United States v. Millard Robert Beasley, Defendnat-Appellant

America, STATES UNITED Plaintiff-Appellee, BEASLEY,

Millard Robert Defendant- Appellant.

No. 20029. Appeals, Sixth Circuit.

Feb. McCree, Judge, concurred in

part and dissented in and filed opinion. car, the of the the window equipped, zippered leather occupant placed a car’s along drawer, shaving with into the kit message. Upon retraction a written Stylas drawer, placed the note Mrs. the bag, con- aside, opened which and (later cylindrical container a tained can) a drink aas soft identified top. At this to its wired cube flashbulb your stated, mon- “Put point, the bandit Stylas bag.” then ey Mrs. in the message glanced at the written down holdup. stated, “This (deceased) Richard and Ávern Nick hurt.” When You won’t a bomb. Mich., for Detroit, on Schneider, brief Sty- money, again Mrs. demanded bandit defendant-appellant. not have responded that she las Atty., Briekley, Rich- U. S. H. James thief, point, At this in her drawer. Atty., Delonis, De- Asst. U. S. ard L. according Stylas to Mrs. plaintiff-appel- troit, Mich., for on brief type “pointed another flashbulb lee. any- cube, it was mounted whether CELEBREZZE, EDWARDS, Before hand, thing just real- in his I don’t McCREE, Judges. Circuit seeing just ly I remember know. me that He told above the window. CELEBREZZE, Judge. right up could blow bomb he right through through Beasley appeals my window, a Robert from Millard glass. said, attempted robbery ‘I’ll blow this He conviction again Michigan Bank, federally me insured He told bits.’ bag. stitution, aggravated my money put him an assault on I told money. told him I head teller. I didn’t have the bank’s pointed my money is over there and I under which The indictment counts, right my was the win- he tried contained two was working convicted, at out he and one dow I was one for which go unaggravated robbery arising point specifying he At this told me time. get money. transaction, my I I I said would. the same out go my Appel- window. There C. In view of the didn’t 2113(d), the back lant’s teller who was conviction under section I receipt penalty, her and and I walked over to maximum counter years, ‘Sharon, disposition her, the alarm.’ was made told sound charged funny me and she District Court of the offense She looked at kind my specifying [regular] the count inside window the violation looked at 2113(a), section a customer which carries a maxi- and she saw I didn’t have years. penalty Appel- again, press mum of 20 The and I told she ‘Sharon said, by jury. lant waived trial ‘there’s a man alarm.’ trying me to hold drive-in window following The facts found were ” up.’ September 21, 1957, District Court. On Stylas teller then Mrs. and the other lone bandit drove to a drive-in tell- waited, presumably for stood back Michigan er’s at the window Bank. After time to arrive. some being window was attended the head away. passed, holdup had man drove branch, Stylas, teller of the Mrs. who was Then, according to Mrs. filling in at the drive-in window regular teller, already who was on break. man had left ev- “[t]he erybody When building extended moveable went outside drawer, they with which the window was cause were afraiu the standing out- rights, willingly all and we were his constitutional bomb Sharon, finally having finger palm I asked submitted to side and prints you you pressed agents. alarm and sure taken the federal said, yes. Moreover, Appellant’s she said Miranda wrong police warnings administered, should properly the be because were by So, proceeded by agents to here and he told now. was the that he a desk back in bank and there’s the was free to leave the at interview right by picked up door and I the the time. phone operator and and I dialed our Second, Appellant the contends told her a man that at- had that the failure Government’s call the to tempted and to hold me at the bank laboratory processed technician who the stating there is a this note here Appellant’s palm print latent from the is a I have whether it is or holdup note violated Sixth Amend his no idea.” right ment to confront and cross-exam Later, Appellant the identified as was ine his accusers. The technician who holdup by palm print, the man his latent processed prints shown, by the was the which on the note he was discovered Government, to have left the service of passed window, into the and teller’s police the to and have been unavailable stylized lettering note, the trial, notwithstanding extensive ef could have been stenciled with a letter- to at forts locate him his last ad known guide ing Appellant ruler to which the absence, print dress. In his the was au had access. This evidence was suffi- Yakush, thenticated Officer chief of identity beyond to cient establish his bureau, the scientific who was reasonable doubt. prints “brought when the latent were holdup out” on the He note. testified Appellant The took the stand trial mechanical, that one, the test routine com- testified he not have could properly performed that was crime, first, mitted the the because at eyewitness in it, instant the case. As an to time the crime he was committed was at competent the officer was testi friend, lunch awith before who the died fy accuracy, to its and to authenticate Appellant’s trial; second, case came prints, the as the technician would have during lifelong career Having produced compe been. thus one crime, comprising many con- arrests and tent, reliable witness authenticate the robberies, victions of several he had nev- prints, the Government was under no ob particular er used operandi modus others, ligation long to call so as their before. The District Court was uncon- sup identities were not withheld Appellant’s vinced the defense, and pressed Appellant. from the judgment against entered him under 18 Gholston, U.S.C. § 1971). Furthermore, there could Appellant The spate raises nothing have been accusatorial appeal, issues on all but one of which properly technician’s that he lack sufficient merit to warrant extend performed “bring the mechanical test of First, ed Appellant discussion. the prints latent out” the on the note palm prints maintains that his tak were paper; therefore he was not a witness en “against” Appellant, violation of con and the Sixth rights. argument guarantee stitutional is Amendment of confrontation without substance. The apply. record reveals and cross examination does not Appellant, possessed hand, fingerprint of a col On the other ex lege-level worldly pert education laboratory’s print in af who matched fairs of procedure, criminal voluntarily Appellant those was wit “against” he, turned himself in to Appellant, the federal authori ness purpose ties for the properly, presented of an informal in trial terview, voluntarily executed waivers of cross-examined. weapon. Ap- Totally substance without (3d Govern- that: contentions

