United States v. Teague, 18066.

• Citation: 445 F.2d 114
• Decision Date: 07 June 1971
• Docket Number: No. 18066.,18066.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Dean TEAGUE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

445 F.2d 114 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Dean TEAGUE, Defendant-Appellant.

No. 18066.

United States Court of Appeals, Seventh Circuit.

June 7, 1971.

COPYRIGHT MATERIAL OMITTED

Seymour J. Kurtz, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Nicholas J. Etten, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Defendant, Frank Teague, appeals a jury conviction for armed robbery of Citizens Savings and Loan Association (Citizens), a federally insured savings and loan association, 18 U.S.C. §§ 2113(a) and (d). He was given the statutory maximum sentence of 25 years by the district judge.

At trial, four employees of Citizens identified Teague as the person who, on December 5, 1968, held them at gunpoint while ordering George Basta, the president of Citizens, to turn over to him the currency from the drawers of the tellers' desks. Immediately after the robbery, these witnesses gave to the F.B.I. descriptions of the robber's weight and age, which differed from those of the defendant. When on the stand at trial, however, each witness was positive that the defendant was the robber.

The defendant was also identified by Joseph Archie, who was in the process of opening up a checking account under a false name when the robber entered the building. He testified that he had observed Teague point a shotgun at a teller. Archie stated that he was directed by Teague to place the money in a briefcase. After the money was collected, Teague ordered all persons in the area into a back room.

The testimony of the other government witnesses concerned the alleged sale of a car to Teague and his girl friend, Martha McDonald, in Detroit on the day after the robbery. They stated that Teague paid for the car with currency in denominations of 5's, 10's and 20's, bound with wrappers used by financial institutions. The money taken from Citizens was likewise secured by wrappers and was of similar denominations. The address of the buyer corresponded to that of Teague's girl friend.

I.

Defendant, relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), contends that the court erroneously permitted introduction of certain statements he gave to F.B.I. Agent Rene Dumaine during questioning in January, 1969. Dumaine testified that Teague was advised of his Miranda rights, but waived an attorney and answered some of the questions directed to him. Teague had stated that he had been unemployed for six months prior to the robbery; he also gave Dumaine the address of his residence. The address corresponded to that which was given at the purchase of the car on the day following the robbery. The government introduced these statements to show that the defendant possessed a large sum of money immediately after the robbery even though he was impecunious prior to it. The defendant's unemployment for the previous six months was evidence of his impecuniosity. A showing of a sudden increase in a defendant's wealth after an alleged robbery is admissible to prove a substantive offense involving a motive of enrichment. United States v. Crisp, 435 F.2d 354 (7th Cir. 1970).

While Agent Dumaine was on the stand, counsel for defendant objected to his testimony on the grounds that it was "irrelevant," "immaterial," and "prejudicial." It is now claimed that the trial court, in response to these objections, should have proceeded to conduct a voir dire on the validity of the defendant's waiver of rights during the interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A trial court must hold a voir dire hearing on Miranda questions upon "appropriate objection" by counsel. United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968); United States v. Rizzo, 418 F.2d 71, 78 (7th Cir. 1969). A hearing must be ordered sua sponte by the judge when "certain alerting circumstances * * * may reveal a dereliction in defense counsel's failure to object to the introduction of a confession * * *." United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967); Nance v. United States, 440 F.2d 617 (7th Cir. 1971); United States v. Reid, 410 F.2d 1223 (7th Cir. 1969). The government argues that defense counsel did not adequately apprise the court of his request for a voir dire hearing, and that the judge was under no obligation to order a hearing sua sponte.

We need not decide these questions because we believe that the failure to order a voir dire, if error, was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The statements admitted from Dumaine's interrogation of the defendant were additional evidence of defendant's guilt. The positive and undisputed identification of the defendant by the employees of Citizens, who were eyewitnesses to the robbery, constitutes sufficient evidence to sustain the jury's verdict of guilty beyond a reasonable doubt. Defendant's admissions as to his unemployment and address merely corroborate other testimony concerning defendant's participation in the purchase of the car in Detroit, introduced to show defendant's sudden acquisition of cash after the robbery. As we explained above, this sort of proof is relevant to prove defendant's guilt. Yet, his guilt was more than adequately proved by the employees who observed the defendant committing the robbery. Evidence of the purchase of the car, while helpful to the government, was not necessary to its case against the defendant.

