United States v. Jarboe

• Decision Date: 11 April 1974
• Docket Number: Crim. A. No. 24109-3.
• Citation: 374 F. Supp. 310
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES of America, Plaintiff, v. William Mirl JARBOE, Defendant.

374 F. Supp. 310

UNITED STATES of America, Plaintiff, v. William Mirl JARBOE, Defendant.

Crim. A. No. 24109-3.

United States District Court, W. D. Missouri, W. D.

April 11, 1974.

Patrick E. Eldridge, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Lane D. Bauer, John C. Monica, Kansas City, Mo., for defendant.

SUPPLEMENTAL MEMORANDUM,¹ FINDINGS OF FACT, AND CONCLUSIONS OF LAW EXPLAINING DENIAL OF DEFENDANT JARBOE'S "MOTION FOR JUDGMENT OF ACQUITTAL IN ACCORDANCE WITH MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE GOVERNMENT'S CASE AND AT THE CLOSE OF ALL THE EVIDENCE AND, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL."

WILLIAM H. BECKER, Chief Judge.

On December 19, 1973, a jury returned a verdict in the above-entitled criminal action finding the defendant William Mirl Jarboe guilty of the offense of willfully and unlawfully, by force and violence and by intimidation, taking from the person and presence of Betty Smith and other persons on or about October 20, 1972, approximately $8,410.00 in money belonging to and in the care, custody, control, management and possession of the Chrisman-Sawyer Drive-In Bank of Independence, Missouri, the deposits of which were then insured by the Federal Deposit Insurance Corporation, all in violation of Sections 2 and 2113(a), Title 18, United States Code, and as charged in Count I of the indictment. The defendant was essentially found guilty of willfully aiding and abetting co-defendant James Allen Klein, by knowingly assisting Klein as driver of the automobile in which Klein escaped after the robbery of the Chrisman-Sawyer Drive-In Bank. Defendant Jarboe was found guilty under the provisions of Sections 2 and 2113(a), Title 18, United States Code, Section 2 of which provides, in part, that "whoever commits an offense against the United States or aids, abets, councils, commands, induces or procures its commission, is punishable as a principal." (Emphasis added.)

Following the filing of a motion for an extension of time within which to file a motion for a new trial and the grant thereof by order of January 4, 1974, defendant Jarboe filed herein on January 4, 1974, his timely "Motion for Judgment of Acquittal in Accordance with Motion for Directed Verdict at the Close of the Government's Case and at the Close of All the Evidence and, in the Alternative, Motion for a New Trial," including therewith suggestions in support thereof.

On January 11, 1974, counsel for the Government filed herein suggestions in opposition to defendant's post-trial motions, therein most briefly stating as follows: "The government in answering defendant's motions could detail each and every factual situation admitted into evidence at the trial, most of which from the defendant himself however, the government feels this to be unnecessary." In his suggestions in opposition, counsel for the Government further states, in similar brief fashion, that ". . . the evidence overwhelmingly supports the giving of the requested instructions and the giving of the Court's own instructions and primarily based upon the defendant's own admissions from the witness stand during the course of the trial herein."

In his "Motion for Judgment of Acquittal in Accordance with Motion for Directed Verdict at the Close of the Government's Case and at the Close of All the Evidence and, in the Alternative, Motion for a New Trial," hereinafter referred to simply as defendant Jarboe's motion for a new trial, defendant sets forth ten basic contentions:

"1. The Court erred in denying defendant's Motion for Acquittal made at the conclusion of the government's evidence, and at the conclusion of all the evidence, because the government did not prove beyond a reasonable doubt that defendant William Mirl Jarboe was a willing and knowing participant in the bank robbery and did not prove beyond a reasonable doubt that William Mirl Jarboe willingly and knowingly aided and abetted James Allen Klein in the bank robbery charged in the indictment.

"2. The verdict of Guilty in this case is contrary to the weight of the evidence.

"3. The verdict in this case is not supported by substantial evidence.

"4. The Court erred in admitting into evidence the written statement of defendant Jarboe, Exhibits No. 3(a), (b), (c) and (d) of November 6, 1972, and the alleged oral statements of Jarboe given the F.B.I. at or about the same time, and further erred in admitting into evidence the written statement of defendant Jarboe of December 11, 1972, Exhibit 7(a) and (b) and the alleged oral statements made to the F.B.I. at or about the same time because said statements were not free and voluntary as defendant Jarboe, although requesting an attorney for advice, was not provided counsel at the time he signed the written statement on December 11, 1972, and for all of the reasons heretofore advanced in defendant Jarboe's Motion to Suppress said written and oral statements, which motion and suggestions are incorporated herein by reference as though fully set forth therein.

