United States v. McGhee

• Decision Date: 11 March 1974
• Docket Number: No. 73-1273.,73-1273.
• Citation: United States v. McGhee, 488 F.2d 781 (5th Cir. 1974)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eldson McGHEE, Amelia Kendricks and Robert Lee Bunner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.2d 781 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Eldson McGHEE, Amelia Kendricks and Robert Lee Bunner, Defendants-Appellants.

No. 73-1273.

United States Court of Appeals, Fifth Circuit.

January 28, 1974.

Rehearing Denied March 11, 1974.

R. Rabider, Markwalter, Macon, Ga. (court-appointed), for McGhee.

William T. Exum, Macon, Ga. (court-appointed), for Kendricks.

Manley F. Brown, Macon, Ga. (court-appointed), for Bunner.

William J. Schloth, U. S. Atty., O. Hale Almand, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before GODBOLD, DYER and GEE, Circuit Judges.

GODBOLD, Circuit Judge:

Bunner, Kendricks, and McGhee were convicted on three counts of aiding and abetting the commission of a bank robbery, 18 U.S.C. §§ 2, 2113, and one count of conspiracy, id. § 371. Each received life for bank robbery¹ and five years for conspiracy, sentences to run consecutively. All claim that the bank robbery counts, Counts I-III, were fatally defective because of the omission of an essential element of the crime — a taking "from the person or presence of another" within the terms of 18 U.S.C. § 2113(a). Although we agree with defendants as to Count I,² we hold that Counts II and III were sound, and finding their other contentions without merit, we affirm.

I. The indictment issue.

The contours of the omitted element doctrine are uncertain. Supreme Court decisions elaborating on the requirements of the liberal federal pleading standards appear to recognize a difference between, on the one hand, indictments that omit an essential element and thus fail to charge an offense and, on the other hand, indictments that suffer from nonprejudicial technical deficiencies. In Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, 865 (1932), the Court set out the "true test" of the sufficiency of an indictment:

whether it contains the elements of the offense intended to be charged, and "sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Citations omitted; emphasis added.³

The Court reemphasized that "it, of course, is not the intent of § 1025 a forerunner of Rule 52(a), F.R.Crim.P. to dispense with the rule which requires that the essential elements of an offense must be alleged; but it authorizes the court to disregard merely loose or inartificial forms of averment." Id. at 433, 52 S.Ct. at 420, 76 L.Ed. at 866.

Hagner itself was a "merely loose or inartificial forms of averment" case. Charged with mail fraud, the defendant challenged the indictment for failure to state that the allegedly fraudulent letter had been knowingly caused "to be delivered by mail according to the direction thereon." Since the indictment did state that defendant had deposited the letter, addressed, at a post office, no omitted element was found and the conviction was affirmed.

United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), demonstrated the proper scope of the Hagner fairness test. A perjury indictment was sustained over the objection that it had failed to specify the name and oath-giving authority of the person who had sworn the defendant. The Court held that the name and authority were not essential elements.⁴ For a crime to have occurred, however, it was essential that the oath had been authorized by a law of the United States. The indictment stated that the oath had been "duly taken." Employing the fairness test, the Court concluded that "duly taken" amounted to "authorized by a United States law."⁵

Our past decisions rigidly observe the all-elements requirement. In Walker v. United States, 342 F.2d 22 (CA5), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L. Ed.2d 97 (1965), we considered a check forgery indictment averring that defendant acted with intent to defraud. The statute under which defendant was charged specified that the forgery must be committed with intent to defraud the United States. We held the indictment defective, and rejected the Government's argument that the defect was somehow curable by the "implications" of other language in the indictment. See also Honea v. United States, 344 F.2d 798 (CA5, 1965); United States v. Randolph, 460 F.2d 367 (CA5, 1972); United States v. Leigh, 487 F.2d 206 (CA5, 1973); United States v. Pollard, 486 F. 2d 190 (CA5, 1973).

This circuit's purist view of the need to state all elements of an offense leads us to conclude that Count I of the bank robbery indictment against Bunner, Kendricks, and McGhee should have been dismissed. Subsection (a) of 18 U.S.C. § 2113 is as follows:

(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, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny —

Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

The two parts of the subsection are separable. The first criminalizes the usual gun and mask form of bank robbery, while the second covers, for example, nighttime bank break-ins not involving danger to employees or customers. Our decision in United States v. Cook, 443 F.2d (CA5, 1971), made clear that when the asserted crime is a violation of the first part of subsection (a), a taking from the person or presence of another is an essential emement.

The words of Count I⁶ show that the Government was relying solely on the first part of subsection (a). There was no allegation, however, that defendants took money from the person or presence of another. The omission is fatal to Count I.

Count II is not defective. It reads:

Defendants aided and abetted by one another, willfully, unlawfully and with felonious intent, did take from the First State Bank, Marshallville, Georgia, the sum of $34,173.84, more or less, in money belonging to and in the care, custody, control, management and possession of The First State Bank, Marshallville, Georgia, the deposits of which were then insured by the Federal Deposit Insurance Corporation; and defendants aided and abetted by one another, in committing the aforesaid acts, did assault Mrs. Marian Peterson, Mrs. Leona Layfield, and Miss Barbara Pritchett and others, and thus did put in jeopardy the lives of Mrs. Marian Peterson, Mrs. Leona Layfield, and Miss Barbara Pritchett and others, by the use of dangerous weapons, to-wit: a revolver and a shotgun; all in violation of 18 USC § 2, i/c/w/ 18 USC § 2113

(d). Emphasis added.

The material in the count referred to by the words, "the aforesaid acts," although insufficient to allege a subsection (a) offense, properly states a subsection (b) offense.⁷ Since § 2113(d) penalizes

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device . . .,

Count II sufficiently alleges a subsection (d) crime.

Count III sets out to allege a subsection (e) violation. Subsection (e) reads:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

In the present context the necessary elements are (1) the taking of a hostage (2) in the course of committing some other § 2113 offense. The operative part of Count III is as follows:

Defendants, aided and abetted by one another, and while committing and attempting to commit the offense charged herein, did force Barbara Pritchett to accompany them from the First State Bank, Marshallville, Georgia, without consent of the said Barbara Pritchett; all in violation of 18 USC § 2, i/c/w/ 18 USC § 2113(e). Emphasis added.

"Herein" refers to the other bank robbery counts in the indictment. Since Count II adequately alleges a subsection (d) offense as discussed above, the requirement that the hostage be taken in the course of committing some other § 2113 offense is met.

II. In-court identifications.

Bunner challenges the admission of certain in-court identifications. There was no formal showup, but three witnesses, Nassamer, Pritchett, and Layfield, saw him with other defendants in handcuffs and chains at a pretrial hearing. Bunner argues, as did the defendant in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), that in the circumstances the pretrial viewings were so conducive to mistaken identification that he was denied due process of law. Although we are inclined to think that in the totality of the surrounding circumstances there was no substantial likelihood of irreparable misidentification,⁸ there is no need for us to decide that issue here. The unchallenged testimony of at least two other eyewitnesses provided ample evidence to support Bunner's conviction.

Kendricks' challenge to the in-court identifications made by witnesses Rowland and Howell rests on essentially the same ground as Bunner's objections, except that she...