II.

The defendant raises other points of error with regard to the testimony of the purchase of the car, most of them dealing with questions of fact. For example, he claims that it was Martha McDonald who conducted the purchase and possessed the money which was turned over to the salesman. He also raises objections concerning the address given to the dealer and the identification of him as the purchaser by the dealer. These questions were within the province of the jury, and it was not unreasonable for it to decide them against the defendant. In any event, as we found above, facts relating to this transaction were not necessary to support the verdict in light of the identification by the employees.

III.

Agent Dumaine, in response to a question by defense counsel on direct examination, stated that the defendant was not placed in a lineup. On cross-examination, Dumaine explained that no lineup had been held because "* * * it was my investigative opinion that there was no doubt as to the witness' identification. * * *" Defendant now objects to this testimony, claiming that it was conclusory and invaded the jury's function to resolve the factual issue of identification.

We believe that the defendant opened the door to this testimony by questioning Dumaine about the lineup on direct examination. When Dumaine stated that he did not conduct a lineup, it was within the scope of cross-examination for the government to elicit the reasons for that decision. The defendant cannot now complain of testimony which would not have been presented if the subject of the lineup had not been raised by him on direct examination. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L. Ed. 503 (1954); Isaac v. United States, 431 F.2d 11, 15 (9th Cir. 1970); Harris v. United States, 261 F.2d 792, 797 (9th Cir. 1958), cert. denied, 360 U.S. 933, 79 S.Ct. 1446, 3 L.Ed.2d 1546 (1959).

IV.

The defendant complains that certain exhibits were erroneously introduced into evidence.

He claims that the introduction of government exhibits 1 and 2, the certificate of insurance to Citizens and the premium notice for that insurance from the Federal Savings and Loan Insurance Corporation (FSLIC), did not comport with the admissibility requirements of the federal Business Records Act, 28 U. S.C. § 1732. Both were introduced as proof that Citizens was insured by the FSLIC at the time of the robbery, a necessary element for conviction. See 18 U.S.C. § 2113(g). George Basta, the president of Citizens at the time, testified that both the certificate and premium notice were kept and maintained in the ordinary course of business. The defendant asserts on appeal that there was no testimony that the documents were made in the ordinary course of business, relying on the Business Records Act, 28 U.S.C. § 1732.

We believe that it was sufficiently demonstrated at trial that these documents were made in the ordinary course of Citizens' business. Procuring and maintaining insurance is a fundamental and necessary business operation for institutions dealing with large sums of money. Basta's testimony that the certificate and premium notice were maintained in the ordinary course of business indicates that insurance was likewise important to this savings and loan association. The documents themselves contain nothing which detract from their authenticity. We are satisfied that this evidence fulfils the admissibility requirements. The person who makes the records need not testify "* * * if a person does testify who is in a position to attest to the authenticity of the records." United States v. Dawson, 400 F.2d 194, 199 (2d Cir. 1968), cert. denied 393 U.S. 1023, 89 S. Ct. 632, 21 L.Ed.2d 567 (1969); United States v. Skiba, 271 F.2d 644, 646 (7th Cir. 1959), cert. denied 362 U.S. 924, 80 S.Ct. 678, 4 L.Ed.2d 743 (1960); Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969); United States v. Grow, 394 F.2d 182, 205 (4th Cir. 1968).

Defendant also asserts that government exhibit 3, a photograph depicting the tellers' windows at Citizens, was improperly admitted because it did not accurately depict the site at the time of the robbery. A teller testified that the photograph accurately portrayed the scene as it was on the date of the robbery. From this, the jury could better understand the relative location of ...