U.S. v. Fleming

• Decision Date: 23 October 1974
• Docket Number: Nos. 74-1112-74-1115,s. 74-1112-74-1115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. FLEMING, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1045

504 F.2d 1045

UNITED STATES of America, Plaintiff-Appellee, v. James E. FLEMING, Jr., et al., Defendants-Appellants.

Nos. 74-1112-74-1115.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 4, 1974.

Decided Oct. 23, 1974.

Edward L. Welch, Edwardsville, Ill., Patrick M. Flynn, Belleville, Ill., for defendants-appellants.

Henry A. Schwarz, U.S. Atty., and Joel V. Merkel, Asst. U.S. Atty., E. St. Louis, Ill., for plaintiff-appellee.

Before CUMMINGS, STEVENS and TONE, Circuit Judges.

STEVENS, Circuit Judge.

James Earl Fleming, Jr., Kenneth J. Bevineau, Henry L. Fleming and Ronald Lee Williams were indicted on five substantive counts of bank robbery, under 18 U.S.C. 2113 and 2, and one conspiracy count, under 18 U.S.C. 371. The indictments stemmed from the armed robbery of the First National Bank of East St. Louis, Illinois, on February 13, 1973.

After two days' testimony, during which several government witnesses present during the robbery identified him as one of the robbers, Ronald Lee Williams entered a plea of guilty on all six counts. The jury subsequently returned guilty verdicts against the remaining defendants on the five substantive counts. ¹

Defendants James Fleming, Jr., Kenneth Bevineau, and Henry Fleming appeal from the convictions and the sentences imposed by Judge Foreman on five grounds: 1) the evidence was insufficient to support the convictions; 2) the defendants were prejudiced when the government put co-defendant Williams on the stand, after he had entered a guilty plea, knowing that Williams would refuse to testify and would assert his Fifth Amendment privilege against self-incrimination; 3) the trial judge erred in denying these defendants' motions for severance from the trial of codefendant Williams; 4) the trial judge erred in admitting the testimony of Sidney Fleming and Bonita Thomas about a pistol allegedly used in the robbery and in other evidentiary rulings; and 5) Judge Foreman's sentencing of the defendants to serve consecutive sentences on multiple counts based on 18 U.S.C. 2113 arising from a single bank robbery was improper. Defendant Ronald Williams also appeals on this last basis.

We find appellants first four contentions to be without merit. We do, however, agree that Judge Foreman erred in prescribing multiple sentences for what was in fact a single bank robbery. Thus, we adjust the sentences of all four of the defendants.

I.

In challenging the sufficiency of the evidence, defendants Bevineau, James Fleming, Jr., and Henry Fleming correctly note that the government's case was to a large extent based on the testimony of Otis Phillips. Phillips was incarcerated in the St. Clair County Jail on a draft evasion charge during the summer months of 1973. He testified that he had spoken with each of the three defendants during this period of time and that each had confessed to having participated in the February 13 bank robbery. The confessions each linked the declarant with other of the defendants and described parts of the robbery in detail. Defendants challenge the admission of Phillips' testimony on several grounds.

Appellants recognize that normally the credibility of a witness is for the trier of fact, in this case the jury, to determine. They contend, however, that Phillips' testimony was 'false as a matter of law' because of the discrepancies in the dates on which Phillips claimed to speak to the defendants and the actual dates on which the defendants were in the county jail. ² These discrepancies go not to the admissibility of the evidence, however, but only to its weight. The discrepancies were noted and commented upon by defendants' counsel during closing argument. We think the jury properly considered them in determining Phillips' credibility.

Secondly, the defendants note that Phillips was still awaiting sentencing on the draft evasion charge when he testified in this case. They suggest that Phillips had, therefore, a motive for falsely testifying to aid the government's case. Suffice it to say that such a consideration once again goes only to the weight of Phillips' testimony and not to its admissibility. Defense counsel brought Phillips' status to the attention of the jury, and it was considered by them in determining his credibility.

