Mosco v. United States

• Decision Date: 18 May 1962
• Docket Number: No. 17130.,17130.
• Parties: Boyce Leon MOSCO and Fred John Hansen, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

301 F.2d 180 (1962)

Boyce Leon MOSCO and Fred John Hansen, Appellants, v. UNITED STATES of America, Appellee.

No. 17130.

United States Court of Appeals Ninth Circuit.

April 2, 1962.

Rehearing Denied May 18, 1962.

Russell E. Parsons and Harry E. Weiss, Los Angeles, Cal., for appellant Boyce Leon Mosco.

Morris Lavine, Los Angeles, Cal., for appellant John Hansen.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division; and Richard A. Murphy, Los Angeles, Cal., for appellee.

Before STEPHENS, BARNES and HAMLEY, Circuit Judges.

BARNES, Circuit Judge.

Two separate appeals were consolidated for hearing before us. Boyce Leon Mosco and Fred John Hansen were jointly indicted under 18 U.S.C. § 2113(a) (d), charged with armed bank robbery. The specific charge was that by force, violence and intimidation upon certain individuals,¹ through the use of hand guns, they took $11,297.09 belonging to and in the care, control and possession of ILWH Local 13, Federal Credit Union, "a Federal credit union, as defined in 18 U.S.C. § 2113(g)."²

Jurisdiction was conferred upon the district court by § 2113, Title 18 United States Code. This court has jurisdiction by virtue of 28 U.S.C. § 1291.

I — FACTS

Because the insufficiency of the evidence is urged as one ground of appeal, it becomes necessary to consider the evidence.

The jury, by its verdict, resolved all factual doubts in favor of the government. And this court must view the evidence in the light most favorable to support the judgment.³ Therefore we adopt the statement of facts set forth by appellee in its brief, which appellants do not dispute.

Shortly after 4:00 P.M. on January 21, 1960, a Federal Credit Union (Longshoremen's Local No. 13) at Wilmington, California, was robbed by two gunmen wearing stocking masks. "Approximately" $11,297.09 was taken.

A few minutes before the robbery, a witness (a photographer who occupied the office across the hall from the Federal Credit Union), left the building. As he walked down the front steps, he saw appellant Hansen standing to his left "fiddling" with his shoe. The witness nodded but Hansen did not respond. As he passed Hansen, the witness noted that there was something wrong with the eyes of the man he identified as Hansen; it appeared that one eye did not match the other.

Minutes later, two gunmen wearing stocking masks entered the Credit Union. Three female tellers were standing near the cashier windows. One Robertson, a Federal Credit Union Examiner; and Osornio, the Credit Union Treasurer; and Ruth Johnson, the Credit Union Manager, were in the back part of the office, where Robertson, was talking on the telephone. Teller McCluskey was startled as she turned from her conversation with Teller Hennessy by a gun which was placed against her stomach by one of the robbers. The robber stated to Mrs. McCluskey, "I mean it, lady. Get in the wault sic, vault." The gunman had something wrong with his eyes and spoke with a Scandinavian accent.

Tellers Hennessy, Curtis and McCluskey were herded into the vault. Mrs. Johnson, Mr. Osornio and Mr. Robertson were then ushered at gunpoint into the vault with the others. The gunmen forced their prisoners to get on their knees and face the rear of the vault. One of the gunmen said: "Keep your head down, I mean it. Keep your head down. I don't want to kill anyone." Mrs. Hennessy was forced to empty the contents of the cash boxes into a paper bag handed to her by one of the gunmen.

One teller pleaded not to be locked in the vault as she and the two other ladies had children. The plea was unheeded and the vault was locked, imprisoning the six persons in the airtight confines of the vault. One of the men found a coin on the floor of the vault which he used to remove some of the screws from the locking mechanism, thereby enabling the victims to escape before they were suffocated. Mrs. McCluskey, Mrs. Hennessy and Mrs. Johnson identified Mosco as one of the robbers. It was noted that Mosco had a clumsy stride and a bounce to his walk. Hansen's identification as one of the robbers was made by Robertson, Osornio, Mrs. Curtis, Mrs. McCluskey, and Mrs. Hennessy. Hansen is a native of Denmark. He is blind in one eye, having no muscular control over that eye.

About one hour after the robbery, Hans Andersen, an old friend and countryman of Hansen, saw Mosco and Hansen with a large sum of money spread out on Mosco's bed in his apartment located at 5437 Virginia Avenue, just off the Hollywood Freeway. As Hansen and Andersen were about to leave, Mosco cautioned Andersen that since he was the only one that knew about "it" (the money), anything that came out of "it" had to come from Andersen.

