United States v. Safley, 12497

• Decision Date: 17 March 1969
• Docket Number: 12525.,No. 12497,12497
• Parties: UNITED STATES of America, Appellee, v. Jess Ross SAFLEY, Appellant. UNITED STATES of America, Appellee, v. Augustus BUTLER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

408 F.2d 603 (1969)

UNITED STATES of America, Appellee, v. Jess Ross SAFLEY, Appellant.

UNITED STATES of America, Appellee, v. Augustus BUTLER, Appellant.

Nos. 12497, 12525.

United States Court of Appeals Fourth Circuit.

Argued January 10, 1969.

Decided March 17, 1969.

Certiorari Denied June 23, 1969.

Joseph J. Duffy, Jr., Alexandria, Va., for appellant, Butler.

Harry P. Hart, Alexandria, Va., for appellant, Safley.

John D. Schmidtlein, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., and C. P. Montgomery, Jr., Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit Judges.

Certiorari Denied June 23, 1969. See 89 S.Ct. 2147.

BUTZNER, Circuit Judge:

In these consolidated appeals Augustus Butler and Jesse Ross Safley seek reversals of their convictions under 18 U.S.C. § 2113(a) and (b) for bank robbery and theft. We affirm the judgments of the district court.

I.

Several months before the trial, Butler moved for a severance because Safley had signed a confession that implicated Butler. Upon the government's representation that it would not offer Safley's confession in evidence, the district court denied the motion for severance. Faithful to his commitment, the district attorney did not refer to the confession or attempt to introduce it in evidence. One of the government's witnesses was an accomplice who had previously pleaded guilty and been sentenced to prison. In his direct examination he described Butler's and Safley's participation in the crime, but he made no reference to Safley's confession.¹ Counsel for Butler, in the course of persistent cross-examination, elicited information that an F.B.I. agent told the accomplice that Safley had given a statement about the robbery. The accomplice also testified that he did not read the statement and that he did not believe that Safley had given a statement. There the matter rested. Safley's confession was never introduced in evidence, and aside from the equivocal remarks of the accomplice, it was not discussed.

We find no reversible error in this incident. The vice of using a codefendant's statement lies in the denial of Sixth Amendment rights of confrontation and cross-examination when the author of the statement does not testify. It is for this reason that a severance is imperative. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Although Safley did not testify, and therefore could not be cross-examined, Butler was not deprived of his Sixth Amendment rights. Safley's statement was never introduced in evidence. The accomplice, when pressed, admitted he never read the statement and that he did not believe Safley made one. Here, confrontation and cross-examination of the accomplice was critical. This was preserved, and accordingly we find Butler was not prejudiced by the denial of a severance.

We also find in this incident no reversible error with respect to Safley. The possibility that an involuntary confession may be untrustworthy is not the primary reason for excluding it. Exclusion is a sanction to deter the government from extracting evidence of guilt from a defendant by coercive means. The exclusionary rule is designed to prevent our system for the enforcement of criminal laws from degenerating into an inquisition. Rogers v. Richmond, 365 U.S. 534, 540, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). In this case, however, we find no violation of the exclusionary rule. The government made no attempt, directly or indirectly, to introduce the statement. Therefore, the fundamental reason for application of the rule — to deter or provide a sanction against intrusion upon Fifth Amendment rights — does not exist. Equally important is the fact that the statement was not introduced. Nor has it been suggested that the statement was obtained by improper means. Impropriety cannot be inferred because the government elected not to use a statement that implicated a codefendant.

In sum, the accomplice's reference to Safley's statement was hearsay elicited by defense counsel on cross-examination. It was qualified by the witness' observation that he never read the statement and that he did not believe Safley had made it. The inadvertent admission of this hearsay was at most harmless error that did not require a mistrial or a severance. See Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

II.

Both Butler and Safley complain that the evidence was insufficient to establish that the deposits of the bank were insured by the Federal Deposit Insurance Corporation.²

An employee of the bank testified that the deposits "are" insured by the corporation. Taken literally the testimony could refer to the time of the trial. In context it could refer to the time of the robbery. The defendants did not object that the employee's testimony was irrelevant, as well it might have been if it referred only to the time of trial. They did, however, raise the question of the sufficiency of the evidence by motions for judgment of acquittal which were denied. They have never suggested that the bank was not insured by the Federal Deposit Insurance Corporation. Their argument is directed only to the paucity of the government's proof.

The district judge explained in his charge the necessity of federal insurance, and he...