 18 U.S.C.A. § 2314. Davis pleaded guilty as to the charges against him. Saxton, who was alleged to have been the driver of the car used by Davis and Evans in getting away after the robbery, was tried and acquitted. The two indictments against appellant Evans were consolidated for trial.¹ Tried before a jury on November 13, 14 and 15, 1962, appellant was found guilty on all three counts of indictment No. 0744 and on one count of indictment No. 0802. Appellant was sentenced on indictment No. 0744 to prison confinement for a term of 20 years on each of Counts I and III, such sentences to be served concurrently and not consecutively. No sentence was imposed on Count II. On indictment No. 0802 the appellant was sentenced to prison confinement for a term of five years, such sentence to be served consecutively to the prior sentence. In other words, appellant was sentenced to serve a total of 25 years.

In this appeal, wherein the appellant is represented by counsel appointed by the court, three issues are raised:

1. That the United States illegally transported the defendant from the district of arrest to the district where the warrant was issued in violation of the provisions of Rule 40 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and that accordingly the District Court did not have jurisdiction over the defendant-appellant and that all proceedings subsequent to his arrest were a nullity;

2. That evidence of admissions, confessions and actions of the appellant after arrest for a period of twelve hours before he was arraigned by a United States Commissioner were inadmissible and the District Court committed error therein;

3. That it was error on the part of the trial court to fail to instruct the jury that it must find beyond a reasonable doubt that the confession was freely and voluntarily given and that unless they so find they should not give any consideration to the confession in weighing the guilt or innocence of the defendant.

In addition to the foregoing, the appellant filed supplemental briefs pro se supportive of those filed by his attorney but also charging additional errors in that he was arrested without a warrant; that upon being handcuffed various items were forcibly taken from him, such as his wallet containing $385, his Social Security card, his savings account book, his sport coat, and a pair of shoes. Appellant sought recovery of these items; his requests were denied, and thereupon error is predicated. Additionally, he claims that there was error in failure to provide him with a preliminary hearing; that there was error in the indictment (not pointed out); that he had been held incommunicado in McCook, Nebraska, and in Lincoln, Nebraska, and that he was forced to take part in a line-up contrary to the provisions of the Sixth Amendment to the Constitution of the United States.

At the jury trial of the appellant the evidence indicated the following: On April 14, 1962, the First State Bank of Enders, Nebraska, whose deposits were insured by the Federal Deposit Insurance Corporation, was robbed at gunpoint by two men. Money obtained by the robbers totalled $21,170. On the same day of the robbery at approximately 2:30 p. m. Richard Lee Davis was apprehended while walking down a highway away from an abandoned car which answered the description of the car used in the get-away after the robbery. On his person and stuffed into various pockets was a total of $9,144.85, admitted by him to be part of the money taken in the robbery. Saxton was apprehended at approximately 9:30 p. m. on the day of the robbery. Both Davis and Saxton were taken by the local sheriff into Wray, Colorado, before they were turned over to federal authorities. On the following day, April 15, 1962, a complaint for violation of 18 U.S.C.A. § 2113 was filed and a warrant for the arrest of the appellant was issued, probably at McCook, Nebraska, by United States Commissioner Eva L. Spencer of Indianola, Nebraska.

Appellant Evans was arrested by Sheriff Ernest Price of Yuma County, Colorado, about sixteen miles northwest of Wray, Colorado, shortly after 10:30 a. m. on April 18, 1962. Sheriff Price's arrest followed information he received from the FBI to the effect that a warrant was outstanding for the arrest of appellant as one of the bank robbers. Upon being searched, appellant was found to have $365.62 in his possession. At the time of arrest, the sheriff advised the appellant that he was entitled to be represented by counsel and that any statement he might make might be used against him but that he did not have to make any until he had seen counsel. According to the sheriff:

"* * * he told me that he and Saxton was driving the car; that Davis and he robbed the bank but he thought it was a co-op concern when they went in, but after they went in they went ahead and robbed it, and took the money in sacks and left and proceeded on, and Saxton was doing the driving.

"We went over to where he said he had got out of the car, and he showed us a draw there, which is about 50 yards from the highway, and he said this airplane was above him and he laid down on his left side and dug a hole and buried this money.

"He said after the airplane left, he saw this stack and crawled in the stack, and we had — there were four of us there — three of us first, and then in a little bit there was a farmer stopped there."

In response to the sheriff's suggestion that he "might just as well tell us where the money is", the appellant said, "I will tell you that much. It is not here. I will take you where the money is at." He directed the sheriff and other law officers to the area where the abandoned car had been found and where he said the money was buried and where an unsuccessful search for it was conducted.

At approximately 1:00 p. m. the appellant was taken into Wray, Colorado, where he was allowed to shave, bathe and given clean clothing. Appellant told the sheriff that he had had breakfast Saturday morning, the day of the robbery, but had had no food thereafter. Upon the advice of a dietitian, he was fed a light meal consisting of a malted milk and a raw egg.

At 1:29 p. m. the appellant was interviewed at Wray by FBI Special Agent Donald J. Sebesta. Prior thereto appellant had been in the custody of state law enforcement officers only. Sebesta advised the appellant who he was, showed him his credentials, told him he did not have to talk to him if he did not desire to do so and that anything he might say could be used in a court of law against him, and that he had the right to have an attorney. Appellant admitted his identity, that he was Charles William Evans, and admitted that he, in company with Davis and Saxton, had robbed the First State Bank at Enders, Nebraska, on April 14th; that he thought it was a co-op and not a bank.

At the trial, the appellant was identified by the cashier of the bank and by his wife, who was also a bank employee, as being one of the men who participated in the robbery. Richard Lee Davis, who admitted participation in the robbery and who pleaded guilty, testified that he and the appellant robbed the bank together. The admissions of the appellant were made verbally to Sheriff Price at the place of arrest. These were admitted, over objection, during the government's case in chief. Similar admissions made to FBI Agent Sebesta were not offered by the government until rebuttal, and after the appellant had taken the stand and testified in his own behalf, had admitted that he told Sheriff Price that he "robbed something over there," but nevertheless denied the bank robbery.

The appellant was the only witness in his behalf. He admitted to having been convicted of felonies by his pleas of guilty on three separate occasions. He claimed that in this instance he pleaded not guilty because that was the truth. He denied the robbery and denied transporting stolen money across state lines. We relate appellant's story of the evening prior to and the day of the robbery indicating his version as to how he became involved. He testified that he, Davis and Saxton and a man by the name of Joe Hunt were in a booth in a bar in Denver, Colorado, drinking on the evening before the robbery; that while there one Don Priest told them of a bank in Enders, Nebraska, which was some sort of farmers co-op; that it handled crop money and that the farmers in that area deposited their money there, and that there would be around $60,000 to $70,000 in the bank. Appellant claimed that he told Priest that he did not want to become involved in any way, that he was on parole at the time. Priest tried to get him to rent a car, obviously for use in the intended robbery, and attempted to give him five $20 bills. The appellant claimed that he could not rent a car because his license had expired and couldn't be renewed until he had terminated his parole. Hunt offered to "get you gentlemen a car without any cost". Later Hunt and Saxton returned and advised that they had a car and there was conversation about needing a screwdriver to exchange the...