U.S. v. Fortes, s. 79-1124

• Decision Date: 01 April 1980
• Docket Number: Nos. 79-1124,79-1125,s. 79-1124
• Citation: 619 F.2d 108
• Parties: 6 Fed. R. Evid. Serv. 174 UNITED STATES of America, Appellee, v. Edwin Charles FORTES, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Sandra Elaine JEMISON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 108

619 F.2d 108

6 Fed. R. Evid. Serv. 174

UNITED STATES of America, Appellee, v. Edwin Charles FORTES, Jr., Defendant, Appellant.

UNITED STATES of America, Appellee, v. Sandra Elaine JEMISON, Defendant, Appellant.

Nos. 79-1124, 79-1125.

United States Court of Appeals First Circuit.

Argued Oct. 4, 1979.

Decided April 1, 1980.

Wallace W. Sherwood, Boston, Mass., by appointment of the Court, with whom Bruce W. Carroll, Boston, Mass., was on brief, for defendant, appellant Edwin Charles Fortes, Jr.

Peter M. Lauriat, Boston, Mass., by appointment of the Court, with whom Herrick & Smith, Boston, Mass., was on brief, for defendant, appellant Sandra Elaine Jemison.

Robert B. Collings, First Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and BONSAL, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Following a jury trial in the District Court for the District of Massachusetts appellants Fortes and Jemison were convicted of armed robbery under 18 U.S.C. § 2113(d). Each appeals on a variety of grounds. We affirm the convictions.

On March 23, 1978, two individuals robbed the Tri-Town Mall branch of the Hancock Bank and Trust Company of $3,173. Eyewitnesses testified that the two participants were wearing camouflage jump suits and dark ski masks; detailed description or positive identification was not available. The eyewitnesses agreed, however, that there was a difference in height between the two robbers; in addition several eyewitnesses thought the taller of the two was a male, the shorter a female. ¹ The taller individual carried a sawed-off shotgun, which one witness identified as a pump action type; the other was unarmed. Only the armed participant spoke during the robbery. This individual at first remained in the lobby area of the bank while his partner entered the teller's area carrying what one witness described as a blue canvas-like book bag. Thereafter, the individual holding the weapon pulled out a section of the teller's cage and jumped over the counter into the teller's area, with the other participant now returning to the customer area of the bank. The individual with the shotgun then came from behind the teller's area carrying, in the words of one eyewitness, a grayish-white type bag "under his arm . . . like a football"; one of the bank tellers who witnessed the robbery described this as a bag of coins. At this point the two individuals left the bank and were seen running into the nearby woods. After the robbery, the head teller noticed that $1,000 in dimes was missing from the vault. She testified that these dimes were rolled in green and white striped wrappers and were packaged inside a white cloth bag which had been delivered the previous day by the Federal Reserve. In addition this witness testified that after the robber had fled she observed a so-called dye-pack security device lying on the bank floor.

In order to link Fortes and Jemison with this robbery, the government relied heavily on the testimony of Anton Ward, who at the time of trial was serving a three-year prison sentence for conspiracy to commit bank robbery imposed by the United States District Court for the District of Connecticut. Ward testified at length as to his relationship and activities with the appellants between December 1977 and early April 1978. He said that on two occasions prior to the March robbery, Fortes, with Jemison present, showed him various weapons, including a 12-gauge pump action sawed-off shotgun. In addition, Ward stated that on these occasions Fortes also displayed boots, ski hoods, pink or flesh-colored plastic masks and coveralls. Ward further testified that on March 24, 1978, the day following the robbery, Fortes and Jemison arrived in Connecticut, and that while helping them unload the trunk of their car, he noticed a blue bag which was quite heavy. Fortes, according to Ward, invited him to look in the bag; Ward complied, noticing rolls of dimes in green and white wrappers. Fortes, in response to Ward's inquiries, indicated he had about $200 there. Ward testified that he and a companion Beverly Brookshire (Fortes' mother) later took $30 of these dimes and exchanged them for "dollar money," returning the paper currency to Fortes.

