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UNITED STATES v. BOATWRIGHT

January 21, 1977

UNITED STATES OF AMERICA
v.
GARY BOATWRIGHT



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 Gary Boatwright was indicted for bank robbery and conspiracy, based upon his alleged participation in a robbery of the branch of the Central Penn National Bank located at Malvern and Lancaster Avenues, Philadelphia, Pennsylvania, on January 16, 1976. Along with his co-defendants, Franklin James Carey and Mack Clark, Jr., Boatwright was charged with four counts of bank robbery, 18 U.S.C. §§ 2113(a), (b), (d), and one count of conspiracy, 18 U.S.C. § 371. Boatwright and one of the co-defendants, Clark, were tried together before a jury, which found each of them guilty on all five counts; Carey, the other co-defendant, who had previously pleaded guilty to all five counts, appeared as a witness for the prosecution against them.

 Boatwright filed no pretrial motions, prior to the commencement of his trial on June 23, 1976; nor did he file any post-trial motions after the verdict was taken on July 2, 1976, even though we granted an extension of time until July 19, 1976, for filing post-trial motions. Sentencing was scheduled for October 8, 1976; we ordered the Probation Department to conduct a presentence investigation and to prepare a pre-sentence report in advance of that date. After a review of the report, which was made available to counsel for defendant, and of the matters elicited at that hearing, we sentenced Boatwright, under the provisions of the Youth Corrections Act, 18 U.S.C. §§ 5010(b), 5017(c). No motion for reduction of sentence has been filed. However, Boatwright did file a Notice of Appeal, on October 18, 1976; that appeal is now pending before the United States Court of Appeals for the Third Circuit. Because no post-trial motions were filed with us, no prior opinion has issued in this case. Accordingly, at this juncture, for the benefit of the Court of Appeals, we will review certain rulings which we made from the bench during the course of the trial, rulings that in whole or in part may serve as a basis for the appeal.

 With nothing concrete before us as to the basis for the appeal, we will review five bench rulings which are the only ones which can conceivably be the grounds for Mr. Boatwright's appeal; for the reasons to be outlined, three of them, which apply solely to Clark, not only lack merit, but involve matters which Boatwright has no standing to raise; the other two claims which can be made on Boatwright's behalf also are lacking in merit. The rulings are as follows: (1) permission to the government on re-direct examination of Franklin Carey to elicit testimony over objection of defendant Clark's attorney, that Carey had no record of prior arrests; (2) the grant of the government's request that defendant Clark be required to put on a wig, Government's Exhibit G-1, for purposes of identification by a bank teller, over objections voiced by both defense counsel; (3) our denial of defendant Boatwright's Motion for Judgment of Acquittal, submitted pursuant to F.R. Crim. P. 29(a) at the close of the government's case-in-chief; (4) our refusal to permit defendant Clark to call two alibi witnesses, for failure to provide the government with the notice of alibi required by F.R. Crim. P. 12.1; and (5) our refusal to give the jury an instruction concerning expert witnesses, which counsel for defendant Boatwright had submitted.

 We emphasize, again, that neither defendant sought post-trial relief, with respect to any of the enumerated bench rulings, nor with respect to any other matter. However, in the event that any or all of these rulings may form the basis for the appeal, we believe it to be useful to state the reasons for our decision as to each issue.

 II. Discussion of Rulings (1), (3), (4) and (5)

 (1) Lack of prior arrests. During re-direct examination of Franklin Carey, the government's principal witness, counsel for the government attempted to elicit testimony with respect to Carey's lack of prior arrests. Although counsel for defendant Clark objected, we overruled the objection and permitted the testimony, on the basis that counsel for Clark and counsel for Boatwright had both engaged in "the most vigorous attempt to bring the character and credibility into question." (NT 3:5) Carey, an original codefendant who had pleaded guilty to the indictment, had, during the course of a lengthy direct examination, identified both Clark and Boatwright as participants in the bank robbery, and had testified extensively as to their involvement in the planning and execution of the robbery. During cross-examination, both defense counsel assailed Carey's character and credibility at great length (see, NT 2:63-126). Carey was cross-examined as to his own mental stability, his emotional problems, his behavior during a brief stint in the Army, and his motive for participating in the bank robbery; he was questioned as to the substance of his plea bargain with the government, as well as to his motive for cooperating with the government, by serving as a prosecution witness. In addition, questions by defense counsel suggested that Carey had some involvement with drugs, including possibly illegal drug involvement (NT 2:86), and that Carey had prior experience in robbery, generally, and possibly bank robbery in particular (NT 2:90-91).

 In light of such broad and far-ranging attacks upon Carey's character and credibility, we again reaffirm our prior ruling, in upholding the admission of Carey's testimony as to the lack of prior arrests; such testimony was, as we stated at the time, "the most appropriate redirect examination [we] have ever heard." That testimony was clearly admissible; the scope of redirect examination is within the sound discretion of the trial court. See, U.S. v. Hodges, 480 F.2d 229, 233 (10th Cir. 1973); and Chapman v. U.S., 346 F.2d 383 (9th Cir. 1965), cert. denied, 382 U.S. 909, 15 L. Ed. 2d 161, 86 S. Ct. 249 (1965).

 With these standards in mind, we reaffirm the basis for that ruling, on the ground that the trial record clearly called for denial of the motion; the testimony of Carey, and of the numerous other government witnesses, justified submission of the case to the jury. Defense Counsel's vigorous attack on the credibility of those witnesses, raised questions which were to be weighed and evaluated solely by the jury in arriving at its verdict.

 (4) Exclusion of alibi testimony. One of the defendants, Clark, attempted to offer the testimony of two alibi witnesses; the government objected, on the basis of the defendant's failure to comply with the notice of alibi provisions set forth in F.R.Crim.P. 12.1; we sustained that objection. We reaffirm the propriety of that ruling.

 Initially, we seriously question the standing of Boatwright to complain about the ruling since the putative alibi testimony would have been on defendant Clark's behalf; we cannot see how it bears on Boatwright's conviction. Any claim by Boatwright of a denial of his right to a fair trial, or of due process, based upon exclusion of certain testimony offered by his co-defendant, Clark on his own behalf only -- testimony which has never been alleged to be relevant to Boatwright's guilt or innocence -- cannot seriously be entertained. Indeed, it is significant that Boatwright and his counsel expressed their disinterest by their absence when we ...


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