UNITED STATES оf America, Appellee, v. Frederick J. MONTELBANO, Appellant.
No. 703, Docket 77-1382
United States Court of Appeals, Second Circuit.
Argued Feb. 28, 1978. Decided April 9, 1979.
605 F.2d 56
“Even if we were to sustain his attack, and even though we recognize the unusual hardship that the general rule has inflicted upon him, it would not necessarily follow that Mr. Jobst is entitled to benefits. . . . For the vice in the statute . . . could be cured either by invalidating the entire exception or by enlarging it. . . . If we were to enlarge the exception, it would be necessary to fashion some new test of need, dependency, or disability.” (citations omitted). 434 U.S. at 56 n. 14.
This observation applies with equal force to the present case. Were we to invalidate the re-entitlement provision in order to extend to appellant those benefits received by children who never have married or who do not apply initially for benefits until after the death of their spouses, we would be required to establish judicially some other standard to determine the dependency of individuals applying for re-entitlement under the statute. We think that is the responsibility of Congress, not the courts.
Mindful of the impact of a remand from the Supreme Court in light of an intervening decision of that Court, see, e. g., Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25-26 (1978), (Stevens, J., dissenting), we hold that the criterion in this case—marriage—is neither irrational nor contrary to the purpose of the Act. Although some inequities may occur, such individual cases surely do not require that the entire statutory provision be declared unconstitutional.
Affirmed.
Jonathan J. Silbermann, New York City (Martin Erdmann, Federal Defender Services Unit, The Legal Aid Society, New York City, on the brief), for appellant.
John S. Siffert, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., and Richard Weinberg, Asst. U. S. Atty.,
Before LUMBARD, FEINBERG and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:
On this appeal frоm a judgment entered after a four day jury trial in the Southern District of New York, Thomas P. Griesa, District Judge, convicting appellant of violating certain provisions of federal law stemming from his participation in the hijacking of a truckload of seafood,1 the principal issue is whether the district court erred in declining to give a requested cautionary instruction concerning the reliability of eyewitness identification testimony. We hold that the district court did not err in declining to give the instruction in the instant case. We affirm the conviction.
I.
The events which culminаted in the hijacking began during the early morning hours of December 6, 1976. At 5 A.M., the O.K. Trucking Company dispatched one of its drivers, Ralph Eme, age 19, in a refrigerated truck from Philadelphia to pick up frozen seafood from two refrigerated warehouses in Jersey City and from one in New Yоrk City. Eme did so.
After loading his truck with substantial amounts of seafood2 at the three warehouses, Eme was directed to proceed to a fourth warehouse in Manhattan to assist other O.K. Trucking drivers by taking on overflow from their trucks before Eme returned to Philadelphia. It was while Eme was en route to the fourth warehouse in Manhattаn that the hijacking occurred.
At about 10:30 A.M., while driving south on Tenth Avenue, Eme stopped for a red light at the intersection of Tenth Avenue and 14th Street. A man forced his way into the driver‘s side of the truck and shoved Eme over to the passenger‘s side. This unidentified hijacker (referred to as “Doe” in the indictment and at trial) drove the truck around the corner and stopped on 14th Street. Doe ordered Eme to climb over to the driver‘s side and to drive the truck south on West Street until he came to the waterfront where he was ordered to stop. Eme did so.
The truck was being followed by a red Rambler. When the truck stopped at the waterfront, the Rambler did also. A man Eme later identified as Montelbano and another unknown man (referred to as “Roe“) got out of the Rambler and walked to the passenger‘s side of the truck. Montelbano instruсted Doe, who was seated on the passenger‘s side of the truck, to tell Eme to do as he was told or his brains would be blown out. Eme heard what was said. Montelbano returned to the Rambler. Doe, who remained on the passenger‘s side, directed Eme to drive to the Fulton Fish Markеt. He did so. The truck and the Rambler both stopped at the Fulton Fish Market.
