U.S. v. English, s. 73-1379

• Decision Date: 16 August 1974
• Docket Number: Nos. 73-1379,73-1380 and 73-1381,s. 73-1379
• Citation: 501 F.2d 1254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander ENGLISH et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1254

501 F.2d 1254

UNITED STATES of America, Plaintiff-Appellee, v. Alexander ENGLISH et al., Defendants-Appellants.

Nos. 73-1379, 73-1380 and 73-1381.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 14, 1974.

Decided Aug. 16, 1974.

Joseph D. Anderson, South Bend, Ind., Donald S. Eisenberg, Madison, Wis., for defendants-appellants.

John R. Wilks, Fort Wayne, Ind., John S. Leonardo, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Before KILEY, Senior Circuit Judge, CUMMINGS and SPRECHER, Circuit judges.

SPRECHER, Circuit Judge.

Defendants Alexander English, Sam Hubbard, Jr. and Rufus Gaines appeal from convictions upon a jury trial for violations of 18 U.S.C. 2113(a) and (e). ¹ Each defendant was sentenced to life imprisonment.

I

On December 22, 1971, at about 4:40 p.m., an armored truck belonging to Indiana Armored Car Service, Inc., was robbed by three black males in the vicinity of St. Mary's College, north of South Bend, Indiana. Money belonging to a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, was stolen; the driver of the truck, who had been alone, was shot and killed.

In addition to the confession of defendant Gaines, which is dealt with in Part VI, the facts were derived from a host of circumstantial evidence adduced from several witnesses.

Thomas Bright, Jr., the son of one of the owners of Indiana Armored Car Service, Inc., observed a 1967 or 1968 Buick Wildcat of greenish gold color with a license commencing with '45' following the armored truck on the afternoon prior to the robbery. Bright noticed three black males in the automobile.

Louise Smith, an employee of a hospital north of South Bend and near the site of the robbery, noticed the armored truck making a pickup at the hospital at 4:30 p.m. on December 22. At the same time she observed an automobile with a license commencing with the numbers '45' in the hospital parking lot with two black males inside, one of whom she identified as defendant English.

David Lee, who was driving home from work, saw two black males push a uniformed truck driver into an armored truck between 4:40 and 4:50 p.m. at the parking lot of Randall's Inn north of South Bend and a few blocks north of St. Mary's College.

Sue Fenters, who was being driven home from work by her sister, noticed the armored truck leaving the parking lot of Randall's Inn and going south between 4:40 and 4:45 p.m., with one black male driving and a second black male in the passenger side of the front seat.

Thomas Broden, a professor at Notre Dame Law School who was driving his son to work, observed an armored truck parked on an access road to St. Mary's College at approximately 4:46 p.m., with a male leaning against a greenish medium-sized car parked next to the truck.

Police Officer Douglas Schultz discovered the armored truck parked on the St. Mary's access road at about 4:57 p.m., with its doors locked and engine running. Marion Cooper, the truck driver, was lying face up inside the truck. The coroner of St. Joseph County testified that Cooper died at approximately 4:45 p.m. from gunshot wounds in the head and chest.

Lee Andrews, an acquaintance of all three defendants, testified that he was the owner of a 1968 Buick Wildcat colored charcoal gray with an avocado green top which he had loaned to defendant English for four or five days in December of 1971. The certificate of registration for Andrews' Buick showed that the 1971 license plate number was 45 G 6184. Traffic records showed that English had an accident with Andrews' car on December 17, 1971 and received a speeding ticket on December 18, 1971.

Gerald Bywater testified that he observed Gaines fire a firearm on December 20, 1971. Police later recovered a spent slug from the scene of that firing. Evan Hodge, an F.B.I. firearms identification expert, testified that a 'reasonable' or 'strong' probability existed that the spent .38 caliber slug recovered from the floor of the armored truck was fired from the same firearm that witness Bywater had observed Gaines firing a few days prior to the robbery, and that a bullet taken from Cooper's body was fired from the same weapon as the slug from the truck.

