U.S. v. Stewart, 77-5654

• Decision Date: 01 September 1978
• Docket Number: No. 77-5654,77-5654
• Citation: 579 F.2d 356
• Parties: 3 Fed. R. Evid. Serv. 588 UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Lee STEWART and Dan Edward Scott, Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 356

579 F.2d 356

3 Fed. R. Evid. Serv. 588

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Lee STEWART and Dan Edward Scott, Defendants-Appellants.

No. 77-5654

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 1, 1978.

Robert J. Evans, Rome, Ga. (Court-appointed), for Ronnie Lee Stewart.

Robert N. Farrar, Rome, Ga. (Court-appointed), for Dan Edward Scott.

William L. Harper, U. S. Atty., Charles Saphos, Atlanta, Ga., for plaintiff-appellee.

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

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

Appellants Stewart and Scott were convicted of (1) conspiracy to commit bank robbery in violation of 18 U.S.C. § 371; (2) bank robbery by force in violation of 18 U.S.C. §§ 2113(a) and (d); (3) carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c)(2); and (4) possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). The defendants were sentenced to twenty years and twenty-five years respectively under count two. The defendants were also assessed various concurrent sentences under the other three counts.

In Simpson v. United States, --- U.S. ----, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), the Supreme Court held that "in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be sentenced under both Section 2113(d) and Section 924(c)." Id. at ----, 98 S.Ct. at 910. Although the appellants did not present this point on appeal, we believe that they are entitled to a vacation of the 18 U.S.C. § 924(c) sentence because it is clear that the preserving of such a point of error would have been fruitless under Perkins v. United States, 526 F.2d 688 (5 Cir. 1976). ¹ Furthermore, we have decided in United States v. Nelson, 574 F.2d 277, 280 (5 Cir. 1978) that the concurrent sentence doctrine would not be a bar relief under Simpson. Therefore we reverse the appellants' 18 U.S.C. § 924(c) convictions (count three) and remand with directions that these sentences be vacated.

The appellants do, however, bring forward other points of error: (1) that the evidence was insufficient to support conviction, (2) that a shotgun and certain evidence of flight were improperly admitted into evidence, and (3) that the admission into evidence of a codefendant's confession violated Bruton v. United States, 391 U.S. 123, 135-37, 88 S.Ct. 1620, 20 L.Ed.2d 476. Finding no merit to the petitioners' claims, we affirm.

Using the concurrent sentence doctrine, we will review the sufficiency of the evidence for only count two, the count for which the appellants received the greatest sentence. United States v. Ashley, 569 F.2d 975, 983 (5 Cir. 1978). The evidence viewed in the light most favorable to the government Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 689 (1942) reveals the following: On September 27, 1976, a home in Dalton, Georgia, was burglarized. Among the things stolen were quantities of men's clothing and a shotgun. That same day a 1970 beige Pontiac belonging to another Dalton resident was also stolen. After the car theft, Mrs. Virginia Call gave permission to her brother, appellant Stewart, to paint a car in her yard. As Stewart and Scott were painting it, Mrs. Call's son, Tracy, wrote his name in the wet green paint. The appellants were also seen carrying a sawed-off shotgun.

The following day, two men entered and robbed the Hamilton Bank in Dalton, Georgia. One man was wearing a burgundy shirt and carrying a sawed-off shotgun. Both men wore stocking masks. The two escaped in a car variously reported to be either a green Oldsmobile or a green Chevrolet.

Stewart and Scott returned to Mrs. Call's home without the repainted car and carrying a paper bag. The appellants then left Dalton, Georgia.

Later the stolen car was found abandoned in a cornfield; the car contained the stolen shotgun and a stocking mask. Within the general area of the car were numerous articles of clothing similar to the articles worn by the bankrobbers. The name "Tracy" was also written on the auto. Most of the clothes stolen in the burglary were recovered in Mrs. Call's home.

Although it is admitted that much of the evidence in this case is circumstantial evidence, it is well-settled that the test to determine whether the evidence is sufficient to support a conviction is the same for direct and circumstantial evidence. United States v. Moore, 505 F.2d 620 (5 Cir.), Cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975). Viewing the circumstantial evidence in this case, we conclude that it is inconsistent with every reasonable hypothesis of innocence and amply supports the appellants' convictions. That the witnesses thought that the getaway car was an Oldsmobile or a Chevrolet and that it actually was a Pontiac and that the victims threatened with such a devastating and indiscriminate weapon as a sawed-off shotgun thought that the gun was a pump model rather than the automatic model actually found in the stolen car clearly marked "Tracy" is too trifling to be seriously considered.

The appellants also contend that the trial court erred in admitting the sawed-off shotgun into evidence because it was never established that the proffered shotgun was actually used in the robbery. In United States v. Poe, 462 F.2d 195 (5 Cir. 1972), Cert. denied, 414 U.S. 845, 94 S.Ct. 107, 38 L.Ed.2d 83 (1973), we held that objections such as these go to the weight of the offered evidence and not the admissibility of the evidence.

The appellants urge that the trial court erred in admitting evidence of the defendants' flight soon after the robbery. The evidence showed that the appellants traveled extensively and spent a large amount of cash during the weeks following the robbery. ²

We have reviewed the limiting instruction given by the trial judge and find it to be proper. ³ Moreover, the trial judge acted properly in determining that the probative value of the evidence of flight outweighed its tendency to cause prejudice or to confuse or mislead the jury. F.R.Evid. 403. See United States v. Alonzo, 571 F.2d 1384, 1385 (5 Cir. 1978); United States v. Myers, 550 F.2d 1036 (5 Cir. 1977); United States v. Register, 496 F.2d 1072, 1078 (5 Cir. 1974).

Finally, appellant Scott claims that his confrontation rights as denominated in Bruton v. United States, supra, were violated by the following testimony given by Stewart's traveling companion, Brenda Jackson:

Q. (By Mr. Baker for the government) Brenda, listen to my question now. As you drove by this Hamilton Bank on the Chatsworth Highway in Dalton, what, if anything did Ronnie say about himself and that bank?

A. He said that was the bank that him and some of his buddies hit.

Scott argues that even though he was not named in the statement, it was obvious that he was implicated since other clearly admissible testimony identified him as...