*1 Admin- bеcause the could not be known had discretion allot istrator portion This is authorization. such legislative purpose of a further evidence keep- mandatory. allotment make statutory ing principal of with the basic Menasche, represented in construction way preserve can no
we see mandatory 206(f)(1), al- save force of § Judge, Fahy, Senior Circuit filed lotment. opinion concurring part and dissent- part. V. CONCLUSION only question this court before must make Administrator is whether the Our under the Act.
full allotments statutory reading lan- of the relevant pеrti- analysis guage and careful history compells legislative us to nent requires 205(a)
hold Act that § full sums allot the
the Administrator to appropriated in §
authorized 20740;
therefore, decision
trial court
Affirmed. of America STATES
UNITED
v. Appellant. SKEENS, T.
James
No. 72-1582. Appeals, Court
United States Circuit. Columbia District 19,
Argued April 1973. 28, Jan. 1974.
Decided
Rehearing 1974. Denied March plemental Appellee question Compare Br. of at 3-6. no 39. There is constitutional al., agreed Georgia Nixon, No. 414 U.S. et case. sides Both Original, requires full 38 L.Ed.2d mo- the Act S.Ct. court determines denied, attempted tion to raise no remains constitutional allotment constitutionality question of power to limit the allot- executive in the obligate. appellant, because, fusal to in the words of ments is not an act ... “Allotment year government bil- $5 $6 40. billion for fiscal ob- of itself commits the year Reply Supple- (Appellant’s ligation.” lion for fiscal Br. Sup- 2.) Appellee also Bee mental Br. *2 Washington,
Dorothy Sellers, D. C. (appointed by Court) appellant. for Cross, Atty., Lee Asst. U. S. Titus, Atty., Jr., whom Harold H. U. S. Terry Work, John A. and Charles R. Attys., brief, for Asst. U. S. Roger appellee. Adelman, M. Asst. U. S. Atty., appearance ap- also entered an for pellee. FAHY, Judge, Before Circuit Senior Judge
WISDOM,* the Fifth Circuit Judge. WILKEY, Circuit, and Circuit Judge: WILKEY, Circuit Appellant tried and case was robbery and assault with convicted of alleges dangerous weapon. five dis- appeal. grounds for reversal tinct merit are all without We find that up- should be and that the convictions held. validity The alleges de that was
prived of law because un procedures used were complaining duly suggestive. wit appellant in a situation confronted ness for the sake we shall assume suggestive. argument to have been so, in-court identification Even fatally flawed because witness originally from photographs in a situation suggestive. unduly in this case The identification prior in United to the decision occurred Wade, 218, 87 S.Ct. v. 388 U.S. States and, there L.Ed.2d fore, sur is admissible if factors .the rounding indicate it reliable. Denno, 388 U.S. See Stovall L.Ed.2d 1199 S.Ct. there are two factors this situation reliability: (1) The com tend to show very good got plaining look at witness robbery. time of the at the robbers daylight, occurred in broad The crime description of the and the detail of his opportunity robbers indicates * Sittingby designation pursuant 291(a). § to 28 U.S.C. enough strong persuade good. There was Dis- them was see photo- Judge ruling sup- of a recent on the motions to trict prior press say “Indeed,
graph the victim had the affidavit arguably encounter recited unlawful facts defense counsel alleges them defendant Skeens to have been at the time when Commissioner’s Reichert, identification, an al- accompanied one there still probable leged co-participant in the This would have cause to issue *3 crime. look arrest first warrant.” Swindler’s the witness was Reichert, but of first identification and imagine is hard to a more Reichert’s mo- In fact not of Skeens. objective police procedure. identification identification was this tion to alleges Yet, appellant this Skeens granted, precisely Reichert had because photographic identification flawed was in one-on-one con- identified a been first police of a officer made mention because (“a Stovall,” in the textbook frontation prison appellant’s recent release from judge) accompanied of words prior positive (Skeens) by has “a second dispute There is a in the re positively already a as garding whether reference was participant It was the in the crime.” made after a tentative identifiсation of positiveness validity of the witness’ photo appellant the older of after previous identification of Skeens which positive identification of the later one. strong ground suppressing awas Even if the reference occurred before Reichert, of first dis- appellant identification, company played in Skeens. knowing way photo no positively appel identified was that of validity of the identifi- Now photo The lant. record shows that the under which is attack. cation Skeens identify placed the victim did in was in this That cаme about projector in slide a random order and large way. police placed a number that it was not called to the witness’ at photographs in a of slide carousel tention when it flashed on the screen. projector, display photo timed to each given We believe that the factors here seconds, automatically then move on few are sufficient to show the in-eourt to the next. Police were in and officers identification was reliable. room, being necessarily out witness Swindler at all times as grand proсeeding. jury 2. The viewing being he sat the slides