Government of Virgin Islands v. Dowling, s. 79-2130

• Citation: 633 F.2d 660
• Decision Date: 03 November 1980
• Docket Number: Nos. 79-2130,80-1444 and 80-1445,79-2131,s. 79-2130
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, v. Reuben DOWLING, Appellant. UNITED STATES of America, v. Reuben DOWLING, Appellant. GOVERNMENT OF the VIRGIN ISLANDS, v. Rodney HENDRICKS, Appellant. UNITED STATES of America, v. Rodney HENDRICKS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 660

633 F.2d 660

GOVERNMENT OF the VIRGIN ISLANDS, v. Reuben DOWLING, Appellant.

UNITED STATES of America, v. Reuben DOWLING, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS, v. Rodney HENDRICKS, Appellant.

UNITED STATES of America, v. Rodney HENDRICKS, Appellant.

Nos. 79-2130, 79-2131, 80-1444 and 80-1445.

United States Court of Appeals Third Circuit.

Argued April 24, 1980.

Decided July 9, 1980.

Certiorari Denied Nov. 3, 1980. See 101 S.Ct. 374.

Roland B. Scott, Jr., Christiansted, St. Croix, V.I, argued for appellant Dowling; Reuben Dowling on brief pro se.

R. Lolita Jones, Christiansted, St. Croix, V.I., argued, with whom Albert A. Sheen, Christiansted, St. Croix, V.I., was on the brief, for appellant Hendricks.

Douglas R. Schwartz, Asst. U.S. Atty., Christiansted, St. Croix, V.I., argued with whom Ishmael A. Meyers, U.S. Atty., Christiansted, St. Croix, V.I., was on the brief for appellees.

Before ADAMS, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

Reuben Dowling (herein referred to as Reuben) and Rodney Hendricks appeal from their conviction in the District Court of the Virgin Islands of conspiracy to commit bank robbery, armed bank robbery and related crimes charged in informations filed against them and a codefendant, Roosevelt Dowling (herein referred to as Roosevelt), by the United States and the government of the Virgin Islands.

The three-count federal information charged the three defendants with: (I) armed robbery of the Bank of America, in violation of 18 U.S.C. § 2113(a), (II) putting in jeopardy by the use of a handgun the lives of employees and customers of the bank, in violation of 18 U.S.C. § 2113(d), and (III) conspiring to commit the substantive offenses charged in the first two counts, in violation of 18 U.S.C. § 371.

The eight counts in the territorial information charged the defendants with: (I) conspiring to rob the Bank of America, in violation of 14 V.I.C. §§ 551(1) and 552, (II) armed bank robbery, in violation of 14 V.I.C. § 1862(2), (III) unauthorized possession of a firearm during the commission of a crime of violence, in violation of 14 V.I.C. §§ 2253(a) and 2254, (IV) automobile theft, in violation of 14 V.I.C. § 1382, and (V), (VI), (VII) and (VIII) assaults with a deadly weapon against three named police officers, in violation of 14 V.I.C. § 297(2), counts V and VI naming Officers Carlos Rodriguez and Angel Santos, respectively, and counts VII and VIII both naming Officer Howard Daniels. Subsequently, counts I, II, and VIII of the Virgin Islands' information were withdrawn.

Roosevelt, Reuben's younger brother, pleaded guilty to the first count of the federal information and Reuben and Hendricks went to trial on the two informations which were consolidated for trial purposes.

The evidence established that the Island Center Branch, located in Sunny Isle, St. Croix, of the Bank of America National Trust and Savings Association, an insured member of the Federal Deposit Insurance Corporation, was held up shortly before the bank's closing time at 2:00 P.M. on April 11, 1979, by two armed men wearing green army fatigue jackets, ski masks pulled down over their faces and sunglasses. These men were identified as Reuben and Hendricks by a bystander who saw them enter the bank. Reuben and Hendricks left the bank area, with a green laundry bag containing approximately $22,000.00 in cash, in a maroon Ford Fairmont car which was owned by one of the bank's customers. They were closely pursued by Officers Daniels, Santos and Rodriguez in an unmarked police car. The police caught up with the fleeing robbers in time to see them transfer from the maroon Ford car to a white Chevrolet van. Officer Daniels, the driver, stopped the police car and stepped out with his gun drawn, shouting, "Police-halt!" The fugitives jumped into the van and sped off.

In the chase that followed the police in the unmarked car were joined by another policeman, Officer Parris, in a marked police car. The police noted the presence of a third person in the van. They identified two of these persons as Reuben and Roosevelt. Several exchanges of gunfire occurred during the course of the pursuit, the police observing shots being fired several times from the back and several times from the front passenger side of the van. Eventually, at the end of a winding dirt road, the three occupants of the van abandoned it and, after a final exchange of gunfire with the police, fled into the bush on foot and escaped.

