UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: December 20, 1976.
UNITED STATES OF AMERICA
BRUCE BROWN, HENRY EARLEY, ERIC REDDING, ERIC REDDING, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-235).
Aldisert and Gibbons, Circuit Judges, and Joseph L. McGlynn, Jr.,*fn* District Judge.
GIBBONS, Circuit Judge.
Appellant, Eric Redding, appeals from a judgment of conviction for bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).*fn1 Appellant raises several issues, none of which is adequate to command reversal. Two of these issues, because they are likely to recur in other cases, warrant discussion.*fn2
The first issue involves an interpretation of Fed. R. Evid. 615 which relates to the sequestration of witnesses. After appellant's jury had been sworn but prior to the opening statements of either counsel, appellant's counsel requested, and the court ruled:
Appellant's Counsel: Your Honor, at this time I would request that the witnesses be sequestered prior to the time that Mr. McKay [the prosecutor] might make an opening statement to the jury.
The Court: Well, ordinarily we don't observe that practice unless there are some special reasons, so the motion is denied.
Appellant contends that this ruling violated Fed. R. Evid. 615, which reads:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
The advisory notes to Rule 615 read in part:
The authority of the judge [to sequester witnesses] is admitted, the only question being whether the matter is committed to his discretion or one of right. This rule takes the latter position. No time is specified for making this request.
We do not dispute that a party may request as of right that witnesses be excluded prior to the time that any opportunity exists for them to hear the testimony of other witnesses. We do not, however, construe a party's request for the exclusion of witnesses prior to opposing counsel's opening statement to be within the purview of Rule 615. Rule 615 relates exclusively to the time testimony is being given by other witnesses. Its language is clear and unambiguous: "the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." Even such a strong advocate of mandatory sequestration as Professor Wigmore*fn3 was of the view that the sequestration of witnesses was not appropriate during the opening statement of counsel.
"The time for sequestration begins with the delivery of testimony upon the stand and ends with the close of testimony.
It is therefore not appropriate during the reading of the pleadings or the opening address of counsel. . . ." 6 Wigmore § 1840.
Admittedly, there may exist a danger of improper suggestions to witnesses during counsel's opening statement, but that danger is not dealt with in Rule 615. The decision as to whether witnesses should be excluded prior to counsel's opening statement is committed to the discretion of the district court. Since appellant made no attempt to inform the district court why failure to exclude witnesses during the prosecutor's opening statement might prejudice appellant's case, we cannot say that the court abused its discretion in denying the motion.
Nor can we accept appellant's argument that the district court erred by failing to sequester the witnesses after the opening statement of counsel. Appellant made only one sequestration motion, and this motion specifically mentioned only the exclusion of witnesses prior to the prosecutor's opening statement. The district court was under no obligation to interpret this motion as a request for the sequestration of witnesses both before and after the opening statements of counsel. The advisory notes to Rule 615 state that "no time is specified for making the [Rule 615] request." This language, however, must be interpreted in light of the limited purpose of Rule 615. The purpose of this rule is to prevent witnesses from hearing the testimony of other witnesses. Appellant's motion was premature since no such possibility existed during the opening statement of counsel. If appellant desired sequestration after counsel's opening statement, he should have renewed the motion at the time the witnesses were to testify.*fn4 In rejecting appellant's contention we do not suggest any watering down of the mandatory language of Rule 615. For the guidance of the bar we do suggest that when such motions are made in a context where counsel's desires may be ambiguous, a greater level of specificity is advisable.
The second issue is whether the district court erred in failing to instruct the jury that specific intent is an essential element of a violation of 18 U.S.C. § 2113(a) (first paragraph) and (d).*fn5 Appellant relies on United States v. Howard, 506 F.2d 1131, 1133 (2d Cir. 1974), in support of his argument that specific intent is an essential element of such a violation. On this issue the Second Circuit is in the minority. We choose, instead, to align ourselves with the First and Ninth Circuits which have held that specific intent is not an essential element of a violation of § 2113(a) (first paragraph) and (d). United States v. DeLeo, 422 F.2d 487, 490-91 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S. Ct. 1355, 25 L. Ed. 2d 648 (1970); United States v. Hartfield, 513 F.2d 254, 259 (9th Cir. 1975); United States v. Porter, 431 F.2d 7, 9-10 (9th Cir.), cert. denied, 400 U.S. 960, 27 L. Ed. 2d 269, 91 S. Ct. 360 (1970). See also United States v. Lester, 287 F. Supp. 870 (E.D. Pa. 1967), aff'd 399 F.2d 161 (3d Cir. 1968). In so holding we rely on Judge Coffin's excellent statutory analysis of § 2113(a) and (d) in DeLeo, supra :
The offense described in the first paragraph of section 2113(a) - "analogous" to common law robbery, Prince v. United States, 352 U.S. 322, 324, 77 S. Ct. 403, 1 L. Ed. 2d 370 n.2 (1957), or "in the nature of robbery", Rawls v. United States, 162 F.2d 798, 799 (10th Cir. 1947) - is part of the statutory pattern to protect institutions whose deposits are federally insured. Six specific crimes are set out in section 2113. Felonious intent is specifically incorporated in the definition of two of them: entering a federally insured institution with intent to commit a felony (a - second paragraph), and taking property with intent to steal or purloin (b). However, it is not made part of the crimes of taking by force and violence or by intimidation (a - first paragraph); knowingly receiving stolen property (c); assaulting or putting in jeopardy the life of a person by a dangerous weapon (d); or killing a person, or forcing a person to accompany him, while in the course of committing one of the other offenses or avoiding apprehension or confinement for any of them (e).
This differentiation shows careful draftsmanship. Entering and taking can be innocent acts, and therefore require felonious intent to constitute crimes;*fn2 receiving stolen property can be innocent, unless done knowingly. However, the other offenses describe acts which, when performed, are so unambiguously dangerous to others that the requisite mental element is necessarily implicit in the description.*fn3 Contra: United States v. Margeson, Cr. No. 64-26 (D. Me. 1964). It therefore is immaterial for sections 2113(a) and (d) whether the subjective intent of a bank robber is to steal that to which he has no claim or to recover his own deposit; the crime is his resort to force and violence, or intimidation, in the presence of another person to accomplish his purposes. United States v. Lester, 287 F. Supp. 870 (E.D. Pa. 1967), aff'd. 399 F.2d 161 (3d Cir. 1968); Pitman v. United States, 380 F.2d 368 (9th Cir. 1967).
422 F.2d at 490-91.
The district court did not err in refusing to instruct the jury that specific intent was an essential element of an offense under § 2113(a) (first paragraph) and (d).
The judgment of the district court will be affirmed.
The judgment of the district court will be affirmed.