*1
government
and that
entrapment,
contrary proof
obligation
if its
to estab-
going
carry the burden of
to
failed
guilt beyond
lish
a reasonable doubt was
evidence,
contradictory
with
forward
discharged.
to be
The Government
alternative but to reverse
have no
we
called
Jovonovich,
neither Hale nor
de-
conviction.
spite
presence,
their
to contradict the de-
fense
relating
witnesses
pre-sale
to the
principal partici-
has three
The case
activities and
help
to
Defendant,
Informer,
establish the true
pants—the
sequences.
time
produce
Nor did it
Agent. As be-
and the Government
reports
records or
those
Agent and the
activities.
the Government
tween
'
Defendant,
testimony
Agent’s
solely
It relied
on the witnesses who
clearly supports the conviction.
acquainted
with the
on the
events
whether
dence.
forward with some
Defendant,
The
[*]
challenge
question
[*]
or whether must come
government
to the
[*]
then comes
contradictory evi-
credibility
[*]
it
can rest on
[*]
as to
[*]
under
facts. We
day
again of the
ment had the
United
The United
the sale. That was
States,
with proving guilt
ultimate burden of be- all reasonable
yond doubt. Groessel, (5th 1971). Thus, we hold that the conviction America, UNITED STATES this record must be reversed and the Appellee, remanded for retrial. If case government cannot come forward with Ernest John Matthew BOSTON and that contradicts Defendant’s evidence Moore, Appellants. testimony, then he is entitled to dis- 74-1451, Nos. Dockets charge, aas matter of law. If the 74-1491. produces suffi- government evidence jury question, Appeals, cient to raise a then the United States Court of Circuit. Second proper should be case submitted Argued Aug. 14, 1974. in accordance with this instructions added.) opinion.10 (Emphasis Decided Dec. testimony having estab- defense prima entrapment, facie case of lished duty produce had the
the Government
10.
Boston. Weiss, ap-
Gustave New York City, Ernest Moore. pellant OAKES, Judge, Before Circuit KELLEHER, District FRANKEL *3 Judges.* FRANKEL, Judge: District Appellants, John Matthew Boston and Moore, Ernest were guilty by found April 5, 1974, jury on of robbing a feder- bank, ally insured 18 U.S.C. 2113(a), § employing deadly and of weapons commission robbery, that 18 U.S.C. 2113(d). Both § received concurrent sen- years tences of 20 prison. Upon ample evidence, and for reasons outlined, hereinafter we overrule grounds several and affirm the convictions.
I. The Robbery From the evidence for the prosecution five-day (no trial evidence being by defendants), offered the jury was en- titled, perhaps substantially compelled, to find following facts: men, Three the two appellants Daniel Washington,1 robbed Baisley (Queens, Park York) New branch of the National Bank of North on America morning of June 1971. The robbery minutes, lasted about ten the perpetra- insisting tors opened the vault be they after had robbed the tellers’ sta- $185,000 tions. More than stolen, $1,000 including twenty dollar bills whose serial numbers had been recorded they placed were before in the vault as money.” “bait key The two robbery witnesses Atty., Behar, U. Asst. S. Stephen M. Jackson, guard, were a bank John Trager, S. (David U. G. D. N. Y. E. manager, branch Joseph Dente. Dearie, Y., J. Raymond N.D. Atty., E. ordered Boston to open counsel), appel- Atty., of Asst. U. S. vault; spent he three to five minutes lee. Boston and Moore the vault area. Mineóla, Y. McCarthy, N. David W. Jackson was searched Moore and ob- Y., Dorfman, Mineóla, N. & (McCarthy served five during minutes * Washington, pled guilty, 1. Of who the Southern was sentenced District of New York years’ imprisonment California, respectively, to 12 on December Central District sit- His ting by designation. sentence was reduced an inde period pursuant terminate 18 U.S.C. 5010(b) § March get out agents ordered Boston fled, the robbers After robbery. He himself. cab and of the ear and his own them in chased Jackson name, which the after false gave num- plate the