United States v. Roy Edward Brannon, United States of America v. Fred George Cox, United States of America v. Henry Wilson, Jr.
Opinion
Opinion
616 F.2d 413 5 Fed. R. Evid. Serv. 990 UNITED STATES of America, Plaintiff/Appellee, v. Roy Edward BRANNON, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Fred George COX, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Henry WILSON, Jr., Defendant/Appellant. Nos. 79-1057, 79-1069 and 79-1070. United States Court of Appeals, Ninth Circuit. March 10, 1980. Rehearing Denied April 21, 1980. 1 Roger S. Ruffin, Harry L. Hellerstein, Marvin Stender, San Francisco, Cal., for Brannon. 2 Joseph M. Burton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. 3 Appeal from United States District Court For the Northern District of California. 4 Before WALLACE and SNEED, Circuit Judges, and SOLOMON, * District Judge. SOLOMON, District Judge: 5 Roy Edward Brannon, Fred George Cox and Henry Wilson, Jr. appeal their convictions for aggravated bank robbery under 18 U.S.C. § 2113 (d). 6 We affirm. 7 On May 15, 1978, four armed men robbed a Wells Fargo Bank in San Francisco. Cox was identified as entering the bank first, holding a sawed-off shotgun. He ordered everyone to lie on the floor; he then remained at the door for the duration of…
lead Opinion
Solomon, J.
Roy Edward Brannon, Fred George Cox and Henry Wilson, Jr. appeal their convictions for aggravated bank robbery under 18 U.S.C. § 2113 (d).
*415 We affirm.
On May 15, 1978, four armed men robbed a Wells Fargo Bank in San Francisco. Cox was identified as entering the bank first, holding a sawed-off shotgun. He ordered everyone to lie on the floor; he then remained at the door for the duration of the robbery. Wilson, holding a pistol, repeated the order to lie on the floor. He then jumped over the tellers’ counter and took $496 in bills from a teller’s drawer.
Brannon was identified as the third robber, and a man identified as the fourth robber was found dead two days later.
Immediately after the robbery, the robbers ran to the getaway car. As Wilson entered the car, a dye pack attached to the bills exploded, and Wilson dropped the money. The men drove away.
At the beginning of the robbery, a teller activated the bank’s four surveillance cameras. The cameras photographed the robbery.
On the day after the robbery, Scalise and Steil, two investigators from the San Francisco District Attorney’s Office received information from the City Housing Authority about an argument among…
concurrence Opinion
Sneed, J.
(concurring):
I concur in Parts I, II, and III of the court’s opinion. With respect to Part IV, I concur only in its result.
Part IV raises perplexing issues surrounding the proper interpretation of 18 U.S.C. § 2113 (d). Unfortunately the court’s opinion appears to do little to resolve any of these issues.
In my view Wilson’s argument that a conviction under the assault alternative of section 2113(d) requires proof that the gun was loaded is without merit. The flourishing or pointing of a pistol, whether loaded *420 or not, by any able-bodied person constitutes a threat to inflict bodily harm coupled with a present ability to commit violent injury upon the person of another. Pistol whipping, at a minimum, is being threatened. That is a threat to inflict bodily harm by use of a dangerous weapon or device.
This should be stated explicitly. Having done so it would follow that the district court committed no reversible error in giving the instruction of which Wilson complains. We need not at this time decide whether such threats with an unloaded weapon constitute the placing “in jeopardy the life of any person.”