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United States v. Green

decided: August 22, 1977.


Appeal from a judgment of conviction under 18 U.S.C. § 2113(a) and 18 U.S.C. § 2113(d) entered by the District Court for the Southern District of New York (Ward, D.J.) after a jury trial. The Court of Appeals held, inter alia, that the receipt in evidence in a trial for armed robbery of a gun seized from appellant at the time of his arrest after the alleged robberies was proper. Affirmed.

Mansfield, Gurfein and Meskill, Circuit Judges.

Author: Gurfein

GURFEIN, Circuit Judge:

James Melvin Green ("Green") appeals from a judgment of conviction entered by the District Court (S.D.N.Y.) (Hon. Robert J. Ward) after a jury trial. Appellant and his wife, Debra, were tried jointly. Appellant was convicted on all five counts charging violations of 18 U.S.C. § 2113(a), bank robbery and attempted bank robbery, and with using a dangerous weapon during the course of a robbery in violation of 18 U.S.C. § 2113(d). Debra Green was convicted on three counts, and a mistrial was declared on Counts One and Two. Appellant was sentenced to concurrent terms of twenty years imprisonment on each of the three bank robbery counts. He was given a suspended sentence on the § 2113(d) counts, with a one-day probation imposed consecutive to the twenty-year period of incarceration. Only Green appeals.

The evidence showed that in early 1976, Mr. and Mrs. Green, acting as a team, participated in one bank robbery and two attempted bank robberies in mid-town Manhattan within 13 days.

On February 25, 1976 shortly after 11:30 in the morning, there was an attempted robbery at a branch of the Manufacturers Hanover Trust Company, located at 1185 Avenue of the Americas on West 47th Street. Three bank employees testified.

Charlene Churilla, the victim teller, related that during a relatively slow period on that day, two people - a man and a woman - appeared at her station. The woman presented a demand note which read: "We have a gun. Give us fifties and twenties." Rather than comply, Miss Churilla closed her cash drawer and attempted to engage the holdup team in conversation. She clearly observed that the male member of the team was holding a gun which he proceeded to place on the counter. The gun was aimed at Miss Churilla. At an opportune moment, some three minutes after first seeing the holdup team, Miss Churilla ducked down below the counter. When she got up again the man and woman had left. Miss Churilla identified Mr. and Mrs. Green as the two people who had attempted the bank robbery.

A second bank employee, Celinda Rivera, noticed the holdup team when she turned to answer the phone. She similarly described the scene, and identified appellant and Mrs. Green as the two persons who had attempted to rob the bank.

A teller, Gene White, supplied a similar account. His attention was caught by what appeared to be an exchange over a check between Miss Churilla and a female customer. He noticed that next to the woman there was a man holding a gun on the counter. The gun was pointing along the counter directly at White who was some 10 to 15 feet away. White positively identified Green as the man who was holding the gun.

Churilla, Rivera and White each testified that she or he pushed the alarm after observing the holdup team. As a result, the bank surveillance camera system was activated and a reel of film was exposed. Two photographs from the reel of film were introduced in evidence. Miss Churilla testified that these pictures accurately portrayed the male and female who attempted to hold her up on February 25th. By comparison of the photographs with the defendants before them, the jury could easily conclude that it was Mr. and Mrs. Green who were pictured in the photographs.

The second attempted bank robbery was at the First National City Bank at 40 West 57th Street on March 5, 1976. Miss Lilly Yu was the only eyewitness. A young black couple showed a note, announcing: "This is a stickup." When Miss Yu reached to push the alarm, the young couple panicked and left the bank.

Miss Yu stated that she did not observe the man and woman long enough to be able to identify them. However, she did describe the female as young, about 20 years of age, around 110 pounds, black, and about 5 feet 3 inch to 5 feet 5 inch. She described the male as black, young, around 20, same height as the woman, 5 feet 3 inch to 5 feet 5 inch, about 130 pounds, with a short hair cut.

By comparison of positives from the film of activated surveillance cameras with the defendants who were before them, the jurors could easily conclude that Mr. and Mrs. Green were the young black couple pictured heading toward the door of the bank shortly after Miss Yu hit the alarm.

On March 8, 1976 a branch of the National Bank of North America located at 515 Seventh Avenue near 38th Street was robbed. Donna Morrison, a teller, testified that her first customers after lunch were a black female and a black male. The woman held up a note ...

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