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United States v. Boston

decided: December 12, 1974.

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN MATTHEW BOSTON AND ERNEST MOORE, APPELLANTS



Appeals from convictions after trial by jury in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, on charges of bank robbery with use of deadly weapons, 18 U.S.C. § 2113(a) and (d). Affirmed.

Oakes, Circuit Judge, Frankel and Kelleher, District Judges.*fn* Oakes, Circuit Judge (concurring).

Author: Frankel

FRANKEL, District Judge:

Appellants, John Matthew Boston and Ernest Moore, were found guilty by a jury on April 5, 1974, of robbing a federally insured bank, 18 U.S.C. § 2113(a), and of employing deadly weapons in the commission of that robbery, 18 U.S.C. § 2113(d). Both received concurrent sentences of 20 years in prison. Upon the ample evidence, and for the reasons hereinafter outlined, we overrule the several grounds of appeal and affirm the convictions.

I. The Robbery

From the evidence for the prosecution in the five-day trial (no evidence being offered by defendants), the jury was entitled, perhaps substantially compelled, to find the following facts:

Three men, the two appellants and Daniel Washington,*fn1 robbed the Baisley Park (Queens, New York) branch of the National Bank of North America on the morning of June 2, 1971. The robbery lasted about ten minutes, the perpetrators insisting that the vault be opened after they had robbed the tellers' stations. More than $185,000 was stolen, including $1,000 in twenty dollar bills whose serial numbers had been recorded before they were placed in the vault as "bait money."

The two key witnesses to the robbery were a bank guard, John Jackson, and the branch manager, Joseph Dente. Dente was ordered by Boston to open the vault; he spent three to five minutes with Boston and Moore in the vault area. Jackson was searched by Moore and observed Boston for five minutes during the robbery. After the robbers fled, Jackson chased them in his own car and was able to record the license plate number of the getaway car. Jackson, Dente, and other witnesses to the robbery were interviewed within one hour of the robbery by New York City Police Officers and by special agents of the F.B.I. A composite description of the three suspects was broadcast, as was a description of the getaway car. At the trial David Moore testified that he had loaned the getaway car to his brother, appellant Ernest Moore, before the robbery. David Moore explained in his testimony that the vehicle had been loaned to him by his employer a few days earlier.

Other evidence of appellants' guilt is either immaterial to the points on appeal or will emerge as those points are treated in later portions of this opinion.

II. The Arrest of Appellant Boston

Bank guard Jackson, who chased the appellants in his own car until he lost sight of their vehicle "a good distance from the bank," was able to give the police a description of the getaway car and its license plate number. The getaway car was located later on the day of the robbery at a parking lot in Queens, New York, and surveillance was established by the F.B.I. At 2:30 the following morning, a "gypsy" taxicab approached the area where the car was parked. The driver, appellant Boston, got out and walked around the area. While Boston was thus engaged, co-defendant Washington left the taxi and proceeded to the vicinity of the getaway car. Washington looked into the car, threw something at the windshield, and returned to the taxi. Boston, having returned to the driver's seat, turned the headlights of the taxi on and then off, proceeded down the block, and made a U-turn. The F.B.I. agents intercepted the cab on its way back and forced it to stop.

The agents ordered Boston to get out of the cab and to identify himself. He gave a false name, after which the agents asked for identification. Boston gave them his wallet, which contained a driver's license with his true name on it. Boston then admitted his identity, and both he and Washington were placed under arrest.

Boston claims that the F.B.I. agents at the scene of the getaway car did not have probable cause either to stop the taxi he was driving or to arrest him. Both contentions are unsound. The agents had been provided with a description of the getaway car and its license plate number. They also had a composite description of the robbers, including their race, height, weight, approximate age, and hairstyle. The appearance of the two men at the scene in the dark of the morning, evidently resembling the descriptions enough to make this a cogent factor in Judge Costantino's determination, followed by their strange and deeply suspicious behavior around the getaway car, justified the stop following the U-turn. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). After Boston had falsely identified himself, his identification papers revealed that his true name was one the officers had received from an ...


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