U.S. v. Johnston
| Citation | 543 F.2d 55 |
| Decision Date | 20 October 1976 |
| Docket Number | No. 76-1309,76-1309 |
| Parties | 1 Fed. R. Evid. Serv. 407 UNITED STATES of America, Appellee, v. William Reece JOHNSTON, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Frank W. Booth, Fort Smith, Ark., for appellant.
Robert E. Johnson, U. S. Atty. and J. Michael Fitzhugh, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
Before GIBSON, Chief Judge, STEPHENSON and HENLEY, Circuit Judges.
William Johnston appeals his conviction in a jury trial of attempted bank robbery in violation of 18 U.S.C. § 2113(a) (1970).
On January 14, 1976, Johnston, a paroled bank robber, attempted to rob the First National Bank of Fort Smith, Arkansas. Keeping his right hand in his right coat pocket in such a way as to make it appear that he had a gun, Johnston forced his way into the package vault area of the bank, ordered employees not to push any buzzers and demanded $20 bills. A bank employee who described himself as "adept in the art of self defense" jumped Johnston from the rear and overpowered him. Johnston was held by bank employees until law enforcement officials arrived and took him into custody. A search of Johnston by the arresting officers, members of the Fort Smith Police Department, uncovered a pocketknife in his right coat pocket. Johnston was subsequently indicted for violation of 18 U.S.C. § 2113(a) and was found guilty by a jury in United States District Court 1 of having attempted to rob the First National Bank of Fort Smith, Arkansas. He appeals. We affirm.
Johnston's initial contention is that he was voluntarily intoxicated at the time of the attempted robbery and that the Government improperly suppressed the results of a breathalizer test administered by the Fort Smith police after his arrest. Johnston asserts that evidence of his voluntary intoxication was admissible to negate his formation of the specific intent necessary to commit the offense with which he was charged.
In a motion for discovery Johnston requested "all reports of physical examinations, scientific tests, etc." The Government did not provide Johnston with the results of the breathalizer test, which had been lost while in the custody of the Fort Smith Police Department. There is no support in the record for Johnston's insinuations that the federal government was responsible for this loss. At a hearing on pretrial motions on March 8, 1976, the Government did provide Johnston with the name of the officer who administered the breathalizer test and Johnston used him as a witness at trial.
Johnston contends that the trial court erred in failing to order the Government to comply with his request for the results of the breathalizer test and that the appropriate cure is a dismissal of the indictment. Putting aside the question of whether evidence of voluntary intoxication was relevant on the issues urged by Johnston, we deem that the record does not support the conclusion that the Government suppressed the results of the breathalizer test. The Government cannot be held to have suppressed Brady material, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the material sought was unavailable to either the Government or the defendant because of its loss by state police officials. Moreover, the Government apprised the defendant of the name of the officer administering the test, which placed Johnston in a position of parity with the Government as far as access to this material was concerned. Johnston, as a result, chose to call that officer as a witness at trial and he testified that the test, administered approximately 30 minutes after Johnston's arrest, had shown a result of .20% intoxication, which he considered midway between slightly and very intoxicated. Accordingly, it was not error for the trial court to fail to enter an order directing the Government to provide Johnston with the results of the test, which it did not possess and to which Johnston had equal, indirect access through the testimony of the administering officer.
The most serious contention raised by Johnston involves the issue of specific intent. It is the general and undisputed rule that evidence of voluntary intoxication may not be used to negate general criminal intent, but that where specific intent is an element of the offense charged, voluntary intoxication may be used to prove lack of intent. Johnston argues that specific intent is an element of the offense with which he was charged and that his state of intoxication prevented him from forming the requisite specific intent. Johnston cites as error the trial court's refusal to give his proffered instruction stating that specific intent was an element of the offense charged. To the contrary, the trial court instructed the jury that specific intent was not an element of the offense defendant was charged with and that, accordingly, evidence of voluntary intoxication could not be considered to demonstrate lack of capacity to form specific intent.
18 U.S.C. § 2113(a) contains two alternative definitions of criminal activity Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money * * * of any bank * * * ; or
Whoever enters or attempts to enter any bank * * * with intent to commit in such bank * * * any felony affecting such bank * * * and in violation of any statute of the United States or any larceny
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
Johnston was charged with a violation of the first paragraph of § 2113(a), which, unlike the second paragraph, does not include "intent to commit * * * any felony" as an element of the offense. Johnston's claim that specific intent is involved here is based not on citation to any binding or persuasive authority to that effect, but rather on the theory that because the offense here was an attempted rather than completed robbery, the usual principles of criminal intent should not apply.
This novel theory is offered without further explanation and is lacking in merit. We can find...
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