United States v. Barry Byron Mills, Daniel James Cavanaugh, Robbin Lynn Bryan Cavanaugh, Martin Trevino Vargas, Jr.

On June 8, 1976, Martin Vargas and Barry Mills entered the Mayfair Branch of Lloyd’s Bank in Fresno. Vargas threatened a bank employee with a handgun and they took over $100,000 in cash. Daniel Cavanaugh drove the “get-away car”. Robbin Bryan, 1 a companion of Cavanaugh, attempted to flee to Canada with Cavanaugh thereafter.

All four parties were jointly charged and tried together by jury. Vargas, Mills and Cavanaugh each were convicted of armed bank robbery, in violation of 18 U.S.C. § 2113 (d). Bryan was convicted of being an accessory after the fact, 18 U.S.C. § 3 . Each defendant appeals from his or her conviction on several grounds.

We affirm.

I. ROBBIN BRYAN

A. Motion for Severance

Bryan contends that the trial court erred in denying her motion to sever her trial from that of her co-defendants pursuant to Fed.R.Crim.P. 14. We disagree.

The four appellants were “alleged to have participated in the same . . .series of acts or transactions constituting the offenses charged”. Therefore, the appellants were properly joined for trial pursuant to Fed.R.Crim.P. 8(b). See United States v. Adams, 581 F.2d 193, 197 (9th Cir. *696 1978). Because the joinder of parties was…

concurring.

I concur in the result reached by the majority.

I am, however, unable to join in Part II. C. of the majority opinion dealing with the issue of vindictive sentencing. The court holds that it will not consider the issue on appeal because appellant relies on an affidavit first presented here asserting facts not included in the record, instead of having complied with Rule 10(c) of the Federal Rules of Appellate Procedure. *

Rule 10(c) provides a method for including in the appellate record proceedings which were not reported and thus are not included in the transcript, such as those which allegedly occurred in chambers below. I am entirely in agreement that in the normal case, an appellant should not be entitled to raise an issue on appeal based on matters outside the record without compliance with Rule 10(c). See, Murphy v. St. Paul Fire and Marine Insurance Co., 314 F.2d 30 (5th Cir.), cert. denied, 375 U.S. 906 , 84 S.Ct. 197 , 11 L.Ed.2d 146 (1963) (decided under the predecessor rule, Fed.R.Civ.P. 75(n)); 9 Moore’s Federal Practice, 1210.06.

It makes little sense to me, however, to elevate Rule 10(c) into a jurisdictional requirement, as the majority appears to do…

597 F.2d 693 4 Fed. R. Evid. Serv. 1040 UNITED STATES of America, Plaintiff-Appellee, v. Barry Byron MILLS, Daniel James Cavanaugh, Robbin Lynn Bryan Cavanaugh, Martin Trevino Vargas, Jr., Defendants-Appellants. Nos. 77-1448, 77-1449, 77-1450 and 77-1747. United States Court of Appeals, Ninth Circuit. May 25, 1979. Michael B. Read, Sacramento, Cal., Roger K. Vehrs, Fresno, Cal., Russell G. Vanrozeboom, Kingsburg, Cal., Vincent J. McGraw, Fresno, Cal., for defendants-appellants. Dwayne Keyes, U. S. Atty., Fresno, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California at Fresno. Before BROWNING and HUG, Circuit Judges, and SCHWARZER * , District Judge. HUG, Circuit Judge: 1 On June 8, 1976, Martin Vargas and Barry Mills entered the Mayfair Branch of Lloyd's Bank in Fresno. Vargas threatened a bank employee with a handgun and they took over $100,000 in cash. Daniel Cavanaugh drove the "get-away car". Robbin Bryan, 1 a companion of Cavanaugh, attempted to flee to Canada with Cavanaugh thereafter. 2 All four parties were jointly charged and tried together by jury. Vargas, Mills and Cavanaugh each were convicted of armed bank…