United States v. Levine, 14921.

• Decision Date: 28 January 1966
• Docket Number: No. 14921.,14921.
• Citation: 354 F.2d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joel Franklin LEVINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

354 F.2d 568 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Joel Franklin LEVINE, Defendant-Appellant.

No. 14921.

United States Court of Appeals Seventh Circuit.

December 21, 1965.

Rehearing Denied January 28, 1966.

George L. Saunders, Jr., Joel Franklin Levine, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Raymond F. Zvetina, Gerald M. Werksman, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

(En Banc).

SCHNACKENBERG, Circuit Judge.

Joel Franklin Levine, defendant, has appealed from a judgment of the district court, based on a jury verdict finding him guilty of bank robbery as charged in count 1 of an indictment.

Count 1, in effect, charged that Levine and certain named persons,¹ on or about April 2, 1964, at Rockford, Illinois, took from certain named and unnamed employees of the Alpine State Bank, Rockford, Illinois, the deposits of which were then insured by Federal Deposit Insurance Corporation, approximately $27,754.60 in money then in the care and possession of said bank, and in so doing they put said employees in jeopardy by the use of a firearm, in violation of 18 U.S.C. § 2113(a) and (d).

In count 2 the indictment charged that on or about December 11, 1963, at said Rockford, Levine and another person (Smith) by force, willfully took from the person and presence of certain named and unnamed employees of said bank similarly insured deposits amounting to approximately $36,103, and did with a firearm put the lives of said employees in jeopardy, in violation of 18 U.S.C. § 2113(a) and (d).

According to his counsel, the basic issue is the fundamental fairness of defendant's trial in that, while defendant was tried and convicted on a single count of robbing said bank on April 2, 1964, during the course of the trial the Government repeatedly injected the charge that defendant had also robbed the same bank on December 11, 1963.

1. In support of his contention in this court, defendant's counsel is required to fully comply with the rules of this court so that we may be fully informed of everything in the trial court record relevant to that contention. Notwithstanding that requirement and especially the express language of our rule 16, no appendix, either printed or typewritten, was filed. While we did waive the printing of the record and permit the filing of typewritten briefs, the filing of an appendix was not waived. Without such appendix we are confronted with the task of examining 635 mimeographed pages of trial proceedings. We have repeatedly held that, unless waived by the court, such an appendix must be filed by appellant. United States v. Dixon, 7 Cir., 343 F.2d 510, 511 (1965), and cases there cited.

Nevertheless, we assume that court-appointed counsel for appellant in this case is undoubtedly rendering his services without remuneration and, for that reason, we wish to alleviate the situation which exists due to the absence of an appendix. So we shall assume as correct the statement of facts as set forth in the government's brief, which has not been questioned by appellant's counsel.

2. After the jury was sworn to try the issues, the prosecutor read to the jury both counts of the indictment and stated:

"* * * I am going to limit myself to the evidence to be heard under the first count of the indictment, the April 2, 1964, robbery. * * *"

At the conclusion of the statement, defense counsel for Smith (Mr. Schirmer) stated:

"May it please the Court, I have heard nothing in the opening statement concerning December, 1963."

The Court asked:

"Did you intend to say nothing in your opening statement about the evidence which you propose to offer in connection with the other count?"

Mr. Zvetina (Government counsel):

"That is right, your Honor."

The prosecutor stated:

"Well, I waive on Count II. * * I intend to proceed on Count I."

In the presence of the jury, the prosecutor stated that the government did not intend to adduce any evidence on the count concerned with the December 11, 1963 date.

The government then moved to dismiss count 2, which was granted, and the jury was instructed immediately to disregard the fact that it had been read to it. The court said, "It is not evidence."

In this court it is the contention of defendant's counsel that, by dismissing the count relating to the December charge from the case, the government put the defendant in a position in which he could not introduce evidence to rebut that charge. Moreover, it is contended that the prosecution used the December robbery charge against him.