Ward testified that on the day following appellants' arrival in Connecticut, he asked Fortes and Jemison "if they did a bank robbery." Fortes answered that they had, describing the details of the robbery, including the facts that Fortes had held the shotgun during the robbery while Jemison took the money; that Jemison had a hard time separating the "red money" from the "regular money"; that Fortes had grabbed a thousand dollars in dimes; that Fortes ran from the bank carrying the dimes like a football; and that Fortes left the area in a station wagon. Fortes later showed Ward a brown LTD station wagon parked in Hartford, Connecticut, which Fortes explained had been rented by a friend and driven down from Boston.

Other testimony of Ward further implicated the appellants in the robbery. Ward testified that on April 7, 1978, some two weeks after the robbery, Jemison emptied a car ashtray filled with dime wrappers into a storm drain at the end of the parking area in front of Ward's apartment. The government later introduced fragments of green and white paper that had been recovered by FBI agent Richard Foster from a storm drain located on the side of the carport and driveway serving that apartment. Ward also testified that Jemison was asked by Beverly Brookshire why so little money was taken during the robbery. According to Ward, Jemison responded that her nervousness and the fact that she had to separate the "red money" explained the relatively small haul. Fortes later indicated that about $3,000 had been taken.

Besides the foregoing, the government presented certain additional evidence including weapons, masks, and other physical evidence seized from a stolen Ford LTD station wagon linked with Fortes and Ward. This evidence, as well as further testimony introduced against the appellants, is described at greater length in our discussion of the various issues raised on appeal.

The defense was based largely on alibi testimony given by Jemison, her mother, and her aunt. In addition to denying that she or Fortes had been present at or participated in the bank robbery, Jemison described her encounters with Anton Ward and her relationship with Fortes and Beverly Brookshire during the period from December 1977 to April 1978. Jemison said that Ward displayed various weapons in front of her in December 1977. And, she continued, Ward stole a blue bag from a sporting goods shop sometime in early March of 1978; the next time she saw this bag was on March 29 when Ward took it, full of dimes, from his apartment to his car. Ward then exchanged a quantity of these dimes into currency, using the proceeds to take Jemison and Beverly Brookshire shopping and to dinner in Hartford. Jemison further contradicted Ward's version of events by testifying that it was Brookshire, not she, who emptied the contents of the automobile ashtray in the vicinity of Ward's Connecticut apartment. Jemison concluded her testimony by firmly denying that she had participated in the March 23 robbery. Fortes did not take the stand.

I.

Fortes challenges the district court's denial of his motion to suppress as evidence certain items seized from a brown Ford LTD station wagon and a footlocker found in the rear part of that vehicle. The station wagon, which federal officials knew had been stolen from a rental agency, was seized without a warrant from an apartment parking lot in Hartford, Connecticut by those officials on April 7, 1978. The vehicle and footlocker were searched pursuant to a warrant on April 10. ² Among the items recovered from the footlocker were a sawed-off Remington Model 870 12-gauge shotgun, two handguns, three black ski hoods, three plastic masks, two blue nylon bags, and a pair of size seven women's track shoes. A small box containing a comb was also discovered in the glove compartment of the LTD. During the trial, the government introduced evidence that Fortes' fingerprints had been found on that box and that the track shoes found in the footlocker fit Jemison. The government also introduced as evidence one of the blue nylon bags; this was identified by a bank teller as "the same type of bag" carried by one of the participants in the robbery. In addition, the government introduced into evidence the Remington shotgun. At trial, one witness, a bank teller, testified that this resembled the weapon held by the taller individual throughout the robbery. Another witness, a bank customer present during the holdup, first testified that the shotgun used during the incident "was a Remington Model 870, with a sawed-off barrel," and expressed the opinion that the shotgun seized during the vehicle and footlocker search was "basically the same model."

Fortes, in challenging the district court's denial of his suppression motion, focuses on the search of the footlocker, contending that "the warrant application for the footlocker was defective as it failed to show a substantial basis for the conclusion that the items sought would be found inside the footlocker." Upon reviewing the affidavit filed by Special Agent Richard Foster of the FBI in support of his application for the search warrant, we find little strength in this contention. The affidavit, framed largely in terms of the affiant's personal observations, indicated among other things that the Ford LTD station wagon had been rented March 20, 1978 and reported stolen on April 7, nearly one week after it was due to be returned to the rental agency; that on April 6, 1978 the same vehicle was observed "being used . . . to 'case' the Cromwell Savings Bank, Cromwell, Connecticut"; and that...