United States v. Sidman

• Citation: 470 F.2d 1158
• Decision Date: 15 January 1973
• Docket Number: 71-2582.,71-2682,No. 71-1918,71-1918
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Charles SIDMAN and Robert Joseph Clifford, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.2d 1158 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. John Charles SIDMAN and Robert Joseph Clifford, Defendants-Appellants.

Nos. 71-1918, 71-2682, 71-2582.

United States Court of Appeals, Ninth Circuit.

October 16, 1972.

Certiorari Denied January 15, 1973.

COPYRIGHT MATERIAL OMITTED

Richard D. Totter (argued), San Francisco, Cal., Martin Levine, Deputy Public Defender (argued), Michael P. Balaban, Deputy Public Defender, John K. Van de Kamp, Public Defender, Los Angeles, Cal., for defendants-appellants.

William John Rathje, Asst. U. S. Atty. (argued), Darrell W. MacIntyre, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and MURPHY, District Judge.^*

Certiorari Denied January 15, 1973. See 93 S.Ct. 948.

MURPHY, District Judge:

I.

SIDMAN APPEAL

Sidman appeals from two judgments of conviction in the District Court for the Central District of California.

In No. 71-2682 he was convicted, after a jury trial, of armed robbery on January 6, 1970, of the United California Bank at Palm Desert, California (Count 1 of a three-count indictment) (18 U.S.C. § 2113(a) and (d)), and of robbery on May 26, 1970 of the Valley National Bank at Edgemont, California (Count 3) (18 U.S.C. § 2113(a)). Carroll, Sidman's accomplice in the Edgemont robbery, pleaded guilty to Count 3 prior to trial. Both banks were insured by the Federal Deposit Insurance Corporation.

In No. 71-1918 Sidman and co-defendant Clifford were convicted after a "multiple jury" trial¹ on Count 2 of the same indictment, which accused Sidman and Clifford of armed robbery on February 20, 1970, of the same Valley National Bank at Edgemont, California (18 U.S.C. § 2113(a) and (d)).

Sidman was sentenced in No. 71-2682 to concurrent 15 years, and in No. 71-1918 to 22 years to run concurrently with the sentences imposed in No. 71-2682. We ordered both appeals consolidated, and will consider each appeal seriatim.

No. 71-2682

Since Sidman complains of the sufficiency of the evidence against him, a review of such evidence in the light most favorable to the Government is in order. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Magana, 453 F.2d 414, 415 (9th Cir. 1972).

The Government first offered testimony relevant to Count 3 (the robbery of the Valley National Bank on May 26, 1970), and then followed with testimony relevant to Count 1 (the robbery of the United California Bank on January 6, 1970), and corroborated the testimony on both counts with the testimony of Sidman's accomplice, Carroll.

The robbery of the Valley National Bank at Edgemont, California, on May 26, 1970, was proved by two bank employees who testified that Sidman, armed with a gun, entered the bank on that day and ordered the employees to the floor. The bank manager testified to being compelled to open the vault and to the theft of $7,783. Although Sidman was wearing a false mustache at the time, the two witnesses made in-court identifications of Sidman and one witness of his companion and accomplice, Carroll.

As to the armed robbery of United California Bank on January 6, 1970 (Count 1), the bank manager testified that two men entered the bank on that day. One of the men approached her, opened his coat exposing a gun, and demanded she open the teller's drawers and also give him the key to the vault. She complied, and that man escaped with $9,707. She could not identify the man with the gun other than to recall he had a dark mustache. Carroll (although not named in this Count), testified that he was the other man who entered the bank with Sidman. He corroborated the bank manager's testimony as to the actions of Sidman described by her, and further corroborated the testimony of the three bank employees with reference to the robbery of the Valley National Bank on May 26, 1970, since he and Sidman had robbed that bank together. He further explained how Sidman had disguised himself and to warnings from Sidman not to testify against him. In doing so he recanted a statement he had signed at Sidman's lawyer's office.

Sidman, who did not testify, presented two alibis, supported by (1) the testimony of his wife and (2) the testimony of his step-daughter-in-law, to the effect (1) that he was in Wichita, Kansas, on the day of the robbery of the United California Bank at Palm Desert, California, and (2) in his place of business at Pomona, California, on the day of the robbery of the Valley National Bank at Edgemont, California. The jury obviously accepted the Government's evidence and rejected the alibi defenses. We find the Government's evidence overwhelming.

