Mills v. United States, 8063.

• Decision Date: 19 August 1960
• Docket Number: No. 8063.,8063.
• Citation: 281 F.2d 736
• Parties: Raymond Lee MILLS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

281 F.2d 736 (1960)

Raymond Lee MILLS, Appellant, v. UNITED STATES of America, Appellee.

No. 8063.

United States Court of Appeals Fourth Circuit.

Argued June 8, 1960.

Decided August 19, 1960.

As Amended September 14, 1960.

Robert S. Bourbon and Kelley Litteral, Silver Springs, Md., for appellant.

Robert E. Cahill, Asst. U. S. Atty., Baltimore, Md. (Leon H. A. Pierson, U. S. Atty., Baltimore, Md., on brief), for appellee.

Before SOPER and BOREMAN, Circuit Judges, and CHARLES F. PAUL, District Judge.

BOREMAN, Circuit Judge.

Raymond Lee Mills was convicted on each of four counts of an indictment charging him with participation in the armed robbery of the Central Bank of Howard County, Clarksville, Maryland. Indicted as codefendants were Raymond's wife, Marjorie Viola Mills, and Glen Wallace O'Dell. Raymond and Marjorie Mills, upon their pleas of not guilty, were tried and convicted by the court sitting without a jury. O'Dell pleaded guilty and was sentenced. Upon motion of Raymond's counsel, the court granted an extension of four days beyond the five days fixed by Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.¹ within which to move for a new trial, but no such motion was made within the enlarged period. Several days later a motion for a new trial on the ground of newly discovered evidence was filed and it is from the denial of this motion and from the judgment of conviction that Raymond Mills prosecutes his appeal.

The evidence at the trial disclosed that the Central Bank of Howard County was robbed shortly after six o'clock p. m. on November 8, 1957, by a lone armed gunman. Glen Wallace O'Dell confessed that he was the man who entered the bank and made off with the money. Escape from the scene of the crime was accomplished in a stolen car in which an accomplice of O'Dell was waiting. They then drove about a mile, abandoned the car and ran across a field, according to O'Dell's statement. O'Dell identified his accomplice as Raymond Mills and implicated Marjorie Viola Mills with the planning and preparation for the robbery.

The local law enforcement officers discovered the getaway car some thirty-five to forty minutes after the robbery on Route 29 near the home of Sam Fyock, Sr., about one mile from the bank. Shortly thereafter FBI agents from the Baltimore office arrived at the scene. In an effort to determine whether the occupants of the getaway car had been seen, the FBI agents interviewed the persons living in the surrounding area. They were told by Sam Fyock, Sr., that he first learned of the car being parked in front of his house from his son when the latter returned from the bank and that he personally saw neither the car nor its occupants. Sam Fyock, Jr., told the agents he left for the bank shortly after six o'clock p.m.; that as he was turning around in the driveway he saw a parked car with a man standing beside it; that as he stopped before entering the highway, he saw the man carrying "a zipper case" walk across the highway toward another car; that the man was 5 feet 9 inches in height, weighed 150 pounds, was 30 to 35 years of age, wore tan trousers, a plaid suit coat and no hat; and that as he was driving toward the bank he "had an impression" a car followed him for some little distance before turning off on another road.

Dolly Fyock, the daughter of Sam Fyock, Sr., told the agents that when she arrived home between 6:15 and 6:30 p.m. she noticed a parked car near her father's property, that this was not unusual and that she did not notice anybody around. Fyocks' next door neighbor, Nancy Garland, told the agents that shortly after six o'clock p.m. she was on her porch shaking rugs and saw a car parked near her house; that the lone occupant of the car got out on the passenger side and walked to the rear of the car; that just before entering the house she saw another car parked across the road; that about three minutes later she returned to the porch and saw a man who appeared to be walking toward her house until he veered off toward Fyock's house; and that she could describe neither the man as to "age, appearance, race, height, what he was wearing or anything else" nor the cars as to "make, model, color, license number, or any other thing that would identify" them. Reports of these interviews were furnished by the FBI agents to the United States Attorney when Raymond and Marjorie Mills and Glen Wallace O'Dell were arrested for the robbery some twenty-one months later.

