U.S. v. Brown

• Citation: 571 F.2d 980
• Decision Date: 07 February 1978
• Docket Number: Nos. 76-1924,s. 76-1924
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lee BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry Francis GALLAGHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clayton COLWELL, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James ADAMS, III, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald E. PITTS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. HALE, Defendant-Appellant. to 76-1929.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 980

571 F.2d 980

UNITED STATES of America, Plaintiff-Appellee, v. David Lee BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Terry Francis GALLAGHER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clayton COLWELL, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James ADAMS, III, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Donald E. PITTS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. HALE, Defendant-Appellant.

Nos. 76-1924 to 76-1929.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1977.

Decided Feb. 7, 1978.

Don A. Little, Kettering, Ohio (Court-appointed CJA), for David Lee brown.

Gerald R. Westbrock (advisor), Dayton, Ohio, Terry Francis Gallagher in pro per., for Terry Francis Gallagher.

Alex V. DeMarco, Vandalia, Ohio (Court-appointed CJA), for Clayton Colwell.

Daniel J. O'Brien, Dayton, Ohio (Court-appointed CJA), for John Adams, III.

Richard S. Dodge, Dayton, Ohio (Court-appointed CJA), for Donald E. Pitts.

Richard M. Hunt, Cromer, Faber & Hunt, Dayton, Ohio (Court-appointed CJA), for Kenneth L. Hale.

William W. Milligan, U. S. Atty., Columbus, Ohio, Terry W. Lehmann, Robert A. Steinberg, Dayton, Ohio, for plaintiff-appellee.

Before EDWARDS, PECK and LIVELY, Circuit Judges.

JOHN W. PECK, Circuit Judge.

In early 1975, defendant-appellant David Lee Brown developed an organization that was responsible for a series of "commando-type" raids on banks in southwestern Ohio. The members of the organization were either friends or relatives of appellant Brown. The banks robbed included the Security National Bank in Eaton, Ohio; the First National Bank in Fairborn, Ohio; the Third National Bank, Salem Avenue Branch, in Dayton, Ohio; the Winters National Bank in Dayton, Ohio; the Huntsville State Bank in Bellefontaine, Ohio; the Central Trust Company in Englewood, Ohio; and the Miami Citizens Bank in Troy, Ohio.

A common method of robbing these banks was used by the appellant Brown organization. Prior to the robbery, the bank to be robbed and the getaway route were carefully surveyed, and practice runs using the getaway route were made. Subsequently, several members of the organization would enter the bank wearing ski masks and gloves and carrying guns. One of the bank robbers would station himself in a place in the bank lobby so that he could keep bank personnel and customers under control. The other robbers would go behind the tellers' counters and take the currency located there. All of this activity in the bank was timed to be done as rapidly as possible. Once the money was taken from behind the counters, the gang would quickly leave, having been inside the bank for approximately a minute, and drive away in a stolen car. In order to confuse the police, the getaway car would have license plates stolen from a second car. After driving a short distance from the bank, the getaway car would be abandoned and another car would be used to drive to a "safe house." At the "safe house," the money taken in the robbery would be divided among the participants in the robbery and the owner of the "safe house." The participants in the robbery would shower and change clothes. Weapons used and clothing worn during the robbery would be destroyed. Several days later, members of the appellant Brown organization would meet to exchange information about the robbery.

In January, 1976, a federal grand jury for the Southern District of Ohio returned an eleven count indictment against nine individuals named as defendants and thirteen other individuals named as unindicted co-conspirators. All of the persons named in the indictment had been at one time associated with appellant Brown's bank robbery organization. Count I of the indictment charged all nine defendants with conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371. The remaining ten counts in the indictment charged each of the nine defendants with at least one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2.

Defendants Robert Grimes, Harry J. Mabe, and Earl D. Ledbetter pleaded guilty to the conspiracy count in the indictment. Defendants-appellants David Lee Brown, Terry Francis Gallagher, Clayton Colwell, Jr., James Adams, III, Donald Edward Pitts, and Kenneth Leon Hale were tried by a jury in a trial that lasted from April 26 to May 15, 1976. The jury found all six of these appellants guilty of the conspiracy charge, and in addition found appellant Brown guilty of three counts of armed bank robbery, appellant Gallagher guilty of three counts of armed bank robbery, appellant Colwell guilty of four counts of armed bank robbery, appellant Adams guilty of six counts of armed bank robbery, and appellant Hale guilty of three counts of armed bank robbery. ¹ After being sentenced by the district court, ² appellants perfected this appeal. We affirm the convictions.

