United States v. Enoch Stanley Harvey, 439 F.2d 142 (3rd Cir. 1971). · Go Syfert
Search
United States v. Enoch Stanley Harvey, 439 F.2d 142 (3rd Cir. 1971). Cases Citing This Book View Copy Cite
6 citation events across 4 distinct courts.
Strongest positive: United States v. Milton Hawkins (ca3, 1987-02-03)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Milton Hawkins (2×)
3rd Cir. · 1987 · confidence medium
United States v. Harvey, 439 F.2d 142, 143 (3d Cir.), cert. denied, 403 U.S. 934 , 91 S.Ct. 2264 , 29 L.Ed.2d 713 (1971); see also United States v. McKenzie, 414 F.2d 808, 811 (3d Cir.1969).
discussed Cited as authority (rule) United States v. John Michael McCambridge
1st Cir. · 1977 · confidence medium
E. g., United States v. Pellegrino, 470 F.2d 1205, 1209 (2d Cir. 1972), cert. denied, 411 U.S. 918 , 93 S.Ct. 1556 , 36 L.Ed.2d 310 (1973); United States v. Thomas, 469 F.2d 145 , 146 n. 3 (8th Cir. 1972), cert. denied, 410 U.S. 957 , 93 S.Ct. 1429 , 35 L.Ed.2d 690 (1973); United States v. Harvey, 439 F.2d 142, 143 (3d Cir.), cert. denied, 403 U.S. 934 , 91 S.Ct. 2264 , 29 L.Ed.2d 713 (1971); Levine v. United States, 430 F.2d 641, 643 (7th Cir. 1970), cert. denied, 401 U.S. 949 , 91 S.Ct. 962 , 28 L.Ed.2d 232 (1971); United States v. Trollinger, 415 F.2d 527, 528-29 (5th Cir. 1969); United Sta…
discussed Cited "see" United States v. Richard T. Pellegrino and William Walter Price
2d Cir. · 1973 · signal: accord · confidence high
Accord, United States v. Harvey, 439 F.2d 142, 143 (3rd Cir.), cert. denied, 403 U.S. 934 , 91 S.Ct. 2264 , 29 L.Ed.2d 713 (1971); United States v. Weisscredit Banca Commerciale E D'Investimenti, 325 F.Supp. 1384, 1395 (S.D.N.Y.1971).
Retrieving the full opinion text from the archive…
UNITED STATES of America
v.
Enoch Stanley HARVEY, Appellant
19386.
Court of Appeals for the Third Circuit.
Mar 12, 1971.
439 F.2d 142
Lawrence Friedman, Newark, N. J., for appellant., Frederick B. Lacey, U. S. Atty., Newark, N. J., for appellee; George J. Koel-zer, Asst. U. S. Atty., Newark, N. J., on the brief.
Freedman, Seitz, Rosenn.
Cited by 6 opinions  |  Published

OPINION OF THE COURT

PER CURIAM:

Defendant appeals his conviction and sentence, after a jury trial, under an indictment charging him in Count I with bank robbery, 18 U.S.C. § 2113(a), and in Count II with placing the lives of persons in jeopardy by use of a dangerous weapon during a bank robbery, 18 U.S.C. § 2113(d).

[*143] Defendant asserts first that the district court’s charge was in effect confusing, suggestive, and erroneous in that it permitted the jury to convict on both counts, acquit on both counts, or convict on Count I and acquit on Count II but not the reverse. We think the charge was clear and accurate. The robbery requirements under 18 U.S.C. § 2113(a) constitute a lesser included element of the crime defined in 18 U.S.C. § 2113(d). The application of the merger doctrine in connection with sentencing under this statute should not be confused with the fact that the various sub-paragraphs of the statute nevertheless create separate crimes. See United States v. McKenzie, 414 F.2d 808 (3d Cir. 1969).

Contrary to defendant’s second contention, the court properly charged that although defendant was indicted only as a principal he could be convicted of aiding and abetting. United States v. Provenzano, 334 F.2d 678, 691 (3d Cir. 1964).

Defendant also says “it was error to exclude certain persons of the same color [black] and physical bearing as defendant who were there for identification purposes, from the enclosure near the defendant under the circumstances of this case.” Since defendant based his defense on mistaken identity, he moved immediately before trial to have three other Negro males seated with him during the trial itself. The fact is that the district court agreed that all but one of these individuals could sit near the defendant. It was defendant’s choice not to have any of them present under the circumstances. The individual the court excluded by its ruling wore a goatee and moustache and was the same height and build as defendant. While defendant was clean-shaven at the time of his motion and trial, the Government represented to the court without challenge that defendant had also had a goatee when arrested. We think the ruling of the district court was well within the exercise of sound discretion. See United States v. King, 433 F.2d 937 (9th Cir. 1970).

Other alleged errors were not the subject of trial objection. Since they do not amount to plain error the court will not rule on them.

The judgment of the district court will be affirmed.