United States v. Roach

• Decision Date: 01 August 1963
• Docket Number: No. 14333.,14333.
• Citation: 321 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Joseph Wesley ROACH, also known as Joseph W. Rodgers, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

321 F.2d 1 (1963)

UNITED STATES of America, Appellee, v. Joseph Wesley ROACH, also known as Joseph W. Rodgers, Appellant.

No. 14333.

United States Court of Appeals Third Circuit.

Argued June 18, 1963.

Decided August 1, 1963.

Leon H. Kline, Philadelphia, Pa., for appellant.

Thomas F. Gilson, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., J. Shane Creamer, Edmund E. DePaul, Asst. U. S. Attys., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and STALEY and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

Joseph A. Roach is here appealing from his conviction in the United States District Court for the Eastern District of Pennsylvania¹ on a four count indictment to which he had pleaded not guilty to each count. Count I charged him with entering a federally insured saving and loan association with intent to commit larceny in violation of 18 U.S.C. § 2113 (a).² Count II charged him with taking, with intent to steal, currency in the custody of that savings and loan association in violation of 18 U.S.C. § 2113(b).³ Count III charged him with possession and concealment of a sum of money knowing it to have been "taken" from that savings and loan association, in violation of 18 U.S.C. § 2113(c).⁴ Count IV charged him with putting in jeopardy the lives of two tellers in the savings and loan association by the use of a gun, while committing the offenses charged in Counts I and II, in violation of 18 U.S.C. § 2113(d).⁵

The evidence adduced at the trial disclosed that on October 18, 1962, at about noon, a masked man entered the office of the East Girard Savings and Loan Association, at 7917 Ogontz Avenue, Philadelphia, Pennsylvania, the deposits of which were at the time insured by the Federal Savings and Loan Insurance Corporation whereby it was a "savings and loan association" as defined in 18 U.S.C. § 2113(g). He approached the counter and pointing a gun at Mrs. Rose Familant, a teller, told her to lie down and he would not hurt her. He called the manager, John K. Potter, out of an adjoining room and directed him to lie down on the floor near Mrs. Familant. The intruder then helped himself to cash from the counter cash drawers. He scooped the money into a paper bag he had brought with him and made his getaway. After he left, a check of the cash disclosed that the sum of $8,241 had been taken.

Neither of the Association's employees were able to make a positive identification of the appellant at his trial.

As a means of identifying currency in the event of a holdup the Association had taken the precaution to list the serial numbers of certain bills in the tellers' cash drawers. Over eighty of such bills were among those taken. Tracing them led the authorities to the appellant in whose possession five were found, 13 others were shown to have been transferred by him to a Western Union office and three others were located at a post office in two envelopes which he had addressed to himself. He was apprehended some four days after the robbery. The Government offered other circumstantial evidence designed to inculpate him in the crime.

During the trial he took the stand in his defense and offered evidence to show that he was elsewhere than at the scene of the robbery on October 18, 1962. He explained the possession of the marked bills with a statement that he had won them at a race track.

The jury convicted him on all four counts of the indictment. Motions for acquittal were made and denied at the conclusion of the Government's and defendant's cases. A motion for a new trial was also denied.

The trial judge sentenced the appellant to ten, five, five and ten years respectively on Counts I through IV, to run consecutively, making an aggregate sentence of thirty years.

Three of the errors that the appellant urges are conceded by the Government, namely:

(1) that the pyramiding of the sentences is invalid under Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed. 2d 370 (1957) and Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed. 2d 407 (1959);

(2) that Count III of the indictment did not charge appellant with a crime. It merely alleged that he knowingly and unlawfully possessed and concealed currency of the United States knowing the same to have been taken from the East Girard Savings and Loan Association in violation of 18 U.S.C. § 2113(c).⁶ It fails to specify how the currency was "taken." One of the essential elements of § 2113(c) — knowledge that the property was "taken * * * in violation of subsection (b)^6a of § 2113", i. e., stolen — is omitted. The omission is fatal;

(3) that the District Court erred in instructing the jury as follows:

"In Count Four of the indictment in this case the Government charges whoever in committing or attempting to commit, any of the offenses charged in Count One or Count Two or Count Three, as heretofore outlined to you, assaults any person or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be guilty of an offense against the United States and punishable as provided by law." (Emphasis supplied.)

