U.S. v. Oliver, 77-1181

• Decision Date: 17 February 1978
• Docket Number: No. 77-1181,77-1181
• Citation: 570 F.2d 397
• Parties: UNITED STATES of America, Appellee, v. Kenneth E. OLIVER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 397

570 F.2d 397

UNITED STATES of America, Appellee, v. Kenneth E. OLIVER, Defendant, Appellant.

No. 77-1181.

United States Court of Appeals First Circuit.

Argued Nov. 11, 1977.

Decided Feb. 17, 1978.

James M. Pool, Boston, Mass., by appointment of the Court, for defendant, appellant.

David P. Twomey, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL and BOWNES, Circuit Judges, GORDON, District Judge. ^*

MYRON L. GORDON, District Judge.

The defendant-appellant Kenneth E. Oliver was convicted after a three-day jury trial of forcing another person to accompany him without that person's consent in the course of robbing the North End branch of the Security National Bank of Springfield, Massachusetts, a federally insured bank, in violation of 18 U.S.C. § 2113(e), as charged in count 3 of a three-count indictment. He was sentenced to 30 years' imprisonment, to be served consecutively to federal and state court sentences which he was serving when sentenced for this offense.

Mr. Oliver claims error in the district court's rulings (1) denying his motion for judgment of acquittal at the close of the Government's opening statement; (2) refusing to strike the testimony of the Government's witness Sharon Penfound; (3) denying him access to grand jury minutes; and (4) denying his motion for judgment of acquittal at the close of the Government's case. For the reasons stated below, we affirm the judgment of the district court.

The evidence at trial, viewed in a light most favorable to the government, may be summarized as follows: On November 23, 1971, the date of the offense, David Chernock, Priscilla Clemens, and Lawrence Carabine were employed as tellers, and Thaddeus Garczynski was employed as manager, of the North End branch of the Security National Bank in Springfield. David Chernock arrived at the bank on that day between 8:20 and 8:25 A.M. The bank was open for business from 9:00 A.M. to 3:00 P.M. Mr. Chernock parked his car in the parking lot behind the bank. As he started walking toward the bank, a car pulled up. The driver of that car pulled a gun and ordered Mr. Chernock to get into the vehicle. Mr. Chernock did so, crouching down in the front seat facing the passenger side of the car, as the driver ordered. With Mr. Chernock in this position, the car began to move. In response to the driver's questions, Mr. Chernock provided information about the identity of the bank's employees and the operation of the bank's security systems. The driver also demanded and received Mr. Chernock's wallet and keys. Mr. Chernock was then given an injection in the leg which rendered him unconscious. According to Mr. Chernock, the driver warned that "I'd better have given him the correct information because if he wasn't back in seven minutes to give me another needle, . . . I would die." Later that morning, David Chernock was found unconscious on the ground near a grocery store. He was hospitalized and released the following day.

Thaddeus Garczynski, the bank manager, arrived at work at 8:10 A.M. on November 23, 1971, and used a key to let himself into the locked rear entrance to the bank. Lawrence Carabine arrived at about 8:20 A.M. and Priscilla Clemens arrived a few minutes later, both using keys to enter through the locked rear door. After their arrival, Mr. Garczynski was confronted by a man with a gun, who announced that the bank was being held up. The man walked behind Mr. Garczynski, holding the gun toward him; he directed Mr. Carabine to fill a plastic bowling bag with money without activating any alarms. Mr. Carabine placed money from the bank vault into the bag. When the robber indicated that more money should be put into the bag, Mr. Carabine complied. The man then ordered Mr. Garczynski and Mr. Carabine to lie down on the floor near the vault, which they did, as he said "you'll hear from David within seven minutes."

When it seemed that the robber had left, the two bank employees got up and sounded the bank's alarm. Not more than 10 minutes elapsed between the time the robber entered the bank and the time the alarm was sounded.

Julio Ayala, a bank customer, was sitting in his car in the bank's parking lot on November 23, 1971, at 8:35 or 8:40 A.M., waiting for the bank to open. He observed a man leave the bank and walk toward a car, carrying what appeared to be a bowling bag. He described the individual he saw as a black male of husky build, weighing about 180 pounds, 5 feet, 9 or 10 inches in height, with black hair and sideburns. The man was wearing a tan coat.