I

Appellants press a number of contentions on appeal in their effort to have the convictions reversed and the case remanded to the district court for a new trial. First, appellants argue that the district court erred on two occasions when it dismissed two regular jurors, a Mrs. George and a Mr. Morgan, and replaced them with alternate jurors.

Dismissal of Juror George

Appellants contend that the district court committed reversible error when it dismissed Mrs. George from the jury without notice to counsel, without a record, without personally determining the merits of discharging Mrs. George, and without having the defendants present. Appellants rely on this Court's decision in United States v. Gay, 522 F.2d 429 (6th Cir. 1975). In Gay, "(w)e h(e)ld that it was error for the District Judge to engage in discussions with members of the jury after it was impaneled and to consider requests for excuses out of the presence of the defendant and without giving notice to defense counsel." 522 F.2d at 435. We determined that "(t)he defendant should have an opportunity to object to requests for excuses from the jury and to make a record of the proceedings." 522 F.2d at 435. The defendant's conviction in Gay was reversed and a new trial was ordered because there was no record made of the decision to dismiss two regular jurors and this Court had to assume prejudice to the defendant in the absence of a record. ³

Thus, appellants would be raising a serious issue if their representations about the circumstances of the dismissal of Mrs. George from the jury were correct. Their allegations, however, are inconsistent with the record.

Approximately one week before the end of trial, on May 8, 1976, defense counsel and appellant Gallagher (who was representing himself) were notified by the district court that the Court proposed to excuse Mrs. George from the jury. A chambers conference was held, during which counsel had the opportunity to inquire as to the reasons why the district judge intended to dismiss Mrs. George. A transcript of the conference was made.

That record shows that the district judge informed counsel and appellant Gallagher that Mrs. George had a serious argument with her husband on the telephone the night before. The judge was alerted to this fact by the U.S. Marshal who, by the consent of the jurors, had been monitoring the jurors' phone calls in order to make sure that the jurors were not subject to outside influences. The district judge explained to those present at the conference that he wished to excuse Mrs. George because the jury would not start deliberating on a verdict for another week and he did not believe that it was wise to have on the jury a person who was upset and anxious over her marriage. The judge added that he had considered writing a letter to Mrs. George's husband so that he could explain to him the importance of the case but then decided that the dismissal of Mrs. George would be the better course of action. Counsel for appellant Adams asked the judge if Mrs. George's problem was a "domestic situation," and the judge said yes. The judge then stated that he could not talk to Mrs. George in order to find out just how pressured she felt from the quarrel with her husband because if he were to talk to Mrs. George, he would have to dismiss her and nothing would be gained. The conference then ended. No one at the conference raised any objection to the dismissal of Mrs. George. Nor did anyone object to the absence of the appellants.

After the conference, a U.S. Marshal was directed to take Mrs. George from the jury, and she was informed that she was excused, and she was replaced by an alternate. Never during the subsequent trial proceedings did anyone raise any objection to Mrs. George's dismissal. Nor was there any objection registered to the absence of the appellants from the conference concerning the dismissal.

On this record, we hold that no reversible error was committed by the district judge when dismissing Mrs. George from the jury. Unlike the situation in the Gay case, here the district judge notified counsel and held an in-chambers conference when he was alerted by the U.S. Marshal of an incident that raised a question concerning Mrs. George's service. There were no ex parte discussions with members of the jury. Appellants' representations that there was no notice to counsel and no record are without factual foundation.

Appellants' assertion that the district judge failed to determine the merits of discharging Mrs. George from the jury either is premised on a misstatement of fact or implies an incorrect view of the law. The law is that although a district court's decision to dismiss a regular juror and to replace that juror with an alternate is subject to review on appeal, the trial judge's action will not be grounds for reversal unless an abuse of discretion has been committed. United States v. Gay, supra, 522 F.2d at 435; United States v. Florea, 541 F.2d 568,...