United States v. Davila-Nater
Decision Date | 26 March 1973 |
Docket Number | No. 72-2324.,72-2324. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Teodoro DAVILA-NATER, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
COPYRIGHT MATERIAL OMITTED
Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.
William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marques, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
Before WISDOM, BELL and COLEMAN, Circuit Judges.
Rehearing and Rehearing En Banc Denied March 26, 1973.
A few minutes before closing time, August 5, 1971, when only one woman employee was present at either facility, the State National Bank of El Paso and the El Paso National Bank were simultaneously robbed by three men. The total amount taken was $36,176.94. Both banks were located in the same building, with a common lobby, on the grounds of the William Beaumont Hospital.
It was later developed that the offense had been committed by Teodoro Davila-Nater (Davila) (age 24), Jose Felix Hernandez (age 25), and Juan Jesus Martinez (age 26).
Hernandez and Martinez pleaded guilty, in one count, to the robbery of the State National Bank. The counts with reference to the El Paso National Bank were dismissed.
A jury convicted Davila of violating 18 U.S.C. § 2113(a), the Bank Robbery statute, in that on August 5, 1971, he robbed the El Paso National Bank of $22,500 in money. He was also convicted of violating 18 U.S.C. § 2113(d) in that he assaulted and put in jeopardy the life of a bank employee by the use of a gun.
He was acquitted of the robbery of State National Bank. His co-defendants testified that Davila never physically entered the space assigned to that bank, although they, in furtherance of the common enterprise, did so. See 18 U.S. C. § 2, Principals.
When the case came to trial, both Hernandez and Martinez described not only the genesis of the criminal plan but also its execution, including a detailed resume of Davila's performance at the scene. Angel Sanchez was one of Davila's friends, who loaned him the car in which he got out of El Paso and ultimately landed in Puerto Rico. Sanchez testified that on more than one occasion, both before going to Puerto Rico and after his return, Davila privately told him of his part in the robbery, including the use of a gun.
In this state of affairs, the appellant sought refuge behind a strongly implemented psychiatrical defense that at the time of the robbery he was suffering from a mental disease or defect from which he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, Blake v. United States, 5 Cir., 1969, 407 F.2d 908. This is the ground over which the trial was fought vehemently to a finish.
Davila was sentenced to concurrent terms of fifteen years each, to be eligible for parole at the discretion of the Board, 18 U.S.C. § 4208(a) (2). Apparently no one directed the attention of the court to the fact that this was an erroneous sentence. See Burger v. United States, 5 Cir., 1972, 454 F.2d 723, and the three prior decisions of this Court therein cited. Separate penalties under the various sections of the Federal Bank Robbery statute are improper, whether imposed consecutively or concurrently.
Within the foregoing context we shall discuss individually the errors assigned in search of reversal.1
When the robbery occurred Mrs. Bernice Ruth Rosch was the teller on duty at the El Paso National Bank.
At a pre-trial hearing, the prosecution made it known that Mrs. Rosch could not identify the robber or robbers.
In his opening statement, the Assistant United States Attorney, informed the jury:
Mrs. Rosch soon took the stand. She had been an employee of the El Paso National Bank for a total of thirty-one years. On August 5, 1971, she had been working at the Beaumont Branch as relief for a male employee who was on vacation. She then described the robbery. Then came the surprise:
Mrs. Rosch then agreed that she had viewed a lineup but did not then identify the defendant.
On cross examination:
The record reveals that at the noon recess the prosecution informed defense counsel that Mrs. Rosch had, indeed, told him that she could not identify the defendant and that he was willing to take the stand and would so testify. It may be hindsight, but it seems strange to us that apparently it never occurred to either counsel that the prosecutor could have quickly filed a written stipulation of these facts and it could have been read to the jury. No one suggested this course. Failing this approach, the United States Attorney could, of course, have entered a verbal stipulation.
What actually happened was that, considerably later, defense counsel, without stating his purpose, asked to call the United States Attorney as a witness. Whereupon the Court announced, "I won't permit you to call the District Attorney".
Thereafter, the defense called the F. B.I. agent, Eugene Patrick Turtle, Jr., who testified that Mrs. Rosch did not identify Davila at the lineup but was not specifically asked whether she had (as she stated) told him later that she could identify Davila.
In the closing arguments to the jury the prosecutor made no reference to Mrs. Rosch's testimony, but defense counsel dwelt on it at some length:
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