Appeal from a judgment entered after a jury trial in the United States District Court for the Southern District of New York, Kevin Thomas Duffy, J., convicting appellant of conspiracy to rob a bank, bank robbery, and armed bank robbery, in violation of 18 U.S.C. §§ 371, 2113(a) and (d). Affirmed in part and reversed in part.
Before Lumbard, Feinberg and Van Graafeiland, Circuit Judges.
Edward Garris appeals from a judgment of conviction, entered by Judge Duffy in the Southern District of New York on September 5, 1979, after a jury trial, for robbery, armed robbery, and conspiracy to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a) and (d). Garris claims that the district court erred (1) in allowing an FBI agent to testify that Phyllis Garris, appellant's sister, stated to him, the agent, that Garris had made a statement to her that amounted to an admission of complicity in the robbery, and (2) in sentencing him to concurrent terms of imprisonment for the §§ 2113(a) and (d) convictions. We conclude that the district court did not abuse its discretion by admitting the agent's testimony, but that the simultaneous convictions for §§ 2113(a) and (d) should be merged. We therefore affirm the convictions for §§ 371 and 2113(d) and vacate the conviction under § 2113(a).
Shortly after 10:00 a. m. on May 16, 1975, four men robbed a branch of the Bankers Trust Company at 177 East Broadway in Manhattan. One of the robbers stood at the rear of the bank, holding customers and employees at bay with a shotgun he pulled out of a large artist portfolio. Another, who thrust his gun at the face of one person and into the ribs of a second, stood near the bank's front entrance. The other two robbers, one of whom shot a teller while brandishing his gun, vaulted the tellers' counter and scooped over $10,000 in cash from the registers into shopping bags. Upon the command of the robber at the rear of the bank, the two men vaulted back over the counter with their take, and all four men rushed out of the bank and made their getaway.*fn1
The bank's surveillance camera photographed three of the robbers: the one in the rear, Allen Simon, a/k/a "Aroba," and the two who vaulted the counter, Cecil Robinson, a/k/a "Merciful" or "Merce," and a man whom even the other robbers knew only as "Karim."*fn2 The camera did not, however, photograph the fourth robber, who by standing near the front door was out of the camera's field of view.*fn3 The government adduced evidence at Garris's trial, which was held in July, 1979, after an arrest on other charges ended Garris's four-year fugitivity, to show that he, a/k/a "Allah Equality" or "AE," had been that fourth robber.*fn4
The government's principal witness was Simon. He testified that he and his two friends, "AE" and "Merce," decided in early May, 1975 to rob a bank, that they met several times during the next two weeks to plan their robbery, and that they included "Karim" in their scheme because he, unlike any of them, owned a car.*fn5 Simon also recounted the details of the robbery, including the locations within the bank of each of the robbers, and of the getaway and the meeting later that morning at Garris's apartment to divide the money.
To corroborate Simon's testimony, the government showed that Garris's fingerprints had been found in the abandoned getaway car and that Garris had been absent from his job not only on the day of the robbery, but also at each of the times Simon recalled as the occasion of one of the robbers' planning sessions. Additionally, the government elicited testimony from eyewitnesses that the fourth robber had stood near the front door and aimed his gun at certain people, all of which corroborated Simon's recounting of Garris's actions in the robbery. The eyewitnesses could not, however, identify Garris as having been the fourth robber. Therefore, in order to corroborate Simon's testimony that Garris was the unphotographed robber, the government sought to introduce, and the district court admitted over the objection of defense counsel, the evidence in dispute: the testimony of FBI Special Agent Michael Kirchenbauer that Phyllis Garris said to him that shortly after the robbery Garris had said to her that no one had seen him in the bank although the others had been photographed.*fn6
Phyllis Garris made this statement to Kirchenbauer on June 20, 1975, in the course of admitting her complicity in a robbery on that day of the branch of Manufacturers Hanover Trust Company at which she worked as a teller. In response to questioning by Kirchenbauer, who by this time knew of her brother's role in the Bankers Trust robbery, Phyllis stated that Garris had called their mother's house shortly after the Bankers Trust robbery, and that he had said to her, essentially, that he had not been photographed in the bank.*fn7 Phyllis further told Kirchenbauer that on June 17, 1975, she had concealed from FBI agents in search of Garris at their mother's house the fact that she knew how to reach her brother. After the agents left, Phyllis told Kirchenbauer, she talked to Garris's girlfriend, Karen Lyles, who instructed her to meet him inside a theatre on 86th Street. Phyllis further stated that in the theatre Garris told her, first, that he had not been photographed because he had not been in the bank, but, second, that he had to evade the police anyway and therefore would send someone she did not know to her teller's window at Manufacturers Hanover Trust in order to get the money he needed to effect his escape. Phyllis stated that she initially resisted but later explained the layout of the bank to Karen Lyles and stopped by her apartment on the morning of what she knew to be the day of the robbery in order to show Lyles what she was wearing. On June 20, a female approached Phyllis's window, handed her a note demanding money, and was given $5,000 by Phyllis.
Phyllis made these statements to Kirchenbauer at the FBI's Manhattan headquarters, having voluntarily gone there with FBI agents who discerned her relationship to the unapprehended Garris while questioning her at Manufacturers Hanover Trust. Kirchenbauer advised Phyllis of her rights before asking her any questions, and he took notes as she answered, abbreviating nothing of substance. He reviewed his notes with her for accuracy at the end of the interview.
Prior to receiving Phyllis's and Kirchenbauer's testimony before the jury, the district court held a hearing outside the jury's presence. Phyllis testified that she did not recall telling Kirchenbauer that Garris had said to her that he had not been photographed, but that she did recall answering all of Kirchenbauer's questions truthfully. After hearing Phyllis's testimony and inspecting Kirchenbauer's notes, the district court ruled that Phyllis's lack of memory of her statement made her an "unavailable" witness under Fed.R.Evid. 804(a)(3),*fn8 that her statements had been against her penal interest, and that therefore, after Phyllis testified before the jury as to her lack of memory, Kirchenbauer could testify as to her statement under Fed.R.Evid. 804(b)(3), the "penal interest" exception to the hearsay rule.*fn9
Garris suggests two reasons why the district court should not have allowed Kirchenbauer to testify, under Fed.R.Evid. 804(b)(3), as to Phyllis's repetition to him of Garris's admission to her.*fn10 First, Garris claims that that segment of Phyllis's statement to Kirchenbauer that is, her repetition of Garris's admission did not fall within the penal interest exception because it was not itself, standing alone, against Phyllis's penal interest. Second, and alternatively, Garris claims that even if Phyllis's repetition is against her penal interest, either standing alone or in its context, it lacks the trustworthiness inherent in most against-interest statements because Phyllis might have been motivated to say it, not by the belief that it is true, but by the hope of ingratiating herself or "currying favor" with the authorities by inculpating, though at the cost of inculpating herself, one whom she knew they suspected in the Bankers Trust robbery. We reject both arguments, the first for lack of legal support and the second for lack of factual.
The only portion of Phyllis's statement to Kirchenbauer that was specifically mentioned before the jury was her repetition to him of Garris's admission of complicity in the Bankers Trust robbery; the government asked neither Phyllis nor Kirchenbauer about the meeting in the theatre or the robbery of Manufacturers Hanover Trust. Garris's claim that the district court erred in admitting solely Kirchenbauer's testimony of the ...