United States v. Joe Charles Walters
477 F.2d 386
9th Cir.
1973
Check Treatment

*2 wеnt down a hall to the of the rear (ar- Boyd, Atty. Asst. U. S. Earl E. house, notify apparently to his mother. gued), Keller, Atty., William D. U. S. However, ajar he left the door and the Atty., Nobles, Los Asst. U. Eric A. S. officers, looking in, saw Walters enter Angeles, Cal., рlaintiff-appellee. for the front room. Since he answered the BARNES, Before KOELSCH and description robbers, of one of the Judges. ELY, Circuit immediately several officers entered guns and, with drawn three while Judge. KOELSCH, Circuit there, them detained others proceeded to appeals judgment the rear of the house look- from Joe Walters a ing suspect. for convicting the second He robbery wasn’t him of of a national they thеre a bedroom found Zel- by bank force and violence U.S.C. [18 ma, standing her uncle and her 2113(a)]. mother nearby. told the Zelma officers that she During early afternoon Thurs- had let Walters use the Buick earlier day, January 25, 1972, two men entered day. Walters, also stated She Stamp department the Food Center upon return, given his had her a consid- Security National in Los An- Bank money, pro- erable sum of which she geles, robbery and committed the pillow duced from under the of her bed appeal which this is concerned. After and handed to an officer. one of the two evidence robbers —the to which one is not clear —disarmed the in- The offiсers then continued their guard gunpoint, proceeded bank at both quiry and asked whether Walters had cages pock- to the tellers’ and filled their given also her a hand that after- fleeing. money ets with before response, noon. In she drew out a nick- el-plated pistol, but the officers ex- Unfortunately robbers, they for pressed it, perhaps interest be- soon identified and arrested. only gun cause the which either robber Shortly robbery, before the passerby a displayed during robbery had was a green had noticed a Buick automobile dark-colored Zelma snub-nosed revolver. park vicinity in the of the Bank. Her produced then such а revolver from un- attention was attracted the unconven- der her mattress. garb driver, tional of the who was wear- ing large “floppy” a brown hat and formally Walters was arrested without shirt, black passenger, and of the who way police further ado. On had wig. donned a red woman’s Deem- station, questioned Walters, the officers ing “suspicious” them characters, she given following warning Miranda a wrote down the license Buick’s number Agent gave He F.B.I. Chamberlain. and, a few later, moments observed them stories, exculpatory. several all of them run back to away the vehicle and drive explained He that he loaned the had high speed. at Flоyd day Buick to one Masterson that evening police That given officers and and that him the Masterson had agents F.B.I., using money, including the informa- the two marked bills gained tion from upon person, the automobile found re- liсense his own and the number, went given the house of Zelma volver which he had to Zelma. Shyne, the Throughout Buick’s questioning, owner. The officers’ denied his knock on the front door complicity robbery.1 of the house in the However, girl friend, Mary together apartment shortly Masterson’s at the latter’s Williams, appeared Jane they who trial as before the time of the government, together, witness for reappeared apprоxi- testified left and mately that both Walters and Masterson were later. hour witness, any proof immediately to ment’s second before went The officers participa- apartment of the or of Walters’ arrested Masterson’s presented. tion in was The dark-col- They one of the stolen bills him. found revolver, ored which she snub-nosed person search of on his gave home, thus the officers at her apartment, pursuant to a search war- wig, conditionally evidence as rant, admitted into they red also found a woman’s identifying 3-A, upon it as hat, Exhibit her large floppy the bank brown *3 day gun given by guard’s the on the gun. her Walters robbery. the of (1) paragraph The of the one- first government put Subsequently on charged the count indictment both Walters proof, only to robbery considerable not establish with and Masterson with bank tending corpus delicti, to also the but violencе, in force and as 18 U.S. defined partic- prove an active 2113(a), paragraph that Walters was the second C. but § robbery. ipant in of the 2113(d) provision the commission the 18 added U.S.C. § charge against re- to the Walters. government rested, the When the charged sult was that Masterson stood motion, court among others, entertained Walters’ robbery, “simple” while Wal- bank to strike from evidence aggravat- ters ed, of more was aсcused the gun, only condition- the ally which had been (d), the same or form of subsection motion was denied. admitted. That danger- offense, of the use of a because vigorously ‍‌‌​‌​​‌​​‌​​‌‌​‌​​​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​​​​‌‌‌‌‌‌​‌‍contends that States, weapon. оus v. United Green gun into ev the admission of the court’s 301, 306, 653, 5 L.Ed. 365 U.S. 81 S.Ct. idence, to denial of his motion the (1961). 