United States v. Smith, 9545.

• Decision Date: 26 February 1965
• Docket Number: No. 9545.,9545.
• Parties: UNITED STATES of America, Appellee, v. John Kent SMITH, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

342 F.2d 525 (1965)

UNITED STATES of America, Appellee, v. John Kent SMITH, Appellant.

No. 9545.

United States Court of Appeals Fourth Circuit.

Argued January 4, 1965.

Decided February 26, 1965.

Certiorari Denied May 17, 1965.

John R. Hargrove and Benjamin L. Brown, Baltimore, Md. (Howard & Hargrove, Baltimore, Md., on brief), for appellant.

Robert W. Kernan, First Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, J. SPENCER BELL, Circuit Judge, and HUTCHESON, District Judge.

Certiorari Denied May 17, 1965. See 85 S.Ct. 1535.

J. SPENCER BELL, Circuit Judge.

The defendant was convicted of aiding and abetting a Maryland bank robbery and a violation of the Dyer Act. The Government's contention was that the defendant participated in the theft of two cars in Washington, D. C., which he knew were to be used and which were used in the robbery and in transporting the robbers to and from Washington.

The defendant contends that the court committed two errors during his trial. The first was in permitting the witness Chappell to plead the Fifth Amendment, and the second was in limiting the cross-examination of the witness Goody.

On July 8, 1963, a branch of the Citizens Bank of Maryland at Oxon Hill was robbed at gunpoint by four persons of over $130,000.00. Eleven persons were indicted and charged with participating in one way or another in the robbery. The Government's case against the defendant consisted entirely of the testimony of four of his codefendants who had previously pleaded guilty to one or more of the six counts of the indictment. These witnesses were Sims, Ugaro, Chappell, and Goody. The other testimony did not directly implicate the defendant, since it dealt with proof of the robbery. The Government concedes that the defendant was not present when the bank was robbed. There was also evidence of the loss and recovery of the stolen cars. Sims, who organized this robbery, was the accepted leader of a gang of bank robbers located in the New York-New Jersey area to which the other three witnesses belonged. All four had participated in other bank robberies in that area at various times prior to the one with which we are presently concerned.

On two occasions, June 24 and July 1, the group came from New York to Washington, where they made contact with local confederates¹ for the purpose of committing the robbery, but for various reasons they were frustrated until the successful attempt on July 8, 1963. The witness Sims took the stand and testified in detail to all the facts surrounding the crime. He testified that in the two frustrated attempts he had arranged for Chappell to come with them from New York and steal the desired cars in the Washington area. He testified that in making the preliminary arrangements, he had not gone into details with Chappell, who was a "specialist" in this field, because Chappell had worked with him before and could be relied on to do the job satisfactorily.

Chappell then took the stand and generally confirmed Sims' testimony concerning the facts related to robbery involved in this case. He testified that he had met the defendant Smith on prior visits to Washington and that he knew that Smith was in the business of "repossessing" automobiles and had a set of master keys which would unlock any General Motors car. He stated that on the second unsuccessful effort to rob the bank, he had borrowed Smith's keys in order to get the required vehicles and that Smith knew that the keys would be used to steal cars. He testified that after the second thwarted attempt, he became apprehensive and declined to participate further in the Maryland robbery, but before he did so, he arranged for the defendant Smith to take over for him and obtain the needed cars. He admitted that he had pleaded guilty to a charge of conspiracy to commit this bank robbery and that he was on probation because of a conviction for possessing counterfeit money.² On cross-examination Chappell was asked whether he had engaged in any other crimes with his codefendant Sims. After a conference at the bench, the court permitted Chappell to plead the Fifth Amendment to this question. It is this action on the court's part that the appellant contends was error.

We find no error. The witness Chappell was under indictment with Sims for bank robbery in New York, and certainly there is no question of his right to plead the Fifth Amendment. Nor is there any substance to the appellant's contention that Sims' testimony, which seriously implicated Chappell, removed the cloak of the Amendment's protection from Chappell. At most Smith was entitled to have Chappell's direct testimony implicating him expunged from the record if the Fifth Amendment plea in any way seriously hampered or embarrassed the defendant's effort to get at the truth of the facts in this case by his cross-examination of Chappell. Smith v. United States, 331 F.2d 265, 277-278 (8 Cir. 1964); United States v. Cardillo, 316 F.2d 606, 611 (2 Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). We need not go so far as Cardillo to say that if the question affected only the credibility of the witness, the refusal to answer would not entitle the defendant to have the witness' testimony stricken. Here we think it obvious beyond any possibility of a doubt that Chappell's character had been placed in such a light by his own prior testimony and by that of Sims that his plea of the Fifth Amendment could have had no other effect on the jury than to confirm the opinion created by his and Sims' prior testimony. Under these circumstances, it is equally obvious that Chappell's refusal to answer could not have embarrassed the defendant's efforts to elicit the full facts about the instant case.

We turn then to the second point raised by the defendant. When the robbers arrived in...