United States v. Beasley, 20029.

• Citation: 438 F.2d 1279
• Decision Date: 12 February 1971
• Docket Number: No. 20029.,20029.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Millard Robert BEASLEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

438 F.2d 1279 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Millard Robert BEASLEY, Defendant-Appellant.

No. 20029.

United States Court of Appeals, Sixth Circuit.

February 12, 1971.

Nick Avern (deceased) and Richard Schneider, Detroit, Mich., on brief for defendant-appellant.

James H. Brickley, U. S. Atty., Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., on brief for plaintiff-appellee.

Before EDWARDS, CELEBREZZE, and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Millard Robert Beasley appeals from a conviction of attempted robbery of the Michigan Bank, a federally insured institution, aggravated by an assault on the bank's head teller. 18 U.S.C. § 2113(d). The indictment under which he was tried contained two counts, the one for which he was convicted, and one specifying unaggravated robbery arising out of the same transaction, 18 U.S. C. § 2113(a). In view of the Appellant's conviction under section 2113(d), and his receipt of the maximum penalty, 25 years, no disposition was made by the District Court of the offense charged in the count specifying the violation of section 2113(a), which carries a maximum penalty of 20 years. The Appellant waived trial by jury.

The following facts were found by the District Court. On September 21, 1957, a lone bandit drove up to a drive-in teller's window at the Michigan Bank. The window was being attended by the head teller of the branch, Mrs. Stylas, who was filling in at the drive-in window for the regular teller, who was on a break. When Mrs. Stylas extended the moveable drawer, with which the window was equipped, to the window of the car, the car's occupant placed a zippered leather shaving kit into the drawer, along with a written message. Upon retraction of the drawer, Mrs. Stylas placed the note aside, and opened the bag, which contained a cylindrical container (later identified as a soft drink can) with a flashbulb cube wired to its top. At this point, the bandit stated, "Put your money in the bag." Mrs. Stylas then glanced down at the written message which stated, "This is a holdup. This is a bomb. You won't be hurt." When the bandit again demanded money, Mrs. Stylas responded that she did not have any in her drawer. At this point, the thief, according to Mrs. Stylas

"pointed to another type flashbulb cube, whether it was mounted on anything or just in his hand, I don\'t really know. I remember seeing it just above the window. He told me that he could blow this bomb up right through my window, right through the glass. He said, `I\'ll blow this bank to bits.\' He told me again to put my money in the bag. I told him I didn\'t have any money. I told him my money is over there and I pointed to my right because that was the window I was working out of at that time. At this point he told me to go get my money. I said I would. I didn\'t go to my window. There was another teller who was at the back counter and I walked over to her and I told her, `Sharon, sound the alarm.\' She looked at me kind of funny and she looked at my inside regular window and she saw I didn\'t have a customer and I told she again, `Sharon go press the alarm.\' I said, `there\'s a man at the drive-in window trying to hold me up.\'"

Mrs. Stylas and the other teller then stood back and waited, presumably for the police to arrive. After some time had passed, the holdup man drove away. Then, according to Mrs. Stylas,

"the man had already left and everybody went outside the building because they were afraid the thing was a bomb and we were all standing outside and finally I asked Sharon, are you sure you pressed the alarm and she said, yes. I said something must be wrong because the police should be here by now. So, I proceeded to go back in the bank and there\'s a desk right by the door and I picked up the phone and I dialed our operator and told her that I had a man that attempted to hold me up at the bank and there is a note here stating that this is a bomb, whether it is or not, I have no idea."

Later, the Appellant was identified as the holdup man by his latent palm print, which was discovered on the note he passed into the teller's window, and by the stylized lettering of the note, which could have been stenciled with a lettering guide ruler to which the Appellant had access. This evidence was sufficient to establish his identity beyond a reasonable doubt.

The Appellant took the stand at trial and testified that he could not have committed the crime, first, because at the time the crime was committed he was at lunch with a friend, who died before the Appellant's case came to trial; second, because during his lifelong career in crime, comprising many arrests and convictions of several robberies, he had never used this particular modus operandi before. The District Court was unconvinced by the Appellant's defense, and entered judgment against him under 18 U.S.C. § 2113(d).

The Appellant raises a spate of issues on appeal, all but one of which lack sufficient merit to warrant extended discussion. First, the Appellant maintains that his palm prints were taken by the police in violation of his constitutional rights. This argument is without substance. The record reveals that the Appellant, possessed of a college-level education and worldly in affairs of criminal procedure, voluntarily turned himself in to the federal authorities for the purpose of an informal interview, voluntarily executed waivers of his constitutional rights, and willingly submitted to having his finger and palm prints taken by the federal agents. Moreover, the Appellant's Miranda warnings were properly administered, and he was told by the agents that he was free to leave the interview at any time.

Second, the Appellant contends that the Government's failure to call the laboratory technician who processed the Appellant's latent palm print from the holdup note violated his Sixth Amendment right to confront and cross-examine his accusers. The technician who processed the prints was shown, by the Government, to have left the service of the police and to have been unavailable for trial, notwithstanding extensive efforts to locate him at his last known address. In his absence, the print was authenticated by Officer Yakush, chief of the scientific bureau, who was present when the latent prints were "brought out" on the holdup note. He testified that the test is a mechanical, routine one, and that it was properly performed in the instant case. As an eyewitness to it, the officer was as competent to testify to its accuracy, and to authenticate the prints, as the technician would have been. Having thus produced one competent, reliable witness to authenticate the prints, the Government was under no obligation to call others, so long as their identities were not withheld or suppressed from the Appellant. United States v. Gholston, 437 F.2d 260 (6th Cir. 1971). Furthermore, there could have been nothing accusatorial in the technician's testimony that he properly performed the mechanical test of "bringing out" the latent prints on the note paper; therefore he was not a witness "against" the Appellant, and the Sixth Amendment guarantee of confrontation and cross examination does not apply. On the other hand, the fingerprint expert who matched the laboratory's print with those of the Appellant was a witness "against" the Appellant, and he, properly, was presented at trial and cross-examined.

Totally without substance are the Appellant's contentions that: the Government did not grant him access to all relevant evidence during discovery; the identification evidence was insufficient to support his conviction; the District Court erred in not requiring the "bomb" to be introduced; the District Court was unfair and biased.

The remaining issue on appeal concerns the sufficiency of the evidence to support the District Court's finding that the robbery was aggravated by an assault on Mrs. Stylas, justifying the judgment under section 2113(d), which carries a penalty five years greater than unaggravated robbery, 18 U.S.C. § 2113(a). The Appellant argues that since the "bomb" he passed into the teller's window was, in fact, incapable of producing harm, and that since the District Court made no finding that Mrs. Stylas was placed "in fear" by it, the evidence is insufficient to support the lower court's finding of an "assault." We disagree.

The relevant statutory provisions state:

"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; * * * Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both."

"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both."

It has been well established that subsection (d) is to be read disjunctively, being violated either by an "assault," or by putting life in jeopardy with a dangerous weapon. Gant v. United States, 161 F.2d 793 (3d Cir. 1947); United States v. Murray, 149 F.2d 932 (5th Cir. 1945). The term "assault" is nowhere defined in the statute or in its legislative history, see generally, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), and the elements of the offense have not been elaborated either by the Supreme Court or by the lower federal courts.

Insofar as the base provision, section 2113(a), specifies the use of "force," "violence," or "intimidation," something more must be required to prove robbery aggravated by assault. We believe that those additional elements are present where, as here, the robber is shown to have...