Williams v. United States

• Decision Date: 29 March 1966
• Docket Number: No. 19801.,19801.
• Citation: 358 F.2d 325
• Parties: Jewell James WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.2d 325 (1966)

Jewell James WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 19801.

United States Court of Appeals Ninth Circuit.

March 29, 1966.

Allen Williams, Pittsburg, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div.; J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Arthur I. Berman, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before POPE, JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge:

Before us is an appeal in forma pauperis. The appellant was indicted along with one Curtis for aiding and abetting Curtis in the robbery of the Security First National Bank, Installment Finance Department, San Diego, California, on July 26, 1963. Curtis plead guilty. Following a jury trial appellant was convicted as charged.

On March 6, 1964, appellant's motion for a new trial was granted.

On March 18, 1964, a superseding two count indictment was returned against the appellant, only. Count One charged that on or about July 26, 1963, the appellant received, possessed, concealed, bartered, sold and disposed of money in the sum of approximately $660.00, knowing the same to have been taken with intent to steal by Fred Castoneda Curtis from the Security First National Bank, Installment Finance Department, 239 A Street, San Diego, California, a bank whose deposits were insured by the Federal Deposit Insurance Corporation, which offense was in violation of 18 U.S.C. § 2113(c).¹ Count Two is not involved herein, as it was later ordered severed and was subsequently dismissed.

Following conviction by a jury appellant was sentenced to imprisonment for a period of four years under the provisions of 18 U.S.C. § 4208(a).

We adopt the appellee's statement of the facts, believing it to be a fair statement of the case.

"At 5:00 P.M., on July 26, 1963, appellant and Curtis (the codefendant in the first case who pled guilty to the robbery) registered at a motel one and one-half blocks from the Security First National Bank located at 239 `A\' Street, San Diego, California. Curtis and appellant each used an alias at the time of registration, appellant using the name of Bill Taylor. Appellant then stated that he was the owner of the 1957 Buick which they were driving. The two men were last seen at the motel at 8:00 o\'clock the same evening.

"Within half an hour after they registered at the motel, Curtis, using a gun, robbed the Security First National Bank on `A\' Street of $1,320.00. Curtis was followed out of the bank where he was observed getting into the passenger side of the 1957 Buick which immediately pulled out into traffic.

"Among the bills taken by Curtis, in addition to `bait money\', were numerous new one dollar bills. These bills are usually in consecutive serial numbers when given to the tellers. Prior to the robbery a bank employee had cashed a small check at the same teller\'s window later approached by Curtis. This employee received two new one dollar bills, the serial numbers of which were recorded by a bank official.

"At 9:30 the same evening appellant and Curtis walked into a car dealer\'s lot in Encinitas, California, and purchased a 1951 Ford. Each paid half the purchase price, and the purchase order was written up in the name of Bill Taylor. The salesman testified that the person using the name of Taylor was in fact appellant, that appellant had acted nervously, and that both appellant and Curtis appeared to be in a hurry.

"A few days later the 1957 Buick was found in an alley in Encinitas.

"Shortly before midnight on the same evening, following the robbery, appellant and Curtis asked Lawrence Postma, the owner of a service station near Pine Valley, California, to give them a ride to Jacomba. Instead of doing so, Postma sold the two men his 1952 Cadillac, a four-door sedan. Appellant again gave his name as William Taylor. Appellant and Curtis went briefly together behind the car, and upon their return appellant paid the purchase price. Among the bills which appellant gave to Postma were ten new one dollar bills, which Postma spent the next day in El Cajon, California. An agent of the Federal Bureau of Investigation went to two of the places where Postma had spent the money received from appellant. The agent recovered one dollar bill from one store and two dollar bills from the other, the serial numbers of which were close in numerical sequence to those bills the bank employee had received when he cashed his check prior to the robbery.

"Between 2:00 and 2:30 A.M., the next morning, appellant and Curtis drove the 1952 Cadillac into a motel in El Centro, California. Appellant filled out the registration card using the name Orvill Freeman and gave a San Francisco address. They left the motel about noon that day.

