United States v. Bamberger

• Decision Date: 19 November 1973
• Docket Number: No. 71-2381,71-3052.,71-2381
• Citation: 482 F.2d 166
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allen John BAMBERGER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barry SHIPLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

482 F.2d 166 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Allen John BAMBERGER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Barry SHIPLEY, Defendant-Appellant.

Nos. 71-2381, 71-3052.

United States Court of Appeals, Ninth Circuit.

May 29, 1973.

Rehearings Denied July 5, 1973.

Certiorari Denied November 19, 1973.

T. Roger Duncan (argued), Los Angeles, Cal., David M. Rothman, Beverly Hills, Cal., for defendants-appellants.

Gregory C. Glynn, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BROWNING, HUFSTEDLER and WALLACE, Circuit Judges.

Certiorari Denied November 19, 1973. See 94 S.Ct. 543.

WALLACE, Circuit Judge.

Bamberger and Shipley appeal their conviction of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) asserting numerous errors. We affirm.

On the morning of June 20, 1969, three armed men entered a bank on South Western Avenue in Los Angeles. They wore dark clothes, gloves, and white motorcycle helmets with visors. People in the bank were able to give only general descriptions of the bandits.

The robbers left the bank three or four minutes after they had entered, having fired approximately five shots and taken about $2,075.00. Raymond Lawson, a construction worker who was outside the bank at the time of the robbery, saw three men wearing white motorcycle helmets and gloves exit the bank carrying guns and a money sack. The three men joined a fourth man who was in the driver's seat of a waiting automobile. Lawson could neither see their faces nor tell their race or ethnic origin, but he testified that he could recognize the three men by their height, weight and build. Lawson later identified Bamberger and Shipley in lineups and at trial as two of the three men he had seen at the scene of the robbery.

Sergeant McAlpine of the Los Angeles Police Department was stopped at a red light on South Western Avenue in an unmarked police vehicle when the three men wearing white motorcycle helmets exited the bank. McAlpine pursued the getaway vehicle. He observed the occupants of the automobile take off their helmets. During the chase, one of the men leaned out of the right side of the vehicle and fired a small-caliber revolver five or six times at the police officer from a distance of approximately 100 feet. McAlpine saw his face and subsequently identified him as Shipley.

The getaway car came to a sudden stop at an alleyway and a man leaned out of the left side, firing a .45 caliber automatic hand gun. McAlpine, who was two car lengths away, identified this man as Bamberger. After a brief exchange of shots, the getaway car started down the alley at a high rate of speed. McAlpine's chase was frustrated when his car became inoperable.

I. The Right to Free Transcripts.

Clifford Northern, the driver of the getaway car, was indicted and tried separately for the same bank robbery. His first trial ended in a hung jury. He was then retried and found guilty. See Northern v. United States, 455 F.2d 427 (9th Cir. 1972). Lawson and McAlpine testified at both trials. During the second Northern trial, both identified Bamberger and Shipley. The record does not disclose whether they did so in the first Northern trial.

Bamberger and Shipley were in possession of transcripts of the first Northern trial. Twenty days before his trial, Shipley moved for a transcript of the testimony given in the second Northern trial by Lawson, McAlpine, and a third witness.¹ The motion was denied. Bamberger and Shipley are indigents and claim that the denial of the right to the free transcript violates their rights to equal protection and due process. Because only Shipley moved for a free transcript, Bamberger is precluded from alleging that denial of the motion constituted error as to him.

The Supreme Court has held that equal protection requires that an indigent be provided "with the basic tools of an adequate defense . . . when those tools are available for a price to other defendants." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971) (emphasis added). The Court has allowed indigents transcripts of their own prior proceedings in some cases² yet has indicated that even that right is not absolute.³ Further, in Britt, the Court noted that the outer limits of the right were not clear. 404 U.S. at 227, 92 S.Ct. 431. Shipley's contention — that he has a constitutional right to a free transcript of testimony at a third party's trial by witnesses who would also testify against him — would require a delineation of those outer limits. However, any definition must await another challenge because even if Shipley had the right, any error in its denial was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Shipley wanted a transcription of the testimony of Lawson and McAlpine in order to impeach them if they testified at his own trial. He had a transcript of the testimony they gave in the first Northern trial which he used for that very purpose.

The government's primary eyewitness was McAlpine, not Lawson. McAlpine was the only witness who saw the robbers' faces and made a positive identification.⁴ Shipley's attorney effectively cross-examined McAlpine, citing inconsistencies with his statements in an FBI report, with the Los Angeles Police Department report on this robbery and with his testimony in the first Northern trial.⁵ Shipley could neither reasonably hope for, nor realistically gain, more telling or damaging impeachment tools from the transcript he was denied.⁶ Moreover, there was circumstantial evidence introduced against Shipley which significantly decreased the government's absolute need for the eyewitness testimony.⁷

II. The Search Warrant.

A red gun box and pictures were obtained from Shipley's apartment pursuant to a search warrant. He attacks the validity of that warrant. Only Shipley has standing to raise the question since only his room was searched. Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

Shipley trisects the affidavit upon which the warrant was based and systematically finds each section insufficient to support the warrant. His approach is incorrect. "The magistrate is obligated to render a judgment based upon a common-sense reading of the entire affidavit." Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969) (emphasis added). See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed. 2d 684 (1965).

In Spinelli, the informant's tip alone was insufficient as a basis for a finding of probable cause. 393 U.S. at 415-16, 89 S.Ct. 584. Further, the tip, even when corroborated by FBI information, was still inadequate. 393 U.S. at 418.

The affidavit in this case is a different matter. Although this tip alone, as in Spinelli, may be inadequate, the question is whether the tip, when corroborated by other information, is as reliable as one which meets the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See Spinelli, supra, 393 U.S. at 415-416, 89 S.Ct. 584.

Here the affidavit recited that Bamberger and Shipley were wanted for a New Jeresy bank robbery involving $69,531.00; that Bamberger had been arrested that day and that a lawful search of his apartment produced $1,805.00; that Shipley's roommate had observed Shipley with a large amount of cash while in company with Bamberger and while alone in their apartment; that Bamberger had visited that apartment several times during the past month, most recently, the previous night; and that a paid, previously reliable FBI informant had stated that Bamberger and Shipley were holding the shares of four others already arrested for the New Jersey robbery.

Taken together, the tip and the corroboration provide a magistrate with the required information that matter which may be seized lawfully is probably at the place described and that the information supplied by the informant is reliable. The FBI agent's "affidavit should not be judged as an entry in an essay contest." Spinelli, supra, 393 U.S. at 438, 89 S.Ct. at 600 (Fortas, J., dissenting). It must be "interpreted . . . in a commonsense and realistic fashion." United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746. We hold that this affidavit provided sufficient bases for the magistrate's finding of probable cause.

The other allegations of error are unmeritorious.

Affirmed.

1 The third witness whose testimony was sought did not ultimately testify against Bamberger and Shipley....