United States v. Bell, No. 71-2234.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BELL, DYER and CLARK, Circuit
• Citation: 457 F.2d 1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred Louis BELL and Charles Lavern Beasley, Defendants-Appellants.
• Docket Number: No. 71-2234.
• Decision Date: 21 April 1972

457 F.2d 1231 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
Fred Louis BELL and Charles Lavern Beasley, Defendants-Appellants.

No. 71-2234.

United States Court of Appeals, Fifth Circuit.

March 23, 1972.

Rehearing Denied April 21, 1972.

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Leighton Cornett, Paris, Tex. (Court-appointed), for Fred Louis Bell

John D. Hill, Sherman, Tex. (Court-appointed), for Charles Lavern Beasley.

Roby Hadden, U. S. Atty., Dale Long, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

This bizarre joint trial bank robbery case presents fourteen points of error

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from the gratuitous grant of a new trial on a motion for reduction of sentence, which one defendant still disclaims, to the admission of evidence of an airplane hijacking in Canada against the other. After unraveling this tangled web of human miscreance and judicial error, we conclude that this case must be affirmed in part and vacated in part

The convoluted factual matrix of this case had its genesis in the robbery of the Farmers and Merchants State Bank of Ladonia, Texas on August 19, 1968. Shortly thereafter, Fred Louis Bell and Charles Lavern Beasley were arrested and indicted for this robbery. After indictment, on December 9, Bell pled guilty and was sentenced to six years, which he began to serve immediately. Several months later Bell filed a pro se F.R.Crim.P. 35 motion requesting a reduction in his sentence. The district judge, on April 25, 1969 denied all relief affirmatively sought by the motion, but ordered that the motion be treated as one made under 28 U.S.C.A. § 2255 (1971). An evidentiary hearing was thereupon conducted, followed by an order vacating the prior conviction and requiring a new trial. The Court found that the arrest warrant was defective since the supporting affidavits did not attest to the credibility and reliability of the eyewitnesses, whose statements it quoted, citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Thus, it concluded that Bell's arrest and the subsequent search of his home were invalid. All this was ordered in spite of the fact that Bell had never asked for a new trial and had pled guilty in the earlier proceeding.¹ However, neither the Government nor Bell appealed this decision.

Subsequently, the same district judge heard Bell's new pretrial motion to suppress, but this time he reversed himself and held that the arrest and subsequent search were not illegal. Another judge of the district presided over the actual trial of the case.

Bell and his co-indictee Beasley, who had pled not guilty, were tried jointly. The jury found both defendants guilty of conspiring to rob the bank in violation of 18 U.S.C.A. § 371 (1966). Bell was found guilty of violating 18 U.S.C.A. § 2113(a) (1970) (robbery of a bank without assault), and Beasley was found guilty of violating 18 U.S.C.A. § 2113(d) (1970) (robbery by assault). Bell was sentenced to concurrent terms of ten and five years, four more years than he received at the first sentencing. Beasley received the same sentences.

On this appeal we first will discuss those issues unique to Bell, then those unique to Beasley, and finally, their common contentions.

BELL

Bell first asks that his original conviction be reinstated since the first district judge erred in gratuitously granting him a new trial. Under the circumstances of this case, we reluctantly conclude that Bell may not collaterally attack this final order. Because Bell did not appeal the granting of a new trial, see 28 U.S.C.A. § 2255 (1971), the district judge's order became final. While this in itself may not be enough to preclude a collateral attack in other cases, here there is more. Bell did not complain during the thirteen month hiatus between the granting of a new trial and the new trial itself, nor did he complain during the trial. In fact, this point of error was not raised until Bell had been reconvicted. According nunc pro tunc invalidity to an order in such circumstances would have serious precedential ramifications. It would encourage others to similarly seek

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to have the best of all possible worlds. Such a defendant would receive a second bite of the trial apple in hopes of acquittal, and as a safety valve, retain the assurance that he could reclaim his prior conviction if he should receive a less satisfactory sentence on the second go-round. Even though we agree that the district judge committed error in granting a new trial, we will not allow Bell to have his proverbial cake and eat it too. Cf. Thomas v. United States, 455 F.2d 469 (5th Cir., On Rehearing, 1972)

