United States v. Abercrombie
| Decision Date | 17 July 1973 |
| Docket Number | No. 73-1181.,73-1181. |
| Citation | 480 F.2d 961 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ervin L. ABERCROMBIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. Pope Gordon, Montgomery, Ala., court-appointed, for defendant-appellant.
Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
On April 21, 1972, three black men entered the Western Branch of the First National Bank of Montgomery, Alabama, and stood in front of the teller's window which was occupied by Mrs. Nelma Ausley. The man first in line was Tommy Matthews, wearing a "French beret". Next to and behind him was Ervin L. Abercrombie, wearing a distinctive white hat. The third man was Earnest Jones, Jr.
Matthews asked the teller for some coin wrappers. Not having any at the moment the teller went to another cage for the quarter wrappers and to the store room for the dime wrappers. While in the supply room she noticed that the alarm system had been activated. Not knowing the cause of it, she called it to the attention of the Branch Manager and returned to her window, where she discovered that the three men were gone.
Since there was no robbery in progress a quick search was made to find out what had activated the alarm. The Branch Manager soon noticed that the drawer in Mrs. Ausley's cage was about half open and $500 in "bait money" was missing. The removal of this money bundle activated the alarm, as well as the surveillance camera. The camera did not photograph the actual money snatching but it did take pictures of the men leaving the bank, including what appeared to be Matthews in the act of handing something to Abercrombie. The men were seen hurriedly leaving the parking lot by way of the automobile entrance rather than by the exit. Eight hundred and forty dollars had been taken from the teller's drawer.
About two weeks later the F.B.I. arrested Matthews and Jones in Birmingham. On May 3 Abercrombie called in and announced that he would surrender the next day, which he did. Abercrombie thereafter signed a confession that he went into the bank with the other two men to change coins for bills, that he heard Matthews ask for the wrappers, saw the lady leave for them, and the next thing he knew was that Matthews turned away and started to walk out of the bank. A few minutes after leaving the bank in an automobile Matthews handed him a handful of twenty dollar bills and told him to divide it three ways. His share came to $280, one third of the missing $840.
This resulted in the following indictment:
The day before the case was scheduled to go to trial, Matthews and Jones withdrew their pleas of not guilty and entered pleas of guilty, which resulted in a general sentence of five years each.
Represented by retained counsel, Abercrombie went to trial with no objections to the indictment. At the close of the trial, again without objection, the Court instructed the jury that it might convict or acquit on either or both counts of the indictment.
Court appointed appellate counsel challenges the conviction on three grounds.
First, it is said that the trial court erred in denying a continuance requested by the defendant pro se after his counsel had announced ready for trial. We find no abuse of discretion in this action.
Next, it is argued that Abercrombie's Miranda warnings were inadequate. This contention is foreclosed by the decision of this Court in United States v. Lacy, 5 Cir., 1971, 446 F.2d 511.
Lastly, it is asserted, and we think correctly, that it was plain error to allow a conviction on two counts which embraced both the theft and the possession of the same money, §§ 2113(b) and 2113(c), 18 United States Code.
Section 2113 reads as follows:
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United States v. Gaddis
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Trujillo v. Stone, C 73-2054-OJC.
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U.S. v. Sellers, 74-1683
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