Thomas v. United States

• Decision Date: 07 August 1968
• Docket Number: No. 23348.,23348.
• Citation: 398 F.2d 531
• Parties: Eileen Kay THOMAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 531 (1967)

Eileen Kay THOMAS, Appellant, v. UNITED STATES of America, Appellee.

No. 23348.

United States Court of Appeals Fifth Circuit.

September 22, 1967.

Rehearing Denied August 7, 1968.

Lawrence E. Hoffman, Harvey J. St. Jean, Miami Beach, Fla., for appellant.

Michael J. Osman, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before PHILLIPS,^* COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

This criminal appeal presents two questions: (1) whether an impermissible amendment to the indictment was effected by the action of the trial court in striking, on motion of the government, portions of Count One, and in dismissing Count Three of the Indictment; and (2) whether the verdict of guilty is supported by the evidence.

The Indictment returned October 21, 1965, charged appellant Eileen Kay Thomas, and two other defendants, William John Tehoy, III, and Paul Willoughby Granville, in Count One with conspiracy under Title 18, U.S.C. Sec. 371, to violate the Bank Robbery statutes of the United States, Title 18, U.S.C. Secs. 2113 (a) and 2113(d), and the "aider and abettor" statute, Title 18 U.S.C. Sec. 2. Count Two charged substantive violation of Title 18, U.S.C. Secs. 2113 (a) and Title 18, U.S.C. Sec. 2, by the same three persons. Count Three charged substantive violation of Title 18, U.S.C. Sec. 2113 (d) and Title 18, U.S.C. Sec. 2, again naming the same three persons (Tehoy, Thomas and Granville) as defendants. The Indictment is set out in the margin.¹

On November 5, 1965, appellant entered her plea of not guilty to all counts. On the morning of the trial, December 7, 1965, the trial judge granted the government's oral motion to strike Paragraph 2, and overt acts 6, 7 and 8 from Count One, the conspiracy count, and to dismiss Count Three as to all defendants.²

Tehoy was permitted to withdraw his plea of not guilty to Count One and enter a plea of guilty to that count. The case proceeded to trial against appellant and Granville upon Counts One and Two. Tehoy was the government's principal witness. The jury returned verdicts of guilty against both remaining defendants under Counts One and Two. Motions for Judgment of Acquittal as to appellant were denied at the close of the government's case in chief and at the close of all the evidence, and Motion for Judgment N.O.V. and in the alternative for New Trial was denied after verdict. Miss Thomas was sentenced under the provisions of Title 18, U.S.C. Sec. 4208(b),³ and this appeal timely followed. In view of the second question raised here, supra, the facts must be related in considerable detail.

Stated most favorably to the government, the evidence at trial revealed the following facts: appellant, a twenty-four year old unmarried student at the University of Miami lived alone in a 6-room apartment. She met her co-defendant Tehoy in late August 1964 and saw him frequently thereafter. He was a single student at the same institution, about twenty years old. Five to seven weeks after their meeting appellant introduced Tehoy to Granville. Granville was twenty-nine, married and the father of four small children. He was self-employed in sales work. On occasion, Tehoy would go to appellant's apartment and meet appellant and Granville. On one visit to the apartment, appellant asked Tehoy if he was interested in a job. About June 1, 1966, at appellant's apartment, Granville offered Tehoy a job picking up "packages" two or three times a week for which Tehoy was to earn about $1000. The contents of such packages were not discussed, nor was the time or place of pickup or delivery points mentioned. In a later conversation in appellant's presence he was told by Granville: "The less you know about it the better. You just don't know what's in the packages. You're just delivering them and dropping them off and that's it." At another time in appellant's presence Granville related to Tehoy that he had friends who were "scouting out bank tellers who were embezzling funds and that they were going to get a setup where they could go in and rob the bank and leave, and then after they had made a successful getaway, the banker would sound an alarm." The banker would report more money taken than was actually the case so as to cover his embezzling. Granville never mentioned a particular bank, merely said he was working on this. After Granville left, Tehoy told appellant this sounded sort of weird, and like it was imagination, that it was a silly fairy tale, that it didn't sound real. Appellant replied that Paul (Granville) was in business and knew what he was doing. In discussing the package pickup question with Tehoy appellant told him that if they ever ran into any trouble, that all they had to say was that some Cuban gave them the packages, and promised them a certain amount of money; that they didn't know what was in the packages and didn't really know anything about it; just some man they met, say, at a frequent spot such as the Ale House, met them in a parking lot and asked if they would deliver the packages. No "package" business developed.

