Moore and Hays, Circuit Judges, and Timbers, District Judge.*fn*
Appellants Robert M. Jordan, Harry Lee Stokes and Rita Evonne Brooks were indicted with Robert A. Huitt for bank robbery in violation of 18 U.S.C. Sections 2 and 2113(a), (b) and (c). Count one charged robbery, count two charged larceny of more than one hundred dollars, and count three charged concealment and disposal of stolen money. After a jury trial Jordan and Stokes were convicted on all three counts, Miss Brooks was convicted on count one and acquitted on the remaining counts, and Huitt was acquitted on all counts. Jordan and Stokes were given twenty year prison terms and five thousand dollar fines on count one, into which the court ruled the remaining counts had merged. Miss Brooks was sentenced as a youthful offender to the custody of the Attorney General for treatment and supervision pursuant to 18 U.S.C. § 5010(b). We find no error and the judgments of conviction are affirmed.
On December 9, 1966 two tellers at a branch of the Manufacturers and Traders Trust Company in Buffalo were robbed of nearly twenty-seven thousand dollars. The government contended that Jordan and Huitt were the robbers, that Stokes drove the getaway car, and that Miss Brooks wrote the stickup note. A brief summary of the principal items of evidence against the appellants follows.
Both of the tellers who were robbed identified Jordan as the holdup man. Another witness saw Jordan peering into the bank's windows on the evening before the robbery. Jordan was also seen sitting in a red Buick Riviera parked outside of the bank about ten minutes before the robbery. A currency strap and a number of bills with consecutive serial numbers were found in apartments which had been occupied by Jordan. And Jordan admitted his guilt to a friend.
Stokes was the owner of a red Buick Riviera which closely resembled the car in which the robbers made their escape. Plaster casts showed that the tires on the getaway car were similar to those on Stokes' vehicle. Before the robbery Stokes asked one Willie Lee Ward whether he wanted to "pull a job" with him. Ward declined. Two days after the robbery Stokes showed Ward a roll of bills, and said that Ward should have gone along.
Miss Brooks was implicated primarily by the testimony of a handwriting expert identifying her as the author of the stickup note, which read, "This is a stickup, give all cash recipes and bundled money in draw -- no change." Other evidence showed that Stokes' red Buick Riviera was registered in Brooks' name and that she had given a credit statement to the seller of the car at the time Stokes purchased it. Although the evidence against Brooks was less extensive than that against the other appellants, we think that it was sufficient to justify the verdict against her.
1. Admission of Evidence of Another Crime
After the government had rested, the court, over objection of defense counsel, permitted the government to reopen its case and call one Craven to the stand. Craven testified that about six or seven weeks after the robbery he was assaulted by Jordan and Stokes, punched, knocked to the ground and kicked in the face. Stokes accused Craven of stealing his sister's purse. Stokes then told Craven to tell whomever he was working for "that they'll never put anything on me because I'm too smart." Later, on separate occasions, Jordan and Stokes each told Craven that they had thought that he had stolen the purse with the intention of turning it over to the police.
After the direct examination was completed, counsel moved that Craven's testimony be stricken. The motion was denied. The court then permitted the government to conduct additional direct examination. At this point Craven recalled that Stokes had accused him of taking the purse because the police were interested in the "similarity of serial numbers between the bills in the purse and the money that was missing," and that Stokes had said that he was "facing a possible forty years."
These last statements establish a sufficient connection between the assault and the bank robbery to make Craven's testimony admissible as tending to show consciousness of guilt. We cannot say that the court abused its discretion in permitting Craven's story to be considered by the jury. See United States v. Kahaner, 317 F.2d 459, 471-472 (2d Cir.), cert. denied, 375 U.S. 835-36, 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963); United States v. Bozza, 365 F.2d 206, 213-14 (2d Cir.1966); United States v. Bradwell, 388 F.2d 619 (2d Cir.1968).
Jordan and Stokes complain of the denial of their motions to suppress evidence.
Stokes was arrested on the morning of December 17, and at 12:45 p.m. he was taken before the United States Commissioner. Apparently he remained in custody. Later that afternoon and again two days later ...