Smith v. United States, 71-1137.
| Decision Date | 14 March 1972 |
| Docket Number | No. 71-1137.,71-1137. |
| Parties | William Robert SMITH, Appellant, v. UNITED STATES of America. |
| Court | U.S. Court of Appeals — Third Circuit |
William Robert Smith, pro se.
Richard L. Thornburgh, U. S. Atty., Charles F. Scarlata, Pittsburgh, Pa., for appellee.
Before ADAMS, GIBBONS and JAMES ROSEN, Circuit Judges.
Petitioner, William Smith, was convicted by a jury on two counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d) in 1969. This Court affirmed the direct appeal from his conviction, United States v. Smith, 421 F.2d 1229 (3d Cir. 1970). Smith then filed a petition for federal habeas corpus under 28 U.S.C. § 2255, which was denied by the district court. He raises three contentions in his appeal from the denial of his petition.
First, he argues that additional instructions given to the jury at his trial constituted plain error. Smith was found guilty of violating 18 U.S.C. § 2113(d) which provides: "Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device. . . ." The uncontradicted testimony adduced at the trial on the issue of the use of a dangerous weapon showed that three bank employees saw Smith in the bank brandishing a gun and that the employees were frightened by the gun. No evidence was offered tending to show that the gun was other than real and loaded. After the jury had deliberated for a time, it returned with the following question: "In regards to count two, does the weapon have to actually be a `deadly' one, or is intimidation (even with a toy) alone sufficient for a guilty verdict on the second count." Smith claims that the supplemental charge given in response to the jury's question was prejudicial. After carefully examining the original charge together with the supplemental charge, we hold that if error was committed, it was harmless and certainly not of constitutional dimension entitling Smith to habeas corpus relief. Fed.R. Crim.P. 52(a).
Additionally, Smith complains that the trial court's allusion to the fact that if he were committing error, this court would correct it significantly prejudiced the jury. Smith argues that, in effect, the jury was told to convict him because if any errors were discovered, Smith would eventually receive justice. Upon careful consideration of the section of the charge in which the district court made this statement, it is apparent that the trial court told the jury only that his reading of the statute...
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Martini v. Hendricks, Civ. No. 99-4347 (WHW) (D. N.J. 2002)
...whole" to determine that the supplemental instruction would not leave an erroneous impression on the minds of the jury); Smith v. U.S., 456 F.2d 121, 122 (3d. Cir. 1972) (determined after examining "the original charge together with the supplemental charge" that the any error committed in t......
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Martini v. Hendricks, Civ. No. 99-4347 (WHW).
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