United States v. Brown

• Decision Date: 16 June 1969
• Docket Number: No. 19376.,19376.
• Citation: 412 F.2d 381
• Parties: UNITED STATES of America, Appellee, v. Nathaniel BROWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.2d 381 (1969)

UNITED STATES of America, Appellee, v. Nathaniel BROWN, Appellant.

No. 19376.

United States Court of Appeals Eighth Circuit.

June 16, 1969.

William B. Kelleher, St. Louis, Mo., for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Nathaniel Brown appeals from a judgment of conviction entered in the United States District Court for the Eastern District of Missouri where a jury found him guilty of violation of 18 U.S.C. § 2113 (a).¹ Brown received a sentence of eight years imprisonment.

Viewing the evidence in the light most favorable to the verdict, Brown, on April 4, 1966, entered the premises of Conservative Federal Savings & Loan Association at the southwest corner of Ninth and Olive Streets, St. Louis, Missouri, approached the window of teller Marcella Simmons and passed a note over the counter to her which read: "This is a Hode sic up. If you say a word I will kill you." Miss Simmons dropped the note to the floor in an attempt to attract the attention of a fellow teller Magdeline Schmiehausen, opened her cash drawer and pulled out some marked money. She whispered to Brown, "Show me your gun." Brown moved his right hand that was in his jacket pocket. Miss Simmons then screamed, "Show me your gun, you little snot, or get out of here." Brown left the premises empty-handed, having displayed no weapon at any time. Miss Simmons, Miss Schmiehausen, and a customer of the institution all identified Brown as the person involved in the aborted robbery attempt. Further, a fingerprint examiner testified that a print found on the note corresponded with the left thumb print of Brown.² Brown denied the attempted robbery and offered an uncorroborated alibi. The factual matters were all resolved by the jury adversely to Brown.

On appeal Brown raises one basic issue: The District Court erred in overruling his motion for dismissal since the government failed to establish the crime charged as there was no evidence upon which the jury could find that anyone was intimidated or put in fear of bodily harm. As a corollary claim of error, Brown contends that the District Court should have sustained an objection and sustained a motion for a mistrial when government counsel stated in closing argument that Miss Simmons was intimidated in that this argument assumed the ultimate issue to be determined by the jury.

The indictment was cast under the second paragraph of § 2113(a) and charged Brown with entering the financial institution with intent to commit a felony. The Court's charge was responsive to the first paragraph of § 2113(a) and placed on the government the burden of proving that intimidation was used in the attempted robbery of the financial institution. The overt act of demanding money accompanied by a threatening gesture of any type intended to intimidate could reasonably be viewed as either evidence of the attempted robbery itself, or as evidence of the perpetrator's intent to commit a felony. The party accosted or threatened does not have to be put in fear of his life, only intimidation need be shown along with a demand for funds to satisfy the first paragraph of § 2113(a), and any evidence showing an entry with intent to commit a felony satisfies the requirements for conviction under the second paragraph of § 2113(a) — the intimidating note is evidence of the would-be robber's intent.

We believe that the evidence adduced by the government establishes that Brown was guilty of both crimes defined in 18 U.S.C. § 2113(a).³ However, as stated in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), there was no congressional intent in enacting § 2113(a) in its present form to pyramid penalties, and

"* * * the unlawful entry provision was inserted to cover the situation where a person enters a bank for the purpose of committing a crime, but is frustrated for some reason before completing the crime. The gravamen of the offense is not in the act of entering, which satisfies the terms of the statute even if it is simply walking through an open, public door during normal business hours. Rather the heart of the crime is the intent to steal. This mental element merges into the completed crime if the robbery is consummated." 328 of 352 U.S., 406, 407 of 77 S.Ct.

We find the contentions raised by Brown are without merit and affirm the judgment of conviction. Similar arguments to those raised by Brown were raised by the defendant in United States v. Baker, 129 F.Supp. 684 (S.D.Cal.1955). In Baker, the defendant passed a note to the teller which read: "Please check all, into this sack. Thank you E C B." The teller asked, "What is this?" The defendant said, "Just put everything you have in the sack and there won't be any trouble." The teller tripped an alarm and the defendant was apprehended. No weapon had been displayed, nor was one found on the defendant. The defendant argued that the facts could not support a charge of an attempt to take by intimidation. The Court said at 686-687 of 129 F. Supp.:

"It is apparent that in the statute under consideration the `attempt\' relates to the taking and not to the intimidation. Thus, what is involved in this indictment is an attempted taking by intimidation, the means being intimidation, or putting in fear instead of by force.

* * * * * *

"The handing of similar notes to bank tellers is a familiar modus operandi of both armed and unarmed bank robberies. * * *. The fact that this teller called for help instead of handing over money, keeps this case an attempt. The method used has often induced a bank teller to part with cash, for the circumstances do not admit of an examination to determine whether the man at the window is armed or not. The very presence of a man, having a note, who assures the teller, `Do as I say, and there won\'t be any trouble\', infers that failure to do as ordered is an invitation to trouble. Defendant intended to get money from the teller by intimidation. * * * That she did not respond as defendant expected, saves defendant from having committed the robbery he planned, but does not wipe out his overt acts wilfully done as an endeavor to do or

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