However, Count IV of the indictment (supra, note 5) only charged the appellant with "putting in jeopardy" the Association's employees. It did not include the allegation of "assault" as the Trial Judge charged.⁷ This is error under Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1961), and so clear that appellant is not precluded from raising it here notwithstanding that he failed to object to that charge below.⁸

Consequently the conviction on Count III must be reversed and that Count dismissed. The conviction on Count IV must also be reversed but a new trial on that Count will be ordered.

Appellant, however, contends for more than a new trial on Count IV. He urges that a judgment of acquittal should be ordered on the ground that there was an absence of proof of one of the necessary elements of § 2113(d), on which Count IV is based, i. e., that the accused "puts in jeopardy the life of a person by the use of a dangerous weapon." The appellant submits that the presence of fear alone on the part of the victim is not enough but that a dangerous weapon must be used so that life is placed in an objective state of danger, citing Smith v. United States, 309 F.2d 165, 166-167 (9 Cir., 1962) and Wagner v. United States, 264 F.2d 524, 530-531 (9 Cir., 1959) cert. denied 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548 (1959). The appellant points to the fact that there is no testimony that the gun in this case was loaded and that the manager of the Association was at least in doubt as to whether he saw a gun or the gloved hand of the thief. Appellant suggests that it was likely that the teller, Mrs. Familant, was so overcome with fear that she was unable to distinguish a gun from a gloved hand. He argues that this evidence completely failed to establish the charge contained in Count IV entitling him to an acquittal thereon.

Unquestionably the requirement of the statute that life shall be put in jeopardy means actual jeopardy and not merely that the victim thought he was in danger. United States v. Donovan, 242 F.2d 61 (2 Cir., 1957). The testimony of the manager on the presence of a gun is vague. However, no such indefiniteness is manifest in the testimony of the teller. She stated that when she first saw the accused at her counter he said to her: "Now be quiet I won't hurt you." He then jumped up and over the counter, repeating his admonition, at which point she observed the gun in his hand, which she described in detail. In answer to a question she replied: "Yes, he pointed the gun at me, that is he pointed it, when he went by the area there in passing her desk and going toward the safe."

In Wagner v. United States, supra, cited by the appellant, the court considered the latter part of § 2114 of Title 18 U.S.C. (robbing mails and putting the life of a postal employee in jeopardy by the use of a dangerous weapon) and, as submitted by appellant, held that more than "mere holdup by force or fear" was required. It said:

"* * * It must be a holdup involving the use of a dangerous weapon actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger. * * *"

It went on, however, to add:

"Perhaps the most obvious and common way in which a gun may be used to place life in an objective state of danger is by pulling the trigger and firing a shot. But a jury is by no means limited to such a showing as this in order to find that an objective state of danger existed."

"Here there is evidence that a gun, which the jury could infer was loaded,8 was pressed against Martin\'s side with such force that it ripped his shirt. This was an overt act not necessarily and in fact not ordinarily associated with the commission of a robbery. Had Martin cried out, grappled with his assailant, sought to escape, or refused to hand over the money — or had his assailant mistakenly thought he was offering resistance — Martin\'s life would probably have been forfeited.

"8. There was no direct evidence that the gun was loaded. When, however, a robber displays a gun to back up his demands, he wants his victim to believe that it is loaded, and the fact-finder may fairly infer that it was. Here there was a voiced threat by one of the robbers that Martin would be shot if he did not keep his hand away from his coat pocket.

"We hold that the jury was warranted in finding the use of the gun in this manner placed Martin\'s life in an objective state of danger, and so jeopardized his life within the meaning of the statutes. The evidence was therefore sufficient on this branch of the case." 264 F.2d at 530-531.

Admittedly the threat was more emphatically articulated and implemented in Wagner than in the case at bar. Never-theless the presence of the weapon was described by Mrs. Familant and at its point, her conduct was commanded. Of course she was...