U.S. v. Hinton

• Decision Date: 17 October 1983
• Docket Number: No. 82-5268,82-5268
• Citation: 719 F.2d 711
• Parties: 14 Fed. R. Evid. Serv. 525 UNITED STATES of America, Appellee, v. Gregory HINTON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 711

719 F.2d 711

14 Fed. R. Evid. Serv. 525

UNITED STATES of America, Appellee, v. Gregory HINTON, Appellant.

No. 82-5268.

United States Court of Appeals Fourth Circuit.

Argued May 13, 1983.

Decided Oct. 17, 1983.

Fred Warren Bennett, Federal Public Defender, Baltimore, Md. (Richard B. Bardos, Law Clerk on brief), for appellant.

Glenda G. Gordon, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendant appeals his conviction of armed bank robbery in violation of Secs. 2113(a), (b), (d) and (f), 18 U.S.C. and Sec. 2, 18 U.S.C. He asserts three grounds of error. The first of these is addressed to his conviction of an assault by putting "in jeopardy the life of any person by the use of a dangerous weapon" during an armed robbery (Sec. 2113(d)). The evidence in this connection was that one of the three bank robbers, brandishing and waving a large revolver toward the employees and customers in the bank, threatened them while his confederate gobbled up the money from the tellers' boxes. The defendant argues that such evidence is insufficient to convict under Sec. 2113(d). Recently, in United States v. Bennett, 675 F.2d 596, 598-99 (4th Cir.1982), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307, we thoroughly canvassed this question and concluded to the contrary. We adhere to that decision. His second claim relates to the admission in evidence of the spontaneous comment of the interviewing officer after the defendant had told the officer, "I'll cop to the (b)." ¹ The officer's response was: I told him this was a lesser charge and that it carried a ten-year maximum penalty." Such response of the officer, according to the defendant, represented inadmissible hearsay. We are of opinion that this contemporaneous response came within the exception to the hearsay rule stated in Rule 803(1), Federal Rules of Evidence. In addition, any possible error in the admission of such response was rendered harmless by the defendant's own subsequent repetition of the officer's explanation of the meaning of defendant's comment. The defendant's third claim of error, however, requires some discussion. It involves a charge of failure to produce statements which the defendant argues should have been preserved and made available for impeachment during the cross-examination of the Government witness Sexton under the terms of Sec. 3500, 18 U.S.C. which authorizes penalty of suppression of a witness' testimony by way of a sanction for a violation of such statute. Before addressing this legal issue, it appears proper first to sketch the factual situation from which this issue emerges.

In minutes after it opened on the morning of May 5, 1982, the Citizen's Bank & Trust Company of Maryland, Kemp Hill Branch, in Silver Spring, Maryland, was robbed by three black males, wearing ski masks. As we have already said, one of the robbers had a large gun which, as the robbers rushed into the bank, he brandished in a threatening manner, commanding the customers in the bank to "hit the floor." The other two robbers jumped over the teller counter and ordered the tellers to get down. They proceeded to gather up $12,504 in federally insured funds, which included bait bills. All the robbers then rushed from the bank and jumped into a light blue 1979 Chevrolet Caprice which had been stolen that morning, presumably for use in the robbery. A person in the bank parking lot saw the robbers rush from the bank and take off in the Caprice. He followed the Caprice to the parking lot of a nearby apartment complex where the robbers parked the Caprice. The occupants of the Caprice had apparently observed they were being followed and one of them, after they got out of the Caprice, approached their pursuer in a belligerent manner and so frightened him that he fled. The three robbers proceeded at this point to transfer to a brown van parked in the apartment parking lot, abandoning the stolen Caprice. Thomas Spaight, who lived in the apartment complex, was in his car at the time and was beginning to drive out of the apartment parking lot. He had observed the unusual action of the robbers in the lot as they shifted from the Caprice to the van and, curious, he drove his car in front of the van so as to secure an opportunity to observe the van's license plate. He apparently immediately passed the van's license plate number on to the police authorities.