flashed screen. Swindler uttered a re- Appellant argues that he was indicating recognition mark a tentative unduly prejudiced prosecution by state when the slide was flashed Skeens grand jury proceedings. ments at given recog- any on. He had not hint of The record reveals most of the photo. nition of The officers questioning done in an effort to im Swindler; questioned not certain peach by appel certain statements made at this time. officer One remembered they lant’s wife. appear In this cоntext do not photo there was a more recent prejudicial to be as as Skeens; placed projector this was in the argues. Under no circumstances could in a random order with other undis- prejudicial be viewed as played slides and flashed at automat- Coppedge those attacked in v. United ic intervals. This time the recent more States, U.S.App.D.C. 79, 82-83, 114 photo elicited a much more F.2d 131-132 In that case Exactly tification from Swindler. what upheld the court an even indictment dispute he said a matter of the tes- though part upon per it was based timony, strong enough per- but it was jured testimony. Appellant has not suade the officers to seek an arrest war- grand jury shown that improp Skeens, previously they rant for whom erly constituted or there was suspect. had had no cause to And it sufficient evidence on the whole record allegations. by (2) Appel- argu- diced these support This the indictment. police mention therefore, lant contends that must, fail. ment officer, for the who testified defense as delay. Prejudice alleged attempt witness, a hostile an from complаining have the contends grounds murdered is for rever- witness unduly prejudiced 21-month Appellant’s sal. counsel had admon- Un and trial. delay his arrest between ished the witness not to mention this Wingo, in Barker the decision der subject. significantly, More L.Ed.2d 92 S.Ct. U.S. rejected an offer of counsel a mis- (1972), to consider are admonished we circumstances, trial. Under these evaluating a conten such four factors mention is not reversible error. length delay, (2) tion: The final comment was made delay, (3) the defend for the reason police same officer who had been cаlled right speedy of his assertion ant’s *4 an adverse witness the defense. resulting prejudice trial, to and the The officer mentioned a fact the appellant In this ease defendant. the specifically trial ordered the right until much of not assert his did during attorneys to mention not the delay complained occurred. the trial. This revelation was inadvertent. reflects that much of The record also addition, In the had never witness been the time it took to decide various defense by mention instructed not to the matter by delay complained the of was caused the defense counsel who called him. appel motions. also conclude that We by substantially prejudiced lant was Admissibility polygraph exami- delay in the The nine months’ case. nation. following incarceration arrest was appellant’s parole argues due to revoked charge. prejudice Any failing on another due in court erred to conduct an evi appellant’s
to the death of
dentiary
admissibility
wife was
ameliorated,
somewhat, by
at
least
allegedly supported
polygraph
test
appellant
leading
offer
Government’s
use
let
in
his innocence. The
ease
transcript
Frye
of the wife’s
States,
Circuit
v. United
grand jury.
any case,
App.D.C. 46,
(1923),
most of
it looks like him.” says, A I “If I see them both to- Q gether happened Then what ? identify I could them much plainer but he do look like the shortest said, going pick A He “I am man up.” that held me up.” him said, sure, And I “I’m not picture here around somewhere.” the other it looks it?” He of him in like said, officer, him.” “We there, One officer said to “We should have can have one you а later find commit he had the same hair on his head and [******] if it’s the best but A I don’t know Q That’s about the best youself? you can picture everything. When second of the same man came screen, his is hearing pretrial At as follows: suppress motion to identification testi- mony, According November conducted testimony, to Officer B’s judge, other than the trial F.B.I. Mr. Swindler had identified Agent personally photographs positively, po- Harker testified about both but proceedings the same as follows: lice him “backed down” on identifi- photograph. cation of the first your After аrrival
THE COURT: hearing you picture were there when Skeen’s on the motion to witness ? shown was continued order have the testi- mony of Mr. Swindler at the Prelimi- THE WITNESS: Yes sir. nary Hearing con- transcribed. After -K said (cid:127)* words [*] -X- effect, [*] I believe -X- sidering that December resumed expressed I think several times is man. that is the doubt concern- Or, man. I know those were both the arrest and don’t appellant, concluding his words but words which com- these might he ments characterize as tentative or : possibly something identification or THE COURT: . . . man [T]he that effect. says [Mr. he [appellant] Swindler] Q looks like the [Defense Did he man counsel]: [the ever shorter rob- ber], positive state that I am he not certain [Mr. Swindler] picture, [appellant]. man in the of the man I So far as Skeens, up was of Mr. who held him am concerned [the court] enough arresting up one the men who held him basis for a man. day? up I If am held I and look at some pictures present. A say, Not time I I like the