Bell complains of the admission of the in-court identification testimony of one of the government's witnesses. He claims that she viewed an impermissibly suggestive photo spread just two days after the robbery and identified him then, but was unable to choose him out of a lineup about ten days later. Bell asserts that the display was suggestive because his photo is a full length shot while the rest of the photos are bust shots, which was an unduly suggestive difference because that witness had seen the actual robber standing beside his car. The trial judge followed the procedure suggested in United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970) and determined that the display was not impermissibly suggestive. We have ourselves viewed the display and concur with the trial judge's finding. The tenuousness of the identification was for the jury. United States v. Sullivan, 456 F.2d 1273 (5th Cir. 1972).

Bell next argues that the trial judge erred in not making available to him certain alleged Jencks Act documents. The trial judge conducted an examination of the documents in camera and decided that only four pages out of fifty had to be produced. These documents consisted of reports prepared by FBI agents relating to interviews with witnesses and the processes and results of the investigation. The trial judge correctly refused to require the production of reports relating to the witness interviews. There was an insufficient connection between these reports and the FBI agent's direct testimony. See United States v. Graves, 428 F.2d 196 (5th Cir. 1971). Also, there was no showing that any of those interviewed adopted any of the statements as their own. See United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971); United States v. Scaglione, 446 F.2d 182 (5th Cir. 1971).

A more complicated problem arises, however, in determining the correctness of the refusal to require production of the reports of the investigatory procedures and results. It is well established that "individual `notes and reports' of agents of the Government, made in the course of a criminal investigation, are the proper subject of inquiry and subject to production under the Jencks Act, . . . ." Lewis v. United States, 340 F.2d 678, 682 (8th Cir. 1965) and cases cited therein. It is not the function of the trial judge to speculate as to the usefulness of the reports to the defendant, rather his primary inquiry is directed to the producibility of the reports, i. e., is the report a "statement" under the Act? Does it relate to the subject matter of the witness's testimony? United States v. Blackburn, supra; United States v. Matthews, 407 F.2d 1371 (5th Cir. 1969); Lewis v. United States, supra. However, the trial judge's resolution of these questions must be accorded their full weight under the clearly erroneous test. United States v. Blackburn, supra; Lloyd v. United States, 412 F.2d 1084 (5th Cir. 1969). In the case at bar some were required and the remainder were not. After careful review, we conclude he was not clearly erroneous as to those he refused to require.

Bell asserts that the jury was not authorized under Count I of the indictment to find him guilty as a principal to robbery of a bank without assault inasmuch as Count I charged him solely with aiding and abetting. While the better practice would have been to frame the charge in the alternative, the contention is without merit. Under 18 U.S.C.A. § 2 (1969), an aider and abettor is a principal and can be punished as such.

Bell urges that the trial judge erred in allowing a police state atmosphere

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to be fostered at the trial. He points out that all the spectators, most of whom were his friends, were searched by United States Marshals each time they entered the courtroom. He further indicates that the jury entered through the same door as the spectators, and that the spectators' seats were within a few feet of the jury box. Bell argues that the jury could not have helped but notice the searches, and thus may well have inferred that he was a dangerous man who consorted with lawless people. Bell and Beasley were black and the spectator-friends were also black. However, no indications or intimations were given to the jury that there was an association or connection between Bell and any of the spectators, other than the inference which a juror might draw from their attendance in today's world of sparse interest in trials on the part of the general public. This wholly conjectural link is an insubstantial link to prejudicial error. Furthermore, the record reveals that the trial judge had been advised that there was a possibility of a courthouse escape attempt. Even if this was mere rumor he certainly did not abuse his discretion in instituting the reasonable security measures described here

Bell claims that proper credit was not allowed him on his sentence for pre-conviction time spent in the Dallas County jail, the Smith County jail, and the Harrison County jail. We are unable to discern from the record whether or not Bell was entitled to credit against his sentence for any period of these incarcerations or whether, if proper, such...