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United States v. Murray

decided: July 28, 1971.


Ganey, Van Dusen and Gibbons, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

Defendant James Robert Dixon appeals from an April 17, 1969, judgment and commitment entered after defendant was convicted by a jury on a charge of bank robbery*fn1 in the United States District Court for the District of New Jersey.

Two witnesses testified that a tall black man (subsequently identified as Murray) with a sawed-off shotgun entered a bank at Edison, New Jersey, on the morning of April 15, 1968, and ordered a teller to fill up a paper bag with United States currency. The drive-in teller of this bank testified that she saw both the tall black man (Murray) and a shorter black man wearing a shirt and dark pants in the parking lot prior to the robbery. The shorter black man remained in the parking lot during the robbery and the drive-in teller identified Dixon as the shorter black man in the parking lot "as well as I can recall" (N.T. 26).*fn2 After the money had been taken from the bank, this witness saw "the two men out in the parking lot again" (N.T. 18). Police Officer Barrett received a report that a 1968 Green Pontiac was the robbery car and stopped such a car about nine minutes later. Defendants Murray, Dixon and Hart were in the car with Brenda Eagle (Murray's girl-friend), as well as a paper bag with over $26,000 in currency and a sawed-off shotgun, etc. Additional police officers arrived and the occupants of the car were arrested. Pictures of the personal property inside the car were taken promptly and received in evidence.

Murray, for two months after his arrest, adhered to the position that he was the only person involved in the bank robbery (N.T. 104, 106, 109-12, 114, 116, 118, 149; Exhibits D-1, D-2). He changed his story after he was indicted (N.T. 188). Likewise, Mrs. Eagle, for one month after her arrest, adhered to the position that she was asleep in the car and was unaware that a bank robbery was even contemplated, and certainly unaware that it had been perpetrated, until after the occupants of the car were apprehended by the authorities. (Exhibits D-4, D-5, D-6; N.T. 240-41, 252-59, 265-66, 274).

In May 1968, and thereafter, Murray stated to FBI representatives that appellant acted as a lookout in the parking lot and that he transported the paper bag containing the money from the parking lot to the place where the Green Pontiac was parked during the robbery.

Defendant contends that his conviction should be reversed and that he should be granted a new trial because the trial judge improperly restricted defense counsel's cross-examination of two key prosecution witnesses. Specifically, defendant contends that the trial judge committed reversible error when he refused to permit defense counsel to cross-examine two key prosecution witnesses on whether their testimony was given in return for an agreement by the Government not to prosecute Brenda Mary Eagle on charges of aiding and abetting the bank robbery and harboring a fugitive. The first defense contention arises in the context of the testimony of Ronnie Lee Murray. Murray, a co-defendant, had entered a plea of guilty, and had testified that he had entered the bank and perpetrated the robbery, while defendant Dixon stayed outside the bank serving as a lookout (N.T. 8). Murray testified on cross-examination that he was in love with Brenda Mary Eagle, who had accompanied the defendants on their trip from Newark, New Jersey, to the bank that was robbed in Edison Township, New Jersey (N.T. 160, 169). The record reveals that the following then occurred:

"[Defense Counsel]: May I make my offer of proof? My offer of proof is that on April 16, 1968, the day after the alleged crime, that a commissioner's complaint was filed by the United States of America against Brenda Mary Eagle, Robert James Dixon and Jaddie Hart, and I want to show the jury that whereas originally Brenda Mary Eagle was part of this case when the complaint was filed against her growing out of this series of events, she is no longer part of this case, to allow the jury to infer that some sort of indication has been given to this witness that if he would cooperate -- and let them decide whether this cooperation includes lying, the jury -- that they would go easy on Brenda and not indict her.

"[Assistant U. S. Attorney]: Is this the complaint you are referring to?

"[Defense Counsel]: Yes.

"[Assistant U. S. Attorney]: We don't have it marked yet, but, your Honor, could we agree that the complaint charges a violation of Sections 3 and 1072? 3 is an accessory after the fact. Section 1072 charges harboring of Federal fugitives. These charges are not on trial before this Court. In effect this complaint charges Mr. Dixon and Mr. Hart with other crimes with which we are not now concerned. I think we run a risk to [defense counsels'] clients if these facts are brought out. I don't believe it is material as to the bank robbery charge.

"I submit that harboring a fugitive is utterly unrelated to the bank robbery.

"[Defense Counsel]: Brenda Eagle was charged with a crime growing out of a series of events. She is indicted in that complaint of a crime, and I would like the jury to know the sequence, namely, at one time she was charged in this case, and now she isn't.

"In the meantime, she has cooperated with the authorities.

"[Assistant U. S. Attorney]: He knows she is not charged in this ...

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