United States v. Stewart, 20067.

• Decision Date: 10 July 1970
• Docket Number: No. 20067.,20067.
• Citation: 429 F.2d 15
• Parties: UNITED STATES of America, Appellee, v. Hampton David STEWART, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

429 F.2d 15 (1970)

UNITED STATES of America, Appellee, v. Hampton David STEWART, Jr., Appellant.

No. 20067.

United States Court of Appeals, Eighth Circuit.

July 10, 1970.

Kenneth K. Simon, Kansas City, Mo., for appellant.

William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee; Bert C. Hurn, U. S. Atty., Kansas City, Mo., on the brief.

Before JOHNSEN, Senior Circuit Judge, and MATTHES and LAY, Circuit Judges.

PER CURIAM.

Appellant was convicted on a jury trial of violation of 18 U.S.C. § 2113(a) in robbing, by force and intimidation, the Blue Ridge Bank of Kansas City, Missouri, a bank insured by the Federal Deposit Insurance Corporation, of over $72,000. This appeal has been taken by his appointed counsel at appellant's request.

Counsel obviously has had to draw upon his skill and experience in handling criminal cases in order to devise any appellate contentions on the record existing in the situation. He has also, in his appointive responsibility, gone over his brief with appellant and the reply made by the Government thereto, and had invited appellant to suggest any additional points or considerations which he might deem possible or desire to have presented in his behalf.

The record, however, plainly demonstrates that the trial proceedings are without any semblance of arguable basis for an appellate attack, and the appeal is therefore legally frivolous.

The contentions attempted to be made are directed at the sufficiency of the Government's evidence on identification to enable the jury to find beyond a reasonable doubt that appellant was one of the two participants in the robbery. No evidence was offered on any aspect of the situation by appellant. His purported thrust against the sufficiency of the Government's evidence of identification is predicated on the elements (1) that only two out of the five bank employees present at the time of the robbery made identification of him, and (2) that no fingerprints of him were able to be uncovered at the scene.

As to the first of these aspects, the testimony shows that the two witnesses who made positive identification of appellant had had the opportunity to observe his face, which was without any mask, and that both had been able to engage twice in making such observation. The other three witnesses testified that they had immediately turned their backs upon appellant in response to his gun-point demand that they do so and his warning "not to look at him" or "he would blow their...