United States v. Wilson, 71-1054

• Decision Date: 16 August 1971
• Docket Number: No. 71-1054,71-1055.,71-1054
• Citation: 447 F.2d 1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Craig WILSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wilbert POLK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.2d 1 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Craig WILSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Wilbert POLK, Defendant-Appellant.

Nos. 71-1054, 71-1055.

United States Court of Appeals, Ninth Circuit.

August 16, 1971.

Edward I. Bloom (argued), Oakland, Cal., for appellant Wilson.

Charles F. Wilkinson (argued), of Bronson, Bronson & McKinnon, San Francisco, Cal., for appellant Polk.

Mallory Walker, Asst. U. S. Atty. (argued), Sidney I. Lezak, U. S. Atty., Portland, Or., for appellee.

Before HAMLEY and KOELSCH, Circuit Judges, and BYRNE,^* District Judge.

WILLIAM M. BYRNE, District Judge:

On March 6, 1970, at approximately 2:00 P.M., Dean Antone entered the Eugene Branch of the Oregon Bank of Portland (sometimes referred to as "the bank"), approached a teller window and ordered the teller on duty to empty her purse of its contents and to replenish it with money. After having fled the scene of the robbery by running "through an alley," Antone threw the "money bag" "into the bushes" near a white building and then "hopped into an awaiting car" driven by Patricia Dawson. Dawson drove Antone to his dormitory on the campus of the University of Oregon and then returned to the apartment she shared with Polk and Wilson and the latter's brother, Stewart. At a jury trial, appellants were found guilty of inducing, aiding and abetting the said bank robbery, a violation of 18 U.S.C. §§ 2¹ and 2113(a).²

The appellants testified in their own defense. Their testimony was couched in exculpatory claims of innocence and assertions that Dawson was the instigator and co-ordinator of the bank robbery in issue. As indicated by the verdict, the triers of fact failed to lend credence to this testimony. Accordingly, we are bound on appeal to view the evidence in the light most favorable to the government. Glasser v. United States, 315 U. S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Zumpano, 436 F.2d 535 (9th Cir. 1970); Kay v. United States, 421 F.2d 1007 (9th Cir. 1970). This evidence is set forth below.

On the afternoon of March 5, 1970, Polk encountered Antone in an inebriated condition outside the University of Oregon Student Union. Antone entered Polk's car and the two drove to Polk's apartment. Shortly after arriving at the apartment, Polk took Antone into the bedroom. They were joined immediately by Wilson, who was being visited by Terry McJunkin. Two hours later Wilson emerged from the bedroom and announced to McJunkin that "they were planning a bank robbery."

That evening, Dawson went to Portland without telling her boy friend Polk, with whom she had been "hassling." Acting upon the advice of two companions, Dawson telephoned Polk and told him where she was. Upon learning of Dawson's whereabouts, Polk, who "seemed to get mad," told his estranged girl friend that "if she wanted any of her things * * * she better be back by morning."

Arriving in Eugene by bus the following morning, Dawson was met by Polk, who upon leaving the bus depot, drove by the local branch of the Oregon Bank of Portland. As they drove by, Polk related his intent to rob the bank "before noon." Polk then drove to the end of an alley directly across from the bank. It was here that Dawson learned she was to be parked waiting for Antone to make his "get away" from the bank. Before entering the car, Antone would, Polk informed Dawson, toss the purse filled with money into the bushes near a white apartment building. The purse was to be retrieved shortly after the commission of the robbery.

Back at the apartment, Polk accused Dawson of making "a fool out of him." In order "to make up for * * * the wrong she had done," Polk told her that she must go through with the bank robbery as he had outlined. Otherwise, he warned, she would "pay". Dawson was certain she "knew what he meant by that."

Once Dawson's commitment to the plan was secured, events occurred in rapid succession. Pursuant to Wilson's instructions, Dawson was able to obtain, by chicanery, an automobile from a nearby used car lot. Having gained possession of an automobile, Dawson and Antone, who elected not to wear women's clothing and a wig as originally planned, set out for the bank. They were followed by Wilson, his brother Stewart and Polk in a white Chevrolet Impala borrowed from Polk's friend Jill Hanna.

