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United States v. Levine

December 21, 1965

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOEL FRANKLIN LEVINE, DEFENDANT-APPELLANT



Schnackenberg, Knoch and Castle, Circuit Judges.

Author: Schnackenberg

SCHNACKENBERG, Circuit Judge.

Joel Franklin Levine, defendant, has appealed from a judgment of the district court, based on a jury verdict finding him guilty of bank robbery as charged in count 1 of an indictment.

Count 1, in effect, charged that Levine and certain named persons,*fn1 on or about April 2, 1964, at Rockford, Illinois, took from certain named and unnamed employees of the Alpine State Bank, Rockford, Illinois, the deposits of which were then insured by Federal Deposit Insurance Corporation, approximately $27,754.60 in money then in the care and possession of said bank, and in so doing they put said employees in jeopardy by the use of a firearm, in violation of 18 U.S.C. § 2113(a) and (d).

In count 2 the indictment charged that on or about December 11, 1963, at said Rockford, Levine and another person (Smith) by force, willfully took from the person and presence of certain named and unnamed employees of said bank similarly insured deposits amounting to approximately $36,103, and did with a firearm put the lives of said employees in jeopardy, in violation of 18 U.S.C. § 2113(a) and (d).

According to his counsel, the basic issue is the fundamental fairness of defendant's trial in that, while defendant was tried and convicted on a single count of robbing said bank on April 2, 1964, during the course of the trial the Government repeatedly injected the charge that defendant had also robbed the same bank on December 11, 1963.

1. In support of his contention in this court, defendant's counsel is required to fully comply with the rules of this court so that we may be fully informed of everything in the trial court record relevant to that contention. Notwithstanding that requirement and especially the express language of our rule 16, no appendix, either printed or typewritten, was filed. While we did waive the printing of the record and permit the filing of typewritten briefs, the filing of an appendix was not waived. Without such appendix we are confronted with the task of examining 635 mimeographed pages of trial proceedings. We have repeatedly held that, unless waived by the court, such an appendix must be filed by appellant. United States v. Dixon, 7 Cir., 343 F.2d 510, 511 (1965), and cases there cited.

Nevertheless, we assume that court appointed counsel for appellant in this case is undoubtedly rendering his services without remuneration and, for that reason, we wish to alleviate the situation which exists due to the absence of an appendix. So we shall assume as correct the statement of facts as set forth in the government's brief, which has not been questioned by appellant's counsel.

2. After the jury was sworn to try the issues, the prosecutor read to the jury both counts of the indictment and stated:

"* * * I am going to limit myself to the evidence to be heard under the first count of the indictment, the April 2, 1964, robbery. * * *"

At the conclusion of the statement, defense counsel for Smith (Mr. Schirmer) stated:

"May it please the Court, I have heard nothing in the opening statement concerning December, 1963."

The Court asked:

"Did you intend to say nothing in your opening statement about the evidence which you propose to offer in connection with the other count?"

Mr. Zvetina (Government counsel):

"That is right, your Honor."

The prosecutor stated:

"Well, I waive on Count ...


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