pellant’s Murray, all rel- United grant him access ment “assault” The term discovery; during evidence evant inor statute defined nowhere insufficient identification generally, Prince legislative history, see conviction; District support his v. 403, requiring “bomb” in not erred (1957), and the ele- 1 L.Ed.2d 370 introduced; District Court elab- not been of the offense ments biased. unfair Supreme Court orated appeal con- remaining issue courts. lower federal sufficiency of the evidence cerns finding that Court’s support District provision, section as the base Insofar by an as- aggravated robbery was “force,” 2113(a), specifies use of justifying the Mrs. sault “intimidation,” “violence,” some- or 2113(d), which judgment under section prove thing required to more years greater than penalty five carries by robbery aggravated assault. We robbery, unaggravated are that those additional elements lieve argues that Appellant 2113(a). The where, here, present is as the robber the tell- passed into “bomb” he since possessed the intent shown to have generate incapable was, fact, in er’s window his on the harm, the Dis- that since producing fact, victim, victim, in is and where the finding Mrs. that made trict Court placed in reasonable shown have been by it, the placed Stylas “in fear” conduct, apprehension by the robber’s support insufficient regardless ability robber’s actual- of the finding “assault.” an court’s lower ly to inflict harm. disagree. We Rizzo, 409 F.2d Baker v. United statutory provisions The relevant 1069, 1071-1072 state: Whoever, “(a) and vio- force Appellant maintains that takes, lence, by intimidation, or at- or ap cannot succeed on Government take, tempts person or from the testified, peal because Mrs. never any property presence or and the District Court did not find that any money or of value be- other actually placed in she It is fear. care, custody, longing to, or in the Congress that did not intend our belief of, management, control, possession or case, that under sec Government’s savings bank, loan as- or upon ability depend 2113(d) tion * * *; not sociation be fined Shall amplify subjective probe and emo $5,000 imprisoned not than or more robbery con tional reactions of victims twenty years, more than or both.” apparently potentially and fronted with Whoever, committing, “(d) in inor dangerous weapons. Apprehension is attempting commit, any de- offense synonymous not fear: a defendant (a) (b) in subsections against requisite whom the elements section, any person, this puts assaults or proved will not be the offense have been jeopardy any person the life of fortuity on the victim absolved the use of a or courageous to be was too or insensitive device, shall be fined more than Thus, where defendant afraid. $10,000 imprisoned not more than (a) apparently an to have created shown twenty-five years, or both.” situation, (b) in intended to degree greater It has been well to a established timidate victim (c) (d) disjunctive language, subsection is to be read mere use of than being ly, “assault,” fact, does, place violated an his victim by jeopardy expectation life or seri- with a of death reasonable bodily injury, requirements patent demand note to make the latent ous print. satisfied. This was not an assertive 2113(d) are act section majority opinion as the observes, requisite find that We ele a routine task which was ob-' present on the of the offense ments served another officer who testified Appellant placed us. The record before at the trial to what he saw. The criti- window, warned the teller’s device appellant’s palm cal print and threatened that that was a provided matched that on the note was vic up the His he would blow bank. expert fingerprint an examiner who was evidenced tim’s was oughly at the trial and was thor- immediately repeatedly fact that she urged by appellant’s cross-examined po another teller contact the counsel. all the other em lice. The fact that majority opinion I believe the er- is in ployees bank evacuated the build ror in its resolution of the final issue ing in fear of the device indicates that finding supports whether the record Stylas’s expectation of harm was Beasley violated 18 U.S.C. § reasonable the circumstances. 2113(d). That section as reads follows: though inert, Finally, even this device Whoever, committing, inor at- put surely life in aas live tempting commit, any to offense de- weapon 2113(d). could. 18 U.S.C. § in (b) subsections (a) and of deadly any apparently The threat to use section, this any person, assaults or likely is far device more to lead to retal- puts jeopardy person in any the life of by deadly force, iation vic- weapon use of a or tim, by rescuers, by and, police, device, shall be fined not more than return, by robber, then assaultive $10,000 imprisoned or not more than language. plausible Since a to threat twenty-five years, or both. amplifies danger use such device language clearly requires life, to human the com- results in a more fac- something mission of taking property ile more of than the ele- than mere assaul- ments of language, the offense appropriate tive described in it is § it , (a) punishes Subsection an penalty be attended a sterner than attempt to simple, unaggravated person take “from the robbery. bank * * * presence any of judgment of the District Court is * * * ** * of value cus- affirmed. * * * * * *” tody of taking “by when that force done McCREE, Judge (concurring violence, intimidation.” Force dissenting part). and violence is the lan- traditional majority opinion believe has guage assault, of more correctly resolved all but the final issue than an assault must be to au- However, discussing discusses. ap- year penalty thorize the additional five pellant’s contention, second I would not 2113(d). under § missing characterize laboratory tech- aggravation I would hold that the re- nician’s involving per- function as quired provision the “assault” of § formance of a per- test. If he had 2113(d) “by must be committed the use formed a test the issues of which were dangerous weapon just of a or device” relevant, it would have been error not to as a must be em- required testify him because the aggravating ployed in the alternative test results would constitute an asser- jeopardy circumstance of tion,, otherwise, verbal or about a matter any person. life of litigation material in and thereof hearsay. Nevertheless, would be Although controlling is no au- there it is clear that all the thority technician did in our on circuit this issue apply a silver nitrate (which, solution to appears, for all never has 1284 statutory and, in the absence cir Code squarely considered been definition, referred to common v. we cuit), Supreme Prince Working Papers 322, law definitions. 77 S.Ct. States, U.S. 352 United Reform of (1957), Commission National 403, stated 1 370 L.Ed.2d Laws, 2, page 833 Vol. aggravated by Criminal “robbery as Federal conviction States, (July subjects 1970); United weapon” Guarro v. deadly sault with 97, (1956). U.S.App.D.C. years pro 237 F.2d 578 99 of 25 to the maximum one law, in 18 U.S.C. concept vided In the common 6, 327 n. n. 11 & assault, according at 329 one line criminal Johnson, 401 See also United authority, has understood to re- been 1968); 746, Holbrook (2d Cir. 747 quire attempt or a wilful two elements: 230, Hunter, 231 149 v. injury upon to inflict someone threat Meyers F. 1945); 116 v. United ability do United States and the so. 601, 603 20, 2d (C.C.D.Mont. Barnaby, 51 21 v. F. 509, Gebhart, F.Supp. Battery v. 1892); Am.Jur.2d, Assault and (D.Neb.1950). concept re- The tort assault 2-3. §§ attempt quires a or threat wilful in a If the assault involved violation injury if flict but is satisfied could, 2113(a) the whim of of § apparent accomplish ability aggravat- prosecutor, also be made the Nevertheless, concept re- present. to autho- 2113(d) element quires the actual imprisonment, years additional rize although victim, by the principle of Bell Restatement need not be reasonable. 620, 99 L.Ed. 905 U.S. S.Ct. (1965). (Second) A sec- of Torts 27§ (1955), In order to would be offended. concept has ond of criminal assault bor- give meaning Congress’ enact- lawful of rowed from the law torts involves aggravating ment elements in 18 of intent actor 2113(d), phrase “by the use § of the victim as the tort con- dangerous weapon aof or device” must additionally requires cept, that regardless read, punctuation, of be not reasonable. It does