license record able to asked for identification. agents Jackson, Dente, car. getaway of the ber wallet, contained a them his which gave and other witnesses name with his true on it. license driver’s the rob- hour of one within interviewed identity, admitted Boston then Officers City Police York bery by New placed Washington were un- he and both A agents the F.B.I. by special arrest. der the three sus- description of composite broadcast, description was a pects was F.B.I. Boston claims trial David At the car. getaway of the getaway car agents at the scene he had loaned testified Moore either cause probable not have did brother, appellant Er- car to his getaway driving he was or to stop the taxi arrest Moore, robbery. David before nest are unsound. Both contentions him. *4 testimony in his explained Moore provided had been with agents The to him been loaned had the vehicle getaway car description of the and its days a few earlier. employer his They number. also had a plate license guilt appellants’ is of robbers, evidence Other description the in composite of points on to the either immaterial race, weight, cluding height, ap their treat- points are emerge as those will or hairstyle. ap and The age, proximate portions opinion. later of ed in two men at the scene in pearance of the morning, evidently the re the dark of Appellant Boston II. The Arrest of enough sembling descriptions the Jackson, the who chased guard cogent Judge factor in Bank this a Cos make until he lost own car determination, in his followed tantino’s good “a distance vehicle their sight suspicious of strange deeply be their bank,” give the car, was able justified the getaway
from
the
havior around
car
getaway
the
description
Terry
police
following the U-turn.
stop
the
geta-
The
plate number.
Ohio,
its license
392 U.S.
day of
on the
later
located
(1968).
car was
Boston
way
After
L.Ed.2d 889
Queens,
lot
parking
robbery
himself,
falsely
identified
his identifica
was estab-
York,
surveillance
that his true name
papers
New
revealed
tion
the follow-
At 2:30
by the F.B.I.
lished
officers had received from
was one the
ap-
taxicab
“gypsy”
morning,
ing
given
who had
them two
informant
an
was
where the car
the area
proached
other
names. The
name
of the robbers’
Boston,
driver, appellant
Washington,
parked.
the informant
the area.
around
and walked
got
Adding
out
these dramatic
other arrestee.2
engaged, co-de-
was thus
preceding
stop,
there
While
facts to those
the taxi and
Washington
left
ample
for the arrest.
plainly
fendant
basis
getaway
vicinity of the
to the
proceeded
Appellant
III.
Boston’s Confession
car,
into
Washington
looked
car.
windshield, and
something at the
threw
At the time of his arrest on the morn-
Boston, having re-
to the taxi.
returned
appellant
of June
Boston was
seat,
turned
the driver’s
turned
$1,190
searched and
in cash was
found
off,
and then
the taxi on
headlights of
possession.
his
He
placed
in an
block,
made a
down
proceeded
car,
F.B.I.
informed that he was being
intercepted
agents
F.B.I.
U-turn.
2 robbery,
arrested
the June
it to
way
and forced
back
cab on its
rights.
twice advised of his
At F.B.I.
stop.
headquarters
he was
an
“Interro-
report
probable
Judge
to exclude the informant’s
Costantino found
cause for
no need
supply-
totality
“independent
part
statements
of the information
the arrest
”
Canieso,
ing probable
States v.
unnamed informant.
.
cause. United
an
.
1224, 1229-1230,
(2d
inadequacy
suggesting
Cir.
470 F.2d
Without
determination,
support
1972).
we see
record to
form,
gation
Rights”
Advice of
sign
which he refusal
a written waiver shows
sign. He
insisted that he
right
refused
was he did not waive his
to remain
and claimed that he
innocent
had been silent.
urge
does not
by Washington
hired
to drive him absence of a written waiver automatical
City.
around New York
Boston then ly
bars
admission of a confession. It
supplied
agents
address,
clear,
any event,
that a written
apartment
sister,
which was the
of his
required. See,
waiver is
g.,
e. Unit
Stephanie Baker.
