U.S. v. Johnson
| Decision Date | 11 December 1978 |
| Docket Number | No. 77-1661,77-1661 |
| Citation | 191 U.S. App. D.C. 193,589 F.2d 716 |
| Parties | UNITED STATES of America v. Joseph A. JOHNSON, Jr. also known as "Joe Boss," Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 76-796).
Michael Alan Olshonsky, Bethesda, Md., for appellant.
John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Roger M. Adelman Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before TAMM and ROBINSON, Circuit Judges, and GESELL, * United States District Judge for the District of Columbia.
Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
Appellant was tried before a jury, convicted and sentenced on a count of armed bank robbery, a federal offense, 1 and as well on a count of armed robbery, a District of Columbia offense. 2 He now contends that the District Court erred in refusing to grant his motion for a judgment of acquittal, arguing specifically that inculpatory admissions made by him were too sparsely corroborated to support a conviction and, more generally, that the evidence was legally insufficient to convict him. We find these claims belied by the record and consequently we uphold the District Court's refusal to order an acquittal. 3 Since, however, the court impermissibly imposed dual sentences for what in legal contemplation was a single offense, we remand the case with instructions to vacate the judgment on one of the counts. 4
The Harry Diamond Laboratory Federal Credit Union was robbed on the morning of March 10, 1976, a payday for its employees. According to the testimony of Marian Gilbert, a teller, a man entered the office of the credit union and, after a customer departed, displayed a gun and demanded money. While Ms. Gilbert was complying, a second armed man came in and demanded cash from a second drawer. 5 There was evidence that a black Eldorado Cadillac was parked nearby, with the engine running, about the time of the holdup, 6 and that the bandits seemed familiar with the operation of the credit union. 7
Months later, appellant, who had once worked for the credit union, was charged as a participant in the robbery. At trial, the Government introduced a composite drawing of the robber who entered second, prepared with the assistance of Ms. Gilbert. 8 It also introduced the grand jury testimony of Arthur Jackson 9 that, at a gathering at appellant's house, appellant had recounted details of the holdup and indicated his participation. 10 According to Jackson, appellant's recitation mentioned that one gunman came in five minutes late 11 and that the driver of the getaway car was named "Lathan." 12 The portion of Jackson's grand jury testimony that most strongly tied appellant to the credit union robbery was his statement that appellant "talked about how he had paid his rent up for six months, and how he swung the gun around in people's face and told them, '(t)his is it.' " 13
The Government also presented the testimony of Special Agent James Murphy of the Federal Bureau of Investigation. Murphy stated that he had met with appellant on two occasions. At the first, appellant allegedly admitted knowing the three other individuals later charged with the robbery 14 but denied personal knowledge of or participation in the crime. At the second meeting, appellant still denied involvement but admitted knowing three days prior to the robbery that it was to be an inside job, that it was set up by Marion Bumbrey, and that it was to take place early in the morning of a payday. 15
Appellant argues that there was insufficient corroboration of his admissions to Murphy and Jackson to support a conviction. The requirement that a verdict of guilt rest on more than unsupported confessions or admissions of the accused has a long history in both English and American law, and it occurs in a variety of forms. 16 Traditionally, its purpose has been to forestall convictions based on confessions to crimes that never occurred. 17
Under the conventional formulation of the corroboration requirement, the so-called "corpus delicti" rule, the prosecution must introduce independent proof of the corpus delicti of the crime proof that events comprising the crime actually transpired and that they were occasioned by someone's criminal activity. 18 But the "corpus delicti" rule has not been adopted whole cloth by the federal courts.
The nature of the corroboration requirement in federal courts was set forth in a trio of 1954 Supreme Court cases. 19 What is demanded is that the Government 20 In other words, the adequacy of corroborating proof is measured not by its tendency to establish the corpus delicti but by the extent to which it supports the trustworthiness of the admissions. 21 There can be no question that appellant's narration of the credit union robbery has been adequately substantiated under this test. The Government introduced undisputed evidence that the robbery occurred, with several details matching those of Johnson's admissions. 22
Appellant maintains that Jackson's grand jury testimony did not reflect any admission by appellant that he took part in the holdup of the credit union. 23 This position, though supported by Jackson at trial, 24 is seriously undercut by the record. Before the grand jury Jackson was interrogated about the credit union robbery. 25 The substance of Jackson's testimony was that after the holdup he went to appellant's house for a social visit and that at some point the conversation turned to the credit union robbery. 26 Jackson reminded appellant that he was to have been a cohort in the robbery, whereupon appellant described it meticulously and bragged of paying six-months rent from the proceeds. 27 Though not couched as an explicit admission of participation in the credit union robbery, appellant's statement, as related by Jackson, was exactly that when taken in context. 28
Appellant further argues that there is insufficient proof outside the admission that he took part in the holdup. 29 We perceive no occasion, however, to assess the substantiality of the Government's independent proof of appellant's participation, such as the composite drawing made with the teller's assistance. 30 For the Supreme Court has made clear that in cases involving a tangible corpus delicti where the fact that a crime has been committed can be shown without identifying the perpetrator "there need . . . be no link, outside the confession, between the injury and the accused who admits having inflicted it." 31 This principle extends to the crime of armed robbery, and we are accordingly constrained to reject appellant's contention. 32
Appellant further asserts that in meeting the corroboration requirement the Government cannot use appellant's statements to Agent Murphy to corroborate his admissions to Jackson. 33 He relies on a passage in United States v. Calderon, 34 that reads, "(t)he latter (admission), standing uncorroborated, cannot serve to corroborate respondent's other admissions." 35
Calderon is inapposite here. There was independent evidence confirming what appellant said to Murphy concerning the time and manner of the robbery. 36 And the Supreme Court has taught that "(a)ll elements of the offense must be established by independent evidence or Corroborated admissions. " 37 Thus appellant's corroborated admissions to Murphy clearly can be used to corroborate appellant's admissions to Jackson. Moreover, even ignoring appellant's admissions to Murphy, his admissions to Jackson were sufficiently corroborated by independent evidence of the details of the robbery. 38
Lastly, appellant urges that, even when the admissions are considered, there was insufficient evidence to submit the case to the jury. He challenges particularly the independent evidence identifying him as one of the robbers, suggesting that the composite drawing did not sufficiently resemble him and pointing out that the teller had failed to identify him at a lineup. 39 Weighing the value of evidence is, however, a function exclusively within the province of the jury. "It is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the judge may properly take the case from the jury." 40 With appellant's admissions supplementing the other evidence, we cannot say that such a situation existed here.
Appellant was sentenced to two concurrent ten-year terms of imprisonment on the two counts upon which he was tried armed bank robbery under the United States Code and armed robbery under the District of Columbia Code. 41 Our decisions make clear that dual sentencing for the same offense is impermissible. 42 The Government suggests that we vacate the armed robbery conviction, 43 but it is the duty of the trial court "to select the counts on which to impose sentence when the jury returns verdicts of guilty under both statutes." 44 Accordingly, we remand the case to enable the District Court to vacate the conviction on one of the counts. 45 In all other respects, the judgment appealed from is affirmed.
So ordered.
* Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
1 18 U.S.C. § 2113(a), (d) (1976).
2 D.C.Code §§ 22-2901, 22-3202 (1973). Indicted with appellant on both counts were Marion D. Bumbrey, ...
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