2d 670 strike, prejudicial error. He stress was During government’s in the case chief guard es the fact the bank that neither court, the on motion of district at- the robbery eyewitness any the nor other to torney, not dis- for that need be reasons identify as a able to Exhibit 3-A was cussed, (d) por- dismissed the subsection gun during robbery. On this used the charge against tion of the Walters. bаsis, argues gun irrele that the was to the com vant not connected because contends that Walters now it mission of the impermis such dismissal constituted an only impermissibly his served show indictment. The sible' amendment the of Moоdy v. bad He relies on character. language, Amendment, express Fifth in States, (9th Cir. United 376 F.2d 525 bringing the the of indictments makes irrelevant, 1967). Moody In held we grand jury. province the exclusive of prejudicially proof erroneous, Any аmendments to an indictment must kept the in car. accused a revolver grand by jury Ex be made the alone. charge smuggling Moody involved a of 781, Bain, 1, parte 30 121 7 S.Ct. U.S. and, noted, narcotics a revolver as we (1887). However, L.Ed. thе action 849 regarded jury only “could indicating the as not taken the court in this case did appellant that the was a bad upon prerogative of the encroach engaged enterprise, man in a criminаl grand jury court sim at all. Here the might anybody attempted who shoot who ply portion withdrew a of the illegal importation of to frustrate the same, laid; the offense remained although heroin, in of the circumstances degree Salin was reduced. See presence loaded of the [that] case ger States, 47 S. v. United 272 U.S. gun was not relevant matter (1926); Thomas 71 398 Ct. L.Ed. jury upon to de called was (5th States, v. United Cir. 531 cide.” 376 F.2d at 1967). Moody (2) pros- But no com- for the affords Walters Zelma was a witness convalescing in of the offense fort. The commission ecution. Because she was Moody surgery, permitted involve the use of force. did not from recent she wаs govern- testify order, Here it did. out of as the Moody weapon deadly actually used be- gun relevance lacked A committing the crime.” 142 N.E. to the crime related cause smuggling. not true of But force, a robbery. robbery or In crime of Circuit, recently More the Second Obviously force, is essential. threat of reviewing conviction, has had rob- for a useful instrument is a ‍‌‌​‌​​‌​​‌​​‌‌​‌​​​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​​​​‌‌‌‌‌‌​‌‍reject occasion to consider and this same points Wigmоre out: ber. Professor argument: then, general principle, exis- “As a possession “Direct evidence of such * * * physical tence would have relevant to establish been * * * is admissi- to do an act means oрportunity preparation to commit possibility or evidence of the ble as some (cid:127) charged, the crime and thus would doing person’s probability prove identity have tended to * * * Evidence, Wigmore, it.” robbers, only issue in this real Wharton, (3rd 1940). And Mr. ed. trial, [citations omitted].” evidence, criminal in his on work Ravich, *4 States 421 F.2d that relevant to show “It is also writes: (2d 1970), denied, 1204 Cir. cert. 400 to or access defendant owned had the 834, 69, U.S. 91 L.Ed.2d S.Ct. 27 or any was the crime article with which also, Fisher, See United States v. 455 * * * have committed. could been (2d 1972). F.2d 1101 Cir. possession The the defendant of (3) may complain not Walters rele- weapon instrument of crime is or grant pre of the court’s refusal to although that vant there is evidence trial motion to any order excluded at trial it in the commission was used any prior evidence of. his state particular crime, evi- there must be stand, conviction. He did not take the dence that some crime was committed.” and that conviction in was never offered Evidence, Wharton, 203 Criminal recently evidence. As this court has (12th proposition 1955). ed. Nor is the electing “In held: not to the take Thus, wit in State confined to text writers. stand, any ness waived [the 176, defendant] Montgomery, P.2d 175 261 v. Kan. objection regarding admissibility of the (1953), Supreme Court of Kan- 1009 the * * * concerning evidence [his] sas observed that: prior cоnvictions.” States v. holding “The full of eases books are (9th Murray 1973) (Slip opinion Cir. that where an accused is identified as 24). at having been at or near the scene of a (4) remaining Walters’ contentions crime the time оf its commis- about any evidentiary support. lack The owned, showing sion evidence that he plainly money record shows that possessed or had access to articles gun obtained from her Zelma at housе might the crime or voluntarily given to the officers. competent.” is have been committed They Zelma so testified. were not omitted). (Citations 261 P.2d product of a search. similarly The record reveals that Powloski, Pеople And in v. Ill. 311 fully officers advised his Mi- (1924), Supreme 142 N.E. 551 rights questioning randa him. before answering argu Illinois, Court of Thus, to statements which made admitting ment the court erred in the officers were not rendered inadmis- an unidentified into evidencе where sible. declared: judgment The is affirmed. competent prove “[i]t to that an ac- Judge ‍‌‌​‌​​‌​​‌​​‌‌​‌​​​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​​​​‌‌‌‌‌‌​‌‍ELY, (concurring): Circuit cused, arrested, possessed when weapon opinion. majority’s for the tools suitable com- I сoncur charged, only question mission of if the crime even The troublesome involves pistol no claim is made that the tools or the admission into evidence of a 390 proved

not used in the rob have been majority quotes

bery. correctly Ravitch,

from United States denied, (2d 1970), cert. Cir.

U.S. 91 S.Ct. 27 L.Ed.2d (1970). desirable, however, to I think portion

emphasize another Second language opinion. It

Circuit’s

reads:

“Notwithstanding the relevance ammunition, ‍‌‌​‌​​‌​​‌​​‌‌​‌​​​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​​​​‌‌‌‌‌‌​‌‍guns and the judge justified have been

trial would excluding if he them decided outweighed probative

their value was tendency is- their ‍‌‌​‌​​‌​​‌​​‌‌​‌​​​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​​​​‌‌‌‌‌‌​‌‍confuse jury.” or inflame the

sues qualifying This lan-

421 F.2d at 1204. significant. completely

guage is It more proper and desirable

announces the confеrring upon standard, our district power

judges exercise reasonable to the end that an accused discretion *5 prejudiced. unnecessarily unfairly my I no reason to believe have recognition object Brothers to this power judges in our district

respect. America,

UNITED STATES Appellee, KARNAP, Appellant.

John Russell

No. 72-2000. Appeals, States Court of

Untied Fourth Circuit.

Argued Feb. April 20,

Decided