U.S. v. Brown, No. 75-1816

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, BARRETT and DOYLE; BARRETT
• Citation: 540 F.2d 1048
• Decision Date: 23 August 1976
• Docket Number: No. 75-1816
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Cleve BROWN, Defendant-Appellant.

Page 1048

540 F.2d 1048 UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Cleve BROWN, Defendant-Appellant. No. 75-1816. United States Court of Appeals,
Tenth Circuit. Submitted July 28, 1976.
Decided Aug. 23, 1976.

Page 1050

Robert Bruce Collins, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., and Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Harold H. Parker, Albuquerque, N. M., for defendant-appellant.

Before SETH, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Richard Cleve Brown appeals from his jury conviction following trial on a two count Indictment charging that he did, on or about July 18, 1975, at Albuquerque, New Mexico, (1) by force and violence and intimidation, wilfully and knowingly, by the use of a pistol, take from the persons of two bank tellers at the Security Federal Savings and Loan Association, an FSLIC institution, the approximate sum of $1,397.00 in violation of 18 U.S.C.A. § 2113(a) and (d) and (2) take and carry away with intent to steal the approximate sum of $1,397.00 in violation of 18 U.S.C.A. § 2113(b).

On appeal, Brown urges reversal on the grounds that: (1) his confession was the product of a threat by FBI agents that they would arrest his girlfriend and that it should have been excluded; (2) the trial court erred in refusing to allow him to call witnesses in his own behalf by its refusal to allow his expert witness to testify relative to the limitation and weakness of eye-witness identification; (3) the trial court erred in refusing to allow him to cross-exam FBI agents or to call them as his witnesses relative to the weakness of eye-witness identification, constituting a refusal to allow him to confront the witnesses against him or to call witnesses in his own behalf; (4) the trial court erred in admitting the fruits of an illegal search, made without benefit of arrest or search warrants even though there was adequate time to secure them; (5) the Government failed to prove the institution allegedly robbed was a federally insured institution, thus failing to meet its jurisdictional obligation; and (6)

Page 1051

that the FBI agents' "burst" into Brown's apartment was made forcibly and illegally without warrant or consent and that his subsequent arrest was illegal.

Our review of the evidence shall, of course, be recited in the light most favorable to the Government. On July 18, 1975, a male, described as approximately five feet ten inches in height, quite slim, with a large nose, dark hair and eyes, and a mustache while dressed in blue pants, a long-sleeved gold shirt, tan colored boots, entered the Security Federal Savings and Loan Association of Albuquerque, New Mexico, armed with a dark gray automatic pistol. Two tellers, Lynn Smith and Betty Entzian, were approached by the armed male about 3:00 P.M. that day. The only customers in the bank at the time were Mr. and Mrs. Jonte and their young son. One male customer thereafter entered the bank. The robber approached Teller Smith's counter. He stood not more than two feet from her. Smith testified that she observed him carefully. The robber inquired about opening an account and interest rates. Smith handed him some brochures about the institution which he read. He then remarked to Smith that he didn't have much money and didn't know if he trusted the bank. When the Jontes left the building, the male produced a pistol and pointed it at Smith and Entzian and he directed them not to push any buttons, to step back from their counters and hand him the money in their respective teller drawers. Both tellers testified that Government Exh. 6 appeared to them to be the same pistol used by the robber; they identified the robber in the detail previously related. The tellers further positively identified Brown in the courtroom, at trial, as the person who had robbed the bank and threatened them by use of the firearm. Both tellers stated that they were in a state of shock and fear that Brown would shoot them; that they were standing not more than three feet apart when Brown confronted them with the pistol and the demands; that Teller Entzian removed the money from her teller drawer and handed all of the bills to Brown; that some of the bills were "bait", i. e., those bearing serial numbers recorded by the bank for tracing purposes; that Brown then ordered them to move around the counter and into the bathroom, with his pistol directed at them; that he ordered them to remove their clothing and hand it to him; that after they disrobed and handed Brown the clothing, he twice told them to stay in the bathroom for five minutes. Within a few minutes the tellers came out of the bathroom. Brown had departed.

