United States v. Mark Allyn Tory

Opinion by Judge LEAVY; dissent by Judge FARRIS.

OPINION

Mark AJIyn Tory was indicted on five counts of bank robbery in violation of 18 U.S.C. §§ 2113 (a) and (d). Counts one and four charged armed robbery. Counts two, three, and five charged unarmed robbery. Tory admitted to having committed the robberies but denied being armed during any of them. The jury found Tory guilty of armed bank robbery as alleged in count one and unarmed bank robbery as alleged in counts two, three, and five. On count four, the jury found him guilty of the lesser offense of unarmed bank robbery. Tory argues that four rulings of the court denied him a fair trial on the issue of whether he was armed as charged in count one.

PACTS

The evidence relative to count one was that on January 12, 1993, Tory entered the bank, walked directly to a teller station, and slid a piece of paper across the counter. On the paper, Tory had written “Give me all the cash in your top drawer or I will shoot you in the face.” The teller gave Tory $2,020 cash, and Tory ran from the bank.

1)Before trial, the district court ruled that the government could not introduce evidence of a holster and gunbelt found in Tory’s garage.…

dissenting:

It is uncontroverted that on January 12, 1993, Tory entered the A. Levy bank and walked directly to the teller station where he slid a piece of yellow paper across the counter to Sandra Seholle. The demand note read: “Give me the money from your drawer or I will shoot you in the face.” Ms. Seholle looked at Tory and she testified that he raised his shirt to reveal the butt of a bluish- *212 black handgun. Ms. Scholle gave Tory $2,020 dollars and he fled the bank.

Shortly after the robbery, Ms. Scholle told an FBI agent that Tory was wearing “white sweatpants.” Her trial testimony was that he wore “white baggy jean-like looking pants, like painter pants.” Tory sought to introduce evidence that Ms. Scholle had initially told the agent that Tory wore sweatpants. The district court did not permit the testimony. Tory argues that this evidence “was crucial because if [he] was wearing white jogging pants with elastic band, he could not have carried a heavy gun ‘stuck in his waistband’ as described by bank teller Sandra Scholle.”

Trial court errors on nonconstitutional matters warrant reversal only if they more probably than not affected the outcome. United States v. Rahm,…

52 F.3d 207 41 Fed. R. Evid. Serv. 1137 UNITED STATES of America, Plaintiff-Appellee, v. Mark Allyn TORY, Defendant-Appellant. No. 93-50577. United States Court of Appeals, Ninth Circuit. Submitted August 3, 1994. * Decided April 3, 1995. Farris, Circuit Judge, filed dissenting opinion. Yolanda M. Barrera, Los Angeles, CA, for defendant-appellant. Brent A. Whittlesey, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: BROWNING, FARRIS, and LEAVY, Circuit Judges. Opinion by Judge LEAVY; dissent by Judge FARRIS. OPINION LEAVY, Circuit Judge: 1 Mark Allyn Tory was indicted on five counts of bank robbery in violation of 18 U.S.C. Secs. 2113 (a) and (d). Counts one and four charged armed robbery. Counts two, three, and five charged unarmed robbery. Tory admitted to having committed the robberies but denied being armed during any of them. The jury found Tory guilty of armed bank robbery as alleged in count one and unarmed bank robbery as alleged in counts two, three, and five. On count four, the jury found him guilty of the lesser offense of unarmed bank robbery. Tory argues that four…