Finally, the defendants object to the admission of Phillips' testimony because they contend the confessions were not adequately corroborated by other evidence. The Supreme Court has indicated that confessions must be corroborated before they may be admitted. Opper v. United States, 348 U.S. 84, 91, 75 S.Ct. 158, 99 L.Ed. 101, see also United States v. Pichany, 490 F.2d 1073, 1076-1077 (7th Cir. 1973). As the Court stated in Opper, 'It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness worthiness of the statement . . .. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.' 348 U.S. at 93, 75 S.Ct. at 164.

The Supreme Court explained the character of the corroboration that is required in Wong Sun v. United States, 371 U.S. 471, 489-490 n. 15, 83 S.Ct. 407, 419, 9 L.Ed.2d 441,

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it.

See also United States v. Charpentier, 438 F.2d 721, 724-725 (10th Cir. 1971). Thus, the government's evidence of the corpus delicti was adequate to corroborate Bevineau's confession to Phillips that he participated as a lookout, and the Flemings' confessions as well. ³

Having concluded that Phillips' testimony concerning the three confessions was properly admitted, it is clear that, viewing the evidence in the light most favorable to the government, it was sufficient to convict these three defendants of the bank robbery. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. White, 470 F.2d 170, 172 (7th Cir. 1972).

II.

Defendants James and Henry Fleming and Bevineau contend that their rights to a fair trial and of confrontation were denied when the government put co-defendant Ronald Williams on the stand after he had pleaded guilty. Williams refused to answer any questions when called.

Defendants rely principally on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. In Douglas, a co-defendant's confession implicating Douglas was read in open court under the guise of examining the co-defendant, who refused to answer. There the confession 'formed a crucial link in the proof both of (Douglas') act and of the requisite intent to murder.' 380 U.S. at 419, 85 S.Ct. at 1077. Because the co-defendant refused to answer questions, Douglas was unable to confront him and cross-examine him as to the veracity of the confession as it implicated Douglas. The Supreme Court held that the use of the confession in this manner by the prosecution effectively denied Douglas his Sixth Amendment rights.

Here, no confession of Williams was ever read into evidence. He was asked only two questions: 'Will you state your name, sir?' and 'Mr. Williams, did you this morning plead guilty to each of the six counts in the indictment in this case that we have been trying for the last two days, sir?' Williams refused to answer either. Neither of the questions in any way incriminated the remaining defendants; there was already ample evidence in the record of Williams' guilt. No confrontation rights were lost.

Indeed, there was less prejudice to the defendants' Sixth Amendment rights here than that found acceptable in Frazier v. Cupp. 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684. There, the prosecutor had summarized the confession of a co-defendant in his opening statement. When, later, the co-defendant refused to answer any questions, a Sixth Amendment contention similar to that here was raised. Nevertheless, the Court refused to find constitutional error, noting that the confederate was on the stand for only a short period of time and that only a paraphrase of the statement was placed before the jury. This, coupled with the trial judge's instruction to the jury that the statements of counsel were not evidence, led the Court to conclude that there was no deprivation of the right of confrontation. We conclude that a similar result is warranted here.

Appellants argue alternatively that their rights to a fair trial were denied when the trial judge refused to instruct the jury that Williams' refusal to testify should not be charged to the defendants. After reviewing the record, we are convinced that Judge Foreman was correct when he concluded that no such instruction was necessary. There is nothing in the record that in any way suggests that Williams' truculence was attributable to the defendants. As Judge Foreman was present and able to observe the effects of Williams' outburst on the jury, we feel he was in the best position to determine the need for such an instruction.

Finally, we reject defendants' suggestion that the government's purpose in putting Williams on the stand was solely to bring before the jury the fact that he pleaded guilty in order to enhance the credibility of Otis Phillips' testimony. As Williams had pleaded guilty to all six counts of the indictment, he no longer could assert his Fifth Amendment privilege to avoid testifying. United States v. Skolek, 474 F.2d 582, 585 (10th Cir. 1973); United States v. Hoffman, 385 F.2d 501, 505 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288. The government had...