OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from a conviction for aiding and abetting three co-defendants in the commission of an armed robbery of a bank on May 26, 1969, in violation of 18 U.S.C. §§ 2113(a), 2113(b), 2113 (d) and Section 2 of Title 18. Defendant Chaney was found guilty of all four counts and on January 22, 1971, was sentenced to eight years' imprisonment. Co-defendant Sheppard was also convicted. However, the jury acquitted co-defendant Williams and the court granted co-defendant Anderson's motion for judgment of acquittal. After trial, a hearing was held by the court at which evidence was received concerning defendant Chaney's pro se motion attacking the verdict on the grounds that he was denied effective assistance of counsel. After completion of the hearing, argument was heard on defendant Chaney's motions for a judgment of acquittal and/or a new trial, and they were denied. This appeal from the January 22, 1971, sentence followed.
I. Claimed Insufficiency of Evidence to Support The Verdict
Chaney first claims that the evidence was legally insufficient to sustain a verdict of guilt on any of the four counts. He maintains that the testimony of Government witness Meginley was mere speculation and therefore inadmissible. We disagree.
Meginley's testimony indicated that the vehicle used as a get-away car in the bank robbery was the vehicle borrowed by Chaney from witness Mathis on the day of the robbery. Meginley testified that on May 26, 1969, while he was in a public telephone booth about 1:30 P.M., he observed two or three men, one of whom was holding a bag, running towards him. They entered a parked vehicle being operated by a black man. He saw the driver's back and arm, from which he estimated that he was heavy set, weighed about 220 pounds, and was
There was other circumstantial evidence supporting the conclusion that
The jury was presented with additional evidence connecting Chaney to the crime. For example, witness Taylor testified that on the day she left to return to Detroit with Sheppard, Sheppard and Chaney had left together from Chaney's home sometime after 11:30 A.M., returning in the afternoon. Witness Walker observed Chaney and Sheppard together the night before the robbery. Also, the exculpatory statement by Chaney given to agent Culpepper was false in several respects.
An examination of all the evidence, including that recounted above, leads us to the conclusion that the evidence against the defendant Chaney made out a strong enough case to permit a jury to find defendant guilty. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959); United States v. Allard, 240 F.2d 840 (3d Cir. 1957); United States v. Kemble, 197 F.2d 316 (3d Cir. 1952).
In reaching this conclusion, we state our agreement with the analysis of Judge Fullam stated at the time he denied the post-trial motions on November 6, 1970 (pp. 149-150 of Document 43), as follows:
II. Alleged Trial Errors
Defendant Chaney asserts that the trial court erred in admitting the testimony of a witness, Ada Tabb, that defendant had large sums of money in his possession subsequent to the robbery. The rule in this circuit is that:
United States v. McKenzie, 414 F.2d 808, 809 (3d Cir. 1969); See United States v. Jackson, 403 F.2d 647, 649 (3d Cir. 1968). A showing by the Government that the conditions set forth in this test are met is sufficient to establish a direct connection between the money in Chaney's possession and that which was involved in the crime, as required by Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509 (1897). United States v. McKenzie, supra, 414 F.2d at 809. Defendant Chaney argues there was no evidence of impecuniosity. We disagree. Agent Culpepper of the F.B.I. testified that defendant advised him that he was taking a two-month break from work as a presser and that he had not worked at all for four weeks. Chaney claimed he had been able to save substantial sums of money and Ada Tabb suggested that he won large sums as a gambler. However, it was for the jury to decide whether to believe or disbelieve this evidence of alternative sources of money. We thus conclude that the testimony indicating that defendant Chaney was impecunious constituted sufficient foundation to admit evidence of possession of large sums of money by the defendant subsequent to the robbery.
Defendant Chaney also argues that the prosecutor, in summation to the jury, improperly "(1) used defendant's exculpatory statement against him as if the same were testimony from the lips of the defendant in the trial at issue, and further, (2) prejudicially stated that consciousness of guilt was revealed by negative omissions of defendant in failing to state assertive facts germane to the Government's evidence concerning the co-defendant and other points at issue." Defendant did not object at trial but now complains of the following statements of the prosecutor:
Defendant Chaney concedes that exculpatory statements made upon interrogation with intent to divert suspicion or mislead the police, when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force. United States v. Smolin, 182 F.2d 782, 786 (2nd Cir. 1950). However, he contends that when the prosecutor commented on omissions, using the present tense, his fifth amendment rights against self-incrimination, as protected by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), were violated. "The test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Hayes v. United States, 368 F.2d 814, 816 (9th Cir. 1966). The statements of the prosecutor which are objected to came during a long review by him of the events occurring around the time of the robbery and the contradictions between what defendant told the FBI agent and the testimony of various witnesses. Viewed in the context of the prosecutor's entire address, we think it clear he was charging that defendant Chaney lied by not mentioning Sheppard. We do not think those statements, in this situation, even though phrased in the present tense, were such as would lead the jury to conclude that the prosecutor was commenting on the failure of the accused to testify. See Hayes v. United States, supra; cf. United States v. Smith, 421 F.2d 1229, 1230 (3rd Cir. 1970). The following comments of the trial judge during his charge further made the prosecutor's meaning clear:
Even if there were doubts as to the propriety of the prosecutor's choice of words, it is clear that there has been no plain error in this part of the Government's closing argument. See F.R.Crim. P. 52(b).
We have considered the other trial errors relied on by defendant Chaney and have concluded that either no error or nonreversible error is involved in each such contention.
III. Alleged Ineffective Assistance of Counsel
Defendant Chaney contends he was denied his constitutional rights due to ineffective assistance of counsel. His principal point is that his appointed attorney
The trial judge, at the conclusion of the post-trial hearing on September 10, 1970, stated that:
A review of the evidence as a whole convinces us that counsel's performance was at the level of normal competency demanded by this circuit in Moore v. United States, 432 F.2d 730 (1970).
For the above reasons, the judgment and commitment of January 22, 1971,