After the tellers reported the robbery to the police, they conducted an audit of the bills withdrawn from the drawer and handed to Brown, which amounted to $1,397.00. The two brochures which had been left by Brown on the counter were carefully handled, marked and sent to the Washington, D.C. FBI laboratory for fingerprint and palmprint analysis. FBI expert Douglas O. Cole testified that his process analysis disclosed five latent fingerprints and two palmprints as those of Brown traced to one of the brochures, admitted in evidence. Photographs taken by the bank's surveillance camera, introduced in evidence, depicted a man strongly resembling Brown and the description independently given by the tellers.

David J. Weir, vice-president of the bank, testified that the bank is chartered by the United States Government as a federal savings and loan association. He produced a photocopy of the bank charter, admitted in evidence, after producing the original. Weir also produced the bank's business documents identifying the "bait" money, by serial numbers which had been handed to the robber from Teller Entzian's drawer.

On July 21, 1975, FBI agents displayed a six-photo gallery display to the two bank tellers and the bank customer, Mr. Jonte, each of whom separately and independently identified Brown as the bank robber from a photograph of him. On that same day, FBI agents were informed that several hours after the bank robbery, Brown and his girlfriend, Sylvia McKinney, had negotiated for the purchase of a car at a car lot in Albuquerque and that both had returned to the lot the following morning with currency

Page 1052

which they used for the purchase of a 1965 Chevrolet Impala. The agents found the vehicle parked in front of McKinney's apartment in Albuquerque on July 21, 1975. That same day, two of the $20.00 "bait" bills were traced to the currency paid by Brown to Bill Mace and Red Roach Auto Sales when he acquired the car, and FBI agents obtained Brown's address which proved to be that of Sylvia McKinney's apartment.

The Albuquerque Police Department was on strike. Seven FBI agents immediately proceeded to the address. Sylvia McKinney answered the agents' knock at her front door. The agents identified themselves and informed McKinney that they were looking for Brown. McKinney did not respond. She became distraught and moved from the door toward another room. Agent Harrison observed a man running by the front door and into a room. Agent Bloom then entered the apartment through the front door and walked to the room McKinney had been seen walking toward. Inside the room, Bloom saw: a man identified as Arturo Lucero standing near a bed; a twenty-five calibre automatic pistol, fully loaded, on a dresser (which matched the description of the pistol related by the bank tellers); narcotics and narcotics paraphernalia on the dresser; and a pair of boots protruding from beneath the bed. Bloom then found Brown hiding under the bed. Bloom immediately advised Brown of his rights and turned him over to Agent Behrenz. Local authorities were contacted relative to the narcotics discovery insofar as McKinney and Lucero were involved. Due to the strike the FBI agents, upon request, transported McKinney and Lucero to the local police authorities. Brown asked FBI agents about McKinney. He was informed that she had been taken to the Albuquerque police station, probably there to be charged with possession of narcotics and narcotics paraphernalia. Brown told the agents that the narcotics and narcotics paraphernalia were his and that he would consider talking to the agents if McKinney were brought back to the apartment to be present during the interview. Agent Behrenz agreed to have McKinney returned to the apartment. He then again advised Brown of his rights, using the standard FBI waiver of rights form. After McKinney was returned to the apartment, Brown confessed to the robbery.

I.

Brown contends that his confession was the product of a threat by the FBI agents that they would arrest his girlfriend (McKinney) and that, accordingly, it should have been excluded. We disagree.

Brown had a substantial educational background in the area of criminal justice. He was thoroughly familiar with his rights against self-incrimination and illegal searches, seizures and arrests. When asked, following his arrest, by FBI Agent Bloom whether he understood his rights after having been orally advised thereof, Brown replied "I know my rights". (T.R. Vol. II, p. 20). After reading the complete waiver form presented to him by Agent Behrenz, Brown did not ask for counsel or in anywise indicate a reluctance to confess.

After his arrest, Brown inquired of the FBI agents whether Sylvia McKinney had been arrested. He was told that she had been arrested relative to the narcotics and because she...