United States v. Green Opinion

    |JAACP Legal DcLensa Fund 
1- :.bviS Circle

N ew  . • L .. 1L>G19

AUG \ m TED STATES COURT OF APPEALS 
F or the S econd Circuit

No. 630—September Term, 1976.
(Argued January 6, 1977 Decided August 22, 1977.)

Docket No. 76-1438

U nited States of A merica, 

—against—
Appellee,

J ames Melvin Green,

Defendant-Appellant,
and

D ebra F ennell Green,
Defendant.

B e f o r e  :
Mansfield, Gubfein and Meskill,

Circuit Judges.

Appeal from a judgment of conviction under 18 U.S.C. 
§ 2113(a) and 18 U.S.C. § 2113(d) entered by tbe District 
Court for tbe Soutbern District of New York (Ward, D.J.) 
after a jury trial. Tbe Court of Appeals held, inter alia, 
that tbe receipt in evidence in a trial for armed robbery of 
a gun seized from appellant at tbe time of bis arrest after 
tbe alleged robberies was proper.

Affirmed.

5445



Guy Miller S truve, New York, N.Y., for De­
fendant-Appellant.

T. Gorman R eilly, Assistant United States At­
torney, New York, N.Y. (Robert B. Piske, 
Jr., United States Attorney, and Lawrence 
B. Pedowitz, Assistant United States At­
torney, New York, N.Y., of counsel), for 
Appellee.

Gueeein, Circuit Judge:
James Melvin Green (“Green”) appeals from a judg­

ment of conviction entered by the District Court (S.D.N.Y.) 
(Hon. Robert J. Ward) after a jury trial. Appellant and 
his wife, Debra, were tried jointly. Appellant was con­
victed on all five counts charging violations of 18 U.S.C. 
§ 2113(a), bank robbery and attempted bank robbery, and 
with using a dangerous weapon during the course of a rob­
bery in violation of 18 U.S.C. § 2113(d). Debra Green was 
convicted on three counts, and a mistrial was declared on 
Counts One and Two. Appellant was sentenced to concur­
rent terms of twenty years imprisonment on each of the 
three bank robbery counts. He was given a suspended 
sentence on the § 2113(d) counts, with a one-day probation 
imposed consecutive to the twenty-year period of incar­
ceration. Only Green appeals.

The evidence showed that in early 1976, Mr. and Mrs. 
Green, acting as a team, participated in one bank robbery 
and two attempted bank robberies in mid-town Manhattan 
within 13 days.

On February 25, 1976 shortly after 11:30 in the morning, 
there was an attempted robbery at a branch of the Manu­
facturers Hanover Trust Company, located at 1185 Avenue 
of the Americas on West 47th Street. Three bank em­
ployees testified.

5446



Charlene Churilla, the victim teller, related that during 
a relatively slow period on that claĵ , two people a man 
and a woman—appeared at her station. The woman pre­
sented a demand note which read: “We have a gun. Give 
us fifties and twenties.” Rather than comply Miss Churilla 
closed her cash drawer and attempted to engage the hold­
up team in conversation. She clearly observed that the 
male member of the team was holding a gun which he pro­
ceeded to place on the counter. The gun was aimed at Miss 
Churilla. At an opportune moment, some three minutes 
after first seeing the holdup team, Miss Churilla ducked 
down below the counter. When she got up again the man 
and woman had left. Miss Churilla identified Mr. and Mrs. 
Green as the two people "who had attempted the bank rob­
bery.

A second bank employee, Celinda Rivera, noticed the 
holdup team when she turned to answer the . phone. She 
similarly described the scene, and identified appellant and 
Mrs. Green as the two persons who had attempted to rob 
the bank.

A teller. Gene White, supplied a similar account. His 
attention was caught by what appeared to be an exchange 
over a check between Miss Churilla and a female customer. 
He noticed that next to the woman there was a man holding 
a gun on the counter. The gun was pointing along the 
counter directly at White who was some 10 to 15 feet away. 
White positively identified Green as the man who was 
holding the gun.

Churilla, Rivera and White each testified that she or he 
pushed the alarm after observing^ the holdup team. As a 
result, the bank surveillance camera system was activated 
and a reel of film was exposed. Two photographs from 
the reel of film "were introduced in evidence. Miss Churilla 
testified that these pictures accurately portrayed the male

5447



and female who attempted to hold her up on February 
25th. By comparison of the photographs with the defen­
dants before them, the jury could easily conclude that it 
was Mr. and Mrs. Green who were pictured in the photo­
graphs.

The second attempted bank robbery was at the First 
National City Bank at 40 West 57th Street on March 5, 
1976. Miss Lilly Yu was the only eyewitness. A young 
black couple showed a note, announcing: “This is a stick- 
up.” When Miss Yu reached to push the alarm, the young- 
couple panicked and left the bank.

Miss Yu stated that she did not observe the man and 
woman long enough to be able to identify them. However, 
she did describe the female as young, about 20 years of 
age, around 110 pounds, black, and about 5'3" to 5'5". 
She described the male as black, young, around 20, same 
height as the woman, 5'3" to 5'5", about 130 pounds, with 
a short hair cut.

By comparison of positives from the film of activated 
surveillance cameras with the defendants who were before 
them, the jurors could easily conclude that Mr. and Mrs. 
Green were the young black couple pictured heading to­
ward the door of the bank shortly after Miss Yu hit the 
alarm.

On March 8, 1976 a branch of the National Bank of 
North America located at 515 Seventh Avenue near 38tli 
Street was robbed. Donna Morrison, a teller, testified that 
her first customers after lunch were a black female and a 
black male. The woman held up a note which read: “This 
is a stickup. Give us all your money. We have a gun.”

