United States v. Cady

• Decision Date: 19 April 1974
• Docket Number: No. 73-1344.,73-1344.
• Citation: 495 F.2d 742
• Parties: UNITED STATES of America, Appellee, v. Donald Ratliff CADY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.2d 742 (1974)

UNITED STATES of America, Appellee, v. Donald Ratliff CADY, Appellant.

No. 73-1344.

United States Court of Appeals, Eighth Circuit.

Submitted November 13, 1973.

Decided April 19, 1974.

Robert C. Dopf, Williams, Hart, Lavorato & Kirtley, West Des Moines, Iowa, for appellant.

Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.

Before MEHAFFY, Chief Judge, MOORE,^* Senior Circuit Judge, and WEBSTER, Circuit Judge.

WEBSTER, Circuit Judge.

Appellant Donald Ratliff Cady was convicted of aiding and abetting a bank robbery aggravated by putting in jeopardy the life of another person by use of a dangerous weapon or device, in violation of 18 U.S.C. § 2113(d) and 18 U.S.C. § 2. In this appeal he challenges the sufficiency of the evidence. He further contends that the court erred (1) in failing to instruct on the weight to be given the testimony of an accomplice; (2) in giving an erroneous instruction on "putting in jeopardy" and (3) in refusing to give a lesser included offense instruction on the crime of larceny of a bank, 18 U.S.C. § 2113(b). Finally he contends that the remarks of government counsel in final argument constituted prejudicial error.

On May 16, 1972 the East Des Moines National Bank branch at Pleasant Hill, Iowa, was robbed of $16,295. Two robbers entered the bank. One seized a customer and held a gun at her neck. The other robber pointed a gun at the branch manager. The robbers, later identified as Philip Carnes and Thomas Ellsworth Small, fled the bank and were observed making their getaway in an orange Chevelle with a black top.

At the trial Small and Robert Daniel Smith both testified that they conspired with Carnes and appellant Cady to rob the bank. Smith testified that Cady's role was to obtain a car to be used in the robbery. He also testified that Cady knew the Pleasant Hill branch was the target bank. Cady delivered the car to Smith's house on the morning of the robbery, and, according to Smith, wiped off the door handles of the car. Carnes and Small left in the Chevelle; Smith followed in his Cadillac.

After the robbery Smith, Small and Carnes met and divided the loot. Smith testified that Carnes handed him $1,500, stating "Here's fifteen hundred for Cady". Small testified that the agreement had been to pay Cady $1,000 for providing the car. Smith testified that he called Cady, met him at a tavern and drove back to Smith's house, where Cady was given the $1,500.

Carnes testified for the defense, corroborating the details of the actual robbery, but exculpating Cady from any knowing participation. He testified that he told Cady that he needed to borrow a car for a few days to get around to see friends to borrow money; that he never at any time discussed robbing a bank with the defendant. He testified that arrangements to borrow the car were made over the telephone, and that Smith and another person actually picked up the automobile. He testified that none of the money went to Cady. Carnes, a prison escapee, testified that he only told Cady that he was out on appeal.

Two guns were used in the robbery. Small testified that the gun used by Carnes was loaded while his was not, and that as far as he knew, both guns were supplied by Cady. Carnes testified that at least one gun was loaded, but testified that Smith supplied one gun and he the other. Smith testified that he overheard a conversation between Carnes and Cady in which Carnes asked Cady whether he, Cady, had obtained the gun from a museum because, he Carnes, could get no shells for it.

Cady did not take the stand. With the conflicting testimony of the participants, the circumstances surrounding the furnishing of the car by Cady take on crucial importance. Gary Steward, a used car salesman for M & W Motors, testified that he first met Cady about May 1, 1972, when Cady visited his lot in search of a car. He came in several more times. On May 15 Steward told Cady about his brother's Chevelle, which had been placed on the lot for sale, but was on loan on that particular day. Cady told him he would want a car the next day. Steward testified as follows on direct examination:

Q Did he Cady discuss anything about what the car was going to be used for?

A Well, he didn\'t come right straight out and tell me that he was going to rob a bank with the car.

Q What did he say?

A Well, he said something to the effect that he said he knew where there was a fellow that hauled some money back and forth in the trunk of his car to the grocery store.

Q And what did he say about that hauling that money back and forth?

A Well, I was under the impression that he was going —

MR. LAVORATO: I object to this impression.

THE COURT: Sustained.

