U.S. v. Green, s. 75--1239

• Decision Date: 13 November 1975
• Docket Number: Nos. 75--1239,75--1240,75--1257,s. 75--1239
• Citation: 525 F.2d 386
• Parties: UNITED STATES of America, Appellee, v. Gerald Monroe GREEN, Appellant. UNITED STATES of America, Appellee, v. Dee Leon LOYD, Appellant. UNITED STATES of America, Appellee, v. Harold Lewis WALLS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 386

525 F.2d 386

UNITED STATES of America, Appellee, v. Gerald Monroe GREEN, Appellant.

UNITED STATES of America, Appellee, v. Dee Leon LOYD, Appellant.

UNITED STATES of America, Appellee, v. Harold Lewis WALLS, Appellant.

Nos. 75--1239, 75--1240, 75--1257.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1975.

Decided Nov. 13, 1975.

Bruce Hiller, Minneapolis, Minn., for H. L. Walls.

Maher J. Weinstein, Minneapolis, Minn., for G. M. Green.

Phillip S. Resnick, Minneapolis, Minn., for D. L. Loyd. Concluded by Mr. Resnick.

Daniel M. Scott, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and VAN PELT, ^* Senior District Judge.

VAN PELT, Senior District Judge.

Appellants Gerald Green, Dee Loyd and Harold Walls were jointly indicted and convicted under 18 U.S.C. § 2113(a) and 2113(d) ¹ for the robbery of the Home Federal Savings and Loan Association of Minneapolis, Minnesota. A single jury trial was held and the appellants are here separately appealing their convictions.

Motions for judgment of acquittal or a new trial were timely filed and denied.

The issues being raised on this appeal are numerous. Simply stated, they are:

1. Whether the authorities had sufficient facts to establish probable cause for the warrantless arrest of the three appellants.

2. Whether the search of appellant Walls' automobile resulted from an involuntary consent and was thereby unlawful.

3. Whether the district court erred in allowing expert testimony concerning identification of appellant Green's clothing, thereby invading the province of the jury.

4. Whether identification testimony was tainted by an unduly suggestive photographic display.

5. Whether the evidence was sufficient to convict appellant Loyd either of violating 18 U.S.C. § 2113(a) and (d) as a principal or as an aider and abettor under 18 U.S.C. § 2.

6. Whether certain instructions to the jury concerning aiding and abetting were improper.

As the facts in this case bear heavily on the issues raised by the appellants, a complete statement of the pertinent facts and their chronological development will follow.

At approximately 3:00 p.m. on the afternoon of December 9, 1974 Steven Euller, a security guard at Powers Department Store, observed a silver and purplish Ford Galaxie pull up quickly to one of the store's entrances. Two of the four black males riding in the car got out and walked quickly into the store where they purchased three ski masks from Rosalind Martin. The men left with the ski masks and a receipt containing Ms. Martin's identification code 1/2409M.

Mr. Euller recorded the license number of the automobile, 1/2KD7652, and called it into the Minneapolis Police Department along with a description of the car and the two men who entered the store. The men were described as black males, approximately five foot eight and five foot ten. One had a beard and a moderate Afro. The other had curly or wavy hair.

On the morning of December 10, 1974 at approximately 9:30 a.m., Minneapolis Police Officer Dolan saw a 1963 maroon Ford with a light colored front end at the intersection of Humboldt and Lagoon Avenues. This intersection is one block from the Home Federal Savings and Loan Association. The car contained three black men, one of whom was wearing a ski cap. Dolan did not note the license number of the car.

Later investigation disclosed that at about the same time Gus Zaccaro observed a similar car illegally parked in his parking lot, one block west of Home Federal Savings and Loan. He requested the three black males, all of whom were wearing ski caps, to move the car.

At 9:46 that same morning the police dispatcher received a call that the Home Federal Savings and Loan Association was robbed by three black males in ski masks. The dispatcher feeling that the robbery report and the information furnished by Euller the day before 'kind of fit together,' broadcast the description as a possible suspect car. Officer Dolan responded to this broadcast and relayed that he had seen a similar automobile just minutes before. This additional information was also broadcast.