A few weeks prior to the robbery, one Paul Lomeli, a longshoreman, early one morning saw two men walking around the outside of the Credit Union office. The men peeked through the window into the Credit Union. One of the men had a "droopy" eye. Lomeli identified Hansen as this man. The other man had a protruding chin and looked like Mosco. Because of what he had seen Lomeli noted the license number of the car in which they were riding, and wrote the number on a "check stub." (Exhibit 5 in evidence.) The license number was SXV788.

Hans Andersen was the owner of a Ford automobile bearing license number SXV788. Andersen lived in Pasadena and repossessed automobiles for a living. Andersen allowed his old friend Hansen to live with him, since Hansen was unemployed and without funds. Andersen had known Hansen in Denmark before each had come to the United States; and he allowed Hansen to drive his Ford automobile (license number SXV788) as often as he wished. On the morning of January 21, 1960, Mosco visited Hansen at the Andersen's residence.

On the evening of January 21, 1960, when Andersen and Hansen had returned from Mosco's apartment where the money had been seen on the bed, Hansen gave Andersen $20 and Andersen's wife $60. A little later that same evening the Andersen residence was visited by FBI representatives, who questioned both Andersen and Hansen as to their whereabouts at 4:00 P.M. on that afternoon. At first Andersen told the agents that he had been working and that he was alone. Later, after a conversation with Hansen in Danish, Andersen changed his story and told the agents that he and Hansen had been together at 4:00 P.M. on January 21, 1960. Soon after the agents left Hansen also left, driving Andersen's Ford, and took a suitcase with him.

Hansen went to the apartment of one Leisten, another friend and fellow Dane. When Leisten returned from work at about midnight on January 21, 1960, he found Hansen waiting in his apartment. Hansen stayed with Leisten that night. The following day they went to Hansen's room at the Salem Manor Hotel, where they were joined by two girls and a man. Hansen gambled with some of the others and lost about $300 in cash and about $2,000 in I.O.U.s. The following morning they returned to Leisten's apartment.

A day or so after the robbery Andersen was visited by a stranger, Mr. Kimo. Andersen followed Mr. Kimo to a bar where he met Hansen. Hansen then requested Andersen not to change his story which he had given to the FBI agents on the night of the robbery. Hansen was then driven to the airport by Leisten. Hansen appeared to be nervous. While at the airport, Hansen showed Leisten a large sum of money and gave him an envelope containing five $100 bills. Hansen told Leisten that he was going to Chicago, but when he checked his suitcase, his ticket indicated that it had been sold for transportation to Denver. Hansen used the name Mr. Sanders at the airport.

On January 28, 1960, FBI Agent Plevack found Andersen's Ford, which Hansen had been driving on the night of the robbery, parked in a lot behind a service station in the 9300 block on Sunset Boulevard. Andersen, its owner, had given the officers permission to search the car when it was found. Agent Plevack searched the car and discovered a stocking mask which was of the same color as that worn by the gunmen in the robbery. The mask had been concealed above the wiring behind the dashboard.

Special Agent Haymes of the FBI arrested Hansen at a bar in Pasadena at 9:15 P.M. on January 28, 1960. At the time of his arrest, Hansen was in the company of Ruth Martinez. After the arrest, the officers searched a traveling case belonging to Ruth Martinez (after obtaining from Ruth Martinez a written consent to such search), and found the case contained two sacks, and $2,005 in bills within the sacks, which were concealed behind the mirror. Hansen's thumbprint was found on the paper sacks, and he admitted to the officers that the money was his, and that Ruth Martinez had knowledge of its presence.

Paul Lomeli had told the officers that one of the men that he had observed at the Credit Union several weeks before had a protruding chin. As noted above Lomeli had identified Hansen as the other man. By following Hansen's steps prior to the time he left the city, the officers were able to determine that an outgoing call from Hansen's room at the Salem Manor Hotel was made to apartment 306, 5437 Virginia Avenue, Hollywood, California. The person under whose name the telephone was listed was a Dr. Mask. On January 27, 1960, Agent Plevack and Detective Sage of the Los Angeles Police Department went to this address. Mosco, after the policemen identified themselves, invited them into the apartment; he told the officers that he had lived there for a couple of months; he owned a car which was parked out front; that he did not know a Dr. Mask nor a Fred Hansen. Mosco consented to the officers looking around the apartment and the officers noted Mosco's telephone number. The officers also noted that Mosco had a protruding chin.

After a brief conversation with Mosco, Agent Plevack and Detective Sage left, and rejoined other officers at the Salem Manor Hotel. Lieutenant Weyant of the Los Angeles Police...