United States v. William T. Panza, United States of America v. John Tates

612 F.2d 432
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 12, 1980
Docket78-3291, 78-3532
StatusPublished
Cited by77 cases

This text of 612 F.2d 432 (United States v. William T. Panza, United States of America v. John Tates) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William T. Panza, United States of America v. John Tates, 612 F.2d 432 (9th Cir. 1980).

Opinions

SKOPIL, Circuit Judge:

Defendants Panza and Tates appeal their convictions for armed robbery and conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 2113(d) and 371. Defendant Panza took the stand during the trial. Defendant Tates did not. The principal issue on appeal is whether the district court abused its discretion by striking Panza’s testimony based upon his refusal to answer various questions during cross-examination that went to the heart of his defense. Defendants also raise several other complaints about other aspects of their trial. We note jurisdiction under 28 U.S.C. § 1291, and affirm.

I. Facts.

On February 28,1978 two gunmen robbed the Southwest Bank located in Solana Beach, California. Both gunmen wore ski [435]*435masks and carried cloth bags or pillowcases into which they stuffed the money. The robbery was executed in a “take-over” fashion, i. e., one gunman ordered everyone without money to lie on the floor while he robbed the tellers in the bank lobby; the other gunman ordered bank officials to open the vault and then took money from the vault. One gunman carried a bell timer which sounded while the other gunman was still in the vault. The first man called out to the second that it was time to leave, the tellers were instructed to lie on the floor until the robbers had gone, and the robbers departed with $37,581.

An FBI agent heard a broadcast of the description of the robbers and of the robbery and immediately thought of defendants, who had been implicated in three prior bank robberies in which a similar modus operandi had been used. The agent radioed for other agents to be sent to the defendants’ homes. Agent Barnett responded to this call and proceeded to the Panza residence. When he arrived at the parking lot of the apartment complex where Panza lived, he saw defendants depart from a small brown car driven by a blonde female. Barnett parked and observed the defendants. He testified that the defendants talked with one another for thirty to forty seconds after leaving the car, and scanned the area as they talked. Both defendants carried partially-filled pillowcases; Tates also carried a brown bag. The defendants then headed toward the apartment building, and the brown car departed. Agent Barnett tried unsuccessfully to follow the brown car. He then returned to the apartment complex and observed Tates’ car. Shortly thereafter Tates came out of the apartment complex still carrying a brown bag and a pillowcase, and got into his car. Panza got into the car a few seconds later. Tates then drove his car out of the lot, followed by Agent Barnett in one car and another agent in a second car. The agents overtook the defendants approximately one-half mile later and, after defendants refused to stop, the agents forcibly prevented their escape.

The agents found the following items in Tates’ car: pillowcases and brown bags containing $37,479 in cash (including $400 in “bait money” from the Southwest Bank), two ski masks, two pairs of gloves, various articles of clothing, a bell timer, a fully-loaded Smith & Wesson magnum, a loaded .38 caliber revolver, deposit slips from the Southwest Bank, and a bank wrapper for $100 bills. When apprehended, Tates had five .38 caliber cartridges in the pocket of his jogging suit. At trial the items found in the car were identified as the same or similar to the items used by the bank robbers. A stolen car that had been used as the getaway vehicle was found abandoned several blocks from the bank the day after the robbery.

II. The Prosecution.

On March 18, 1978, a three count indictment was returned against defendants, charging them with violations of 18 U.S.C. §§ 2113(a), (d) & 371. Defendants were tried in a joint trial from May 9 to 12,1978. Defendant Panza took the stand during the trial; defendant Tates did not. Panza offered the following defense during his direct testimony: He had not committed the bank robbery, but merely had been recruited by an unnamed individual referred to at trial as “Number 1” to steal a car and to use his own car to transport some stolen goods for Number 1 and his partner, who was referred to at trial as “Number 2.” Panza claimed that he stole a car on February 28, 1978, for Number l’s use, made his rendezvous with Numbers 1 and 2, received the goods that he had agreed to carry, and that he then was supposed to meet Numbers 1 and 2 at one of their apartments to redeliver the loot. Panza claimed that because his own car began to overheat on the way to redeliver the money, he drove to his own apartment building, saw Tates, and asked Tates to drive him to the appointed meeting place. Panza asserted that he and Tates were apprehended by the FBI agents while on the way to deliver the stolen money to Numbers 1 and 2.

Panza stated during his direct testimony that he would not reveal the name of Num[436]*436ber 1 because Number 1 was dangerous, causing him (Panza) to fear for his life and for his family’s safety. He also indicated that his safety would be placed in jeopardy should he be sent to prison. The prosecution asked Panza the following questions during cross-examination, all of which he refused to answer: (1) Whether he had ever traveled to Los Angeles with defendant Tates; (2) Whether he knew a man by the name of Willard Robinson (a person suspected of involvement in other robberies in which defendants had been implicated); (3) Whether he knew if Tates knew Willard Robinson; (4) Whether he liked to stay in physical shape; (5) Whether he ever went jogging with Tates; (6) Whether he ever went jogging with Tates and Robinson; (7) Whether he knew what type of car Robinson drives; (8) What was the name of Number 1; and (9) When did he first meet Number 1? Panza refused to answer these questions, asserted a Fifth Amendment privilege, and claimed that his refusal to answer questions about Number 1 stemmed from his fear of reprisal. The trial judge informed Panza that his continued refusal to answer questions about Numbers 1 and 2 during cross-examination was not privileged, and that if he persisted in his refusal to answer, the court would order his entire testimony to be stricken from the record. Panza continued to refuse to answer the questions. The district judge then ordered Panza’s testimony stricken and instructed the jury to disregard it in its entirety. During the course of the trial the court also struck or excluded the testimony of four other defense witnesses on the basis that their testimony was irrelevant.

The jury convicted both defendants of armed robbery and conspiracy to commit bank robbery. Each defendant received a twenty year sentence for the robbery and a five year sentence for the conspiracy; the sentences run concurrently. Tates filed a motion for new trial based upon Panza’s post-trial affidavit purporting to reveal the name of Number 1. The district court denied the motion for new trial.

III. Contentions on Appeal.

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Bluebook (online)
612 F.2d 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-t-panza-united-states-of-america-v-john-tates-ca9-1980.