Pependrea v. United States, 275 F.2d 325 (9th Cir. 1960)

JAMESON, District Judge.

Appellant was convicted on two counts of bank robbery in violation of 18 U.S.C. § 2113(a), which, in pertinent part, reads: “Whoever, by force and violence, or by intimidation, takes from the person or presence of another any money belonging to, or in the care, custody, control, management, or possession of, any bank shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.”

The maximum sentence of 20 years was imposed on each count, to run consecutively, and also consecutively with a sentence imposed previously in the District of Kansas.

Appellant contends (1) that there was a fatal variance between the indictment and proof, and that his motion for judgment of acquittal accordingly should have been granted; (2) that the court erred in admitting testimony of an agent of the Federal Bureau of Investigation regarding confessions of the appellant and in admitting the confessions; and (3) that the court abused its discretion in imposing the maximum sentence on each count, to run consecutively.

The indictment charged in the first count that the appellant and another “by force and violence knowingly and wilfully took from Mrs. Carol Davis, teller, $1,474.00, belonging to” a bank; and that in committing the offense appellant and his codefendant “assaulted and put in jeopardy the life of Mrs. Carol Davis by the use of a dangerous weapon *1 In the second count it was charged that the defendant, “by force and violence, knowingly and wilfully took from Mrs. Lois Marie Fox, teller, $300.-00, belonging to” another bank, and that appellant assaulted and put in jeopardy the life of Mrs. Fox in the manner charged in the first count. In response to special interrogatories, the jury found that the appellant did not “put in jeopardy the life of any person by the use of a dangerous weapon.”

The testimony in support of each charge of the indictment is substantially the same. Appellant walked up to the window of the teller’s cage, laid a money bag on the counter, and ordered the teller to “fill it up.” In each instance the teller thought he was “kidding” or “joking.” Appellant then informed the teller that he was not kidding and raised his shirt, allowing the teller to see the butt of a pistol stuck in his waistband. This was sufficient to induce each teller to fill the bag with the money in her cash drawer. Each teller testified that when appellant exposed the gun, she became frightened.

Appellant argues that while this testimony may have been sufficient to show “intimidation”, it did not establish the use of “force and violence”; and since the indictment in each count was limited to the charge of “force and violence”, there was a fatal variance between the charge and the proof. This contention was not raised in the trial court and was first asserted on appeal.

Was there a variance which affected the substantial rights of the appellant? Rule 52(a) Federal Rules of Criminal Procedure, 18 U.S.C., provides:

Prior to the enactment of the Federal Rules of Criminal Procedure, the “harmless error” statute was § 269 of the Judicial Code as amended (28 U.S.C.A. § 391, 1946 Ed.). In construing this section in Berger v. United States, 1935, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314, the Court said:

There is no fixed formula for determining whether errors are “technical” or affect “substantial rights”, and “In the final analysis judgment in each case must be influenced by conviction resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations.” Kotteakos v. United States, 1946, 328 U.S. 750, 762, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557.2 “‘No variance

ought ever to be regarded as material where the allegation and proof substantially correspond or where the variance was not of a character which could have misled the defendant at the trial.’ Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 665, 41 L.Ed. 1101.” Smiley v. United States, 9 Cir., 1951, 186 F.2d 903, 905.3

The appellant has failed to show wherein he was taken by surprise by the evidence offered at the trial or wherein the variance in any way affected his defense. The indictment pleaded essential facts with sufficient certainty to apprise the appellant of what he would be required to meet and enable him to prepare for his defense.4 The United States Attorney in his opening statement referred specifically to “intimidation”,5 and the court included an instruction on “intimidation” in its charge to the jury, without comment or objection on the part of appellant.6 It is clear from the record that the case was tried on the assumption that the indictment charged robberies by force and violence or by intimidation.7

Nor is there any danger of another prosecution for the same offense. The facts proved at the trial clearly related to those charged in the indictment. Were another prosecution attempted, appellant could successfully interpose a plea of double jeopardy. No “substanial rights” of appellant were affected, and any variance between the indictment and proof accordingly must be disregarded.

Appellant claims error in the admission of confessions given to Thomas B. White, Jr., an agent of the Federal Bureau of Investigation, and White’s testimony regarding the confessions. When the confessions were obtained, appellant was confined in a federal correctional institution on an unrelated offense. When first interviewed by White regarding the robberies, appellant denied any connection with them. About a week later White was requested by the warden of the institution to investigate an attempted escape in which appellant might have been involved. During this investigation White again questioned appellant regarding the robberies, with the same result as before. A few days thereafter appellant asked to see White. At a meeting in a business office in the institution appellant orally admitted participation in the robberies and signed written confessions, one relating to each offense.

Counsel for appellant does not contend that there was any illegal detention, but argues that the confessions were obtained by duress and were involuntary because given under physical stress and deprivation. No motion had been made to suppress the confessions, but when appellant objected to White’s testimony

regarding them, the court excused the jury. Both White and appellant were interrogated by counsel and the court in the jury’s absence. Appellant testified that when he signed the confession he had been in isolation for five days, deprived of his clothing, forced to sleep on a concrete floor, and that he had not had very much sleep. White, however, testified that appellant appeared to be in good health and did not appear tired, hut that appellant had requested coffee. White obtained coffee and cigarettes, which appellant drank and smoked during the interview.

Appellant testified that his purpose in signing the confession was “to get out of the hole.”8 There is no evidence, however, that appellant sought White’s assistance in getting out of the hole or that any promise with respect thereto was made by White either before or after the confessions were given. Appellant was still in isolation the day after giving the confessions, and it does not appear when he was released from isolation. He testified that as far as he knew White had nothing to do with his being in isolation.

Following the testimony in the absence of the jury, the court overruled appellant’s objections to White’s testimony. When the jury was recalled, White repeated his testimony, but appellant did not testify. Following White’s testimony, the confessions were admitted without objection, the court admonishing the jury that in admitting the confession “the court expresses no opinion about it.” The trial court properly charged the jury that “if the evidence does not convince beyond all reasonable doubt that a confession was made voluntarily, the jury should disregard it entirely.”

There is no evidence that appellant was illegally detained or that White obtained the confessions by means of any promise, threat, coercion or duress. In our opinion the confessions were voluntarily made and were properly admitted in evidence.

It is appellant’s final contention that the court abused its discretion in imposing the maximum sentence under each count, to run consecutively, and that the sentence imposed constituted “cruel and unusual punishment.” This court is urged to reverse and direct judgment of acquittal or, in the alternative, to reduce the sentence on each count or provide that they run concurrently.

It is well settled that a sentence within a valid statute cannot amount to “cruel and unusual punishment”, and that when a statute provides for such punishment, the statute only can he attacked.9 It is equally clear that the appellate court has no power to modify

or reduce the sentence. “ Tf there is one rule in the federal criminal practice which is firmly established, it is that the ■appellate court has no control over a sentence which is within the limits allowed by a statute.’ Gurera v. United States, 8 Cir., 1930, 40 F.2d 338, 340.” Brown v. United States, 9 Cir., 1955, 222 F.2d 293, 298.10

Judgment affirmed.