modifying provision the assault both actually capa- require that the actor jeopardy provision. inflicting harm. United of ble Cf. Shreveport v. Grain El. States & (7th Rizzo, 400, 403 v. Co., 77, 82-83, 42, 287 77 U.S. Blackmar, 1969); 2 Devitt & E. C. (1932); Supply Egyptian L.Ed. 175 Co. Jury 48.- Instructions Federal Practice § Boyd, 608, v. 611-612 (2d 1970). ed. of of these definitions assault None statute, Under this construction of the fully It not satisfied here. is has been year the 25 sentence cannot stand beverage can that contended it is clear cause that the indictment did could have inflict- attached flashcube charge proofs not nor did the show the actually in- ed harm that the accused dangerous weapon of use or device. harm, and the trial tended inflict Nevertheless, finding if judge express even an unarmed as- no that made actually satisfy sault should be deemed to teller named the indictment § aggravating Although 2113(d), danger.1 apprehended factor is ab- finding might ap- sent here. Criminal support assault is de- of record anywhere part, judge in the prehension Federal Criminal the trial on her findings that, be, 1. court stated in com- to find he did that is sufficient Stylas by and, therefore, “He did Eleanor assault hand the court mit an assault guilty bomb, her what he is of contended was a the defendant finds Transcript whether was a bomb or imma II the indictment". is Count of presented if he terial it as a at 241. might and if she had reason to believe it making can we refrained from speculate he would whether Leroy BROWN, Appellee, Norman

