Seitz, Van Dusen and Adams, Circuit Judges.
VAN DUSEN, Circuit Judge.
This is an appeal from a conviction for aiding and abetting three co-defendants in the commission of an armed robbery of a bank on May 26, 1969, in violation of 18 U.S.C. §§ 2113(a), 2113(b), 2113(d) and Section 2 of Title 18. Defendant Chaney was found guilty of all four counts and on January 22, 1971, was sentenced to eight years' imprisonment. Co-defendant Sheppard was also convicted. However, the jury acquitted co-defendant Williams and the court granted co-defendant Anderson's motion for judgment of acquittal. After trial, a hearing was held by the court at which evidence was received concerning defendant Chaney's pro se motion attacking the verdict on the grounds that he was denied effective assistance of counsel. After completion of the hearing, argument was heard on defendant Chaney's motions for a judgment of acquittal and/or a new trial, and they were denied. This appeal from the January 22, 1971, sentence followed.
I. Claimed Insufficiency of Evidence to Support The Verdict
Chaney first claims that the evidence was legally insufficient to sustain a verdict of guilt on any of the four counts. He maintains that the testimony of Government witness Meginley was mere speculation and therefore inadmissible. We disagree.
Meginley's testimony indicated that the vehicle used as a get-away car in the bank robbery was the vehicle borrowed by Chaney from witness Mathis on the day of the robbery. Meginley testified that on May 26, 1969, while he was in a public telephone booth about 1:30 P.M., he observed two or three men, one of whom was holding a bag, running towards him. They entered a parked vehicle being operated by a black man. He saw the driver's back and arm, from which he estimated that he was heavy set, weighed about 220 pounds, and was about 45 years old.*fn1 Before the vehicle sped away, Meginley was able to note the number on the license plate and a general description of the car. He testified that the license number was Pennsylvania 898-280 and described the vehicle as a 1962 Chevrolet with a tan or bronze color body and a black vinyl or convertible top.*fn2 The next day, in the company of FBI agents, he identified a car belonging to witness Mathis as of "similar appearance" to the one observed on May 26. He testified that the license plate number was Pennsylvania 898-28A, and the vehicle was a 1962 Chevrolet and had a tan or light brown color. He testified that the only difference between the cars he observed on May 26, 1969, and on May 27, 1969, was that the latter had a damaged fender. Two of the FBI agents who accompanied Meginley on the 27th testified that the car Meginley observed on that date had license plate 89A-280 and was a 1962 Chevrolet which was grayish or tannish in color.*fn3 Contrary to Chaney's contention that the trial judge should have instructed the jury on his own initiative that this testimony was incompetent, we have concluded that the testimony on this point was admissible and, at the least, that its receipt was not plain error. See F.R.Crim.P. 52. The similarity of the cars identified on the 29th and 30th was striking, both as to license plate numbers and general description.*fn4 Any discrepancies in the testimony were properly left to evaluation by the jury.
There was other circumstantial evidence supporting the conclusion that the vehicle used as a get-away car in the robbery belonged to Mathis and was borrowed by Chaney on the date of the robbery. Mathis testified he had loaned the car to Chaney about three times, once on a Monday in May or June 1969. On that date Chaney picked up the vehicle between 8:30 and 9:30 A.M. Chaney telephoned Mathis between 12:00 and 2:30 P.M., advising him that he could not get the car started and had left it at Lancaster Avenue. Chaney returned the keys to him later between 2:30 and 3:30 P.M.
The jury was presented with additional evidence connecting Chaney to the crime. For example, witness Taylor testified that on the day she left to return to Detroit with Sheppard, Sheppard and Chaney had left together from Chaney's home sometime after 11:30 A.M., returning in the afternoon. Witness Walker observed Chaney and Sheppard together the night before the robbery. Also, the exculpatory statement by Chaney given to agent Culpepper was false in several respects.*fn5 The evidence of the flight to Detroit and the fact that Chaney had $800. in his possession about May 29th further supported the verdict.
An examination of all the evidence, including that recounted above, leads us to the conclusion that the evidence against the defendant Chaney made out a strong enough case to permit a jury to find defendant guilty. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959); United States v. Allard, 240 F.2d 840 (3d Cir. 1957); United States v. Kemble, 197 F.2d 316 (3d Cir. 1952).
In reaching this conclusion, we state our agreement with the analysis of Judge Fullam stated at the time he denied the post-trial motions on November 6, 1970 (pp. 149-150 of Document 43), as follows:
First, let me say that on the basis of all of the evidence I think the jury could reasonably conclude that the car which sped away from around the corner from the bank was the getaway car for the robbers, that the people who entered the car were the people who robbed the bank.
In short, in my judgment that is what we have juries for. It is to sift the evidence, draw the inferences, and come to a conclusion within the limits of their oaths.
While, as I say, I believe this is a fairly close question, I am not disposed to disturb the ...