Montelbano got out of the Rambler at the Fulton Fish Market. He forced his way into the driver‘s side of the truck, shoving Eme from the driver‘s side toward the passenger‘s side and sandwiching him between Montelbano and Doe. Mоntelbano drove the truck from the Fulton Fish Market, out of Manhattan, and onto the Long Island Expressway. Roe followed in the Rambler.
During this trip Montelbano told Eme to take off his glasses, to look straight ahead, and to follow instructions or his brains would be blown out. Eventually Montelbano left the Expressway, stopped at a gas station, and made a phone call. Upon returning to the truck, Montelbano drove for another fifteen to twenty minutes before stopping in the Babylon area of Long Is-
At the shopping center, Montelbano ordered Eme out of the truck and into the Rambler where he remainеd with Doe. Montelbano, accompanied by Roe, then drove the truck away to dispose of the cargo of seafood. They returned forty minutes later with the empty truck.
Montelbano then drove the truck to another shopping center, followed by the Rambler which was driven by Roe. On this trip Eme was forced by Roe to lie face down on the back seat of the Rambler.
At this second shopping center, Montelbano abandoned the empty truck. He took over the driver‘s seat of the Rambler and, accompanied by Doe, Rоe and Eme, drove around that area of Long Island for a short while. Roe took Eme‘s driver‘s license from him and warned him that, if any of the men were caught, someone would come to his address and get him.
Eventually Montelbano released Eme and instructed him to walk straight away frоm the car without turning back. Shortly before 3:30 P.M., Eme called the police from a gas station near the Long Island Expressway and reported the hijacking. Five hours had elapsed since the truck was first seized in Manhattan. The cargo of seafood never was recovered. The empty truck was abandoned at the second of the two shopping centers to which it had been driven.
II.
In due course Montelbano was arrested. An indictment was returned on March 15, 1977 charging him with the offenses stated above. See note 1 supra. At his trial which began August 1, 1977, the government called nine witnesses and introduced twenty-four exhibits. The government‘s case consisted of eyewitness identification of Montelbano, circumstantial evidence, false exculpatory evidence, and prior similar act evidence.
Eme‘s eyewitness identification of Montelbano was based on his close, unobstructed view of defendant at frequent intervals during the five hour period of the hijacking. Nine days after the hijacking Eme picked Montelbano out of a lineup at FBI headquarters. Eme said Montelbano “looked similar“, but аdded that he was not certain that he was the participant in the hijacking. Eme also identified Montelbano at trial, stating, “I believe it is the man sitting at the table.” On cross-examination, defense counsel asked Eme if he meant, when he viewed the lineup, that Montelbano “could have been” one of the men involved in the hijacking. Eme replied that “at the time of the lineup, I believed Mr. Montelbano was the man . . . .” Both eyewitness identifications were admitted in evidence.
The government‘s circumstantial evidence related chiefly to Montelbano‘s access to the red Rambler and its whereabouts on December 7, the day of the hijacking. Agnes Pollack, Montelbano‘s girlfriend with whom he was living, testified at the trial that the 1969 Rambler belonged to her, that Montelbano had ready access to it, that he used it whenever he pleased, and that he had used it on the day of the hijacking. Montelbano testified before the grand jury that he had used the Rambler on the day of the hijacking.
Although Montelbano did not testify at the trial, he did give false exculpatory testimony before the grand jury that he had used the Rambler to get to work at the Fulton Fish Market on the morning of December 7; that at about 1 P.M. that day he had driven the Rambler to a bar in the vicinity of Tenth Avenue and 14th Street where he remained for a half hour; and that on the same day he had driven the Rambler to his ailing mother‘s home in Brooklyn whеre he visited her from 2 P.M. until dinner time. Montelbano‘s father testified at the trial that he and his wife (Montelbano‘s mother) had been away from their home on December 7 from 10 A.M. to 4 P.M., and that they had not seen Montelbano during that time. Before the grand
The government also adduced prior similar act evidence that on September 29, 1976—less than three months before the Decеmber 7 hijacking—Montelbano had been caught burglarizing seafood from Fiore Brothers in Nassau County. State charges arising from the Fiore Brothers burglary were pending against Montelbano at the time of the instant trial.3 As he did on December 7, Montelbano on September 29 made usе of two accomplices; and he drove another car owned by Agnes Pollack, a 1967 Oldsmobile. Both thefts involved large quantities of seafood—a perishable commodity not easily disposed of in bulk.
