Anton Vaughn Evalt v. United States

359 F.2d 534 Anton Vaughn EVALT, Appellant, v. UNITED STATES of America, Appellee. No. 20040. United States Court of Appeals Ninth Circuit. March 10, 1966, Rehearing Denied June 13, 1966. William C. Harrison, Spokane, Wash., for appellant. Frank R. Freeman, U.S. Atty., Spokane, Wash., for appellee. Before POPE, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Evalt was convicted of robbing a federally insured bank in the small town of Twisp, Washington, a violation of 18 U.S.C. 2113(a). He was also convicted of a violation of section 2113(d) in that he put in jeopardy the life of the teller at the bank. 2 The essential facts of the offense are stated in a written confession which Evalt gave to a representative of the Federal Bureau of Investigation. The confession, in the handwriting of the F.B.I. agent, except for the last paragraph, and the signature, and initialling ('A.E.') of strikeovers and at the bottom of each page (all written by Evalt), reads, in pertinent part, as follows: 3 'Sept. 9, 1963 Wenatchee, Wash. 4 'I, Anton Vaughn Evalt, hereby make the following free and voluntary statement to George J. Foster who has identified himself to me as a Special Agent of…

Evalt was convicted of robbing a federally insured bank in the small town of Twisp, Washington, a violation of 18 U.S. C. § 2113(a). He was also convicted of a violation of section 2113(d) in that he put in jeopardy the life of the teller at the bank.

The essential facts of the offense are stated in a written confession which Evalt gave to a representative of the Federal Bureau of Investigation. The confession, in the handwriting of the F. B.I. agent, except for the last paragraph, and the signature, and initialling (“A. E.”) of strikeovers and at the bottom of each page (all written by Evalt), reads, in pertinent part, as follows:

The evidence also shows that before the robbery Evalt loaded the pistol, removed the license plates from the car and installed behind the back seat, as a protection against bullets, a 12 x 4 inch plank, and that at some time, either before or after the robbery, he chiselled off the number of the motor.

His plea was “Not guilty, by reason of temporary insanity.” A plea in that form is not provided for by federal law, but, of course, the defense of insanity is encompassed within the plea of not guilty. He was tried twice, and was con *538 victed on…

(concurring):

I must agree that the appellant was severely and improperly prejudiced by the challenged remarks made by the prosecuting attorney in his final argument to the jury. I reject the suggestion of my Brother Pope that the defense of insanity, of itself alone, has impelled the majority to a conclusion which, absent the defense, might have been to the contrary. In evaluating the propriety and effect of the argument which is claimed to have been prejudicially improper, it must be placed in perspective. The background is composed, only in part, by the defense itself. Contributing to it are all of the circumstances which are fairly shown by the record.

Here, the appellant had enjoyed a career of many years of honorable service in the United States Navy. At the time of the commission of his offense, he held the rank of Chief Petty Officer, was the head of a family, and could look forward, within a comparatively short time, to retirement and attendant benefits. In the record of his life, there was no history of the commission of crime, and yet, inexplicably, he robbed a bank at gunpoint and, fleeing, roamed as a wild beast through the Washington wilderness. From this conduct…

(dissenting):

The primary, perhaps the sole basis for the court’s decision is the use by the prosecuting attorney of the final sentence in his closing argument as follows: “If you find him not guilty, he walks out of this courtroom a free man, and I know, ladies and gentlemen, that you are not going to turn this man loose again on society.” In the first place I cannot agree that such a statement contained in Government counsel’s argument is beyond the limits of permissible advocacy. In large measure the statement is rather meaningless because the jury, if they have any sense whatever, ought to know the different consequences of the two possible verdicts. They know perfectly well that a verdict of not guilty permits the defendant to go at large.

My limited experience makes me believe that almost any prosecutor says to the jury, expressly or impliedly, “Do not turn this guilty man loose upon society.” After all while the prosecutor should be scrupulously fair in presentation of his case, he is nevertheless required to be an advocate; and it is my opinion that an argument of this kind is not beyond the proper scope of advocacy, even in a ease involving defense of insanity. 1…