done so.2 WARD, Appellant. John L. regardless hold,

Accordingly, would No. 14472. of assault is embodied which definition prosecutor 2113(d), has § Appeals, States Court prove II of the indict- failed to Count Fourth Circuit. ment. Argued Nov. majori- Of course comment 18, 1970. Decided Nov. may ty opinion life have been possible placed inapposite deadly is retaliation

vited used as

since requires under 2113(d) plainly

§

aggravating And, alternative.

course, aggravating not the ele- charged

ment in the indictment.

Nevertheless, supports record guilt

determination first ordering

count and instead new

trial I would vacate sentence of 25

years resentencing for remand un- 2113(a)

der violation may years.

sentence not exceed

result because the offense indicated

defined in the first count included judge’s

the second and the count trial

findings clearly establish all the ele- See ments of States,

Nolen

(6th 1951); Schmidt v. United 308 F.2d 728 Stylas, they 2. Mrs. the teller named in were afraid the was a bomb dictment, standing on direct testified examination outside we were all you finally Sharon, as follows: I asked sure (By McIntyre, continuing) you pressed said, Q Mr. : and she the alarm you yes. wrong know whether or I said not it was a bomb? should here because the knowing, way proceeded So, A I had no no. I now. back your thought right by Q Did the cross mind? the bank and there’s desk Well, honest, up phone way picked A to be the door looked, figure operator I couldn’t out I and told her that what dialed our attempted was. to hold me had a man that Transcript there Her is a note on cross- helpful: stating wheth- examination is no more here (By Arvan, continuing) Q er it Mr. : Do idea. you [ring Transcript The indictment did know who did the alarm at 41-42. anyone alleged that other than Mrs. buzzer]? already every- A The left and had been assaulted. man had body building went outside the

Case Details

Case Name: United States v. Millard Robert Beasley, Defendnat-Appellant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 12, 1971

Citation: 438 F.2d 1279

Docket Number: 20029_1

Court Abbreviation: 6th Cir.