U.S. v. McFadden

• Decision Date: 16 July 1984
• Docket Number: Nos. 83-5272,s. 83-5272
• Citation: 739 F.2d 149
• Parties: UNITED STATES of America, Appellee, v. James Edward McFADDEN, Appellant. UNITED STATES of America, Appellee, v. John(ny) DOLLARD, Appellant. (L), 83-5273.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 149

739 F.2d 149

UNITED STATES of America, Appellee, v. James Edward McFADDEN, Appellant.

UNITED STATES of America, Appellee, v. John(ny) DOLLARD, Appellant.

Nos. 83-5272(L), 83-5273.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1984.

Decided July 16, 1984.

John F. Hardaway and Steven D. Dennis, Columbia, S.C., for appellants.

Marvin J. Caughman, Asst. U.S. Atty., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before WINTER, Chief Circuit Judge, CHAPMAN, Circuit Judge and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Appellants were convicted of attempting to rob the First National Bank of Orangeburg, Cameron Branch, and of attempting to rob the South Carolina Federal Savings & Loan Association at Manning, South Carolina in violation of 18 U.S.C. Secs. 2113(a) and 2. They were also convicted of possession of a sawed-off shotgun in violation of 26 U.S.C. Secs. 5845(a), 5861(d), 5871 and 18 U.S.C. Sec. 2. They contend the convictions of attempted bank robbery under 18 U.S.C. Sec. 2113(a) ¹ may not stand because there was no use of force as required by the statute. They also claim prejudice because an excised paragraph from a typed transcript of a taped conversation was allowed to go to the jury room. Finding no merit in either exception, we affirm.

I

In the fall of 1981 three bank robberies occurred which were so similar that the FBI suspected they involved a common plan and the same individuals. On August 26, 1981 the Bank of Elloree, Santee Branch, was robbed by three individuals armed with a sawed-off shotgun and pistols. The hands and mouths of the tellers were taped by the robbers before they left. On September 9, 1981 the Coastal Federal Savings and Loan Association, Socastee Branch, was robbed by two individuals armed with a sawed-off shotgun and a pistol and again the employees were taped, hand and mouth, by adhesive tape. On October 23, 1981, two individuals armed with a sawed-off shotgun and a pistol robbed the Carolina Bank and Trust Company, Society Hill Branch, and the robbers again taped the mouths and hands of the employees. Each of these robberies occurred early in the morning and the robbers had obviously been hiding in shrubbery adjacent to the bank. Each of the branch banks was in an isolated area.

The FBI, after investigation of the robberies, suspected that James Edward McFadden and Reginald Rogers were involved. At that time Leroy Bishop, a former associate of Rogers and McFadden, was in custody of the South Carolina Department of Corrections because of a conviction of a state offense. He offered assistance to the FBI in the summer of 1982 and received an early parole in order to assist the FBI in an investigation of appellant McFadden. Bishop was supplied with a tape recorder strapped to his body and was later furnished with an automobile which included tape recording equipment.

In conversations between McFadden and Bishop, which were recorded by Bishop, McFadden admitted robbing the banks at Santee, Socastee and Society Hill. On September 2, 1982 Bishop recorded a conversation among McFadden, Dollard and Bishop in which plans were made to rob the First National Bank of Orangeburg, Cameron Branch, on September 7, 1982. On September 2, 1982 the FBI agents photographed McFadden, Dollard and Bishop in the town of Cameron as they were staking out the bank. Bishop advised the FBI of the planned robbery. On September 7 the two defendants and Bishop left the motel in which they were staying and drove to Cameron. At that time they had with them weapons and disguises to be used in the robbery. They drove into Cameron early in the morning before the bank was open with the intent of hiding in the shrubbery by the bank until the employees came to work. They planned to enter the bank with an employee and commit the robbery. However, upon arriving in the vicinity of the Cameron bank they noticed a sheriff's patrol car in the vicinity and also a suspicious pickup truck, which was in fact an FBI surveillance vehicle. They abandoned their plans to rob the Cameron branch and drove immediately to the town of Manning to plan the robbery of the savings and loan. That evening the three drove to Myrtle Beach to pick up an additional sawed-off shotgun for use in the Manning job. The following morning, September 8, 1982, at about 5:30 a.m., they left the motel and proceeded to the vicinity of the savings and loan association branch in Manning. Dollard hid two sawed-off shotguns and a disguise in the shrubbery outside the bank, and they drove around the vicinity until they were satisfied no police vehicles were in the area. McFadden and Dollard got out of the car and proceeded toward the bank. Shortly before they reached the bank, Dollard spotting an FBI agent with a shotgun, ran to McFadden. Both were arrested by the FBI agents before they could reach their weapons. The FBI agents recovered the bag that had been thrown into the bushes near the bank and found that it contained a wig and two sawed-off shotguns. The defendants offered no evidence at trial.

II

Appellants argue that 18 U.S.C. Sec. 2113(a) requires that force and violence or intimidation must accompany the attempt to take property from the custody or possession of the bank. In the present case this would mean that the agents must wait until the defendants entered the bank or the vicinity of the bank with the sawed-off shotguns at the ready. This would require that the lives of the bank employees, the police, any innocent bystanders and the defendants themselves be endangered before an arrest could be made for an attempted robbery of the bank by use of force and violence or intimidation. Appellants cite United States v. Baker, 129 F.Supp. 684 (S.D.Cal.1955) but we do not find this case to support appellants' position. It holds that the attempt relates to the taking and not to the intimidation. The question is best answered by United States v. Stallworth, 543 F.2d 1038, 1040 (2nd Cir.1976) in which the court stated:

Appellants contend that their conduct, while admittedly is sufficient to sustain a conspiracy conviction, punishable by a maximum of five years incarceration, will not support a judgment of attempted bank robbery, carrying a potential twenty-year prison term. They argue that their activities did not transcend a hypothetical fixed point on a spectrum of conduct culminating in the substantive offense of bank robbery. Thus, appellants assert they cannot be convicted of attempted bank robbery because they neither entered the bank nor brandished weapons. We reject this wooden logic. Attempt is a subtle concept that requires a rational and logically sound definition, one that enables society to punish malefactors who have unequivocally set out upon a criminal course without requiring law enforcement officers to delay until innocent bystanders are imperiled.

The classical elements of an attempt are intent to commit a crime, the execution of an overt act in furtherance of the intention, and a failure...