Caseflicks

Court of Appeals for the Ninth Circuit • 1976

United States v. Curtis Bowser

532 F.2d 1318 | 1976 U.S. App. LEXIS 12148

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Takeaway

In short, this case holds that a teller’s willing participation in a staged bank robbery does not convert the unauthorized taking of bank funds into mere embezzlement when the bank itself did not consent.

Background

Curtis Bowser, bank teller Sharon Held, and Robert Farrelly planned a staged robbery of Crocker Bank in San Francisco. Farrelly handed Held a note threatening violence and demanding large bills. Held gave him $5,158.37 of the bank’s money; Farrelly placed it in an attache case, left the bank, and joined Bowser in a getaway car. Held then reported that she had been robbed. The evidence permitted the jury to find that Bowser waited outside as the getaway driver and had conspired with both participants.

A three-count indictment charged all three defendants with entering a bank with intent to commit bank larceny under 18 U.S.C. § 2113(a), bank larceny under § 2113(b), and conspiracy to commit bank larceny under § 371. Held and Farrelly pleaded guilty to the conspiracy count, and the remaining counts against them were dismissed. Bowser went to trial, asserted an alibi, and was convicted by a jury on all three counts.

On appeal, Bowser argued principally that the proof established employee embezzlement under 18 U.S.C. § 656 rather than bank larceny, creating a fatal variance from the indictment. He also challenged the search of his apartment, alleged prosecutorial misconduct, and objected to certain testimony admitted at trial.

Issues

Issue #1

Whether the indictment for bank larceny and conspiracy to commit bank larceny fatally varied from proof that the teller willingly participated in the staged robbery.

Holding

No. The evidence established a trespassory taking from the bank and therefore supported bank-larceny charges under §§ 2113(a) and (b), rather than limiting the prosecution to employee embezzlement under § 656.

Reasoning

Although Held initially possessed the bank’s funds lawfully as a trusted teller, she acted adversely to the bank when she delivered its money to Farrelly, a person plainly not entitled to possess it. Her cooperation did not make her delivery an authorized transfer by the bank; it facilitated the taking and carrying away of bank property without the bank’s consent.

The purported robbery was not a sham from the bank’s perspective. The conspirators may have agreed that Held would feign intimidation, but the bank neither consented to nor participated in the removal of more than $5,000. Thus, the taking was real and trespassory as against the bank, regardless of the teller’s willing involvement.

LeMasters and Bennett did not require reversal because neither involved a trespassory taking. In those cases, the bank intended to part with the funds, albeit because of fraud or other wrongdoing. Here, by contrast, the teller’s adverse conduct could not supply the bank’s consent.

United States v. Brown was controlling in principle. Brown held that a bank larceny occurred where a teller cooperated in a purported robbery, even though she was implicated in the scheme. Whether Held acted from fear, persuasion, greed, or another personal motive did not alter the decisive fact: the bank’s money was taken without the bank’s consent.

Issue #2

Whether the affidavit supporting the warrant to search Bowser’s apartment established probable cause and was impermissibly stale.

Holding

No. The affidavit supplied probable cause, and the information was not stale.

Reasoning

The FBI agent’s affidavit relied in part on Farrelly’s confession against his penal interest and included sufficient details linking Bowser and his apartment to the offense. Those circumstances satisfied the applicable probable-cause standard.

The month between Farrelly’s last observation of the items in Bowser’s apartment and the warrant application did not make the information stale. The government sought the warrant on the day Farrelly disclosed the information, and the items sought—a suit, attache case, and red felt pen—were ordinary, non-contraband objects likely to remain in Bowser’s residence.

Issue #3

Whether the prosecutor’s examination and closing argument amounted to prejudicial misconduct.

Holding

No. The record did not show prejudicial misconduct.

Reasoning

Held testified that she had used a mind-affecting substance on the morning of the crime, but her answer did not expressly implicate Bowser. The court sustained an objection to further questioning, and Bowser did not move to strike the original answer. The isolated testimony was not shown to be prejudicial or necessarily irrelevant to the witness’s observations.

The prosecutor’s statement in summation that 'somebody is committing perjury' was made in response to defense counsel’s own characterization of the case as one in which someone was lying. Bowser did not object at trial, and the prosecutor did not improperly vouch based on personal knowledge. The court therefore found no plain or other prejudicial error.

Issue #4

Whether the admission of testimony concerning Farrelly’s post-conspiracy statement and Bowser’s alleged encouragement of Held’s prostitution required reversal.

Holding

No. Even assuming error in admitting either item, any error was harmless beyond a reasonable doubt.

Reasoning

A witness testified that Farrelly said he, Bowser, and a girl had robbed a bank. Because the statement was made after the conspiracy, it was not admissible under the co-conspirator doctrine. The court declined to resolve whether it was admissible under preexisting law to rehabilitate Farrelly after Bowser attacked his credibility, because any possible error could not have affected the verdict in light of the other evidence.

Held’s testimony that Bowser had encouraged her prostitution was likewise insignificant when considered against the substantial evidence of his participation in the planned bank theft and his relationship with Held. The proof of guilt was overwhelming, so the challenged testimony could not have substantially affected the trial’s outcome.