APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Crim. No. 76-123
Before Gibbons and Hunter, Circuit Judges, and Stapleton,*fn* district judge.
In this case appellant Milton Bailey challenges his conviction for armed bank robbery. Although Bailey has raised several grounds on appeal, we find merit only in his contention that the introduction of certain evidence was error.*fn1 We reverse and remand for a new trial.
On February 6, 1975, two men robbed a branch office of the Colony Federal Savings and Loan Association in Aliquippa, Pa. Five persons in the bank at the time of the robbery were ordered to lie down on the floor as the robbers rifled the tellers' cash drawers. The robbers fled the Bank and made their escape by car.
Before the two had entered the bank, a young boy noticed them and became suspicious. The boy made mental notes of the car's description and out-of-state license plate number. Hiding behind nearby church-steps, the boy waited until after he saw the two leave the bank quickly and run toward the car. He ducked out of sight until the car left, and when policemen arrived, the boy came forward with his information.
Inspecting the area where the boy said the car had been waiting, a police officer found a number of twenty dollar bills strewn along the curb. The car described by the boy was registered to Mrs. Regina Dorsey. When questioned by the FBI, Mrs. Dorsey stated that on the day in question her daughter's boyfriend, Milton Bailey, had been left in possession of the car. During the investigation, several witnesses to the robbery were shown photographic displays. Two picked Bailey out of one of the displays as appearing to have been one of the robbers. At Bailey's trial, however, no witness was able to identify Bailey positively as one of the robbers.
Palm prints removed from a teller's counter at the bank were identified as having been made by Johnny Bernard Stewart. Stewart was arrested, and after plea negotiations agreed to plead guilty. The terms of the agreement required Stewart to furnish a statement regarding the robbery, and to testify at any future proceedings concerning the robbery. In return, the government agreed to move for dismissal of one count of the two-count indictment brought against Stewart.
Prior to his sentencing, Stewart gave two oral statements to the FBI. The latter, made on April 29, 1976, was transcribed by an FBI agent. Stewart signed that statement, acknowledging that it was true. Both statements outlined Stewart's own involvement in the Colony Federal robbery and named Milton Bailey as the second bank robber. Stewart had counsel present at the time he made his agreement with the government and when both statements were made. One count of the indictment was dismissed pursuant to Stewart's agreement with the government, and he was sentenced several months prior to Bailey's trial.
Bailey was indicted on June 9, 1976. During his trial, the government learned that Stewart would refuse to testify concerning his earlier statements. Out of the presence of the jury, Stewart was brought before the trial judge, and the following colloquy occurred.
The Court: No, he doesn't have to be sworn.
Mr. Stewart, stand up here.
I understand from the United States Attorney that if you are called as a witness in the case of the United States v. Mr. Bailey, that you will refuse to testify. Is that correct?
The Court: On what basis?
Mr. Stewart: Because I don't see where it will help me or hurt me.
The Court: It will hurt you if you don't testify, because I order you to testify.
Mr. Stewart: Well, I refuse.
The Court: Fine. I instruct the United States Attorney to prepare a criminal charge for contempt of this Court because I have ordered the ...