U.S. v. Lewis, 79-1368

• Decision Date: 22 August 1980
• Docket Number: No. 79-1368,79-1368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horace Eldin LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1276

628 F.2d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Horace Eldin LEWIS, Defendant-Appellant.

No. 79-1368.

United States Court of Appeals, Tenth Circuit.

Argued May 5, 1980.

Decided Aug. 22, 1980.

R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.

Thomas S. Udall, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., with him on brief), for plaintiff-appellee.

Before McKAY, BREITENSTEIN and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal by Horace Eldin Lewis from a conviction by jury on a charge of entering a federally insured bank with intent to commit bank robbery, in violation of 18 U.S.C. § 2113(a). The issues on appeal are (1) whether the court properly instructed the jury on the specific intent required to support conviction, and (2) whether Lewis was entitled to a necessity defense.

The facts in this case are quite unusual. The evidence indicated that Lewis was an alcoholic who had previously served time in federal prisons. Unable to cope with his drinking problem and other facets of his life outside prison, he decided to rob a federally insured bank, ostensibly so that he would be caught and returned to prison where he hoped to have some status, would be kept away from alcohol and would have time to pursue his writing hobby.

On November 27, 1978, Lewis called a detective in the Hobbs, New Mexico, police department and told him of his plans. This detective and an FBI agent visited Lewis, attempting to dissuade him. During the next approximately forty-eight hours Lewis was talked to not only by these two, but also by various others including the police chief, undercover agents of the police department and a psychologist. Lewis discussed with these individuals the dangers involved in robbing a bank, including the possibility of a heart attack by someone in the bank or miscarriage by a pregnant teller. Lewis even allowed his picture to be taken to be given to the city's banks for identification. According to the testimony, at least once he appeared to have been dissuaded from the proposed robbery and, at other times, appeared to be uncertain whether he would commit the robbery, and, if so, which bank he would enter.

Two days after his first telephone call, however, he entered New Mexico Bank and Trust Company of Hobbs, presented a note to a bank teller reading, "This is a bank robbery. Put the money in the bank bag and keep your foot off the button." Pursuant to this demand the teller placed approximately $3,113 in a bank bag and turned it over to Lewis, who was apprehended in the outer bank foyer by officers who had him under surveillance. He was convicted and sentenced to ten years in prison for violation of 18 U.S.C. § 2113(a).

Lewis now attacks his conviction principally by focusing upon the intent required to commit this crime. An instruction tendered by the defense and rejected by the court would have told the jury that Lewis, when he entered the bank, must have had "the specific intent to steal," "specific intent to take money from the bank and carry it away," and "specific intent to take such money by force or violence or by means of intimidation." Instead, the court instructed the jury that upon entering the bank Lewis must have had "the specific intent to commit in the bank a felony affecting the bank, to-wit: The taking by intimidation and from the presence of an employee of the bank money belonging to and in the care, custody, control, management and possession of the bank," and that he did such act willfully. The court also instructed the jury, inter alia, that "(s)pecific intent, as the term itself suggests, requires more than a mere general intent to engage in certain conduct," "specific intent must be proved beyond reasonable doubt before there can be a conviction," and "(i)ntent (or lack of intent) may be proved by circumstantial evidence, . . . can rarely be established by other means . . . (since) there can be no eyewitness account of the state of mind with which the acts were done (or omitted). But what a defendant does (or fails to do) may indicate intent or lack of intent, to commit the offense charged." The court declared that all statements made or acts done or omitted by the defendant could be considered to aid the determination of defendant's state of mind.

Defendant asserts that the evidence showing his declared intent to commit the robbery in order to be caught and placed in prison demonstrates that he had no intent to separate the bank from its money for anything more than a very short time. From this he argues he could not have had the specific intent contemplated by the Bank Robbery Act. He points to his calling of the police concerning the proposed robbery, their discussions, and his knowledge that he was under surveillance. He declares he intended to turn himself and the money over immediately to the FBI agent officing in the same building in which the bank was located, citing as evidence that he asked the teller for directions to the FBI office.

All of these facts were presented to the jury, and the only question is whether the instructions were adequate to present defendant's theory of the case to the jury. We think they were. We recognize that the court should be especially careful in its instructions on intent when there is such bizarre behavior as exhibited here. See Nagell v. United States, 392 F.2d 934, 938 (5th Cir. 1968). But we perceive no significant differences between the tendered instruction and the instructions given by the court to the jury.

What Lewis really seems to argue is that...