U.S. v. Donahue, s. 91-1024

• Decision Date: 09 December 1991
• Docket Number: Nos. 91-1024,91-1293,s. 91-1024
• Citation: 948 F.2d 438
• Parties: 34 Fed. R. Evid. Serv. 436 UNITED STATES of America, Appellee, v. Leonard A. DONAHUE, Appellant. UNITED STATES of America, Appellee, v. Wally D. WEAVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 438

948 F.2d 438

34 Fed. R. Evid. Serv. 436

UNITED STATES of America, Appellee, v. Leonard A. DONAHUE, Appellant.

UNITED STATES of America, Appellee, v. Wally D. WEAVER, Appellant.

Nos. 91-1024, 91-1293.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1991.

Decided Oct. 24, 1991.

Rehearing and Rehearing En Banc Denied Dec. 9, 1991.

Jacqueline Cook, Kansas City, Mo., argued, for Leonard Donahue.

Dennis J.C. Owens, Kansas City, Mo., argued (James E. Brown, on brief), for Wally D. Weaver.

David DeTar Newbert, Kansas City, Mo., argued, for appellee.

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

Leonard Donahue and Wally Weaver appeal from their convictions in District Court ¹ of armed bank robbery and use of a firearm during a bank robbery. We affirm.

On March 7, 1990, three men entered Boatmen's First National Bank in Independence, Missouri. One of them, later identified as Donahue, was wearing pantyhose over his head and carrying a gun. He approached the counter and ordered a teller to hand over the money. The two other men, who were wearing ski masks, jumped over the counter and began filling two pillow cases with money. The other teller in the bank was ordered to help them. When a customer appeared at the drive-up window, the three men left the bank. On their way to a stolen getaway car in the parking lot, a dye pack in the stolen cash exploded, unleashing a generous quantity of red dye, and causing the robbers to drop one of the pillow cases. A similar dye pack in the other pillow case exploded after the robbers got into their getaway car. The car, containing a ski mask and a blanket stained by red dye, was found twenty-five minutes later, parked near Donahue's apartment.

The police detective investigating the crime received a report that a local high school student had talked about the bank robbery to other students. The detective interviewed the student and showed him surveillance photographs taken at the bank during the robbery. The student identified the person in the pictures, whose face was clearly visible through the pantyhose (which were far too sheer for their intended purpose), as the student's neighbor, known to the student only as "Leonard." Further investigation at the apartment complex where the student lived revealed that "Leonard" was Leonard Donahue. Armed with this information, a videotape lineup which included Leonard Donahue was shown individually to the two bank tellers; both identified Donahue as the gunman in the robbery. Donahue was arrested on March 12.

While interviewing the high school student, the detective also questioned his older sister, Tammy Poole. She identified Donahue as the gunman in the bank surveillance photo. She also told police that on March 7 (at a time shortly after the robbery and the arrival of Leonard Donahue and his confederates at the Donahue residence), Tracy Donahue, Leonard's wife and Poole's neighbor, told Tammy that Leonard Donahue had robbed the Boatmen's Bank around the corner. Tammy told the investigators that she had accompanied Tracy Donahue to the Donahue residence and encountered Leonard Donahue and two other men, and that Leonard had offered her money to drive the two men downtown, an offer she declined.

From a videotape lineup she was shown, Tammy identified Wally Weaver as one of the men in Donahue's apartment on March 7. The police also received a tip that Weaver was involved in the bank robbery. Weaver was arrested on March 26. The next morning, after being released from custody, he was offered and accepted a ride home from the police detective investigating the crime. During the car ride, the detective elicited several incriminating statements from Weaver, including a comment that this bank robbery had been his first bank robbery, and that red dye had stained his clothes when the dye packs exploded.

Weaver and Donahue were indicted on June 18, 1990. A motion to suppress the witness identification of Donahue based on the videotape lineup was denied, as was a motion for severance of the joint trial. After a three-day trial, the jury found Donahue and Weaver guilty of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (1988), and use of a firearm during a bank robbery, in violation of 18 U.S.C. § 924(c) (1988). Seeking reversal of their convictions, they raise several arguments.

