U.S. v. Diggs

• Citation: 173 U.S.App.D.C. 95,522 F.2d 1310
• Decision Date: 03 November 1975
• Docket Number: 73-1750,Nos. 73-1667,74-1010,74-1011,s. 73-1667
• Parties: UNITED STATES of America v. Tyrone B. DIGGS, Appellant. UNITED STATES of America v. Garrett J. KEYS, Appellant. UNITED STATES of America v. Percy FLOYD, Appellant (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1310

522 F.2d 1310

173 U.S.App.D.C. 95

UNITED STATES of America v. Tyrone B. DIGGS, Appellant.

UNITED STATES of America v. Garrett J. KEYS, Appellant.

UNITED STATES of America v. Percy FLOYD, Appellant (two cases).

Nos. 73-1667, 73-1750, 74-1010, 74-1011.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 21, 1974.

Decided Nov. 3, 1975.

Robert W. Healy, Washington, D. C., appointed by this Court, for appellants in Nos. 73-1750 and 73-1667.

Lois Goodman, Washington, D. C., appointed by this Court, for appellant in Nos. 74-1010 and 74-1011.

Albert H. Turkus, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Roger M. Adelman, Asst. U. S. Attys., were on the brief for appellee.

Before DANAHER, Senior Circuit Judge, WILKEY, Circuit Judge, and JUSTICE, ^* United States District Court Judge for the Eastern District of Texas.

Opinion for the Court filed by Senior Circuit Judge DANAHER.

DANAHER, Senior Circuit Judge:

We have here consolidated appeals ¹ following jury verdicts establishing the

guilt of each of the appellants. We will discuss first the claims that the trial judge erred in denying their motion to suppress the evidence seized following their arrest by two Special Agents of the Federal Bureau of Investigation.

I

On February 11, 1972, about 9:30 a. m. the District of Columbia National Bank branch on Wisconsin Avenue was robbed by two armed men. A woman in a store across the street saw two men, one wearing a ski mask and the other with his face covered, leave the bank and enter a getaway car, a green Chevrolet, driven by a third man. Earlier, about 9:10, another witness had seen two black men some three to four blocks from the bank as they were parking a white Cadillac car with a red leather panel on the door. She testified that about 10:15 she saw that a green car had knocked over some trash cans near her neighbor's driveway and that the Cadillac was gone.

The Government's evidence at trial developed that the taller of the two robbers with gun in hand was carrying an attache case and was wearing a gray ski mask, a dark raincoat, gloves, brown or tan trousers and brown "hush puppy" shoes. He had gone to each teller window, gathering all currency and coins which he placed in his attache case. ² The shorter of the two robbers stationed in the lobby was wearing a blue denim jacket and a black turtle neck pulled up around his face. He pointed his gun at the tellers and told them to get down, and when one of them moved, he grabbed her by the hair, pulled her back and ordered her to stay down.

An audit disclosed that the robbers had taken more than $5,000, including $400 of "bait money."

Word of the robbery reached the Washington Field Office of the FBI at approximately 9:30 a. m. and came to the notice of Special Agent Berry. The latter, with some 22 years of experience in the Bureau, had already been developing evidence involving appellants Diggs and Floyd as to other crimes, indeed only a fortnight earlier, Berry had arrested Diggs for his part in another robbery in which his distinctive red and white Cadillac had been utilized in the transportation of the avails of that robbery. Agent Berry was well aware that robbers might abandon a getaway car and switch to another waiting vehicle. Berry also knew that Diggs "hung out" in the 2200 block of M Street, N.E., where he had seen both Diggs and Floyd in the recent past. Taking Special Agent Mowrey with him, Berry, in an unmarked Bureau car, headed for that destination.

En route, over the car radio, the agents monitored radio broadcasts put out by the FBI and by Metropolitan Police. They thus learned that one of the robbers at the bank was seen to be tall, to have worn a gray ski mask, gloves, a three-fourths length raincoat and to have been carrying a rust-colored brief case. They also learned that the second robber had worn a denim jacket, dark trousers and a black turtle neck. With the 2200 block under surveillance, the agents saw the Diggs Cadillac with three occupants coming toward them, with Diggs at the wheel. That car pulled up to the curb and stopped. The agents radioed for help, recognized Diggs and Floyd, and then alighted from the Bureau car.

Berry produced his identification, and with guns drawn, the agents approached the Diggs car and ordered the three occupants to raise their hands above their heads and to keep them there.