A few minutes after receiving the call concerning the robbery, F.B.I. Agent Robert Harvey arrived at the scene and received from Officer Dolan the information concerning the automobile's description.

F.B.I. Agent Joseph O'Brien also arrived at the scene of the robbery shortly after it was reported and proceeded to interview Diane Wetzler. Wetzler described two of the men as being in their late teens or early twenties, one was light complexioned and short, while the other was taller and darker complexioned. She could not describe the third man. O'Brien was then directed by Agent Harvey to the Project area of North Minneapolis to search for the car.

At approximately 11:00 a.m. on December 10, 1974 F.B.I. Agent Larry DeWitt arrived at the Powers Department Store to interview Euller concerning the two black men he had reported seeing the previous afternoon. Euller provided descriptions of the two men and of the gray and purplish automobile which DeWitt broadcast over his radio.

At 11:20 a.m. Officer O'Brien saw the suspect car parked near 608 Emerson Avenue, which was later determined to be appellant Loyd's address. Three black males approached the car, got in and drove away. One of the men was short and light complexioned. The suspects were followed first to another house and then to a grocery store. Several F.B.I. agents then arrested the three appellants when they departed from the store, and transported them to the F.B.I. offices.

All three appellants signed waiver of rights forms and gave statements to the F.B.I. denying any participation in the robbery or in the purchase of the ski masks. Appellant Walls also signed a consent to search form for his Ford automobile, license number KD7652. A search of the car uncovered the following items: a piece of cardboard which matched pieces of a shoebox found west of the bank after the robbery and which was later identified as the shoebox carried out of Home Federal by the robbers; two Powers Department Store price tags in the amount of $3.50 each, two tags which said 'orlon acrylic,' and a receipt from Powers for $10.50. The tags matched those found on a ski mask later purchased at Powers by an F.B.I. agent, and the receipt contained Rosalind Martin's identification code 1/2409M.

At the time the appellants were placed in the Hennepin County Jail, the authorities took Green's clothing for future comparison with bank surveillance photographs.

Search warrants were obtained and executed at appellant Loyd's residence, 608 Emerson Avenue North, on December 10, 1974 and December 13, 1974. During the first search, agents discovered a Home Federal Savings and Loan Association courtesy bag in the linen closet. The bag was identical to one taken in the robbery. Three ski masks were discovered stuffed into a torn mattress in an upstairs bedroom. The masks were identical in design to those sold at Powers. There were also obvious similarities between the masks found in the mattress and those worn by the robbers as shown by the bank camera's surveillance photographs.

The second search of Loyd's residence uncovered a man's two-toned leather jacket with an attached electrical alligator clip.

On December 11, 1974 hair samples of the appellants were taken by court order and forwarded to an F.B.I. analyst. It was later discovered that these samples had similar characteristics to those found in the three ski masks.

The afternoon of December 11, Powers Security Guard Euller was shown a series of eleven photographs by F.B.I. Agent DeWitt. He identified appellants Loyd and Walls as the two men he had seen purchasing the ski masks two days before.

During the trial three months later, F.B.I. photographic analyst Joseph Avignon was allowed, over objection, to testify and compare the bank's surveillance film with black and white photographs taken of a model dressed in appellant Green's clothes and wearing the jacket taken from appellant Loyd's residence. This comparison revealed a number of detailed and unique similarities in designs, types and amount of wear between the clothes in the film and the clothes in the photographs.

Additional matters which came out at trial were the identification of appellant Walls by Home Federal Security Guard Wendell Mason and Teller Diane Wetzler. Mason stated that he recognized Walls at the bank but delayed in coming forth because he was a tenant of Walls' parents and did not want to get involved. Wetzler stated that she also felt she recognized Walls from the times he had stopped to give a ride to Mason, but did not think of it until she had heard that he was one of the men the authorities had arrested.

Probable Cause

Agents of the Federal Bureau of Investigation are authorized under18 U.S.C. § 3052 to:

(M)ake arrests without warrant * * * for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.

The 'reasonable grounds' specified in the above statute are equivalent to the probable cause requirements of the Fourth Amendment to the United States Constitution. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

The standard for probable cause for a warrantless arrest by authorities has been stated many times by the United States Supreme Court:

'In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States (338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879). Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably...