U.S. v. Smith

• Decision Date: 03 April 1986
• Docket Number: Nos. 85-1149,85-1150,s. 85-1149
• Citation: 788 F.2d 663
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony SMITH and Kenneth L. Jordan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 663

788 F.2d 663

UNITED STATES of America, Plaintiff-Appellee, v. Tony SMITH and Kenneth L. Jordan, Defendants-Appellants.

Nos. 85-1149, 85-1150.

United States Court of Appeals Tenth Circuit.

April 3, 1986.

Charles Szekely (Michael G. Katz, Fed. Public Defender, with him on brief), Asst. Fed. Public Defender, Denver, Colo., for defendant-appellant Smith.

Tony Smith, pro se.

Kenneth N. Gordon, Denver, Colo., for defendant-appellant Jordan.

William G. Pharo, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty. and Raymond P. Moore, Asst. U.S. Atty., on brief), Denver, Colo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and BROWN, ^* Senior District Judge.

WESLEY E. BROWN, Senior District Judge.

Tony Smith and Kenneth Jordan were indicted, tried by a jury and convicted of armed robbery of a federally insured, State-chartered credit union in Denver, Colorado in violation of 18 U.S.C. Secs. 2113(a) and (h) and 18 U.S.C. Sec. 2. The district court sentenced each of the defendants to 25 years imprisonment and ordered each to make restitution in the amount of $100.29 to the credit union out of his personal funds. See 18 U.S.C. Sec. 2113(d). Both defendants have assigned numerous errors on appeal. Brevity will be served in the disposition of these appeals by joint treatment of their common objections. First, they claim that the court erred in denying their motion to dismiss the superseding indictment on the basis that it fails to allege an offense under 18 U.S.C. Secs. 2113(a) and (h). Second, they assert that the court abused its discretion in denying their motions for severance. Third, Smith contends that there was insufficient evidence to sustain the jury's verdict of guilty. ¹ Fourth, Jordan argues that the court abused its discretion in denying his request for an additional continuance to attempt to locate an unidentified witness whom he claimed material to his defense. We find the defendants' arguments unpersuasive and affirm the judgment of the district court as to each of the defendants' conviction.

Viewing the evidence in the light most favorable to the Government in seeking to sustain the jury's verdicts, the evidence may be summarized as follows. On October 26, 1984, two armed black men robbed the Denver Public School Employees Credit Union in Denver, Colorado--a State-chartered credit union whose deposits were insured by the National Credit Union Administration. Both of the robbers' faces were covered by knit caps and scarves; only their eyes and part of their hands and legs were visible to the employees at the credit union. The robber with the light hue skin color forced the headteller at gunpoint to open the safe and took from her a metal cash box which contained approximately $11,000, in currency. He was described as wearing a black sweat shirt, a pair of black corduroy pants and glasses. The other darker skin robber with the shotgun, described as wearing a light beige color trench coat and a pair of sneakers, took money from the teller drawers in the lobby.

A Denver police officer who responded to the robbery alarm spotted these robbers as they were getting into their getaway car parked in front of the credit union. The officer chased the robbers' car, but he lost sight of it momentarily in the crowded neighborhood. A Hispanic male, whose identity remained unknown at the time of trial, came to the officer and advised him that he observed two men, one wearing clothing in white color and the other in black, had just left their car in an alley and fled on foot. This physical description of the suspects was verified almost simultaneously in a radio broadcast by the police dispatcher relaying the information given by the credit union employees to the detectives. The police immediately cordoned off the neighborhood. Moments later, the police found Jordan. At the time he was taken into custody, Jordan was wearing only shorts, socks and sneakers. Not far from where Jordan was arrested, the police found the getaway car, a knit cap, a pair of sweat pants, and a beige color trench coat that contained $1,595 and an unused shotgun shell in its pockets. Inside the getaway car, the police found a loaded shotgun with its hammer in cocked position, a black velour jacket, several scarves, a knit cap and a wallet with several of Jordan's identification cards in it. The police recovered some money which was scattered on the ground near the getaway car.

The police continued the door-to-door search for the other suspect. Emuel Clark, a resident in the neighborhood that was being searched, told the police that he saw his dogs attack a black man in his backyard. Minutes later, the police found Smith hiding under a crawl space of a house near Clark's resident. There were injuries on his legs. At the time of his arrest, Smith was wearing a pair of black corduroy pants and had $155 in his pockets. The police found a metal cash box, a double-barreled derringer, and a pair of gloves in a shed nearby. Jordan's fingerprints were the only identifiable prints exhibited on the cash box.

The police brought the defendants back to the credit union for a show-up identification. Two of the credit union employees recognized that the clothing and physical attributes of the defendants were substantially similar to those who participated in the robbery thirty minutes earlier. At this show-up viewing and later during the trial, these two employees identified Smith as the light complected robber who displayed the derringer and Jordan as the darker one armed with the shotgun.

The Government on December 7, 1984 filed a superseding indictment, in which the grand jury charged:

On or about October 26, 1984, at Denver, in the State and District of Colorado, KENNETH L. JORDAN and TONY SMITH did, by force and violence and by intimidation, take from the person and presence of William J. Schwairy, Jr., and Alyce Y. Keys, approximately $14,470.07 which belonged to and was in the care, custody, control, management and possession of the Denver Public School Employees Credit Union, a State-chartered credit union the accounts of which were then and there insured by the National Credit Union Administration Board, formerly the Administrator of the National Credit Union Administration; and in the course of committing the above offense, KENNETH L. JORDAN, and TONY SMITH did assault and did put in jeopardy their lives and the lives of others by the use of dangerous weapons, namely, a shotgun and a handgun, all in violation of Title 18, U.S.C. Sections 2113(a) and (d) and Section 2.

Both before the trial and at the close of the Government's case, defendants moved to dismiss the superseding indictment for failure to state an offense under Section 2113, 18 U.S.C. The court denied their motions and submitted the case to the jury, whose verdict on each of the defendants was guilty as charged. Each defendant appeals from the judgment of conviction.

Defendants argue, as they did in the court below, that the superseding indictment fails to state a crime under Section 2113, 18 U.S.C. Defendants point out that Section 2113(a), 18 U.S.C., proscribes as a federal crime the robbery of a "credit union" which is defined in Subsection 2113(h) to mean "any Federal credit union and any State-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration." The fatal defect alleged by defendants is on the basis that it is not because the Government failed to plead and prove the accounts of the credit union were federally-insured--indeed the Government did so satisfactorily--but because Congress impliedly repealed Subsection 2113(h) by failing to substitute in that subsection the "Administrator" with a "Three-Member Board" as the title of the managerial body for the National Credit Union Administration when it was renamed in a 1978 amendment to Section 102 of the Federal Credit Act, 92 Stat. 3680, codified as amended at 12 U.S.C. Secs. 1752a(a) and (b) (1978). Under this view, defendants argue that since the position of "Administrator" as expressed in Subsection 2113(h) has been abolished by 12 U.S.C. Secs. 1752a(a) and (b), this variance in the titles for the administrative body of the National Credit Union Administration is such that the state-chartered credit unions whose deposits are insured by and under the title of the National Credit Union Administration Board are not within the purview and protection of 18 U.S.C. Sec. 2113(a).

Subsection 2113(h) does not contain the current designation of title for the managers of the National Credit Union Administration (NCUA). There is, however, nothing in the express language of 12 U.S.C. secs. 1752a(a) and (b) or its legislative history to support the position postulated here by defendants. Congress amended various sections of the criminal code, Title 18, U.S.C., on October 19, 1970, to bring within its statutory ambit state-chartered credit unions whose accounts are insured by NCUA. Specifically, Section 8 of the amendment added insured credit unions to Subsections 2113(a) to (c), 18 U.S.C. These sections relate to bank robbery and incidental crimes against federally-chartered or -insured financial institutions. Pub.L. 91-468, Section 8(1) and (2), 84 Stat. 1071, October 19, 1970. ² At that time, NCUA was managed by an "Administrator" and a "Board". Pub.L. 91-206, 84 Stat. 49, 12 U.S.C. Sec. 1752a(a) (1970). The Administrator was to act as the chief executive officer of the NCUA, and the Board was comprised of a "Chairman and one member from each of the Federal credit union regions," whose actual function was to act in an advisory capacity. Id., at Secs. 1752a(a) and (b); S.Rep. No. 91-518, 91st Cong. 2d Sess. 2, reprinted in 1970 U.S.Code Cong. & Ad.News 2479, 2481-2483. To make its organizational structure consistent with that of the other independent regulatory agencies, Congress revamped the administrative body of NCUA in 197...