We can readily dispose of Sidman's next assignment of error with regard to Count 1, namely, whether an accomplice's testimony without any other evidence connecting the defendant with the crime is sufficient to convict the accused. Counsel misconstrues the "power" of a witness, even an accomplice; his testimony does not have to be corroborated but merely examined with care and scrutiny, which we assume the jury did, since it was so instructed. United States v. Andrews, 455 F.2d 632 (9th Cir. 1972); Lyda v. United States, 321 F.2d 788, 794-795 (9th Cir. 1963). The jurors are the sole judges of the facts and the credibility of the witnesses. United States v. Brown, 454 F.2d 397, 398 (9th Cir. 1972); see, Cramer v. United States, 325 U.S. 1, 43, 65 S.Ct. 918, 89 L.Ed. 1441 (1945).

Appellant next claims that Count 1 for armed robbery is contrary to legislative intent and purpose when Sections 18 U.S.C. 2113(a) and (d)² are fused. The gist of his argument is that "since it doesn't make any difference to the apprehended bank thief whether he exhibits a loaded or unloaded gun, he might as well load it, as he will be prosecuted for the additional 5 years either way." We are uncertain what this means, but we are satisfied that Congress was within its constitutional power to punish more severely an aggravated form of the offense of bank robbery. In any event, appellant's contention is without merit, since we have held that even when there is no direct evidence that the gun was loaded, a jury could infer that it was and find that the person assaulted feared for his life. United States v. De Palma, 414 F.2d 394, 396 (9th Cir. 1969), cert. denied 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970).

Appellant further claims that he did not receive a fair trial because his attorney was improperly charged by the trial judge with unprofessional conduct prior to putting in his case. This claim is frivolous. Out of the presence of the jury the trial judge, after he had learned from the testimony that the defendant's trial counsel had taken a written statement from Carroll when he knew at the time that Carroll was represented by an attorney, told counsel he "better read the Rules of Professional Conduct." After closing arguments of both counsel the Court told the defendant's counsel, again out of the presence of the jury, that he was referring such conduct to the Court's Standing Committee on Discipline. Such comment and action by the trial judge were well deserved and could not possibly have interfered with Sidman's counsel's presentation of the defense. A reading of the testimony of defendant's witnesses indicates a well ordered presentation of two alibis. Cf., United States v. Allen, 431 F.2d 712 (9th Cir. 1970).

Finally, Sidman raises three alleged errors relating to the Court's evidentiary rulings. The first relates to the alibi testimony of defendant's wife concerning a telephone call she received from her husband while, according to her, he was in Wichita, Kansas, on the day of the robbery of the United California Bank (Count 1). Sidman's telephone bills were received in evidence as corroboration. She could not remember on cross-examination, however, how long Sidman had been away from home or where he was in Wichita. After both counsel advised the Court that they had no more questions of the witness, Mrs. Sidman, the trial judge asked her if she knew how her husband had traveled, by car or by air, and she replied, "by air." He then asked if they had a credit card for gasoline and was told, "yes," and a little later, on continued cross-examination, she could not recall if they had any gas bills since sometimes "we paid cash." On redirect examination Sidman's counsel made an offer of proof to the effect that a Robert Smith stole all of the records of the Pomona Valley Hearing Aid (Sidman's company), including credit cards in that name, which proof, he claimed, would tend to show that they had no records from the oil companies. Objection to this offer was sustained. Counsel characterizes these few pertinent questions by the Judge as prejudicial, and his denial of the offer of proof as error. The questions were germane and did not interfere with or interrupt counsel's questioning of the witnesses. The Judge was performing one of his functions — to develop facts. Cf., Estrada v. United States, 392 F.2d 529, 530 (9th Cir.), cert. denied 393 U.S. 881, 89 S.Ct. 184, 21 L.Ed.2d 154 (1968). Proof of loss of the credit cards would not establish that gasoline was or was not purchased in Wichita, Kansas, on January 6th.

A claim that the Court improperly admitted evidence tending to show that Sidman, shortly after the robbery, had a large sum of money in cash, is incorrect; the evidence was indeed relevant. United States v. Michaelson, 453 F.2d 1248, 1249 (9th Cir. 1972); Sidders v. United States, 381 F.2d 513, 515 (9th Cir. 1967).

Lastly, appellant argues that the Court was in error for permitting the presentation of Sidman's bad character. This is just inaccurate. During the cross-examination of Mrs. Turner, defendant's step-daughter-in-law, she was asked, over objection, whether Sidman ever told her that the longer he waited to surrender the dimmer the...