Fahy, Danaher and Burger, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing En Banc in No. 19022 Denied October 5, 1965.
Appellants were convicted of entry of a federally insured bank with intent to rob and robbery of the bank under 18 U.S.C. § 2113(a). We consolidated their separate appeals sua sponte.
Appellant Butler was apprehended within minutes of the robbery, his pockets bulging with the proceeds of that endeavor, which included $360 of identifiable "bait money" given him by a quick-thinking teller. The teller had also returned to Butler the note he handed her instructing her not to push the burglar alarm button. That note was found on Butler's person at arrest. Butler told police they would find the attache case used in the robbery behind a garbage can some 100 yards from the point of Butler's arrest and such a case was found there. The teller and a bank official made positive courtroom identifications of Butler having previously made positive identifications of him at police headquarters within two hours of the robbery; this circumstance was also testified to.
In the face of this overwhelming evidence of his guilt, Butler asserts as plain error the failure of the trial court to "delete" references to him from testimony of a police officer relating certain oral admissions made by Appellant Greenwell. While the references to Butler in the statements attributed to Greenwell were inadmissible hearsay, no request was then made to strike them. In his instructions the judge told the jury that Greenwell's admissions, if believed, were to be considered only against Greenwell.
The prosecutor's opening statement gave ample warning to defense counsel that he would introduce the challenged testimony. Yet when the time for that testimony came, defense counsel objected only on a ground different from that here argued to be error, despite the fact that the prosecutor had again given notice that the testimony would be forthcoming. Nor was defense counsel's subsequent motion to strike directed to the point now urged. It may be surmised, then, that counsel saw no error, plain or otherwise, in the admission of testimony disclosing Greenwell's statement naming Butler. We do not see it as "plain error" meriting reversal. Defense counsel could have requested a hearing without the jury to determine whether it would have been feasible to instruct the witness to eliminate any mention of Butler from his answer. In view of the strength of the case against Butler, of trial counsel's failure to note any objection, and of the judge's instruction to the jury that the statements were to be received only against Greenwell, we hold that there was no plain error warranting reversal of Butler's conviction. *fn1
The evidence against Appellant Greenwell was less strong than the case against Butler but in our view it was sufficient to put to rest his present claim of plain error.
The same witnesses who identified Butler identified Greenwell at trial and testified to having identified him on two occasions as he left work during the week following the robbery. There was also testimony linking Greenwell with Butler and with the attache case both on the day of the robbery and the day before that. A witness testified that Greenwell had instructed her before the robbery to inform anyone interested that he and Butler were present at her home at the time of the robbery, and that shortly after the robbery and Butler's arrest Greenwell called to ask her to change the story to indicate that he alone had been there at the crucial hour. That witness and another testified also to Greenwell's statement the day following the robbery that he and Butler "had went to this bank the day before and Slade [Butler] . . . had messed up." Greenwell himself testified that he knew Butler and that they had once shared an apartment.
It is against this background that we must view the claim that admission of testimony as to Butler's oral confession was plain error as to Greenwell. A metropolitan police officer and an FBI agent testified to Butler's statements. Neither account named Greenwell, and one of them did not even mention that there were two people involved. In the other, Greenwell was alluded to only as follows:
. . . [Butler had said that] after he [Butler] . . . had left the bank that he and another fellow had run down Florida Avenue near a ...