Cassino,
ed
467 F.2d
620 n.
1972),
denied,
30
928,
cert.
410 U.S.
agents
dispatched
Four
(1973);
and,
apartment
after a search of the
v. Speaks,
United States
(a subject
premises
separately discussed
(1st Cir.),
968 - 969
405 U.S.
below), they
$80,000
cash,
uncovered
ended, “absolutely findings by had found himself there were no him on satisfied” with defeating by upon Judge the evidence the attacks some issues later resolved identifications, stated, photographic Judge Rayfiel subject Costantino. how- ever, Judge probable which we now turn on from conclusion that there was Similarly, similar Costantino’s determination. cause for the arrest of Boston. he prior lineup spreads previously to in the used request fendant’s Ravich, Washington. 421 F.2d Boston and The nature of trial. United States Cir.), prejudice the asserted this is never quite specified. agree It We with the 91 S.Ct. suggestion repe- a fortiori that the that “the to follow Government’s would seem photographs appellants before us tition four would seem argument of the persuaded suggestive only are not in the And we be sense that the must fail. Ravich, pressured seemingly might be to select taken witnesses that the view repeatedly the faces which have con one of shown them other Circuits shared F.B.I.”4 problem, see United States v. sidered U.S.App.D.C. King, 149 A weightier argument arises repudiated. (1972), should be from the fact that Boston’s photograph then, photographic Coming, published with a newspaper story of question, ap- here identifications the robbery and was then included in the pho- numbers of complain of the pellants spread shown to the witnesses Dente and the use of the spreads, in the tographs Jackson. Dente was shown the newspa published in a per that had been photograph story by a co-employee of the bank story, and the re-use of some being before called upon to make the spread containing photographs identification. Jackson denied having they had been used picture after Moore’s seen it interval, in that but there was including Boston’s. We spread contradictory testimony on this and we points these seri- each of considered assume have the correctness of the version fa atim, cumulatively, all of them vorable to so, Boston. Even the case for that the out-of- the claims against rule reversal is not made. procedures were “im- court identification It seems to have been conceded that suggestive,” Simmons v. permissibly the photograph used the newspaper States, 390 U.S. came from sources, law-enforcement but (1968), or “so un- L.Ed.2d showing (and there was no the defense suggestive and conducive to necessarily appears to have attempted none) of identification,” irreparable mistaken Sto- whether the source was state or federal. Denno, 388 U.S. vall agreed, All seem and we state in (1967), as to 18 L.Ed.2d case, that such conduct officers of the reversal. warrant law not to be condoned. At the same photograph was con Boston’s time, having the fact been left perfectly spread eight, Moore’s in a tained in a below, uncertain scarcely we are to take spread of ten spread of nine. While a it as wrong established that the lies at a might preferable, see photographs be So *7 doorstep. Nevertheless, federal strictly bel, Legal Eye-Witness Identification: argument, for the sake of we treat (1972), 110 there Practical Problems and case as if this were so because it makes Appellants’ com magic number. is no no difference. There decisive sug- no photo that there were too few plaint gestion purposeful whatever of miscon- Cf. is not substantial. United graphs importantly, duct. More timing and 1127, (2d Kaylor, 491 F.2d 1131 v. States of the photographic character identifica- 1973) (nine photographs); United Cir. weigh heavily against tions the view Bennett, 888, (2d F.2d 409 898 States imper- that made this circumstance Cir.), 396 90 U.S. suggestiveness. missible Dente saw the (1969) (six photo 113, 24 L.Ed.2d newspaper photograph days two after graphs). robbery, when memory his of Boston argu impressive more is the No was fresh. He identified Boston from spread appellant photographic spread, Moore that the promptly ment of and certainly, Dente identified two later. from which Jackson and months The trial photos judge clearly justified that been accepting, four had was him contained Appellee
4. Brief for the
as he evidently did, Dente’s
agents
sworn assur-
Baker
if she knew
asked
Sam
ance that
the viewing of the
Boston.