The agents noticed that the rear seat passenger, Keys was wearing a black trench coat and that next to him was a short denim jacket. In plain view at Keys' feet was a rust-colored brief case. Seeing that the car's occupants conformed to the monitored descriptions and with their reasonable suspicions confirmed, the agents then placed all three appellants under arrest. Search incident to that arrest developed that both Keys and Floyd possessed .38 caliber revolvers. Contemporaneous search of the brief case revealed more than $5,000 in cash, and in due course, the bank's bait money was identified.

That the agents were undertaking the steps as described for the purpose of investigating their powerful suspicion ³ that these appellants had been involved in the robbery is apparent. The agents had taken for their own protection and safety entirely reasonable precautions as they confronted the three appellants, at least two of whom had been armed during the bank robbery. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Coates, 161 U.S.App.D.C. 334, 337-39, 495 F.2d 160, 163-65 (1974); United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, Cert. denied, 406 U.S. 969, 92 S.Ct. 2427, 32 L.Ed.2d 669 (1972); United States v. James, 147 U.S.App.D.C. 43, 45-46, 452 F.2d 1375, 1377-78 (1971); Brown v. United States, 125 U.S.App.D.C. 43, 46 n.4, 365 F.2d 976, 979 n.4 (1966).

The courts have considered other aspects of situations such as had here been presented, See, e. g., Young v. United States, 140 U.S.App.D.C. 333, 337, 435 F.2d 405, 409 (1970); Bailey v. United States, 128 U.S.App.D.C. 354, 357, 362, 389 F.2d 305, 308, 313 (1967).

When the agents saw what Floyd was wearing, what Keys was wearing, when, in plain view, they saw the brief case and the denim jacket, ample probable cause for the arrest existed. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Johnson, 143 U.S.App.D.C. 215, 220, 442 F.2d 1239, 1244 (1971) And see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). After the arrest and as incident thereto, further search of the vehicle even revealed the ski mask which had been used in the commission of the crime. United States v. Free, 141 U.S.App.D.C. 198, 437 F.2d 631 (1970), and See generally the discussion, Id., 141 U.S.App.D.C. at 201-202, 437 F.2d at 634-635; Cf., Cardwell v. Lewis, 417 U.S. 583, 588-590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

We may, perhaps definitively, terminate further present treatment of appellants' contention that the search and seizure here had been invalid,4 simply by

turning to this court's opinion in Bailey v. United States, supra, and to Judge Leventhal's concurring opinion, Id., 128 U.S.App.D.C. at 361-365, 389 F.2d at 312-316. There was no error in Judge Pratt's denial of the motion to suppress filed by Keys and Diggs with which Floyd had asked to be associated.

II

Floyd's Contentions

A

Quite apart from the bank robbery situation, Floyd presents another problem in his appeal No. 74-1010. Floyd had filed a written motion to dismiss the indictment which stemmed from another robbery, next to be treated. He contended that the jury selection system in the courts of the District of Columbia had improperly discriminated against young adults. ⁵ After extensive hearings, the district judge denied Floyd's motion to dismiss the grand jury indictment.

On November 3, 1971, three men armed with pistols entered the Minnesota Market in Southeast Washington. "Everybody go back," a robber ordered. An employee with a pistol pointed at his head was dragged to the front of the store by Floyd, positively identified at trial by various witnesses, including a young woman whose boy friend "ran around" with Floyd. This employee's wallet containing $18 was taken from him, and he was ordered to open a cash register. When it developed he was unable to comply, the robbers seized as much money as possible and fled from the store. The jury found Floyd guilty of two counts of armed robbery and four counts of assault with a dangerous weapon. ⁶

Floyd's indictment by a grand jury sworn in on October 6, 1971, had charged him with participation in the robbery and assault with a dangerous weapon, just described. His motion, first, to dismiss that indictment, and later, his motion to strike the petit jury panel, had been based on his claim that there had been unlawful discrimination against young people in the District of Columbia compilation of eligible jurors. ⁷

Through an expert witness, he sought to establish by a mathematical test, the The Government then presented various witnesses including the Director of Data Processing at the Superior Court who explained the process by which all jury panels for the District of Columbia courts were selected. Unlike the course followed elsewhere, 28 U.S.C. § 1863(b)(2) expressly provides that

"chi square test," an underrepresentation of various age groups who should have been selected at random from a fair cross section of the community. Floyd contended that there had been a failure to comply with the requirements of 28 U.S.C. § 1863 in the formulation of a plan for random jury selection. His expert concluded from his study of the selection process that the actual number of jurors in the age group 21-24 in the District Court petit jury panels was only one-quarter of the numbers he expected. Similarly, the

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