U.S. v. Pollard, 74--2707

• Decision Date: 05 March 1975
• Docket Number: No. 74--2707,74--2707
• Citation: 509 F.2d 601
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Napoleon POLLARD and Robert Perry Herman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 601

509 F.2d 601

UNITED STATES of America, Plaintiff-Appellee, v. Napoleon POLLARD and Robert Perry Herman, Defendants-Appellants.

No. 74--2707.

United States Court of Appeals, Fifth Circuit.

March 5, 1975.

Certiorari Denied June 9, 1975.

See 95 S.Ct. 2419.

Robert L. McHaney, Atlanta, Ga. (Court-appointed), for Pollard.

Thomas C. Bianco, Atlanta, Ga. (Court-appointed), for Herman.

John W. Stockes, U.S. Atty., Stanley M. Baum, Sherman D. Johnson, Anthony M. Arnold, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants Robert Perry Herman and Napoleon Pollard together with a third defendant, Donald Lee Herman, were charged and tried under a one count indictment with knowingly, wilfully, and unlawfully taking with the intent to steal $1,060.00 from a bank in violation of Title 18 U.S.C. § 2113(b). Donald Lee Herman entered a plea of guilty and is not before this Court. From judgments and sentences imposed following jury verdicts of guilty at a joint trial Robert Herman and Pollard prosecute this appeal. We find each of their assignments of error to be without merit, and affirm.

On September 20, 1973, three young black men entered the Tenth Street Office of the Citizens and Southern National Bank in Atlanta, Georgia and approached a teller's window. One requested coin wrappers, and when the teller left the window to procure such wrappers Pollard reached over the counter and removed $1,060 in $20 bills from the cash drawer. Appellants were identified at trial by two tellers, and bank photographs showing their presence during the larceny were received in evidence.

After holding a hearing as to voluntariness outside the presence of the jury, as required by Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the trial judge permitted FBI agents to testify to confessions made by each appellant. Special Agent Riley related that Robert Herman admitted participating in the larceny and that he had identified himself in one of the bank photographs. Special Agent Parker testified that Pollard identified himself in the photographs in evidence and stated that he was 'involved' in the larceny from the C & S Bank. The agent testified that Pollard also said he participated in five or six subsequent California larcenies using the same technique, which he called 'till-tapping,' in October and November of 1973. The jury was instructed, both immediately after hearing the testimony of Mr. Parker and a second time before retiring to deliberate, that it was to consider Pollard's subsequent acts only as they might bear on his state of mind or intent at the time of the Atlanta offense only if it was satisfied beyond a reasonable doubt that he had committed the acts charged in the indictment, and for that purpose only.

The appellants allege that several trial errors, all revolving around the receipt in evidence of the confessions and photographs, require reversal. These assertions are without merit.

Each of the appellants asserts that error occurred when his confession was received in evidence.

Pollard urges that we adopt the novel rule that an oral confession made to a law enforcement officer may not be introduced at a criminal trial. He asserts that despite signing a waiver of his rights he made no confession, arguing that the possibility of abuse is present whenever an accused waives his right to silence, since false testimony as to a confession may be offered even though the suspect was thereafter silent. The safeguard suggested by Pollard is to require that all statements taken by law enforcement officers be reduced to writing and submitted to the suspect for his review as to accuracy. Otherwise, such statements would not qualify for jury consideration.

We reject the invitation to sponsor this departure from time-tested principles of the law of evidence, evolved through centuries of Anglo-American jurisprudence. Such a rule would permit conviction of one defendant on the strength of an incriminating oral statement made to an ordinary citizen, while in the case of a fellow-defendant acquittal might be accomplished because of the exclusion of an oral statement made to an officer even after the execution of a written waiver of rights. The burden of the objection thus appears to be that law enforcement officers are less trustworthy, and more inclined to lie, than ordinary citizens. We perceive no basis for our so concluding. The case of any litigant, whether defendant or government, is subject to damage by false testimony, but the purpose of the trial process is always to find truth and justice by sorting out the true from the false.

Pollard also contends that he was under the influence of heroin at the time of questioning by the FBI, and consequently his waiver of rights of any statement he did make was involuntary. Herman similarly urges the involuntariness of his own statement, alleging that he was suffering methadone withdrawal symptoms when questioned. We find the trial judge's contrary careful credibility decision in each instance to be supported by the evidence presented at the respective Jackson v. Denno hearings. It was proper to submit the confessions to the jury for its consideration, qualified as they were by the agents' testimony of observations at the time the statements were taken. See Lego v. Twomey, 1972, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618.

Both appellants on differing theories question the admissibility of testimony as to Pollard's confessed participation...