United States v. Rizzo

• Decision Date: 19 September 1969
• Docket Number: No. 16789.,16789.
• Citation: 416 F.2d 734
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Ralph RIZZO, a/k/a Alfred Dale Rosenheck, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

416 F.2d 734 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Ralph RIZZO, a/k/a Alfred Dale Rosenheck, Defendant-Appellant.

No. 16789.

United States Court of Appeals Seventh Circuit.

September 19, 1969.

Robert A. Mucker, J. Frederick Hoffman, Lafayette, Ind., for appellant.

Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., for appellee.

Before CASTLE, Chief Judge, and KILEY, and FAIRCHILD, Circuit Judges.

CASTLE, Chief Judge.

Defendant appeals from his conviction, upon a jury verdict of guilty, of forcing a person to accompany him in an attempt to free himself from confinement for bank robbery, in violation of 18 U.S.C. § 2113(e). The record, when viewed in a light most favorable to the Government with all reasonable inferences to be drawn therefrom, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), reveals the following facts.

On July 26, 1967, defendant waived indictment and an information was filed against him on the charge of putting the life of a bank employee in jeopardy by use of a dangerous weapon while robbing a federally insured bank, in violation of 18 U.S.C. § 2113(d). On August 18, 1967, while awaiting trial on that charge in the Tippecanoe County Jail, Lafayette, Indiana, the defendant, in attempting to escape, allegedly forced a turnkey, David B. Price, to accompany him without the latter's consent. Price testified that, after being asked by a United States Marshal to bring the defendant from his cell, Price went to the cell and requested defendant to come with him. Defendant then pulled what Price thought was a gun — but was actually an imitation made by defendant from a bar of soap — and ordered Price to release another prisoner, Douglas Jeeters. The three, upon defendant's orders, then went to the jail office, which was occupied by a number of people.¹ Defendant ordered the occupants to freeze and then told Price to unlock the front door. The three went through the front door and into a garage where defendant asked Price for his car keys. Price replied that he did not have the keys. At this point a Deputy Marshal fired a shot at defendant which hit the latter in the back. During the attempted escape Price was also slightly wounded by a bullet, although the marshal testified that his shot did not hit Price. The defendant, who was seriously wounded, was apprehended shortly thereafter.

Defendant's defense was that Price had conspired to stage a phony jail break, which plan went afoul due to the unexpectedly large number of people present in the jail office. Since, under § 2113(e), the hostage must have been forced to accompany the defendant without the hostage's consent, such a conspiracy would have, if proven, exonerated the defendant of the charge. The defense witnesses were two fellow inmates of the Tippecanoe County jail and the defendant.

The inmates testified as to various alleged corrupt practices occurring in the jail between the inmates and the turnkeys.² Defendant testified that Price, for a sum of $500, proposed the jailbreak and outlined the plan by which they would make the escape look realistic, and that defendant turned down the offer of a real gun because he did not want anyone to get hurt.

The district court, upon the jury verdict of guilty, sentenced defendant to a prison term of 25 years, to run consecutively to the 25 year sentence imposed for the bank robbery offense.

On appeal, defendant first contends that the district court erred in denying his motion for acquittal at the end of the Government's case in chief, since the prosecution had allegedly failed to prove an essential element of the crime — defendant's knowledge, at the time of the offense, that he was being held for the crime of bank robbery.³ The record, to the contrary, shows that prior to...