"Because of mechanical trouble with the Cadillac, they drove into a service station in El Centro near the motel and purchased a 1952 Ford Station Wagon with an Oldsmobile engine from Tommy Ashire. Before purchasing the car, both appellant and Curtis inquired as to whether the radio was working. Each paid one-half the purchase price, taking the money from their wallets, and the bill of sale was made out to Charles Maybery, the name used by appellant.

"Appellant and Curtis were apprehended in the station wagon by a Deputy Sheriff in Yuma, Arizona, in the early evening of July 26, 1963. At that time appellant gave his name as Charles Lee Maybery, and stated he was from Detroit. The deputy advised appellant that he was being arrested in connection with a bank robbery. Appellant had several hundred dollars in his wallet at the time of his arrest, including several new one dollar bills; the serial numbers of which were close in numerical sequence to those on the two bills which the bank employee received. In addition, appellant had $300 concealed in his shoe.

"Appellant admitted to an agent of the Federal Bureau of Investigation that, on the afternoon of the robbery, he and Curtis had driven around San Diego while Curtis looked at banks. Curtis testified that appellant was driving the get away car after the robbery."

The appellant advances the following Specification of Errors:

1. Appellant was not advised of his right to remain silent, nor of his right to have counsel at all stages of the proceedings.

2. Statements and admissions of the appellant made at the time of arrest were used against him at his trial without laying a proper foundation.

3. The trial Judge failed to give proper instructions to the jury concerning admissions and statements of the appellant which were admitted into evidence.

4. Certain phases of the pre-trial and trial procedures were conducted without the appellant present in court.

5. Appellant was not admitted to bail and indeed no bail was ever set.

6. The prosecution in its final argument to the jury misstated some of the evidence.

7. Appointed counsel, although he requested same, was not supplied with a transcript of a prior trial where no verdict was reached by the jury, but wherein most of the same witnesses testified. Said appointed counsel had not represented appellant at the aforesaid prior proceedings.

8. Appellant was apparently arrested without a warrant and without probable cause, and evidence taken from his person at this time was admitted into evidence at the trial.

We first consider errors alleged under appellant's Specifications No. 1 and 2. The appellant contends that the testimony of the witness Pearson, Special Agent for the Federal Bureau of Investigation, should have been stricken. This testimony pertained to conversation with appellant after his arrest. Appellant's claim of errors is that the record fails to show that appellant was advised of his right to remain silent and of his right to counsel prior to the time of his conversations with Agent Pearson. While appellant contends that the testimony of Agent Pearson should have been stricken from the record, the record discloses that no motion to strike was made. Furthermore, the record fails to reveal that any objections of any kind were ever posed to the testimony. During the course of cross-examination by appellant's counsel the agent was not asked if appellant had been advised of his right to remain silent and his right to counsel. It appears from the record that appellant was represented by counsel of his own choosing at the time of the conversations between Agent Pearson and the appellant. There is nothing in the record to indicate that the statements made by appellant to Agent Pearson were otherwise than voluntarily made.

We find no error. The record does not support the claims of appellant that he was in any way denied the assistance of counsel or that he was not warned of his constitutional rights. No opportunity was given to the trial court to inquire into the claims now asserted by appellant. The appellant elected not to testify in the proceedings and offered no testimony tending to show a denial of constitutional rights. The claimed errors are not properly before this Court and we find no good cause why these errors should be reviewed for the first time on appeal. See Robbins v. United States, 345 F.2d 930 (9th Cir. 1965); Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); and Gilbert v. United States, 307 F.2d 322 (9th Cir. 1962), cert. den. 372 U.S. 969, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963).

Appellant contends that the District Court erred in failing to give proper instructions to the jury concerning admissions and statements of the appellant which were admitted into evidence. Specifically, appellant contends that the District Court should have instructed the jury of appellant's right to the assistance of counsel and his right to remain silent, and the duty on the part of the jury to reject all statements and admissions of appellant if the jury should determine that the appellant was not advised of his...