Naomi Fairchild, another acquaintance of all three defendants, saw English, Hubbard and Gaines on the evening of December 22 in her apartment in Gary, Indiana, when they had in their possession a money bag, money wrapped in bank wrappers and pistols. She heard English say that they should 'get rid of those wrappers that was around the money because they were hot.'

Barbara Glass, Gaines' girl friend, testified that she was acquainted with all three defendants; that about December 20, 1971 she and the three defendants went to South Bend in a Buick automobile; that on December 22, she saw all three defendants in the same car; and that the same evening she saw Gaines with a Holiday Inn pillowcase with money in it. A registration card from a Holiday Inn at Gray, Indiana, showed that Engligh had checked into the motel at about 4:45 p.m. on December 22, 1971. Gary is in the Central Standard time zone and South Bend is in the Eastern Standard zone, so that it was then 5:45 p.m. at South Bend. The distance between Gary and South Bend is about 45 miles.

Naomi Fairchild testified that she heard English say that he had purchased a new car at the end of December, 1971. Edward Kasper, an automobile salesman in Gary, Indiana, testified that he sold English a new Buick Riviera automobile on December 27, 1971, for $4,700, which English paid in cash, and that $600 to $1,000 of that amount was in one dollar bills.

Barbara Glass further testified that in January, 1972, English and Hubbard told her that 'the FBI would be getting in contact with me and not to say anything' and that it was about 'some kind of car, armored car.' At that time, English had a black suitcase with money in it.

II

Defendants' first argument was that the district court erred in not permitting them to inspect the minutes of the grand jury which indicted them, so that they could determine whether the indictment was based on hearsay and whether the grand jury had probable cause to indict them.

The Supreme Court held in Costello v. United States, 350 U.S. 359, 361-364, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment based exclusively on hearsay evidence is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of evidence presented to the grand jury.

Rule 6, Fed.R.Crim.P., provides that the secrecy of grand jury proceedings may be violated 'when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.'

Disclosure is 'committed to the discretion of the trial judge' and 'the burden . . . is on the defense to show that 'a particularized need' exists for the minutes which outweighs the policy of secrecy.' Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 400, 79 S.Ct. 1237, 1240, 1241, 3 L.Ed.2d 1323 (1959).

Defendants make no such showing of 'a particularized need.' In view of Costello, here there is 'no indication that the court below abused its discretion in not ordering the grand jury minutes produced for defendants.' United States v. Newcomb, 488 F.2d 190, 192 (5th Cir. 1974).

III

Defendants' second argument was that they were prejudiced by the delay in the furnishing of discoverable government material. Defendant Gaines was granted discovery on May 12, 1972 and did not receive the government material until August 18.

On May 12, only Gaines had been indicted and was before the court. When a motion for enforcement of the May 12 order came up for hearing on July 6, the government pleaded that Gaines' attorney had a conflict of interest because he also represented English and Hubbard in other unrelated matters and that to disclose matters to Gaines would prejudice the government's potential case against English and Hubbard. The district court requested briefs on the question of conflict of interest. Thereafter, on August 11, the court denied the government's motion to disqualify Gaines' attorney.

In the light of the intervening indictment of Gaines, Hubbard and English on July 14, 1972, the denial of the government's motion was conditioned on first holding a hearing to determine whether Gaines' waiver of his right to separate independent counsel was understandingly and intelligently made. Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965).

On August 18, 1972, the three defendants were arraigned in the present case and each entered a plea of not guilty. The district court then ascertained defendants' knowing and intelligent waiver of the right to separate independent counsel. On that same day the government turned over discoverable material to defense counsel. ²

In view of Campbell v. United States, supra, relied upon by the district court, it cannot be considered that the conflict of interest argument advanced by the government was frivolous. In Campbell, the court said at 360-361:

The judge's responsibility is not necessarily discharged by simply accepting the co-defendants' designation of a single attorney to represent them both. An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. Considerations of efficient judicial administration as well as important rights of defendants are served when the trial judge makes the affirmative determination that co-defendants have intelligently chosen to be represented by the same attorney and that their decision was not governed by proverty and lack of information on the availability of assigned counsel. We must...