Montelbano did not testify at the trial and he called no witnesses.
The jury returned a verdict on August 4, 1977 convicting Montelbano on each of the three counts of the indictment. On September 7, 1977, Judge Griesa sentenced him to five years imprisonment on each count, but ordered that the sentences be served concurrently. Bail having been denied after his conviction by the district court and by this Court, Montelbano has been serving his sentence.
III.
In the light of these facts and prior proceedings, we turn directly to what we find to be the principal issue in the case, namely, whether the district court erred in declining to give, as requested, a cautionary instruction concerning the reliability of the eyewitness identification testimony. We hold, under the circumstances of this case, that it was not error.
We need hardly look further than Judge Friendly‘s characteristically perceptive opinion of two tеrms ago in United States v. Marchand, 564 F.2d 983, 997 (2d Cir. 1977), cert. denied, 434 U.S. 1015 (1978), to sustain the district court‘s refusal to give the requested cautionary instruction in the instant case. Marchand is in accord with other recent decisions in this Circuit. See, e. g., United States v. Gentile, 530 F.2d 461, 469 (2d Cir.), cert. denied, 426 U.S. 936 (1976); United States v. Evans, 484 F.2d 1178, 1187-88 (2d Cir. 1973); United States v. Fernandez, 456 F.2d 638, 643-44 (2d Cir. 1972).
As with Marchand, supra, 564 F.2d at 985, this is not a case involving “dubious identifications“. While Eme technically was a victim of the crime, id. at 986, his identification of Montelbano was based on close observation of him over a five hour period on the day of the hijacking. Eme sat next to Montelbano in both the truck and the Rambler for long intervals. Montelbano was not disguised in any way, nor was Eme‘s view obstructed. Eme‘s observation was such that he was able to identify Montelbano twice after the hijacking—once nine days later at FBI headquarters and again at trial. Despite the wide scope of cross-examination accorded to defense counsel, Emе‘s identification of Montelbano was never significantly undermined.
Moreover, as in Marchand, supra, 564 F.2d at 997, the conviction here did not rest alone on eyewitness identification testimony. There was unusually probative circumstantial evidence, false exculpatory evidence indicating consciousness оf guilt, and prior similar act evidence. In short, aside from the identification testimony, the government‘s case was an overwhelming one. Indeed, on appeal appellant does not challenge the sufficiency of the evidence.
Although the district court declined to charge, as requested by appellant, specially concerning the reliability of eyewitness identification testimony, the court did give the usual instructions regarding the credibility of witnesses.
We hold on the facts of this case, and particularly in the light of Judge Friendly‘s recent оpinion in Marchand, that failure to give the requested cautionary instruction was not error.
Affirmed.
LUMBARD, Circuit Judge (concurring):
I concur in the affirmance of the conviction.
FEINBERG, Circuit Judge, concurring:
I concur in the result of Judge Timbers’ opinion. Despite the relative frequency with which this сourt has indicated a preference for a cautionary instruction on eyewitness identification, see United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978); United States v. Gentile, 530 F.2d 461 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); United States v. Fernandez, 456 F.2d 638, 643-44 (2d Cir. 1972), the charge is still not required under the law of this circuit. Thus, the failure to give it in this case is not reversible error.
I concur separately, however, because I believe the time has come for this court to give a model instruction for the district courts to use in the future. In this regard, I think the approach followed by the Third, Fourth, Seventh and District of Columbia Circuits is sound. See United States v. Barber, 442 F.2d 517, 525-28 (3d Cir.), cert. denied, 404 U.S. 846, 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); United States v. Holley, 502 F.2d 273 (4th Cir. 1974); United States v. Hodges, 515 F.2d 650 (7th Cir. 1975); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). It is my hope that eventually a majority of this court will support the views there expressed.