United States v. Snead, Crim. No. 76-503.
| Decision Date | 27 March 1978 |
| Docket Number | Crim. No. 76-503. |
| Citation | 447 F. Supp. 1321 |
| Parties | UNITED STATES of America v. Daniel E. SNEAD and Arthur V. Snead. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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David R. Strawbridge, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
David H. Kubert, Philadelphia, Pa., for Arthur Snead.
Nicholas J. Lisi, Solo, Padova & Lisi, Philadelphia, Pa., for Daniel Snead.
Defendants Daniel Snead and Arthur Snead were indicted on November 30, 1976, charged with four counts of aiding and abetting bank robbery, in violation of 18 U.S.C. § 2113 and one count of conspiracy, in violation of 18 U.S.C. § 371. They were tried before this court and a jury and convicted on all counts on January 19, 1977. Counsel for both Daniel and Arthur Snead filed timely Motions for a New Trial and Judgment of Acquittal, alleging a variety of errors. Additionally, counsel for both defendants have filed Motions for a New Trial on the Basis of Newly Discovered Evidence. We denied all motions by Order dated September 16, 1977. The matter has now been appealed; this opinion sets forth the reasons for our action.
Prior to trial, both Daniel and Arthur Snead (hereinafter Daniel and Arthur) filed motions for separate trials. Daniel based his motion on the belief that a government witness, one Michael McNamee, would testify that Arthur had made a threat upon McNamee's life, thereby inculpating him, (Daniel); Arthur based his motion upon the belief that another government witness, one Sam Doman, would testify to having been hired by Daniel to kill McNamee, thus inculpating him, (Arthur). Arthur argued additionally that evidence concerning an alleged homosexual relationship between Daniel and McNamee, which he anticipated would be introduced at the trial, although not directed toward him, would nevertheless be prejudicial to him at a joint trial. We denied both motions by Order of January 5, 1977.
United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977), sets forth the criteria that govern disposition of severance motions; that opinion states the following in pertinent part:
Explicit in Arthur's motion, and implicit in Daniel's motion, is the notion that the jury could not independently "compartmentalize" the evidence as to each of them because they are brothers. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), presented substantially the same contention as that advanced by defendants in this case; in Opper, the defendant contended that he had been prejudiced by possible confusion among the jurors as to statements made by co-defendant Hollifield. Rejecting this argument, the Supreme Court stated:
To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict.
348 U.S. at 95, 75 S.Ct. at 165. In view of the careful instructions given the jury in the instant case,1 we cannot yield to the "unfounded speculation" that the jury confused the evidence to the prejudice of one or both of the defendants.
Both defendants also contend that certain remarks of the Assistant United States Attorney in his opening statement, and testimony by other government witnesses, with respect to instruction of co-conspirators Crompton and McNamee by the defendants in the "art" of robbing banks was prejudicial. The government was not permitted to introduce evidence pertaining to other bank robberies generally; however, evidence was permitted with respect to planning, but only as it tended to show an overall plan and modus operandi relating to the specific subject of the indictment.
Permitting evidence of this nature was recently approved in this Circuit in Dansker, supra, in which the trial court limited the testimony of a key government witness "to describing the mechanics of their defendants' scheme through four illustrative examples." 537 F.2d at 58. Because of the repeated admonitions by the trial court of the limited purpose for which the evidence would be admitted, and the very careful instructions to the jury, the Third Circuit found no abuse of the trial court's "considerable discretion in permitting the introduction of this evidence." Id.
We feel that the instructions given to the jury in this case more than adequately protected defendants from any prejudicial effect the remarks and testimony might have had.2
Defendants contend that co-defendant, Gary Crompton's testimony should not have been permitted because Crompton was under the influence of alcohol and/or drugs at the time the crimes were committed, and had only minimal recall of the pertinent events. We held a competency hearing out of the presence of the jury.3 Crompton freely admitted having consumed some alcohol on the day of the crime, but had a good recall of the events; he also freely admitted those things he could not recall. We determined that Crompton was competent to testify and that any questions regarding the accuracy of his recall was an issue for the jury in connection with its evaluation of Crompton's credibility, and not one of admissability.
Both defendants also contend we erred in not permitting cross-examination of Crompton concerning his prior convictions. Crompton was convicted of illegal use of solvents, 18 Pa.C.S.A. § 7303. This offense is classified as a third degree misdemeanor, punishable by a maximum of one year incarceration. It is not a crime punishable by death, or imprisonment for more than one year, or involving dishonesty or the making of false statements. Therefore, it is not the type of offense contemplated by Federal Rule of Evidence 609(a) as appropriate for impeachment purposes. Thus, the proposed cross-examination was properly denied.
During the course of the trial, F.B.I. Agent William Thees was discussing the case in the elevator with another agent noting that the case was going well and that it looked like the jury had already made up its mind. Then Thees noticed that one of the jurors, Donald Gemmill, was in the same elevator car. The Assistant United States Attorney trying the case immediately brought this matter to the Court's attention. Mr. Gemmill was examined by the Court out of the presence of the other jurors.4 He testified that he had seen Agent Thees talking with an acquaintance in the elevator, but had not heard anything that was said. We cautioned him not to say anything about the incident to the other jurors and allowed him to resume his jury service. In light of Mr. Gemmill's responses to the questions put to him concerning the incident, it was entirely appropriate to permit him to continue to serve as a juror.
Defendants also contend that we lack jurisdiction over this action, since the F.D.I.C. did not insure losses sustained by the bank as a result of the robbery. The fallacy in this contention is best exposed by the following statement:
It is irrelevant that the bank was not insured against burglary. The statute 18 U.S.C. § 2113(a) is applicable to any bank insured by the F.D.I.C. and does not specify that it be insured against burglary.
Roberts v. United States, 472 F.2d 1195, 1196 (5th Cir. 1973).
Defendants objected to the admissability of the testimony of Sam Doman, specifically that testimony which concerned an alleged "contract" between Doman and Daniel Snead to kill Michael McNamee. Arthur Snead objects on the ground that the testimony was not relevant to the charges against him, and as such, he claims that this testimony was highly prejudicial to him. Daniel Snead contends that the evidence was not probative and also claims it was highly prejudicial.
This argument is nothing more than a reiteration of the severance argument which we rejected before trial and reject now. Dansker, supra. This testimony obviously had no relation to Arthur Snead and the jury was so instructed.5 This testimony was clearly relevant and probative with respect to Daniel Snead: FIRST, it demonstrated a consciousness of guilt — i.e., Daniel Snead hired Doman to kill McNamee because he thought McNamee would testify against him; and SECOND, it corroborated McNamee's testimony as to why he chose to testify (the threat to his life) and refuted the defense theory that he only chose to testify because he was offered immunity.6
The essence of this ground for a new trial is that the witness McNamee persisted, on direct examination, in making references to multiple bank robberies:
This argument is merely repetitive of defendants' contention concerning testimony about bank...
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