First, Donahue and Weaver assert that the trial court lacked jurisdiction in this case because the indictment failed to allege an essential element of the crime--criminal intent. In two previous bank robbery cases brought pursuant to 18 U.S.C. § 2113, United States v. Williams, 923 F.2d 76, 77 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991), and United States v. Love, 815 F.2d 53, 55 (8th Cir.), cert. denied, 484 U.S. 861, 108 S.Ct. 177, 98 L.Ed.2d 130 (1987), we have held that "[a]n indictment is not fatally defective, though it fails to allege felonious intent, if its wording parallels the statute." Love, 815 F.2d at 55. Here, the indictment tracks the statute and includes all the statutory elements of the crime. Moreover, absent a well-founded plea of insanity or coercion, neither of which is present here, it is inconceivable that anyone lacking criminal intent could commit armed bank robbery; the act itself, being inherently and essentially evil, demonstrates the criminal intent of the actor. Defendants' attack upon the sufficiency of the indictment therefore must fail. ²

Donahue further contends that since 18 U.S.C. § 2113 does not require criminal intent to be alleged and proved, the statute is unconstitutionally vague. This argument is without merit. A statute that reads, in relevant part, "Whoever, by force and violence, or by intimidation, takes ... from the person or presence of another ... any ... money ... belonging to ... any bank ... [s]hall be ... imprisoned," 18 U.S.C. § 2113(a), does not " 'fail[ ] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 812, 98 L.Ed. 989] (1954), [n]or is [it] so indefinite that 'it encourages arbitrary and erratic arrests and convictions,' Papachristou v. Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110] (1972)." Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979). One does not have to be a rocket scientist to know that bank robbery is a crime; and the statute merely makes malum prohibitum (and punishable in federal court) that which already is malum in se.

Donahue next argues that the District Court erred in denying his motion to suppress the bank tellers' identification of him. He asserts that the videotape lineup that was shown individually to the two tellers, and from which they each identified him as the gunman in the robbery, was impermissibly suggestive. A two-step inquiry is applied when reviewing a claim of this sort. First, we must determine whether the lineup was impermissibly suggestive. "If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created 'a very substantial likelihood of irreparable misidentification.' " United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)).

Donahue asserts that the two other people in the videotape lineup were of vastly different heights and weights than he. Assuming, without deciding, that the videotape was impermissibly suggestive, we are unpersuaded that it created a substantial risk of misidentification. One teller testified that during the robbery she saw Donahue's face for more than a minute at a distance of only two or three feet. ³ While viewing the videotape only five days after the robbery, she stated that she was positively sure that Donahue was the gunman. She testified that when Donahue appeared on the television screen, she started shaking. She stated that she would have picked out Donahue if there had been thirty people in the lineup, instead of only three. The other teller in the bank at the time of the robbery also picked Donahue out of the videotape lineup. In the totality of these circumstances, the District Court did not abuse its discretion in denying Donahue's motion to suppress.

Donahue and Weaver argue that the District Court erroneously allowed into evidence hearsay testimony by Tammy Poole. At the trial, Poole testified that on March 7 her neighbor, Donahue's wife Tracy, came over to Poole's apartment about thirty minutes to an hour after the robbery had occurred. Poole testified that Tracy was nervous, and asked Tammy to go for a car ride with her. Tammy testified that when she refused, Tracy told her that they needed to talk. When Tammy, who had come home to watch her favorite soap opera, asked Tracy what she wanted to talk about, Tracy responded, "Leonard just robbed a bank around the corner." Trial Transcript at 232. Tammy testified that Tracy told her the referred-to bank was the "Boatmen's Bank around the corner." Id. Tammy then told the jury that she went over to the Donahue apartment, where she came upon Leonard and two other men (one of whom later was identified by Tammy as Wally Weaver). Tammy testified that the three men were nervous, and Donahue offered her money to drive the other two men downtown; she refused to give them a ride, and later left the apartment.

Defendants argue that Tammy Poole's testimony that Tracy Donahue told her Leonard Donahue had just robbed a bank was inadmissible hearsay and that its admission was so prejudicial that reversal of their convictions is required. We disagree. Assuming arguendo that this testimony was inadmissible hearsay, its introduction was harmless error in light of the overwhelming evidence pointing to defendants' guilt. "Only if the jury may have been 'substantially...