The black male pulled a gun from the inside of his coat 
and held it in his right hand. Miss Morrison complied by 
handing over $1400 from her top drawer. The holdup team 
then left the bank.

5448



Because Miss Morrison failed to hit the alarm properly, 
the bank surveillance camera was not set off. Miss Morri­
son estimated that the black couple v/as at her counter for 
about two minutes. She identified, without hesitation, Mr. 
and Mrs. Green as the holdup team.

On March 12, 1976 at about 2:40 p.m.. Detective Nora 
Palmer of the New York City Police Department was 
parked in an unmarked ear on Broadway between 53rd and 
54th Streets on surveillance. It was then that she observed 
James Green and Debra Green together, walking north on 
Broadway. She and her partner stepped out of the vehicle 
and placed the Greens under arrest.

James Green was found to be carrying a handgun in his 
pants; it was partially loaded, with three rounds of ammu­
nition. When the couple was taken to a nearby police 
station, Mrs. Green was asked to empty the contents of 
her handbag. Detective Palmer found a Chemical Bank 
savings account withdrawal slip, bearing the hand-printed 
message: “This is a stick up we have guns I went [sic] all 
the money don’t push no button.”

The court allowed the holdup note to be received in 
evidence as to Mrs. Green only. It allowed the gun, the 
holster, and the three bullets to be received as to Green 
only.

The defendants did not present any evidence. The de­
fendant contends that the District Court abused its dis­
cretion in allowing the evidence to be received against him, 
asserting that the probative weight of the exhibits was far 
outweighed by their prejudicial effect. The claim is with­
out merit.

The reliability of the gun as evidence in the case on 
appeal is clear. Green was carrying it in the company of 
his wife who had in her handbag the handwritten note 
we have described. The gun is linked to the note. The note

5449



and gun, both of which were found in Green’s constructive 
possession shortly after the events described in apparent 
pursuit of the common plan and scheme, are proof that 
Green was accustomed in robbing banks to using a gun in 
conjunction with a note. Its relevancy can hardly be 
doubted. Indeed we think Judge Ward was too generous 
in excluding the note in Mrs. Green’s handbag so far as 
Green himself was concerned.

The relevance of this evidence clearly outweighs its 
potential for unfair prejudice. Fed. R. Evid. 403. See 
United States v. Ravich, supra; United States v. Robinson,
----- P .2d------ , slip op. 5021 (2d Cir., July 28, 1977) (en
banc).

Appellant complains that the photo spreads shown to 
the witnesses by the F.B.I. were impermissibly suggestive. 
We need not determine whether the photographs of other 
persons were so different from the facial contour of Green 
as to single him out by the process of exclusion, as ap­
pellant contends. For each teller and other bank witnesses 
had sufficient opportunity to view Green and his wife, 
and to fix the features of the pair in his or her mind. 
The Greens wore no masks, and the banks were well lit. 
The District Judge found that the eyewitnesses observed 
the pair for from one to four minutes. There is no “very 
substantial likelihood of irreparable misidentification.” 
Neil V. Riggers, 409 U.S. 188, 198 (1972); Simmons v. 
United States, 390 U.S. 377, 384 (1968); United States v. 
Burse, 531 F.2d 1151, 1155 (2d Cir. 1976).

The surveillance photographs themselves, the best evi­
dence when they are clear enough, show appellant in action 
during the robberies and attempted robberies with essential 
clarity. Additional proof that no misidentification was 
made is the similarity of technique used in the several hold­
ups, and the arrest of the pair in possession of a gun and a 
holdup note.

5450



The contention that the prosecution proof on Count 
Three, the attempted robbery of the First National City 
Bank, is insufScient, is without merit. Miss Yu’s descrip­
tion fitted appellant, and the surveillance photograph is 
clear enough to identify Green. See United States v. Fer­
nandes, 456 F.2d 638, 642 (2d Cir. 1972).

Nor is there any merit to appellant’s claim, made for the 
first time on appeal, that it was error to join in a single 
indictment the charges relating to the three separate rob­
beries. Appellant has caused some confusion on this point 
by relying upon Eule 8(b), Fed. R. Crim. P., which relates 
to joinder of defendants. This has led the government to 
conclude that he is attacking the joinder of his wife. What­
ever the claim, it is clear that the failure to move for a 
severance before trial under Eule 8 constitutes a waiver. 
Rule 12(b)(2) and 12(f), Fed. R. Crim. P .; United States 
V. PapadaUs, 510 F.2d 287, 300 (2d Cir.), cert, denied, 421 
U.S. 950 (1975). Nor did appellant move at trial for a 
severance under Rule 14 on the ground of prejudice. See 
United States v. Payden, 536 F.2d 541, 543 (2d Cir. 1976). 
Appellate review is foreclosed.

In any event, there is no merit to appellant’s claim of 
prejudice. The two defendants were alleged to have “par­
ticipated . . .  in the same series of acts or transactions 
constituting an offense or offenses,” Fed. R. Crim. P. 8(b), 
and “the offenses charged . . .  are of the same or similar 
character.” Fed. E. Crim. P. 8(a). The pattern of offenses 
was restricted to a short period of time, and to the mid­
town district of Manhattan; and the methods were the 
same in each instance. If ever there was a common scheme 
and plan permitting a joint trial of two defendants for 
multiple crimes, this was a classic example.

The judgment of conviction is affirmed.

5451



480-8-24-77  . TJSCA— 4221
MEHEN PRESS INC., 445 GREENWICH ST., NEW YORK, N. Y. 10013, (212) 966-4177

219