United States v. Donald Antonio Ragghianti

560 F.2d 1376 2 Fed. R. Evid. Serv. 725 UNITED STATES of America, Plaintiff-Appellee, v. Donald Antonio RAGGHIANTI, Defendant-Appellant. No. 76-3013. United States Court of Appeals, Ninth Circuit. Sept. 16, 1977. 1 On Appeal from the United States District Court for the District of oregon. 2 Norman Sepenuk, Portland, Or., argued, for defendant-appellant. 3 Frank Noonan, Asst. U. S. Atty., Portland, Or., argued, for plaintiff-appellee. 4 Before MERRILL and SNEED, Circuit Judges, and BLUMENFELD, * District Judge. BLUMENFELD, District Judge: 5 Under an indictment charging him with aiding and abetting in the commission of a bank robbery, 18 U.S.C. § 2113 (a), appellant was convicted by a jury and received a sentence of 20 years' imprisonment. At the trial, he sought to establish an alibi defense. On appeal, the defendant contends that the court erred (a) in refusing to give a requested "alibi" instruction, and (b) in neglecting to limit certain testimony for impeachment purposes only. Although we reverse and remand because of error in the charge, in the interest of an error-free retrial we discuss the second alleged error as well. Facts 6 At approximately 3:00 p. m. on October…

Under an indictment charging him with aiding and abetting in the commission of a bank robbery, 18 U.S.C. § 2113 (a), appellant was convicted by a jury and received a sentence of 20 years’ imprisonment. At the trial, he sought to establish an alibi defense. On appeal, the defendant contends that the court erred (a) in refusing to give a requested “alibi” instruction, and (b) in neglecting to limit certain testimony for impeachment purposes only. Although we reverse and remand because of error in the charge, in the interest of an error-free retrial we discuss the second alleged error as well.

Facts

At approximately 3:00 p. m. on October 22, 1974, the Macadam Ave. Branch of the First National Bank of Oregon, Portland, Oregon, was entered and robbed by Richard Paul Repp.

Some 15 or 20 minutes later Repp and the defendant arrived at the Westover Towers Apartments in an auto driven by the defendant with Repp in the back seat. Repp got out of the car and then took something from the back seat. Both men entered the apartment. About 20 minutes later, the defendant came out of the apartment and began to drive away, but was shortly thereafter arrested. He had $1,280 on his per *1378 son.…

(dissenting):

I respectfully dissent.

This is both a close and troublesome case. The initial difficulty is that viewed abstractly the testimony of Repp, Tillson, and appellant to the effect that the car was turned over to Repp at around two o’clock, that Repp returned to a street corner not proximate to the bank to pick up the appellant, and that Repp was then driven to the appellant’s apartment is not sufficient, even if believed, to establish an alibi with respect to aiding and abetting a bank robbery. It is undisputed that less than half an hour *1382 after the robbery appellant and Repp were seen together in the car arriving at appellant’s apartment and a few minutes later appellant was arrested as he left the apartment in possession of a large sum of cash, including the bait bills. These undisputed facts, if joined with the assumed true Repp-Tillson-appellant testimony, would not preclude a verdict of guilty of aiding and abetting. To preclude such a verdict it also would be necessary for the jury to believe, as Repp, Tillson, and appellant each also testified, that appellant knew nothing of Repp’s plans and that they in no way aided and abetted the robbery. This particular…