United States v. Howell, 11948.

• Decision Date: 28 December 1956
• Docket Number: No. 11948.,11948.
• Citation: 240 F.2d 149
• Parties: UNITED STATES of America v. Philip J. HOWELL, a/k/a James Colburne Howard, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

240 F.2d 149 (1956)

UNITED STATES of America v. Philip J. HOWELL, a/k/a James Colburne Howard, Appellant.

No. 11948.

United States Court of Appeals Third Circuit.

Submitted November 6, 1956.

Decided December 28, 1956.

COPYRIGHT MATERIAL OMITTED

Phillip J. Howell, pro se.

W. Wilson White, Philadelphia, Pa., for appellee.

Before MARIS and KALODNER, Circuit Judges, and WORTENDYKE, District Judge.

WORTENDYKE, District Judge.

Appellant was convicted on April 5, 1956 upon Counts 1, 3, 4, 6, 7 and 9 of a nine-count indictment returned by the Federal Grand Jury for the Eastern District of Pennsylvania, for bank robbery on October 10, 1955, in violation of 18 U.S.C.A. § 2113. He was acquitted (on motion) on Counts 2, 5 and 8. More particularly, Count 1 of the indictment charged that the defendant by force and violence unlawfully took from the presence of certain therein named individuals the sum of $19,777.00 lawful currency of the United States belonging to and in the care, custody, control, management and possession of Wayne Title and Trust Company, Strafford Branch, whose deposits are insured by the Federal Deposit Insurance Corporation.

On April 16, 1956, following denial of defendant's motion for new trial, he was sentenced to imprisonment for ten years on each of Counts 1 and 3 of the indictment, to run consecutively, and to imprisonment for ten years on each of Counts 4, 6, 7 and 9, to run concurrently with each other and with the sentence imposed upon his conviction on Count 3. Defendant elected to commence service of his sentence pending his appeal.

Although represented by counsel upon the trial, defendant appears pro se on this appeal, which, pursuant to leave granted he submits upon a handwritten brief without appendix, in lieu of which we refer to the original record. The case has been considered upon the record and briefs as filed.

On November 16, 1955 an indictment was returned against James Colburne Howard and two others who had been identified as the three men who committed the bank robbery. The present appellant was arrested on January 13, 1956 in Baltimore, Maryland, and upon being searched at the time of his arrest a safe deposit key was found concealed between the lining and a pocket of his trousers. He was identified as a savings account depositor of Aurora Federal Savings and Loan Society of Baltimore, Maryland, and the lessee (under the name of Joseph Nash) of a safe deposit box in that institution to which the key gave access. Appellant says that after his arrest he was taken to the local office of the Federal Bureau of Investigation and from there was brought before a United States Commissioner in Baltimore, who, after a partial hearing, continued the same to January 16, 1956, fixing bail at $15,000 and remanded the accused to jail. Meanwhile, upon a search warrant obtained from the Chief Judge of the United States District Court for the District of Maryland, a search was made of the safe deposit box above mentioned, and therein were found two packages of currency totalling $3,400. and a savings account pass book showing deposits of $2,000. One package, labelled "Joseph Nash, No. 1, $2,200.00H." was found to contain 150 $10 bills, 25 $20 bills, 3 $50 bills, 2 $20 bills and 1 $10 bill (aggregating $2,200). The other package, labelled "Joseph Nash, H-W $1,200.00 — 5's", was found to contain 240 $5 bills (aggregating $1,200). Appellant admits that he was the lessee of the safe deposit box under the name "Joseph Nash". When the Strafford (Pennsylvania) branch of the robbed Trust Company was first opened it was in possession of two packages of $5. bills; each package aggregating $500. The branch manager had made a list of the serial numbers of the bills in these packages, and these numbers were set forth in the search warrant as descriptive of some of the property to be seized. Ninety-two of the $5. bills seized bore serial numbers included in this list — an aggregate of $460 out of the $1,200 of $5. bills seized, all intermingled in one of the packages found in the safe-deposit box. There were also found in the safe deposit box 151 $10. bills 98 of which were crisp, new bills and bore consecutive serial numbers indicating that they had been placed in circulation by the Federal Reserve Bank at Philadelphia after September 2, 1955. There was also found in the box a $5. bill which bore a handwritten numeral which had been placed thereon prior to the robbery by the teller at the Wayne Title and Trust Company's office where it occurred.

On January 23, 1956, appellant filed in the United States District Court for the District of Maryland a petition for a writ of habeas corpus and for the return and suppression of evidence obtained by the Government agents from the safe deposit box. These petitions were denied without prejudice.

Because appellant had insisted that he was not the James Colburne Howard named in the indictment of November 16, 1955, but that his true name was Philip J. Howell, he was reindicted in the Eastern District of Pennsylvania on January 26, 1956, under his asserted true name. Upon his motion for suppression of evidence and return of property in that District, the return of the savings account book which had been taken from the safe deposit box was ordered, but the motion was denied in all other respects.

Appellant was arraigned and pleaded not guilty on March 24, 1956 and was brought to trial on April 2, 1956; being convicted as hereinabove stated.

Appellant assigns eight grounds for reversal of the convictions appealed from; these will be considered in order, as follows.

Appellant asserts that the indictment upon which he was tried failed to set forth a violation of the Code Section therein cited. The first count of the indictment against this appellant was couched in the following language:

"That on or about October 10, 1955, at Strafford, in the Eastern District of Pennsylvania, Philip J. Howell a/k/a James Colburne Howard did knowingly and unlawfully by force and violence take from the presence of J. Harold Hallman and Mildred Mellin a sum of money, to wit: $19,777.00 lawful currency of the United States belonging to and in the care, custody, control, management and possession of the Wayne Title and Trust Company, Strafford Branch, whose deposits are insured by the Federal Deposit Insurance Corporation; in violation of Title 18 U.S.C., Section 2113."

Appellant moved to dismiss the indictment below, and argues for reversal here, on the ground that the foregoing language (which is similar to that used in Counts 3, 4, 6, 7 and 9 of the indictment) did not charge that the Wayne Title and Trust Company was a "bank" as used in the section alleged to have been violated. The relevant provisions of that section (as set forth in Title 18 of the United States Code Annotated) read as follows:

"§ 2113. Bank robbery and incidental crimes.

"(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 20 years, or both.

* * * * *

"(f) As used in this section the term `bank\' means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operated under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. * *"

While subsection (a) of the foregoing section of Title 18 refers only to a bank or savings and loan association, subsection (f) of the same section defines the term "bank" as (1) any member bank of the Federal Reserve System, (2) any bank or trust company organized under the laws of the United States, and (3) any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. While the language of the indictment does not use the word "bank", it names the institution in and from which the robbery is alleged to have been committed and also charges that the deposits of that institution are insured by the Federal Deposit Insurance Corporation. Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides as follows:

"(c) Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."

An indictment is sustainable if the "offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense." United States v. Behrman, 258 U.S. 280, 288, 42 S.Ct. 303, 304, 66 L.Ed. 619. Where the indictment charges a statutory offense its allegations need not be in the words of the statute, provided they set forth facts constituting the elements of the offense. United States v. Marcus, 3 Cir., 1948, 166 F.2d 497.

Summarized, the indictment charged that on a specific date in a specific municipality the accused, knowingly and in violation of a definitely cited statutory section, by force and violence took from the presence of...