On June 17, 1966, Granville told Tehoy, appellant and one Paul Back to meet at appellant's apartment the following day, June 18, at 9:00 A.M. and wait until he called to give directions concerning a "job". These instructions were followed (Back brought a girl friend along) and about 11:00 A.M. Granville telephoned and talked to appellant. The group proceeded to Cutler Ridge Shopping Center and waited until 3:00 P.M. but did not meet Granville. The party then returned to appellant's apartment. En route appellant told Tehoy that they "were there in connection with something to do with the bank at Cutler Ridge."⁴ At about 3:30 P.M. Granville appeared at appellant's apartment and inquired why they had not shown up at Cutler Ridge. The group, in turn, wanted to know where he was and why he had not shown up. Granville then made a telephone call to an unidentified person and started complaining about the failure to meet. After the phone call the person who had driven Granville to the apartment left, and Back and his girl friend also left. Tehoy, the appellant and Granville remained. There was further discussion about the failure to make connections at Cutler Ridge. Tehoy drove Granville home and after stopping at his own apartment returned to the appellant's apartment. Appellant received a phone call and thereafter Tehoy drove to the shopping center at Bird Road and 87th Avenue, where they met Granville. On his instructions, appellant and Tehoy followed him to the Fidelity National Bank of South Miami. Granville went toward the bank and returned to Tehoy's car in about five minutes. At that time Granville dropped an envelope in Tehoy's lap and told him to deliver the note to a Mr. Dillman, a teller at the bank. He described Dillman and told Tehoy the side of the bank where he was located and said: "I'll meet you in a half an hour at Hot Shoppes on U.S. 1". Granville left. Tehoy left the appellant seated in his car, with the motor running, about a hundred feet from the bank entrance, and proceeded into the bank and presented the envelope to Dillman at his teller's cage. The envelope contained a note which stated: "Give this boy your bank. We have a bomb set to go in one minute if you don't. All bills and five minutes start." The note, as stipulated at the trial by Granville's attorney and further as established by expert testimony, was in Granville's handwriting.⁵

After receiving the note, Dillman filled a bag with $8,050.00 and handed it to Tehoy. Tehoy left the teller's cage with the bag of money and was apprehended by a bank guard, Matthew Jones, outside the door of the bank. Jones took Tehoy back inside the bank and the South Miami Police were summoned. The call went out at 7:18 P.M. Three squad cars of Police arrived a few minutes later. About five minutes after the Police arrived, one of them, Officer Puckett, went to Tehoy's car, still parked some one hundred feet from the bank entrance with the motor running and the appellant seated in the front seat on the passenger's side. Puckett asked appellant who she was with; she replied: "A man", and stated that he was in the bank. She wanted to know what this was all about and Puckett told her that she would be informed later in the bank and that she would have to come in the bank with him, which she did. At the time he walked up to the car Puckett was in full police uniform, wearing his police revolver. Miss Thomas made no attempt to leave. During the five minute interval between the arrival of the Police and Officer Puckett's approach to appellant two of the Police cars were at the front door of the bank in appellant's range of vision.

Government witness Conners, a Special Agent of the F.B.I., questioned appellant in the bank. She told Conners that about 6:30 that evening she and Tehoy drove to a parking lot at 87th Avenue and Bird Road and that Tehoy parked the car and went to another car where he talked with a Cuban looking man. She said that when Tehoy returned to his car he was putting a white piece of paper in his back pocket, and that she and Tehoy then proceeded to the bank in Tehoy's car.

Shortly after midnight the F.B.I. agents on the scene transferred Tehoy and the appellant to the Dade County Jail. An hour or so later Tehoy was taken from his cell to the corridor outside appellant's cell and they engaged in a discussion in the presence of another F.B.I. Special Agent as to who was telling the truth and whether their "stories" should be changed. Appellant stated that she was sticking to her story.⁶

As indicated, this statement of facts is that most favorable to the government, proved in all essential particulars by Tehoy's testimony. Tehoy's trial account was to an extent impeached by a statement he gave to Agents Conners and Brandes at the bank immediately after the robbery.⁷ Tehoy's testimony was further to the effect...