Jack v. United States

• Decision Date: 25 March 1969
• Docket Number: No. 23171.,23171.
• Citation: 409 F.2d 522
• Parties: Arthur Dale JACK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 522 (1969)

Arthur Dale JACK, Appellant, v. UNITED STATES of America, Appellee.

No. 23171.

United States Court of Appeals Ninth Circuit.

March 25, 1969.

R. Max Etter, Sr. (argued), Spokane, Wash., for appellant.

James J. Simonelli (argued), Asst. U. S. Atty., John P. Hyland, U. S. Atty., Sacramento, Cal., for appellee.

Before HAMLEY, HAMLIN and HUFSTEDLER, Circuit Judges.

HAMLIN, Circuit Judge:

In an indictment found by the Grand Jury in the United States District Court for the Eastern District of California, Lee and Doty were charged with a violation of 18 U.S.C. § 2113(a) (d) (armed bank robbery), and Arthur Dale Jack, appellant herein, was charged with aiding and abetting Lee and Doty in the commission of such crime (18 U.S.C. § 2). Prior to Jack's trial Lee and Doty confessed to the crime, and each pleaded guilty. Appellant pleaded not guilty and was convicted after a jury trial. A timely appeal was filed in this court, which has jurisdiction under 28 U.S.C. § 1291.

At appellant's trial both Doty and Lee testified for the government and implicated appellant in the arranging and planning of the bank robbery and in driving a getaway car after the robbery. Prior to the trial Lee had made a statement which could be interpreted as exculpating Jack from the bank robbery. Also, during the trial Doty admitted that he had testified falsely concerning the group's activites on the day before the robbery. However, in their confessions and in their testimony at the trial, Lee and Doty consistently implicated Jack in the robbery. The evidence was clearly sufficient to support the conviction.

Appellant's main contention on appeal is that the Grand Jury indictment under which he was tried and convicted should be declared void. The basis for this claim is that the only testimony before the Grand Jury was that of a government agent whose testimony was hearsay, that such testimony was not recorded, and that no minutes of the Grand Jury proceedings were kept.

The record shows that prior to trial appellant filed motions for a bill of particulars and for discovery and inspection. The motion for discovery and inspection was denied, but the motion for a bill of particulars was partially granted. In the bill of particulars filed by the government appellant was specifically advised that he aided and abetted the commission of the offense charged by participating in the planning and arrangements to rob the bank, that he shared in the proceeds of the bank robbery, and that he assisted and facilitated the escape of the other principals by driving one of the getaway cars after the perpetration of the bank robbery. At the same time the trial judge reminded the government of its duty to give the defense access to all statements it had exculpating Jack. The government then turned over the statement of Lee implying that Jack did not participate in the robbery. The prosecution also turned over the written confessions of Lee and Doty.

After the appellant's trial had commenced and the jury had been impaneled, appellant moved for the production of the Grand Jury transcript and the minutes. When it was shown that there was no transcript of the testimony nor any minutes, and that the testimony before the Grand Jury consisted of the testimony of a federal agent who there testified concerning the confessions which had been made by both Lee and Doty admitting their participation in the crime and implicating appellant, a motion was then made by appellant to dismiss the indictment on the ground that the indictment was obtained solely by way of hearsay testimony. That motion was denied. When the trial on the merits had been completed, appellant renewed his motion to dismiss, which motion was likewise denied.

The record shows that at the time the government agent testified before the Grand Jury, both Lee and Doty were in custody and had given statements admitting their participation in the crime. These statements clearly implicated the appellant. The agent summarized before the Grand...