Robert Parker v. United States

400 F.2d 248 Robert PARKER, Appellant, v. UNITED STATES of America, Appellee. No. 21873. United States Court of Appeals Ninth Circuit. August 16, 1968. Ralph R. LePera (argued), Los Angeles, Cal., for appellant. Dennis Kinnaird (argued), Asst. U. S., Atty., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee. Before BARNES and ELY, Circuit Judges, and THOMPSON, * District Judge. BARNES, Circuit Judge: 1 Appellant was indicted on six counts of armed robbery of national banks, including charges that he forced six different hostages to "accompany him" into the banks in question to "hold the bag" and assist in the robberies (thus "kidnapping" his aide). 18 U.S.C. § 2113 (a), (d), (e). Prior to trial, the government dismissed Counts V and VI. Appellant was convicted by a jury on all four remaining counts, the jury finding that the conviction should be "without capital punishment." 2 Appellant was represented by counsel from arraignment through trial, and on this appeal. He was sentenced to twenty-five years on each count, the sentences to run concurrently. Jurisdiction below rested on 18 U.S.C. § 2113 , and here on 28 U.S.C. § 1291 . 3 Three alleged errors…

Appellant was indicted on six counts of armed robbery of national banks, including charges that he forced six different hostages to “accompany him” into the banks in question to “hold the bag” and assist in the robberies (thus “kidnapping” his aide). 18 U.S.C. § 2113 (a), (d), (e). Prior to trial, the government dismissed Counts V and VI. Appellant was convicted by a jury on all four remaining counts, the jury finding that the conviction should be “without capital punishment.”

Appellant was represented by counsel from arraignment through trial, and on this appeal. He was sentenced to twenty-five years on each count, the sentences to run concurrently. Jurisdiction below rested on 18 U.S.C. § 2113 , and here on 28 U.S.C. § 1291 .

Three alleged errors are raised. First, appellant claims that his pre-trial line-up confrontation was so unnecessarily suggestive and conducive to mistaken identification that he was denied due process of law. Second, he challenges the trial court's refusal to exclude the testimony of Wilbur Robinson, Jr., relating to an offense not charged in the indictment. Third, 18 U.S.C. § 2113 is claimed to be unconstitutional. We find no merit in any of these…

(concurring) :

I concur with the opinion of Judge BARNES and write only to clarify the facts which have inclined me to respectful disagreement with Judge Ely.

The indictment alleged six bank robberies and Parker went to trial on four of the counts. The method common to all the robberies was that the robber, posing as a hitch-hiker, kidnapped the “Good Samaritan” who offered him a ride and, at gunpoint, required the hostage to drive him to and to accompany him into a bank, and, having supplied him with a pillow case, directed him to fill it with money from the tellers’ cages. The incident which prompted Parker’s arrest occurred on October 17,1966, when the hostage refused to participate in the final act of robbery of the bank but elected to attack and overpower the defendant. There is no doubt of Parker’s identity as the person committing this felonious assault, all material circumstances of which were the same as the unique and unusual methods employed in the earlier bank robberies.

While, as Judge Ely so expressively shows, the line-up procedures used for the benefit of five of the fifteen identification witnesses who testified at the trial were not perfect, the police…

(dissenting):

I respectfully dissent. Parker was tried before the time when the Supreme Court in Jackson, determined that the death penalty provision of the statute in question is unconstitutional. As is not true in the ordinary case, the jury here was, from the beginning, 1 directly concerned with the penalty and performed its duties under the impression that it might eventually be obliged to decide that Parker should die. It is possible, although I concede that there is now no factual basis for the conclusion, that the effectiveness of Parker’s trial attorney was impaired because he labored under the strain of his then awareness, before Jackson, that mistake on his part could result in the extermination of his client’s life. I believe, however, as one who has appeared as an advocate in many jury trials, that it is not unreasonable to believe that a juror may have found it less difficult to resolve the issue of guilt in .favor of the prosecution when he would have, immediately thereafter, the opportunity to be merciful in his decision as to the imposition of the extreme penalty.

Parker denied his guilt. He was not arrested until twenty-three months after the commission of one…