David Chernock described the individual who ordered him into the car as a black male of 30 or 35 years in age, 5 feet, 9 or 10 inches tall, and weighing about 160 pounds. He stated that the man had short hair without sideburns or a beard and wore a coat. Mr. Chernock had an opportunity to observe the man for about 30 seconds when entering the man's car and also briefly before he was given the injection.

According to the bank manager the bank robber was a black man wearing a "London Fog type coat" and dark trousers. The robber had a round face, a natural or false beard, and straight black hair. He was 5 feet, 10 inches tall, weighed about 160 pounds, and wore glasses. At trial, Mr. Garczynski identified the robber in photographs taken during the robbery.

Bank teller Lawrence Carabine described the robber as a black male, 5 feet, 8 or 10 inches in height, having a heavy-set build, with dark eyes, wearing a tan trench coat, an artificial beard and hair piece, and tinted sunglasses.

Sharon Penfound, a former girlfriend of the defendant, testified that she met Oliver in 1968, had known him continuously since that time and was intimately involved with him until early 1972. During November, 1971, Miss Penfound saw the defendant at her apartment in Detroit, Michigan, in possession of a straight long black wig, a false beard, and fake sideburns. At that time the defendant was clean shaven except for a mustache. Also during that month, Mr. Oliver told Miss Penfound that he was planning to go to Springfield, Massachusetts, about a week before Thanksgiving. Miss Penfound thought defendant did go to Springfield, taking the wig, sideburns and beard. The defendant also told her that his wife, who was a nurse, would obtain a tranquilizing drug that he planned to use "to sedate people at a bank."

Miss Penfound saw the defendant again in Detroit shortly after Thanksgiving, about a week after he had gone to Massachusetts. At that time he said that he had obtained $26,000 in the holdup of a savings institution. He gave $17,000 to Miss Penfound to keep for him. Sharon Penfound identified the defendant in court and also in photographs made during the robbery.

Richard S. Farley, a special agent assigned to the FBI's Detroit office from 1971 until March, 1976, testified that in February, 1976, he received a letter from the defendant requesting an interview with an FBI agent in order to discuss "a number of New England bank robberies." In response to the letter, Mr. Farley interviewed the defendant on March 1, 1976. At trial, agent Farley read his record of the defendant's statements at the March 1, 1976, interview. Agent Farley's record indicated that the defendant confessed to obtaining $31,000 in a November, 1971, robbery of the Security National Bank in Springfield, Massachusetts. The defendant told Mr. Farley that he forced a teller into his car, questioned him about bank security measures, took his keys, and gave him an injection. Following the robbery, the defendant put the teller out of the car behind a grocery store. Agent Farley identified the defendant in court as the man he interviewed in March, 1976.

After the jury found the defendant guilty of count 3, the court, with the concurrence of counsel, dismissed counts 1 and 2, which respectively charged the defendant with robbing a federally insured bank, in violation of 18 U.S.C. § 2113(a), and with assaulting and jeopardizing the lives of the bank's employees by the use of a gun in the course of such robbery, in violation of 18 U.S.C. § 2113(d).

I. JUDGMENT OF ACQUITTAL AFTER GOVERNMENT'S OPENING STATEMENT

The defendant claims that the trial court should have granted his motion for a judgment of acquittal after the Government's opening statement " because the prosecution failed to indicate in any way how it would prove the defendant specifically committed the bank robbery."

We have previously held that "the granting of such a motion is purely discretionary, . . ." United States v. Capocci, 433 F.2d 155, 158 (1st Cir. 1970). A judgment of acquittal should be granted after the government's opening only when the statement "clearly and affirmatively" shows "that the charge against the defendant cannot be sustained under any view of the evidence consistent with the statement." McGuire v. United States, 152 F.2d 577, 580 (8th Cir. 1945).

Here the Government in its opening outlined the expected testimony of the three bank employees and the bank customer. The Government represented that all of these individuals would identify the bank robber as a "Negro male". In addition, the Government said it would produce testimony of FBI agents and photographs of the robbery as it occurred. The prosecutor then indicated that he would prove by competent evidence that the defendant was guilty as charged of bank robbery.

It is apparent from this summary that the district court did not abuse its discretion in refusing to grant a judgment of acquittal following the prosecution's opening. The Government expressly stated that it would produce evidence showing that the defendant was guilty of the crime charged. Some of that proposed evidence was outlined in detail, while some of it was mentioned but not described. The district court cited this latter proposed evidence and the photographs of the bank robbery to which the Government...