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United States v. D'argento

January 5, 1967


Duffy, Senior Circuit Judge, and Knoch and Castle, Circuit Judges.

Author: Duffy

DUFFY, Senior Circuit Judge.

After trial by jury, all defendants except Jean Schang were found guilty of violations of Title 18, U.S.C. ยง 2113 (Bank Robbery Statute). Defendant Jean Schang was charged with aiding and abetting the other defendants, but the jury found her not guilty.

Three groups of attorneys have and do represent one or more of the various defendants. All of the attorneys urge that the evidence was insufficient to sustain the guilty verdicts against their clients. All of them further contend that a lineup or showup conducted by agents of the Federal Bureau of Investigation resulted in violations of the Fifth Amendment prohibition against compulsory self-incrimination, and the Sixth Amendment right to counsel.*fn1 These issues make necessary a somewhat detailed description of the bank robbery and events occurring shortly thereafter; also a description of the manner in which the lineup was conducted.

Evidence received at the trial disclosed that on September 23, 1963, at approximately 11:30 a.m., four masked men entered the Franklin Park bank in Franklin Park, Illinois. The number 1 man stayed near the front door of the bank. He wore coveralls, a long dark coat and he had a head covering on his head over a mask. The bank president, Mr. Beck, testified this man weighed 150 to 160 pounds, was 5foot6inch to 5foot8inch in height and was of solid build and stature.

The number 2 man leaped over a railing and entered cages 8 and 9, passing closely by the bank president. This man shouted directions such as "Stay where you are," "stand still," and "don't move." The number 2 man was well built, about 6foot tall and weighed about 200 pounds. As did the others, he wrote a mask of T-shirt material with slits cut out over the eyes; he also wore dark gloves, one-piece coveralls, carried a revolver and also a cardboard carton upon which the name "Ballantine" appeared. This man took money from the cash drawers and placed it in the carton. The number 2 man then moved to other cages and gave directions such as "Get down on your knees" and "Cover your eyes."

The number 3 man was in the tellers' area behind the cages. He wore a coverall and a hood. The number 4 man was standing ten to twelve feet from where president Beck was standing. He was described as 5foot 10inch or 11inch in height, and weighing from 175 to 180 pounds. He wore a one-piece coverall, a light tan jacket and a tightly fitted mask. He also wore dark colored gloves and held a revolver. Witnesses noted that this man had an unusual posture, holding his head in a forward position with his chin jutting out.

The robbers obtained $43,000 in cash, and as the four men were running away from the bank, they got into a black 1963 two-door Chevrolet Impala driven by a fifth man. An employee of the bank had alerted the local police and as the robbers drove away, they were followed in hot pursuit by two police cars. During the chase, one of the police officers observed two flashes from the back window of the Chevrolet, and noted that the window broke out. After following the getaway car for a short distance, the police lost sight of it.

Shortly thereafter, four men were observed getting out of a black Chevrolet automobile in an alley which ran in a northerly and southerly direction, and which separated Dora Street and Sarah Street. The automobile stopped opposite a garage at the rear of 3115 Dora Street. One man was observed jumping over the east fence of the alley and proceeding eastward; the other three men went in a westerly direction and entered the garage on the west side of the alley at 3115 Dora Street.

The black automobile continued westerly at a high speed. However, a short time thereafter, two police officers of the Franklin Park Police Department discovered a black 1963 Chevrolet automobile in the garage at the rear of 3115 Dora Street, the rear window of which was shattered. Two workman's caps, a used M-1 carbine shell and a white T-shirt with slits cut out were among the articles found in the automobile. A search of the house at 3115 Dora Street disclosed an M-1 carbine rifle, a pair of gloves and a "Ballantine" carton.

A brown coat containing a 25 caliber automatic pistol, a jacket and a pair of brown cotton gloves were found in a neighboring back yard. In front of the house at 3115 Dora Street, coveralls were found containing a 38 caliber snub-nosed revolver.

The residence at 3115 Dora Street was owned by Frank DeLegge, an uncle of the defendant LaJoy. A neighbor, Mrs. Sampson, upon hearing a screeching noise from outside, ran out of her house. She heard a door on the house at 3115 Dora Street close, and saw three men in the driveway. She identified one of them as LaJoy. She had seen him there previously on five different occasions. She also identified defendants Joseph D'Argento and Patrick Schang as being in the driveway at that time.

FBI agent Green testified he was the agent in charge of the investigation of the Franklin Park bank robbery. Between 3 p.m. and 5 p.m. on September 23, 1963, he was officially informed that warrants had been issued for the arrest of each of the defendants pursuant to an indictment which had been returned earlier that day. Plans were made by the FBI for a coordinated, simultaneous arrest of all of the defendants in their homes at 5 a.m. the next day. The agents were further instructed to make a search incidental to such arrests. Plans also were made for a lineup in which the participants would be asked to repeat certain phrases and words that had been used by the robbers during the bank robbery.

The lineup was held in an ordinary large room in the FBI office with normal hanging ceiling fluorescent light fixtures. The rear lights were turned off and the front lights turned on so that the people in the lineup would not be able to clearly see the witnesses attending the lineup. Two separate lineups involving two different groups of witnesses were carried on so that the witnesses might be kept separate and not ...

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