Q What was the specific things that he said other than just hauling the money back and forth to the store?

A Well, I don\'t know. He didn\'t come right straight out and tell me that he was going to rob anybody.

Q Where did he say the bank — the money, was coming from that was going to go to the store?

A I believe he said he, the fellow, was picking the money up at a bank and hauling it to a grocery store, to open the business, and he hauled the money in the trunk of his car.

Cady told Steward he wanted the car for a couple of hours and might even buy the car. Steward called Mike Bach, the lendee, to say that a fellow was coming to pick up the car. He then gave Cady the address where the car was located. Mrs. Bach could not identify Cady in the courtroom as the man who picked up the car.

SUFFICIENCY OF THE EVIDENCE

On the evidence adduced at the trial the court properly rejected Cady's motions for a directed verdict. While the evidence was conflicting, there was ample evidence from which, if believed, the jury could find that Cady knowingly and intentionally aided and abetted a bank robbery of a federally insured bank, an offense aggravated by placing in jeopardy the lives of one or more persons by means of two guns, at least one of which was loaded. The weight and credibility of the testimony was for the jury. Appellant concedes that a conviction can rest upon uncorroborated testimony of an accomplice if it is not otherwise incredible or unsubstantial on its face. United States v. Cole, 449 F.2d 194, 197 (8th Cir. 1971), cert. denied sub nom. Woodard v. United States, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972). The testimony of government witnesses was consistent. Prior inconsistent statements were placed before the jury; the jury obviously accorded weight and credibility to their in-trial testimony. In any event, corroboration can be found in the testimony of the car salesman, to whom Cady clearly implied a sinister purpose and disclosed a time requirement consistent with the bank robbery plan.

ACCOMPLICE INSTRUCTION

Appellant contends that it was plain error not to instruct the jury that under the law Smith and Small were accomplices and hence their particular testimony should be received with caution and weighed with great care.¹ Instruction No. 9 fully and accurately instructed the jury on the weight to be given to the testimony of an accomplice.² Appellant contends, however, that since Instruction No. 12 dealing with the essential elements of the offense named only Small and Carnes, and did not name Smith, it was possible for a jury to conclude that Smith was not an accomplice. This contention is without merit. Small and Carnes were mentioned only in connection with their roles in supplying the necessary elements of the offense of bank robbery; Instruction No. 9 could not mislead the jury, and any fair application of it to the facts in this case would include Smith as an accomplice.

PUTTING IN JEOPARDY INSTRUCTION

Appellant was charged and convicted under 18 U.S.C. § 2113(d), the aggravated "assault" provision.³ In instructing the jury on the additional elements necessary to constitute the aggravated offense, the court defined "dangerous weapon or device" and to "put in jeopardy the life" as follows:

Instruction No. 16

A `dangerous weapon or device\' includes anything capable of being readily operated, manipulated, wielded, or otherwise used by one or more persons to inflict severe bodily harm or injury upon another person. So, an operable firearm, such as a pistol, revolver, or other `gun\', capable of firing a bullet or other `ammunition\', may be found to be a dangerous weapon or device.

To `put in jeopardy the life\' of a person by the use of a dangerous weapon or device means, then, to expose such person to a risk of death, or to the fear of death, by the use of such dangerous weapon or device.

Appellant contends that, although not objected to, this instruction constituted "plain error" under Fed.R.Crim.P. 52(b) because it failed to instruct the jury that the robber must have had the objective capability of causing physical harm by the means threatened. The Second Circuit has adopted this construction of subsection (d), holding that unless a finding was required that lives were objectively in danger, as distinguished from mere fear of injury, subsection (d) would have no different meaning from subsection (a),⁴ which prohibits robbery "by force and violence, or by intimidation." United States v. Marshall, 427 F.2d 434 (2d Cir. 1970). This court reached a similar conclusion in Bradley v. United States, 447 F.2d 264 (8th Cir. 1971), vacated, 404 U.S. 567, 92 S.Ct. 746, 30 L.Ed.2d 722 (1972), which involved the use of a simulated bomb.⁵ For a contrary result, see United States v. Beasley, 438 F.2d 1279 (6th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110 (1971).

The Fifth Circuit has held that in the highly charged atmosphere of a bank robbery by robbers bearing guns, persons present are placed "in jeopardy" as a matter of law. Baker v. United States, 412 F.2d 1069, 1071-72 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). It has been held that it is not necessary to show that a weapon is loaded to permit finding...