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United States v. Fleming

decided: October 23, 1974.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JAMES E. FLEMING, JR., RONALD LEE WILLIAMS, HENRY L. FLEMING AND KENNETH J. BEVINEAU, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Eastern District of Illinois - No. 73 100 E James L. Foreman, Judge.

Cummings, Stevens and Tone, Circuit Judges.

Author: Stevens

STEVENS, Circuit Judge.

James Earl Fleming, Jr., Kenneth J. Bevineau, Henry L. Fleming and Ronald Lee Williams were indicted on five substantive counts of bank robbery, under 18 U.S.C. § 2113 and § 2, and one conspiracy count, under 18 U.S.C. § 371. The indictments stemmed from the armed robbery of the First National Bank of East St. Louis, Illinois, on February 13, 1973.

After two days' testimony, during which several government witnesses present during the robbery identified him as one of the robbers, Ronald Lee Williams entered a plea of guilty on all six counts. The jury subsequently returned guilty verdicts against the remaining defendants on the five substantive counts.*fn1

Defendants James Fleming, Jr., Kenneth Bevineau, and Henry Fleming appeal from the convictions and the sentences imposed by Judge Foreman on five grounds: 1) the evidence was insufficient to support the convictions; 2) the defendants were prejudiced when the government put co-defendant Williams on the stand, after he had entered a guilty plea, knowing that Williams would refuse to testify and would assert his Fifth Amendment privilege against self-incrimination; 3) the trial judge erred in denying these defendants' motions for severance from the trial of co-defendant Williams; 4) The trial judge erred in admitting the testimony of Sidney Fleming and Bonita Thomas about a pistol allegedly used in the robbery and in other evidentiary rulings; and 5) Judge Foreman's sentencing of the defendants to serve consecutive sentences on multiple counts based on 18 U.S.C. § 2113 arising from a single bank robbery was improper. Defendant Ronald Williams also appeals on this last basis.

We find appellants' first four contentions to be without merit. We do, however, agree that Judge Foreman erred in prescribing multiple sentences for what was in fact a single bank robbery. Thus, we adjust the sentences of all four of the defendants.

I.

In challenging the sufficiency of the evidence, defendants Bevineau, James Fleming, Jr., and Henry Fleming correctly note that the government's case was to a large extent based on the testimony of Otis Phillips. Phillips was incarcerated in the St. Clair County Jail on a draft evasion charge during the summer months of 1973. He testified that he had spoken with each of the three defendants during this period of time and that each had confessed to having participated in the February 13 bank robbery. The confessions each linked the declarant with other of the defendants and described parts of the robbery in detail. Defendants challenge the admission of Phillips' testimony on several grounds.

Appellants recognize that normally the credibility of a witness is for the trier of fact, in this case the jury, to determine. They contend, however, that Phillips' testimony was "false as a matter of law" because of the discrepancies in the dates on which Phillips claimed to speak to the defendants and the actual dates on which the defendants were in the county jail.*fn2 These discrepancies go not to the admissibility of the evidence, however, but only to its weight. The discrepancies were noted and commented upon by defendants' counsel during closing argument. We think the jury properly considered them in determining Phillips' credibility.

Secondly, the defendants note that Phillips was still awaiting sentencing on the draft evasion charge when he testified in this case. They suggest that Phillips had, therefore, a motive for falsely testifying to aid the government's case. Suffice it to say that such a consideration once again goes only to the weight of Phillips' testimony and not to its admissibility. Defense counsel brought Phillips' status to the attention of the jury, and it was considered by them in determining his credibility.

Finally, the defendants object to the admission of Phillips' testimony because they contend the confessions were not adequately corroborated by other evidence. The Supreme Court has indicated that confessions must be corroborated before they may be admitted. Opper v. United States, 348 U.S. 84, 91, 99 L. Ed. 101, 75 S. Ct. 158; see also United States v. Pichany, 490 F.2d 1073, 1076-1077 (7th Cir. 1973). As the Court stated in Opper, "It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. . . . It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth." 348 U.S. at 93.

The Supreme Court explained the character of the corroboration that is required in Wong Sun v. United States, 371 U.S. 471, 489-490 n. 15, 9 L. Ed. 2d 441, 83 S. Ct. 407

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. (citation omitted) There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. (emphasis added).

See also United States v. Charpentier, 438 F.2d 721, 724-725 (10th Cir. 1971). Thus, the government's evidence of the corpus delicti was adequate to corroborate Bevineau's confession to Phillips that he participated as a lookout, and the Flemings' confessions as well.*fn3

Having concluded that Phillips' testimony concerning the three confessions was properly admitted, it is clear that, viewing the evidence in the light most favorable to the government, it was sufficient to convict these three defendants of the bank robbery. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. ...


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