U.S. v. Lankford
| Decision Date | 19 April 1978 |
| Docket Number | 77-1938,Nos. 77-1915,s. 77-1915 |
| Citation | 573 F.2d 1051 |
| Parties | UNITED STATES of America, Appellee, v. Charles Duane LANKFORD, Appellant. UNITED STATES of America, Appellee, v. Steven Allen GRIFFIN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
R. Earl Barrett, Des Moines, Iowa, for appellants; also filed brief for appellant Griffin.
John M. Fitzgibbons, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Raxanne Barton Conlin, U. S. Atty. on brief.
Before VAN OOSTERHOUT, Senior Circuit Judge, HENLEY, Circuit Judge, and LARSON, Senior District Judge. *
VAN OOSTERHOUT, Senior Circuit Judge.
Defendants Lankford and Griffin were indicted in single-count indictments charging an attempt on or about August 19, 1977, to enter the night depository of the National Bank of Washington, Iowa, with intent to commit a felony affecting such bank, and aiding and abetting therein, in violation of 18 U.S.C. §§ 2113(a) and 2. Their cases were consolidated for trial. Defendants were represented by separate court-appointed counsel. Defendants were found guilty as charged by a jury and were sentenced to three years imprisonment. Each defendant has appealed from his conviction.
Lankford's appeal was heretofore dismissed for want of prosecution but was reinstated and consolidated with Griffin's appeal by order of this court dated February 7, 1978. Lankford has adopted Griffin's brief. There is no conflict of interest with respect to the two defendants. The issues raised by both appeals are identical.
As a basis for reversal, defendants urge the trial court committed prejudicial error in the following respects: (1) overruling their motions for judgments of acquittal; (2) violation of defendants' sixth amendment rights in denying their motions for a continuance so as to enable them to obtain counsel of their own choosing.
We reject both contentions for the reasons hereinafter stated and affirm the judgments of conviction. The pertinent facts will be set out to the extent necessary in the course of this opinion.
Eighteen U.S.C. § 2113(a) in pertinent part provides:
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association 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.
With the exception of the two issues presently to be discussed, defendants do not challenge the sufficiency of the evidence to support the convictions. In any event we have carefully examined the entire record and have no doubt that the evidence amply supported the guilty verdicts if the two issues are resolved adversely to the defendants.
First, defendants urge that they are entitled to judgments of acquittal because their attempted entry into the bank's night depository does not constitute an attempted entry into the bank within the meaning of the statute.
The night depository of the National Bank of Washington is located in a recessed entry way leading to the main entrance of the bank. Customers desiring to make night deposits receive a depository bag in which to place checks and cash which they desire to deposit; a key to the door of the night depository is also provided. The bags are placed inside the door, and when the door is closed and locked, the deposit bag falls down a three-to-four-foot chute located inside the outer wall of the bank and into a special safe inside the bank. The safe is opened each morning by two bank employees. The names of the depositors are listed. When a depositor comes to the bank later in the day, the bag is opened and its contents are deposited to the customer's account.
Counsel have cited no cases interpreting the statute with respect to whether it covers a night depository of the sort just described, and we have similarly discovered no cases dealing precisely with this issue. In our view, however, the statute clearly and unambiguously applies to the situation here presented.
The words of the statute reading "such bank, . . . or building, or part thereof, so used" reflect that Congress by appropriate language intended to make it a crime to enter any part of a bank building with intent to steal. The depository chute at the National Bank of Washington is located inside the outer wall of the bank, and the safe which receives the night deposits is located inside the inner wall of the bank. We hold under these circumstances that an attempt to enter the night depository is an attempt to enter the bank within the meaning of the statute.
Second, defendants urge that they are entitled to judgments of...
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