Within minutes of the robbery, the Wilsons and Polk entered the bank and were immediately approached by Wayne Irvin, an "employee" of the Eugene Police Department. After Irvin had answered their inquiry about the commotion inside the bank, the three volunteered they had seen "a honkey" chasing an Indian "down the alley from the bank." All three expressed a desire to leave the premises in order that they might aid in the robber's capture and thus claim any reward that might be offered.

As the three young men talked, Irvin noted a sense of anxiety in their manner. Accordingly, he asked each of them his name. The trio responded by giving fictitious names.

Upon returning to the apartment, Wilson was enraged that the police had recovered the purse. Because the police had a description of Antone, Wilson asked McJunkin to cut Antone's long hair. Wilson then "ripped up" the blue jacket Antone had worn and went downstairs to burn the torn pieces.

Because both appellants claim distinct and unrelated errors, we will discuss separately the contentions of each.

Polk's Appeal

Immediately prior to setting out for the bank, Polk produced a gun and instructed Dawson "to put it into her purse and give it to Antone before he went in." Although Dawson complied with Polk's instructions, the gun was not needed to execute the crime. Antone committed the robbery without having to brandish the weapon. At the trial, the gun was marked for identification, but was not introduced into evidence. On appeal, Polk maintains that it was prejudicial error to have permitted the jury to view and to hear testimony about a gun which had been obtained "as a result of an illegal search and seizure."

Contrary to Polk's view, we are of the persuasion the gun was lawfully secured by the authorities. The day following her arrest, Dawson "took" members of the Lane County Sheriff's Department to the apartment. Once inside, she disclosed to Detective Roy Dirks that the gun used in the robbery "had been there." At the trial, in response to the government's inquiry about whether she had consented to the search, Dawson replied in the affirmative.

Polk maintains that Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), buttresses his position that the evidence adduced at trial does not establish that Dawson voluntarily consented to the search of the apartment. In Cipres, the defendant who had been detained at an airport departure gate by customs officials, was told that a narcotics investigation was being conducted and that it was believed her luggage contained marihuana. Cipres proclaimed she had "nothing to hide" but asserted the bags could not be opened because she had left the keys in New York City. In fact, the bags were unlocked, and upon their opening, the belief of the customs officials was confirmed.

Under the circumstances of that factual setting, the court was of the view that evidence of "verbal expression of assent" was not sufficient to establish that the defendant "had waived her constitutional immunity from unreasonable search and seizure." The "circumstances" which led the court to this view are as follows:

"* * * it (the verbal consent) was coupled with the statement that the bags were locked and the keys unavailable, which on its face would have rendered the consent ineffectual; it was accompanied by assertions that Cipres was innocent and that the suitcases contained innocuous articles and not marihuana, assertions certain to be exposed as false the moment the bags were opened; and admittedly Cipres asked if the officers had a search warrant." 343 F.2d at 98.

The coercive circumstances which necessitated the finding in Cipres that the defendant's "verbal consent" to the search did not constitute a waiver of her constitutional right are clearly not present in the instant controversy. Here, the record indicates that immediately following her arrest, Dawson was determined to cooperate with the authorities. For example, the day following her arrest, she "took" the sheriff to the apartment. Dawson's use of the word "took", which in the context of her testimony is free of any coercive overtone, was hardly ill chosen. After disclosing to the sheriff her belief that the "gun that was used in the bank robbery" was in the apartment, Dawson consented to the search which led to its discovery. Her cooperative manner continued at the trial when she testified as a government witness. Thus here, unlike in Cipres and Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968), cert. denied, 393 U.S. 865, 89 S.Ct. 146, 21 L. Ed.2d 133 (1968), another case upon which Polk primarily relies, the authorities did not suggest to the consenting party that she was believed to be harboring the matter which was the object of the search. In our view, this distinction is significant because it underscores the aura of voluntariness which surrounds Dawson's decision to permit the authorities to search the apartment for the "gun that was used in the bank robbery * * *".

As an adjunct to his contention that the search violated his constitutional right against unreasonable searches and seizures, Polk charges that Dawson was without "authority to consent to a search of the apartment * * *". The basis of this argument is that as the paying tenants, only he and appellant Wilson were empowered to give such consent.

At the time of the robbery, Dawson stated that she was living in the appellants' apartment. Another principal in this case, Stewart, also lived in the apartment. Dawson acknowledged that only Polk and Wilson paid rent. According to Polk, this was the second...