United States v. Richard Clinton Allsup

concurring:

Allsup has appealed from his conviction for two bank robberies, contending that multiple errors in the course of his trial denied him a fair trial. In an opinion authored by Judge Hufstedler, the majority agrees with Allsup that the cumulative errors dictate that he must be tried anew.

Of the many contentions of error, the majority found it necessary to address only four: (1) The inadequacy of the voir dire of the jury on the insanity question; (2) the failure of the district court to excuse two jurors for cause; (3) the district court’s intervention in cross-examination of a Government witness which resulted in an inflammatory remark from the witness; and (4) the correctness of the district court’s refusal to grant Allsup’s motion to sever the two bank robbery counts. Of the four, the majority concluded that the district court had erred with respect to the first three, the cumulative effect thereof mandating a new trial. While I concur, I would like to address the issue presented by Alls-up’s second contention, namely, the failure of the district court to excuse two jurors for cause.

As previously mentioned, Allsup was accused of two counts of robbery of two…

Allsup appeals from his conviction for two bank robberies ( 18 U.S.C. § 2113 (a)), contending that multiple errors in the course of his trial denied him a fair trial. We agree with him that the cumulative errors mean that he must be tried anew.

The two bank robberies occurred in Tucson, Arizona, in October, 1976, two weeks apart. The Valley National Bank was first robbed and the First National Bank was robbed thereafter. Two factual issues dominated the proceedings: (1) Was Allsup the person who committed either or both of the robberies, and (2) did Allsup have the mental capacity to have committed either or both of the robberies? The prosecution’s evidence on both issues was not so insubstantial as to render the conviction vulnerable to a challenge on appeal based upon the insufficiency of the evidence, but neither was the evidence so strong that one or more errors could not have affected the outcome.

The Government presented only one identification witness in respect of the first robbery, and she testified that she was “not sure” that Allsup was the robber. The district judge acknowledged that the witness could not identify Allsup as the man who robbed the bank. Identification…

566 F.2d 68 UNITED STATES of America, Appellee, v. Richard Clinton ALLSUP, Appellant. No. 77-1581. United States Court of Appeals, Ninth Circuit. Dec. 19, 1977. Tom O'Toole, Tucson, Ariz., for appellant. James E. Mueller, Asst. U. S. Atty., Tucson, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before KOELSCH and HUFSTEDLER, Circuit Judges, and FOLEY, * District Judge. HUFSTEDLER, Circuit Judge: 1 Allsup appeals from his conviction for two bank robberies ( 18 U.S.C. § 2113 (a)), contending that multiple errors in the course of his trial denied him a fair trial. We agree with him that the cumulative errors mean that he must be tried anew. 2 The two bank robberies occurred in Tucson, Arizona, in October, 1976, two weeks apart. The Valley National Bank was first robbed and the First National Bank was robbed thereafter. Two factual issues dominated the proceedings: (1) Was Allsup the person who committed either or both of the robberies, and (2) did Allsup have the mental capacity to have committed either or both of the robberies? The prosecution's evidence on both issues was not so insubstantial as to render the conviction…