Leroy Shorter, Also Known as Roy Lee Shorter v. United States

Appellant, Leroy Shorter, was found guilty after a jury trial of armed bank robbery in violation of 18 U.S.C. §§ 2113 (a) and (d), and he now appeals. We Affirm.

The appeal presents the following questions :

1. Is evidence of flight admissible as an inference of guilt in the absence of *429 a foundation connecting the flight to the offense charged?

2. Should the district judge have exercised his inherent discretion to exclude proof of prior felony convictions offered for impeachment purposes by “balancing the factors” concerning them?

3. Does the rationale of Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967) 1 bar the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 , 93 A.L.R.2d 733 (1963)?

On June 20, 1967, appellant and another man robbed the Hibernia Bank in San Francisco. Appellant was armed with a double barrelled sawed off shotgun; he threatened to kill the assistant manager of the bank, and he took over $10,000 from several tellers at gun point. In the process of collecting the money,…

(Dissenting):

I am in agreement with the majority’s disposition of appellant’s contention relative to the admissibility of the evidence of flight.

I respectfully dissent from the majority’s treatment of the second and third questions.

As stated by Judge Carter for the majority, these questions are:

II. Should a district judge exercise an inherent discretion to exclude proof of prior felony convictions offered for impeachment purposes by balancing the factors concerning them?

III. Does the rationale of Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967) bar the use of felony convictions offered for impeachment purposes absent a clear showing that the convictions were not obtained in violation of the rule in Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 , 93 A.L.R.2d 733 (1963)?

II.

After the Government had rested its case, appellant’s counsel, out of the presence of the jury, advised the Court that the appellant would testify in his own defense. The Government informed the Court and appellant’s counsel that for the purposes of impeachment, it would ask appellant on cross-examination whether or not he had previously been convicted of a…

MEMORANDUM ON PETITION FOR REHEARING

The dissent cites Bates v. Wilson, 385 F.2d 771 (9 Cir. 1967) and Bates v. Nelson, 393 U.S. 16 , 89 S.Ct. 50 , 21 L.Ed.2d 21 (1968) vacating the judgment in Bates v. Wilson, and remanding the case to the court of appeals. The dissent states that the case was remanded for further consideration in the light of Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 (1967). Actually the case was remanded “for further consideration in the light of Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L.Ed.2d 319 ; Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , and Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 .” The issue common to Bates v. Nelson and the three cases cited in it — Burgett, Bruton , and Roberts , concerned cautionary instructions. But the case at bar has no such link.

We suggest that the Supreme Court in Bates was simply telling this court to reexamine our conclusion that a limiting instruction fully protected the accused; for that proposition we had relied upon Delli Paoli v. United States, 352 U.S. 232 , 77 S.Ct. 294 , 1 L.Ed.2d 278 , a case expressly overruled on that point in…

412 F.2d 428 Leroy SHORTER, also known as Roy Lee Shorter, Appellant, v. UNITED STATES of America, Appellee. No. 22360. United States Court of Appeals Ninth Circuit. May 6, 1969. As Modified on Denial of Rehearing July 11, 1969. Daniel H. Weinstein, San Francisco, Cal. (argued), James F. Hewitt, Atty., Legal Aid Society, San Francisco, Cal., for appellant. Paul G. Sloan (argued), Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee. Before KOELSCH and CARTER, Circuit Judges, and FOLEY, * District judge. JAMES M. CARTER, Circuit Judge. 1 Appellant, Leroy Shorter, was found guilty after a jury trial of armed bank robbery in violation of 18 U.S.C. 2113(a) and (d), and he now appeals. We Affirm. 2 The appeal presents the following questions: 3 1. Is evidence of flight admissible as an inference of guilt in the absence of a foundation connecting the flight to the offense charged? 4 2. Should the district judge have exercised his inherent discretion to exclude proof of prior felony convictions offered for impeachment purposes by 'balancing the factors' concerning them? 5 3. Does the rationale of Burgett v. Texas, 389 U.S.…