looks I certain, but am not do not I Q Was he asked if was you right go think out or not ? and arrest the man that reason. A Yes. THE I so. PROSECUTOR: think Q respond nega- And did he in the THE COURT: And neither did the tive? why officers think so and that is [accompanying аffidavit the arrest just A I don’t know whether looks it does. no, my warrant] like but said recollection is repeat continued to the somewhat I will take it advisement. under equivocal phrases. I think he used My saying foregoing those that effect conclusion from without *7 positive photographic am that that is him.2 the identifications thinking agent feeling up 2. On and cross-examination of the the was it the man to prosecutor point absolutely he said that that when ob- but he not be could picture positive. served the he . . . seemed lieve you No it was the man? the al. And then was the man tive that the point up fact others and 1 am not sure that or up he seemed to be to he is this is the indicate or he did indicate felt absolutely point he is the and whenever we point man? was —he man, this was the man? certain. asked thought seemed And or do sure enthusiastically why by Are he Up it was the whom, you absolutely you posi- answered discussed individu- think it to that one of think I be- are feeling had ing in? reaction to this part they re-run? TnE THE from what he had Skeens’ partially he had had WITNESS COURT: And the gotten In [*] procedure picture me identified : Either [*] some sort of said words, you aside you which had before or before did [*] and something I had Mr. told you a had the feel that [*] Skeens. me he maybe to do came of a feel- only made, as the “. . . ever mented: seen a tentative when were Agent judge said. Mr. Stovall . . This is a text the F.B.I. book and ... Stovall,” procedure positive. im- an identification This is was not Swindler presided judge which violated portant who of law. In because hearings July 2, 1968, on the motion his order of over these granting suppress, motion until motion to did not rule on the Reichert’s judge i 25, 1968, time, without at which stated: March stating reasons, the mo- denied his he Earlier, Skeens filed defendant аn tion. motion, suppress testimony identical accompany- Later, identification, relative to in a Memorandum granting hearing ing July 2, urged any thereof was his order of suppress, the rea- motion identification made in court Reichert’s would be denying by suggestive judge in mind for sons the had so tainted factors as to might appear process. like motion constitute a denial of due following: hearing originally at a from the had Since Skeens been photographic motion on March tified means Reichert’s of a morning procedure testified that Mr. Swindler which was brought suggestive robbery after fashion the persuaded, Commission- court room United States was not and so de- offices, not the courtroom “where er’s nied his motion. waiting trying” cases, they were but is not case But insofar as hearing preliminary Appellant’s room. Here, Reichert is concerned. we have day had scheduled for that but presentation suspect of one in cus- request. postponed at Never- counsel’s tody authorities, compa- and in waiting theless, there after ny already with a second man who has B him to the about an hour Offiсer took positively partici- identified aas doorway office to the Commissioner’s pant in the crime. standing and while Mr. Swindler through people the door- saw come some denying appellant’s motion he thus room, apparently the way from another apparently had concluded that Mr. Swin- Among them cell block. were positively previously dler had together. Thereupon Reichert, Mr. and appellant by photographs —which pho- day Swindler, before clearly seems not to have been the case. tographic prоceedings expressed the Moreover, at trial Government itself together, suspects told desire to see the judge regarding stated to B men two Officer May 16, confrontation on him.3 At the who robbed conclusion words, In other Prosecutor]: [The to how Swindler’s today occurred, here reason we are com- confrontation upon ap- hearing Officer B’s and the trustworthiness At of December following pellant’s testimony, circumstances: counsel advised the request- seated in the outer he said Mr. had informed Officer B that he had hearing Preliminary postponement room ed Hear- office the Commissioner’s agreed. and crowded because the room was the Commissioner *8 formally post- packed, Subsequently, he took and after some little while the case was through poned Apparently Mr. Commissioner’s after Offi- Swindler one week. Sherbacow, However, private spoken counsel, Mr. cer B office. with defense attorney brought at who was for Skeens Mr. Swindler to the entrance time, As- office, opposite an and at the trial was cell the time of Commissioner’s Attorney block, рresence of although District sistant was U. S. Mr. Swindler’s very Connecticut, longer required. testified weren’t no room, hearing many people upon at all in the the non- Further doubts are cast confrontation, suggestive character of this violation. same time4 was based violation judge] [as [******] A well Reichert] Commissioner’s he held that the confrontation fortiori defendant Skeens ruled that his as upon it would be a (Emphasis an independent defendant also added.) identification there at the due process Skeens source [the at thought ferent course сonclusion, should