United States v. Walters

• Decision Date: 29 May 1973
• Docket Number: No. 72-2360.,72-2360.
• Citation: 477 F.2d 386
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe Charles WALTERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

477 F.2d 386 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Joe Charles WALTERS, Defendant-Appellant.

No. 72-2360.

United States Court of Appeals, Ninth Circuit.

April 16, 1973.

Rehearing Denied May 29, 1973.

Laurie S. Harris (argued), Deputy, Federal Public Defenders, Los Angeles, Cal., for defendant-appellant.

Earl E. Boyd, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, KOELSCH and ELY, Circuit Judges.

KOELSCH, Circuit Judge.

Joe Walters appeals from a judgment convicting him of robbery of a national bank by force and violence 18 U.S.C. § 2113(a).

During the early afternoon of Thursday, January 25, 1972, two men entered the Food Stamp Center department of the Security National Bank in Los Angeles, and committed the robbery with which this appeal is concerned. After one of the two robbers—the evidence as to which one is not clear—disarmed the bank guard at gunpoint, both proceeded to the tellers' cages and filled their pockets with money before fleeing.

Unfortunately for the robbers, they were soon identified and arrested. Shortly before the robbery, a passerby had noticed a green Buick automobile park in the vicinity of the Bank. Her attention was attracted by the unconventional garb of the driver, who was wearing a large "floppy" brown hat and black shirt, and of the passenger, who had donned a woman's red wig. Deeming them "suspicious" characters, she wrote down the Buick's license number and, a few moments later, observed them run back to the vehicle and drive away at high speed.

That evening police officers and agents of the F.B.I., using the information gained from the automobile license number, went to the house of Zelma Shyne, the Buick's owner. The officers' knock on the front door of the house was answered by Zelma's nine-year-old son who, after asking the officers whether they were "from juvenile," went down a hall to the rear of the house, apparently to notify his mother. However, he left the door ajar and the officers, looking in, saw Walters enter the front room. Since he answered the description of one of the robbers, the several officers immediately entered with drawn guns and, while three of them detained Walters there, the others proceeded to the rear of the house looking for the second suspect. He wasn't there but in a bedroom they found Zelma, her uncle and her mother standing nearby. Zelma told the officers that she had let Walters use the Buick earlier that day. She also stated that Walters, upon his return, had given her a considerable sum of money, which she produced from under the pillow of her bed and handed to an officer.

The officers then continued their inquiry and asked whether Walters had also given her a hand gun that afternoon. In response, she drew out a nickel-plated pistol, but the officers expressed no interest in it, perhaps because the only gun which either robber had displayed during the robbery was a dark-colored snub-nosed revolver. Zelma then produced such a revolver from under her mattress.

Walters was formally arrested without further ado. On the way to the police station, the officers questioned Walters, following a Miranda warning given by F.B.I. Agent Chamberlain. He gave several stories, all of them exculpatory. He explained that he had loaned the Buick to one Floyd Masterson that day and that Masterson had given him the money, including the two marked bills found upon his own person, and the revolver which he had given to Zelma. Throughout his questioning, he denied any complicity in the robbery.¹

The officers immediately went to Masterson's apartment and arrested him. They found one of the stolen bills on his person and in the search of his apartment, pursuant to a search warrant, they also found a woman's red wig, a large floppy brown hat, and the bank guard's gun.

(1) The first paragraph of the one-count indictment charged both Walters and Masterson with bank robbery with force and violence, as defined in 18 U.S.C. § 2113(a), but the second paragraph added the 18 U.S.C. § 2113(d) provision to the charge against Walters. The result was that Masterson stood charged with "simple" bank robbery, while Walters was accused of the more aggravated, or subsection (d), form of the same offense, because of the use of a dangerous weapon. Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 5 L.Ed. 2d 670 (1961).

During the government's case in chief the court, on motion of the district attorney, for reasons that need not be discussed, dismissed the subsection (d) portion of the charge against Walters.

Walters now contends that such dismissal constituted an impermissible amendment of the indictment. The Fifth Amendment, in express language, makes the bringing of indictments the exclusive province of the grand jury. Any amendments to an indictment must be made by the grand jury alone. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). However, the action taken by the court in this case did not encroach upon the prerogative of the grand jury at all. Here the court simply withdrew a portion of the charge as laid; the offense remained the same, but the degree was reduced. See Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926); Thomas v. United States, 398 F.2d 531 (5th Cir. 1967).

(2) Zelma was a witness for the prosecution. Because she was convalescing from recent surgery, she was permitted to testify out of order, as the government's second witness, before any proof of the robbery or of Walters' participation in it was presented. The dark-colored snub-nosed revolver, which she gave the officers at her home, was thus conditionally admitted into evidence as Exhibit 3-A, upon her identifying it as the gun given her by Walters on the day of the robbery.

Subsequently the government put on considerable proof, not only to establish the corpus delicti, but also tending to prove that Walters was an active participant in the commission of the robbery.

When the government rested, the court entertained Walters' motion, among others, to strike from evidence the gun, which had been only conditionally admitted. That motion was denied.

Walters vigorously contends that the court's admission of the gun into evidence, and the denial of his motion to strike, was prejudicial error. He stresses the fact that neither the bank guard nor any other eyewitness to the robbery was able to identify Exhibit 3-A as a gun used during the robbery. On this basis, he argues that the gun was irrelevant because not connected to the commission of the robbery, and that it served only to impermissibly show his bad character. He relies on Moody v. United States, 376 F.2d 525 (9th Cir. 1967). In Moody we held irrelevant, and prejudicially erroneous, proof that the accused kept a revolver in his car. Moody involved a charge of smuggling narcotics and, as we noted, a revolver "could only be regarded by the jury as indicating that the appellant was a bad man engaged in a criminal enterprise, who might shoot anybody who attempted to frustrate the illegal importation of heroin, although in the circumstances of that case the presence of the loaded gun was not relevant to any matter which the jury was called upon to decide." 376 F.2d at 532.

But Moody affords Walters no comfort. The commission of the offense in Moody did not...