By 9:30 on May 5, within a few minutes after the robbery, the owner of the van had been identified by the police authorities on the basis of Mr. Spaight's information, and Williams, a police officer in the District of Columbia, was ordered to establish a look-out on the block in Washington, D.C., where defendant, who had been identified as the owner of the get-away van, lived. After about an hour, Officer Williams observed a brown van with the license tag identified by Mr. Spaight drive into the block where defendant lived. The driver of the van, identified as the defendant, double-parked in the street while he ran into the house, said to be that of the defendant. The defendant quickly returned from the house to his van and drove it farther down the block where he could park it. As the defendant emerged from the van, he was arrested by Special Agent Chmiel of the FBI, who together with Sergeant Dory of the District of Columbia Metropolitan Police Department and Special Agent Sexton, had joined Officer Williams at the scene. A search of the area about the scene of the arrest revealed a pillow case, in which there were $3,924 in money, some ammunition, and a .357 Strum Ruger pistol. Included in the money was money identified as bait money taken from the bank during the robbery. The defendant's fingerprints were found on the bait money. The gun was said by witnesses later at the trial to be similar to the one brandished by the robber during the robbery. It, too, had defendant's fingerprints on it.

After the arrest was made, Agent Sexton was instructed to do "a neighborhood investigation." In the course of that investigation he interviewed Alice Lemmons, who lived on the same block a few doors from the defendant's residence. Lemmons was seated on her front porch at the time of the interview. Agent Sexton wrote on a small sheet of paper a rough note of what Lemmons told him in the course of his interview of her. Later the same day he set forth on a formal Interview Form FD-302, his account of his interviews, including that of Lemmons, using his rough notes of her statement to assist in the drafting. ² This formal 302 statement, so far as it relates to the agent's interview of Lemmons, is:

"Lemmons advised that she knows Hinton and she had just seen him drive up in his brown van. Lemmons stated that Hinton spoke to her in passing. He said hello, sugar. She returned inside her residence for a couple of minutes to cook Oodles of Noodles for her child. Upon returning outside she saw Hinton being placed under arrest. She added she had not seen Hinton earlier that morning."

At the trial Lemmons was called as a witness for the defendant. She admitted that she had seen the defendant on the morning of May 5 before his arrest. She fixed the time when she saw him first as about 9:30 to 9:45. She denied that, when she saw him, he was driving a brown van. According to her trial testimony, he, while simply standing in the street, waved at her and said "Hello Sugar." Agent Sexton was called as a government witness to rebut some of Lemmons' testimony. He testified, as he had recorded in his 302 interview report, that Lemmons told him when he inquired of her about this event that "she had seen him (referring to the defendant) prior to his arrest, he had driven by in his brown van, he had waved at her and said hello, sugar." The point of difference between Lemmons' trial testimony and Sexton's record of her statement to him on the day of the robbery was whether the defendant was driving the brown van when he waved to her that morning or was standing on the sidewalk.

During his testimony at trial, Sexton was asked, after he had given his account of his conversation with Lemmons as recorded in his 302 report, whether he had been "taking notes" while interviewing Lemmons. He answered he had. Counsel for the defendant then inquired where such notes were. The agent responded, "[t]hey should be in the 1-A folder with the case file." A recess was taken to enable the agent to search his files. The notes could not be found, though it seems to be conceded that the agent had "placed (the notes) in the 1-A folder," which he had given to a clerk whose job it was to place them in "the file of the Washington Field Office." The defendant at this point moved to suppress the testimony of Agent Sexton because of the failure to produce the rough notes of the interview of the witness Lemmons.

There is no charge that the Government had deliberately destroyed or concealed the notes. Neither is it contended that the Government had not made a good faith effort to preserve the notes. The position of the defendant, as stated both at trial and in this Court, is that, while the Government may have sought in good faith to retain in its files the notes of all interviews of potential witnesses made during the investigation at the scene of defendant's arrest including those of the interview of Lemmons, those notes had been "negligently" or inadvertently lost and were not available. ³ The defendant argued that under those circumstances the District Court was obligated to invoke sanctions against the Government under the Act by suppressing the testimony of the agent Sexton. The district court, however, refused to strike the testimony, relying for its decision on United States v. Johnson, 337 F.2d 180 (4th Cir.1964), cert. denied, 385 U.S. 846, 87 S.Ct. 44, 17 L.Ed.2d 77 (1966). It is this ruling which ...