United States v. Tommie Louis Brown, United States of America v. Virgil David Swain, United States of America v. Robert Lee Nobles

In late morning on February 6, 1973, four men robbed a Crocker National Bank in Los Angeles. Three men were brought to trial in April, 1973, for the offense: defendants Tommie Louis

Brown, Robert Lee Nobles, and Virgil David Swain. The fourth man, whose name appeared on the indictment as Jonathan Ray Nobles, was a fugitive at time of trial.

The government’s theory was that Brown jumped behind the tellers’ windows and moved down the line of cages, collecting money from the cash drawers, while the other three guarded the customers and personnel from various positions. A surveillance camera took pictures of all the participants except the one who stood beneath the camera, allegedly defendant Nobles [hereinafter Nobles].

I. The Brown and Swain Appeals

The evidence against Brown and Swain was similar and consisted of surveillance photographs, items taken from the apartment they shared, a comparison of photographs, eyewitness identifications, and a statement by Brown.

Defendants Brown and Swain primarily attack the comparison of certain photographs. One group of photographs, consisting of enlarged surveillance pictures showing the faces and clothing of the two robbers alleged to be…

(concurring and dissenting):

BROWN AND SWAIN APPEALS

I concur in the affirmances of the Brown and Swain convictions, but not for the reasons stated by the majority. It is my considered judgment that the records on these appeals are free from error.

NOBLES’ APPEAL

Turning now to the Nobles’ appeal, I find myself in complete disagreement *158 with the conclusions of the majority on the issue of impeachment by the defense witness, Bond. 1 To understand the issue, it is necessary to outline in detail the events leading up to the action of the trial judge.

On direct examination, the government witness Hoffman identified Nobles as the robber standing under the surveillance camera and also identified him from a photo spread and at a police line-up prior to trial. On cross-examination, Nobles’ attorney asked Hoffman, “And isn’t it a fact that you told Mr. Bond that to you all the blacks appear to be alike?” Hoffman responded, “I don’t believe I indicated that to him.” Continuing, the attorney inquired, “You do not recall stating that to Mr. Bond?” Hoffman replied, “No, I do not.” Nobles’ attorney repeated, “That all blacks look alike.” Hoffman responded, “No, I do not, sir.” At that…

501 F.2d 146 UNITED STATES of America, Plaintiff-Appellee, v. Tommie Louis BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Virgil David SWAIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee NOBLES, Defendant-Appellant. Nos. 73-2279, 73-2678, 73-2280. United States Court of Appeals, Ninth Circuit. June 10, 1974. Darrell McIntyre, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. Nicholas R. Allis, Deputy Public Defender (argued), Los Angeles, Cal., for Robert L. Nobles. Stanley P. Berg (argued), Beverly Hills, Cal., for Virgil D. Swain. Bruce E. Krell (argued), San Francisco, Cal., for Tommie L. Brown. Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge. * ENRIGHT, District Judge: In late morning on February 6, 1973, four men robbed a Crocker National Bank in Los Angeles. Three men were brought to trial in April, 1973, for the offense: defendants Tommie Louis Brown, Robert Lee Nobles, and Virgil David Swain. The fourth man, whose name appeared on the indictment as Jonathan Ray Nobles, was a fugitive at time of trial. The government's theory was that Brown jumped behind the tellers'…