The government's witness, vice-president-cashier Wright of the Alpine State Bank, testified that from his office, on April 2, 1964, he noticed a lady customer at a teller's window, with a scared look and her mouth forming the words "He has a gun in his hand". Wright started to dial the sheriff on a telephone when a man with a hand in a pocket motioned him to put the phone down. Wright testified that he heard a voice which he recognized and then a scream by another voice; that then a man wearing a blue-hooded jacket with white stitching, whom he identified as defendant Smith, passed in front of him carrying a sack and a pistol, crossed the lobby and left the bank, followed by the man who had motioned Wright to put down the telephone. Wright tried to obtain the license number on the get-away car used by these men. Wright was cross-examined by Smith's counsel, but not by Levine's counsel.

Dean Gerber, a teller, testified for the government and related the events of the robbery, identifying defendant Smith as the man who took money from the cashiers and who caused one of the tellers to scream after grabbing her arm and spinning her around. Gerber put the money in his cage into a bag which Smith had, in addition to a gun. He identified a gun offered in evidence as the same, or similar to the, one used by Smith.

Gerber testified he walked with Smith to the fifth window and told him "there was no money there." He then saw Smith leave the bank with another person who had been standing by the door. They sped out of the shopping center in a "shiny black '58 or '59 Buick car", and that, when Gerber was emptying the money into his bag, Smith said "quit stalling".

Teller Rae Ludlum was at the bank's drive-in window on April 2, 1964. She identified Smith as the man who swung her around by the shoulder and pointed a gun at her causing her to scream.

Mrs. Ludlum testified that she had heard this man's voice on a prior occasion and had seen him walk prior to April 2, 1964. This testimony was then objected to by defense counsel, but the court let it stand and stated that counsel might "cross-examine on that point". Neither counsel returned to this point and questioned her. In fact counsel for defendant Levin chose to refrain from cross-examining Mrs. Ludlum.

Witness Virginia Moore, a teller, pointed to and identified defendant Smith as the man who on April 2, 1964 came to her cash window with a gun in his hand and said: "Don't move or I will blow your head off". She stated that he handed her a pillow case and told her to put her money in it, which she did. She identified a gun handed to her marked government exhibit 3 as similar to the one pointed at her by Smith.

Catherine Compton, a secretary-receptionist at Alpine State Bank, testified that she saw two men in the bank on April 2, 1964 and she identified defendant Smith as one of them. She saw the two men leave in a black car. Only counsel for Smith cross-examined her.

Smith withdrew his plea of not guilty and entered a plea of guilty and the jury was acquainted with these facts, but was told that it was without prejudice to Levine.

Another witness testifying for the government was Mrs. Dixie Hoskins, employed in a drugstore nearby, who heard the burglar alarm for the bank ring on April 2, 1964. She observed a black car with motor running near the bank. It had "Special" written on the back of it. Two men with hooded coats came out of the bank, entered the car and drove away. One man carried a white pillow-case or sack and wore glasses. The car had license plate Ill. HF 4407. She was not cross-examined.

Floyd Hendricks testified that license Ill. HF 4407 was his and that it was torn off his car prior to April 2, 1964.

Hart testified that in March, 1964 he was employed at defendant Levine's service station. He was hired about the end of February or the beginning of March 1964 and said he first knew defendant Smith as Shelby Madison, proprietor of a restaurant and food store a few doors from the gas station. Levine owned the store prior to Smith.

Four to five days prior to the April bank robbery, Levine asked Hart if he was interested in $200. The reply was in the affirmative and Levine said "fine" and "find me a car". The next day Levine said "We have got to find a car pretty soon". On April 1, Levine told Hart at the gas station, "It has to be today that we get the car". Following further conversation that day, Levine gave Hart the ignition key for a 1963 Pontiac so that he could exchange it for the key to another car. After driving around in Rockford, Hart saw a 1958 Buick in a car lot, tested it and traded keys, taking the ignition key for the Buick and replacing it with the Pontiac key. That evening, according to a prearranged plan, Hart met Levine at the gas station. They drove in Levine's car and took a license plate off a car in the street.

Hart entered the lot and got into the 1958 Buick and left the lot, following Levine's car to a spot where he tried unsuccessfully to put on the license plate, and then followed Levine to a garage connected with a house on Vail Street, and Hart drove the car into the garage, taking off the gloves that Levine had given him earlier that evening and putting them on the front seat. Levine took Hart home and, in reply to a question about Hart's $200, Levine said he did...