United States v. Willis

¶6PER CURIAM:

¶7The appellant was charged in a two count indictment with aiding and abetting the robbery of a federally insured bank with the use of a dangerous weapon in violation of 18 U.S.C. §§ 2, 2113(a) and (d) (Count I), and with conspiring to commit said offense in violation of 18 U.S.C. § 371 (Count II). A jury acquitted appellant of Count II but on Count I found him guilty of a lesser included offense, bank robbery unaccompanied by the use of a dangerous weapon.

¶8Only a very brief discussion of the facts and proceedings below is necessary to our disposition of the contentions on appeal. It is undisputed that appellant drove co-indictees Johnny Lee Powell and Bobby Holmes1 to the bank immediately before it was robbed.2 It is also undisputed that some short time after arriving at the bank he *444observed Powell and Holmes running toward his vehicle in an excited fashion stating “let’s go.” After re-entering the automobile Powell and Holmes told appellant that they had just robbed the bank.3

¶9The appellant argues on appeal that, as a matter of law, he could not be found guilty of aiding and abetting if his first knowledge of the robbery came when Powell and Holmes ran out of the bank and into the automobile. At that point, it is urged, the robbery had already been consummated and appellants involvement was, at most, as an accessory after the fact. Appellant contends that his lack of prior knowledge (coupled with the fact that he was never present inside the bank) precludes his conviction as a principal.

¶10Even if we overlook the evidence indicating appellant’s guilty knowledge pri- or to the robbery, we are still left with his concession that he had been apprised of the robbery prior to the escape, and that is enough to implicate one as a principal. In Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967), cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968), we held that entry of the bank is not a necessary element of bank robbery. Moreover, we held that one who does no more than drive a getaway car may be as equally culpable as those actually entering the bank. That holding and the one herein derive from the premise that escape immediately following the taking is a necessary phase of most violent bank robberies4 — that is to say, the robbery is not a consummate transaction until the immediate removal phase comes to a halt. Or, as the Tenth Circuit has stated it: “The escape phase of a crime is not . an event occurring ‘after the robbery.’ It is part of the robbery. One who participates in and assists in the escape of the parties who were in the bank aids and abets the bank robbery . . . United States v. Von Roeder, 435 F.2d 1004 (10th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2264, 29 L.Ed.2d 713 (1971). We do not go so far as to say that a bank robbery cannot be deemed a completed transaction until the escape is undertaken because often completed bank robberies never reach the escape phase.5See United States v. Jarboe, 513 F.2d 33, 37 (8th Cir.), cert. denied, 423 U.S. 849, 96 S.Ct. 90, 46 L.Ed.2d 71 (1975). We do, however, agree with the following analysis advanced in United States v. Barlow, 152 U.S.App.D.C. 336, 470 F.2d 1245 (1972):

The gist of being an accessory after the fact lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the offender after he has committed the crime. Evidence of this offense is most frequently found in acts which harbor, protect and conceal the individual criminal such as by driving him away after he commits a murder. The very definition of the crime also requires that the felony not be in progress when the assistance is rendered because then he who renders assistance would aid in the commission of the offense and be guilty as a principal. . . . The crime of larceny obviously continues as long as the asportation continues and the original asportation continues at least so long as the perpetrator of the crime indicates by his actions that he is dissatisfied with the location of the stolen goods immediately after the crime and with no more than a few minutes delay causes another to continue the asportation. (Emphasis added.) Barlow, at 1252-53,

¶11*445Inasmuch as we hold that the appellant became an aider and abettor through his role as driver of the escape vehicle, we also reject his contention that the Court’s instructions were erroneous in permitting the jury to predicate his guilt on his escape role.6 As there is no reversible error in the proceedings below, the judgment of the district court is affirmed.7

¶12AFFIRMED.