now it would lant’s duced. panying Reverting the conclusion this motion, not In then the warrant for he had even if be have now the affidavit accom- no new evidence my opinion followed, from that of not previous relied reaching given opinion. judge to be obviate a dif- full November a different Officer B’s I conclude arrest, set credence, could forth ad- be above, later, ferred to on October before the renewed twice 1968, appraised also as follows suppress judge his motion to trial judge responsibil- different who had the ground testimony on the identification ity considering validity ar- pre- had ruled rest warrant: concluding had erred in trial motion positively identi- had been Mr. made an Swindler by photograph. Neither fied Skeens, pictures, of Defendant from though counsel, aware nor as one of the two men who robbed suppress appellant’s motion to him. It was not un- denied, appears when this to have known equivocal an identification affi- as the occurred, it. The or the basis for describes, davit but it was an identifi- judge stated, decide that “I have to finding probable cation on which a ample decision there was reason for [his] reasonably predicated. cause could properly iden- that Mr. Skeens had been picture, When shown the second Mr. tified outside the confrontation.” may jumped up not decisively, from chair and stated possible judge’s It is that the motion However, him!” “That’s this does July 2, 1968, in the Memorandum of not vitiate the fact that an identifica- case, posi- Reichert which referred to though made, tion was one more ten- placed appellant, tive identification of tative than thаt described the affi- upon some reliance the affidavit accom- sum, davit. anwas affidavit panying the affi- arrest This warrant. exaggeration of facts, but it was davit, see, as we shall misstated na- “consciously false”; it does not ture Mr. Swindler’s “unequivocally demonstrate the ab- judge’s Moreover, the motion reference probable sence of cause to arrest photo- to the character of the Indeed, Skeens.” had the affidavit graphic identification with his conflicts recited the facts as defense coun- opinion expressed own months ear- seven alleges sel them to have been at the 1, 1967, lier on December picture identification, time of when characterized the identification probable there still would have been as uncertain. Between and the then or- cause to issue the arrest warrant. denying 25, 1967, appel- (Footnote of March omitted.) der opposed objections 4. For reason the Government to its use. This waiver the introduction into evidence intended defense counsel ex- to waive his concerning ception previous сonfrontation. Defense denial of counsel, sought suppress its introduction motion to the in-court identifica- during trial, when the trial court his motion to denied tion. Indeed the course of motion, the in-court counsel renewed his which was opposed by ground Swindler. Evidence confrontation the Government on the upon was allowed waiver defense counsel of waiver. *9 ’ Obviously “probable cause would be admis- “positiveness.” only upon based sible at trial vincing showing a clear and con- probable upon on the testi- that it cause conclusion would rest mony independent pre- at the Prelimi- of Mr. Swindler source either Hearing May 23, 1967, photographic nary vious proce- or “Stovall” 1, dures, is, upon on December been considered Mr. Swindler’s recol- judge, pretrial 1967, lection of partici- motion the events and the pants that Mr. Swin- therein had then also concluded he was time robbed. Sanders, U.S.App. dler’s not a United States v. appellant. tification 479 F.2d D.C. From the overall factual situation my opinion court should This retain analyzed
above I cannot conclude with jurisdiction pending the rеsult of such a any degree of confidence that the mis- remand. photo- of the take as to the character
graphic identifications, considered with suggestive show-up at the Commis- office, require the ad-
sioner’s missibility does not appellant’s identification
by Mr. Swindler at trial to have been independent of the
based on a source
photographic procedures, and “Stovall” difficulty which was not done. The UNITED STATES America
not remedied the course of the trial itself, for it is clear the trial heavily questionable pretrial
lied LINES, AMERICAN RENAISSANCE INC., Appellant. denial of motion. No. 72-2109. seems to me the matter should at least be clarified. This can be done Appeals, United States Cоurt remand for a redetermination the ad- District of Columbia Circuit. missibility of the in-court identification Argued Nov. 1973. taking Swindler, made Mr. into con- Decided Feb. analysis sideration the of the scattered bearing evidence thereon which I have pull together opinion.
tried to in this
Should the court find on the basis of the
present record that the in-eourt identifi- (1) upon
cation Mr. Swindler rested independent photograph- a source identifications, (2)
ic and “Stovall” or apparently
that neither tentative photographic character identifica-
tions, nor the “Stovall” identification of
May would alter the conclusion
of the District Court that the in-court admissible,
identification was as not by unnecessarily suggestive tainted pre- procedures, then the judgment of conviction would not be dis-
turbed. court,
Should the hand, on the finding
be unable to make of either above, a new trial should be
ordered, in which event the