The United States Attorney, after reviewing the FBI agents' reports, concluded that the statements of these persons were not materially pertinent to the case and did not call them to testify nor did he disclose the substance of the reports to the defense. Raymond Mills now contends that the failure of the United States Attorney to apprise the court and the defense of the contents of these reports was a withholding of vital evidence which entitles him to a new trial. The substance of the reports was first made known upon the hearing of the motion for a new trial.

Even assuming, for purposes of this appeal, that the withholding of the substance of the FBI reports from the court and defense was ill considered, such withholding does not entitle Raymond Mills to a new trial. The motion for new trial was not filed in this case within the five days provided by Rule 33 of the Federal Rules of Criminal Procedure, or within the additional four days by which the court enlarged the time for filing such motion. Therefore, as found by the District Court, Raymond Mills is limited in his efforts to gain a new trial to a showing of newly discovered evidence.

On the question of newly discovered evidence, the court said in Johnson v. United States, 8 Cir., 1929, 32 F.2d 127, 130:

"* * * There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. * * *"

See United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647, 649; Prisament v. United States, 5 Cir., 1938, 96 F.2d 865, 866.

At the hearing of the motion for new trial, Raymond Mills produced the parties whose statements the United States Attorney is accused of wrongfully withholding. As the District Court pointed out in his oral opinion at the close of the hearing, the record is not clear as to how these witnesses were discovered. Raymond Mills, of course, contends that he was only able to discover them after diligent inquiry and searching. We find nothing to support this contention.

The record indicates that Sam Fyock, Sr., was known to Raymond Mills and that since both were, or had been, in the trucking business they had, at times, "swapped favors"; that long before his trial Raymond Mills knew the getaway car had been discovered in the vicinity of Sam Fyock's home. Additionally, Mr. Fyock testified that Raymond's mother called him before the trial and told him that Raymond had sent word for him to come to the trial if he wanted. While there is no evidence that Mr. Fyock related to her any of the details, the fact that Raymond asked Mr. Fyock to come to the trial indicates that he hoped Mr. Fyock would testify if he possessed favorable information. Having had the information as to where the getaway car was discovered and having personally known Mr. Fyock, Raymond Mills cannot be said to have exercised due diligence since he failed to follow up these leads. Mr. Fyock testified that shortly after the robbery he discussed the getaway car incident with his son, Sam, Jr., his daughter, Dolly, and Nancy Garland. It is logical to assume that had Raymond Mills followed his initial lead to Mr. Fyock, he would have learned all that these four parties knew. Therefore, we conclude that the testimony offered by these four witnesses, even though at variance with their statements to the FBI agents and more favorable to Raymond's theory of the case, does not meet the newly discovered evidence test.

Having concluded that this evidence could have been discovered by the exercise of due diligence, it is unnecessary to consider Raymond's contention that the District Court abused its discretion in determining the credibility of the witnesses who testified.

Raymond Mills next contends that at the hearing on the motion for new trial, the District Court erred (1) in refusing to compel Marjorie Mills to testify in his behalf, and (2) in claiming for Marjorie Mills, in her refusal to testify, her personal privilege guaranteed by the Fifth Amendment of the Constitution of the United States.

Marjorie Mills did not testify at the trial but two signed statements wherein she implicated herself, Raymond Mills and Glen O'Dell in the bank robbery were introduced. The court, at the conclusion of the evidence, granted the defense motion to strike all references in the signed statements to Raymond Mills. At the hearing on the motion for new trial, Marjorie Mills was called as a witness under a proffer that she would testify that all references to Raymond Mills in her signed statements were false, and that she had stated to counsel that she would refuse to testify because she was in fear of her life if she took the stand.

The admissibility of evidence in criminal cases in the federal courts is governed by Rule 26 of the Federal Rules of Criminal Procedure. That rule, in part, provides: "* * * The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of...