"5. The final argument of the Assistant District Attorney for the government was unduly slanted, vitriolic and prejudicial to the rights of defendant Jarboe.

"6. The final argument of the Assistant District Attorney for the government erroneously and improperly advised the jury that said Assistant District Attorney had made a list of 70 alleged lies of defendant Jarboe contained in his written statements and in the evidence, to which defendant's counsel properly objected, said objection being overruled by the Court, as said argument was outside the bounds of permissible argument, allowed the Assistant District Attorney in effect to justify, without being sworn as a witness, and was prejudicial in directing the jury's attention away from the question of whether or not defendant Jarboe was guilty of bank robbery as charged in the indictment, all to defendant's prejudice.

"7. The Court erred in charging the jury by giving over defendant's objections and exceptions Instruction No. 17, as modified by the Court, because said instruction is contrary to the law as applicable to the facts of this case. . . .

"8. The Court erred in charging the jury by giving Instruction No. C-2 on the Court's own motion because said instruction is contrary to the law which requires a community of unlawful intent between the principal and aider and abettor at or before the crime is committed, and it is also prejudicially erroneous. . . .

"9. The Court erred in giving Instruction No. C-3 on its own motion, after receiving a note from the jury, over the objection and exception of the defendant. . . .

"10. The Court erred in charging the jury by giving Instruction No. C-4 on the motion of the Court, after a note had been written by the jury requesting clarification, in that said instruction is an erroneous statement of law and is prejudicial and erroneous. . . ."

Defendant's basic contention is essentially that the evidence is insufficient to support the verdict. In support thereof, defendant states that ". . . the crime of bank robbery charged in the indictment against Jarboe requires proof of specific intent to participate in the bank robbery." (Emphasis in original.) Defendant further states that "Jarboe had no intent to rob the bank in question or to aid or abet in the robbery before it occurred"; that any "intent which Jarboe might have formed had to arise after the robbery was complete when Klein returned to the car"; and since "Jarboe's intent arose for the first time after the robbery had been committed, he cannot be convicted of aiding and abetting the robbery." (Emphasis in original.) In support thereof, defendant cites United States v. Kelton, 446 F.2d 669 (8th Cir.1971) and Snyder v. United States, 448 F.2d 716 (8th Cir. 1971).

What is necessary to sustain a conviction of aiding and abetting under Section 2, Title 18, United States Code, has not been the subject of concurrent opinions in this circuit. The United States Court of Appeals for the Eighth Circuit has stated numerous and varied definitions of the element or elements necessary to find one guilty of aiding and abetting. In Mays v. United States, 261 F.2d 662, 664 (8th Cir. 1958), the Court held that association and an effort "to bring about" the commission of the crime was necessary. In Johnson v. United States, 195 F.2d 673, 675 (8th Cir.1952), the Court concluded that there must be a "community of unlawful purpose" or "some conduct of an affirmative nature." In Mack v. United States, 326 F.2d 481, 486 (8th Cir. 1964), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964), the Court found that an "essential contribution to the commission of the crime" was adequate. In United States v. Archer, 450 F.2d 1106, 1108 (8th Cir. 1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1329, 31 L.Ed.2d 586 (1972), the Court held that "prolonged presence when accompanied with a culpable purpose" would suffice to support a conviction. In United States v. Kelton, 446 F.2d 669, 671 (8th Cir. 1971), the Court concluded that "specific intent" or "some affirmative conduct in furtherance of the crime" was necessary. In Snyder v. United States, 448 F.2d 716, 718 (8th Cir. 1971), the Court found that "the most important element is the sharing of the criminal intent of the principal. . . ." In United States v. Hill, 464 F.2d 1287, 1289 (8th Cir. 1972), the Court held that there must exist a "culpable purpose" or "some conduct of an affirmative nature." In United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972), the Court stated that ". . . there must exist some affirmative participation which at least encourages the perpetrator." In United States v. Atkins, 473 F.2d 308, 313 (8th Cir. 1973), the Court concluded that a defendant must be shown "to have a purposeful attitude which helped facilitate" the commission of the crime. And in United States v. Irons, 475 F.2d 40, 42 (8th Cir. 1973), the Court held that "some evidence of participation" must be found in...