The ownership of the van was traced to Ena Edney, the mother of Reuben and Roosevelt Dowling. Roosevelt was picked up for questioning by the police on the evening of the robbery. The next day Reuben and Hendricks were arrested.

The foregoing facts, as brought out by other witnesses at the trial, were corroborated and amplified by Roosevelt who testified that a week before the robbery Reuben, in the company of Roosevelt, obtained a .38 caliber revolver and told Roosevelt of his intent to rob the Sunny Isle branch of the Bank of America.

On the morning of the robbery, Reuben offered Roosevelt $1,000.00 if he would participate in the robbery. Roosevelt agreed. Reuben persuaded his mother to lend him her white van and at about 9:00 A.M., Reuben and Roosevelt proceeded to Hendricks' home. Hendricks, carrying a .38 caliber pistol in his back pocket, joined the brothers in the van. Reuben and Hendricks revealed to Roosevelt their plan to steal a car, a red Volkswagen which they had already selected, in which they intended to make their escape from the bank and drive to a predesignated place where Roosevelt would be waiting for them in the van.

Reuben and Hendricks were unable to steal the red Volkswagen and the three spent the morning, for the most part, cruising around St. Croix in the van looking for a car to steal. Reuben and Hendricks loaded their guns and looked over the clothing which they intended to wear while robbing the bank and later discard. Included in the clothing were knit hats which could be worn rolled up or pulled down over the face. Reuben and Hendricks cut eyeholes in the knit hats and the three purchased sunglasses.

At noon the three drank a bottle of wine and at one o'clock they continued their search for a car to steal. Shortly before 2:00 P.M., they drove to a place not far from the bank, parked, and Hendricks and Reuben changed their clothes as planned. The three observed a man and a little girl proceeding from a maroon Ford Fairmont car, which was parked in the bank parking lot, to the bank, leaving a woman behind in the maroon car. Reuben and Hendricks decided they would use this car for their getaway. The two, after telling Roosevelt where to take the van and wait for them, left the van and Roosevelt proceeded to the rendezvous. It was not long before he heard car doors slam and saw Reuben and Hendricks running from the maroon car, which Roosevelt had last seen in the bank parking lot, toward the van. Roosevelt noted the unmarked police car approaching not far behind the maroon car. With Reuben at the wheel, the three drove off in the van. Initially, according to Roosevelt, Hendricks fired about four shots at the police out of the back window. A short time later he fired several more shots from the rear of the van and then fired from the front side window several more shots. The three drove the van up a dirt road into the bush, jumped out and ran, Hendricks carrying the green laundry bag which contained the money stolen from the bank.

No evidence was offered on behalf of the defendants and the case was submitted to the jury which brought in a verdict of guilty on all counts as to both defendants. For the crimes charged by the United States government of which they were convicted the district court sentenced Reuben and Hendricks to terms of imprisonment as follows:

Twenty years on count I-Forcible bank robbery in violation of 18 U.S.C. § 2113(a),

Twenty years on count II-Jeopardizing the lives of bank employees and customers with a dangerous weapon in violation of 18 U.S.C. § 2113(d), and

Five years on count III-Conspiracy to commit bank robbery in violation of 18 U.S.C. § 371,

the sentences on counts I and II to be served concurrently and the sentence as to count III to be served consecutively to the sentences on counts I and II. With respect to the crimes charged by the government of the Virgin Islands, the district court imposed sentences on Reuben and Hendricks as follows:

Five years on count III-Possession of an unlicensed firearm during commission of a crime of violence in violation of 14 V.I.C. §§ 2253(a) and 2254,

Five years on count IV-Unauthorized use of a motor vehicle in violation of 14 V.I.C. § 1382,

Five years on count V-Third-degree assault upon Officer Rodriguez in violation of 14 V.I.C. § 297(2),

Five years on count VI-Third-degree assault upon Officer Santos in violation of 14 V.I.C. § 297(2), and

Five years on count VII-Third-degree assault upon Officer Daniels in violation of 14 V.I.C. § 297(2),

the sentence imposed as to counts III through VII to be served consecutively and to commence after the sentences imposed in the federal case were served. From the judgments entered on the counts of each information, Reuben and Hendricks appeal.

On appeal Hendricks questions the sufficiency of the evidence properly before the jury to support his conviction on the conspiracy count and both Hendricks and Reuben question the sufficiency of the evidence to establish their guilt as to various of the substantive crimes. Both appellants contend that prosecutorial misconduct, errors of the trial judge and the ineffectiveness of their counsel denied them a fair trial. In addition, Reuben, in a brief filed after the filing of a brief on his behalf by his court-appointed attorney, raises a number of contentions. Finally, the appellants contend that separate sentences on the federal and territorial counts were improperly imposed.

We...