Baker
responded
that
she did.
played
part
no
agents
his
The
testified
that
they
identification.
told her
Similar
time
apply
factors
Jackson,
Boston had been arrested
for bank rob-
assuming
he
bery
saw the newspaper
and asked
photo-
they
her if
could search
graph
all,
except
that
apartment.
he
made the
She consented
orally,
identification
said,
they
signed
four
and
rather
than
consent
to search
two months after
the robbery
Baker,
form. Miss
who
news-
was alone ex-
paper
story.
Furthermore,
cept
for her
young
in-court
children
identifications
of Boston
was
only
bathrobe,
were
clad
over
.
testified
years
two
after
the newspaper
later
episode
that
she was not aware that
she
and cannot
realistically
be
signing
was
deemed
consent
taint-
to search form.
ed
that exposure.5
She said the agents had told her
that
they
could “call
somebody
and have
procedures
Even if the identification
give”
them
permission
to search
were more dubious than we find them to
apartment.
did,
She
however,
been,
where
this is a case
have
“under
signature
on the
-
consent
to search
‘totality
the circumstances’
being
form as
hers.
was
identification
reliable”
in each in-
Biggers,
Neil
stance.
U.S.
above,
As stated
the search uncovered
containing
$80,000,
more than
suitcases
mentioned,
(1972). As we have
both
including
money,
and other
bait
$800
long
and Jackson had
intense
incriminating
The
evidence.
results
during
views of the
the rob-
Boston,
relayed
search were
who
light
bery.
ample.
The
There were
participation
admitted
then
attempts
no masks or other
at conceal-
robbery.
bank
testimony,
Their
identification
ment.
argues
on appeal
subjected
rigorous
cross-examination,
apartment
seized at the
should
items
not
properly
go
the jury.
allowed to
admitted
evidence
been
into
be-
have
intelligently,
cause Baker “did not
know-
The Apartment
V.
Search
intentionally
ingly
consent
to a
the search
It
is asserted
of Ste-
apartment.”6
ques-
search of
phanie
apartment,
Baker’s
where Boston
presented
tion thus
“of
is one
fact
to be
he
living,
admitted
violated Boston’s
totality
determined
from the
of all
rights.
Amendment
Fourth
Boston had
circumstances.”
Schneckloth
v. Busta-
agents his
given the F.B.I.
address dur- monte,
being
interrogated
the time he was
(1973).
1179
served to
suggestiveness,
cement that
review, then,
so
in the trial court. Our
as to render his identification testimony
conflicting
of facts found from
testimo
inherently
suspect.1 Nevertheless,
ny, having in mind that “[determination
light of the other evidence against Bos
credibility
judge
of
for the
who saw
ton —the bait
money,
testimony of
witnesses,”
and heard the
United States
guard
bank
and Boston’s own
Fernandez,
640,
confes
supra,
v.
sion-—I believe the error regarding the
findings must
stand unless
that his
admission of the
manager’s
bank
erroneous,
testi
clearly
be
United
mony to have
beyond
been harmless
Sheard,
9,
U.S.App.D.C.
473
v.
154
States
Chapman
reasonable doubt.
v. Califor
139,
denied,
(1972),
146
cert.
412
F.2d
nia,
18,
824,
386 U.S.
87 S.Ct.
17
943,
2784,
L.Ed.2d
93
appeal. All have been considered. None
require discussion. The are convictions
affirmed.
OAKES, Judge (concurring): Circuit I opinion am of the that bank mana- America, of STATES UNITED ger Joseph Dente’s trial admission at Appellant-Appellee, he read the of account picture and saw Boston’s arrest, paper after his when taken MISSOURI, JACK, OF BLACK CITY together with Dente’s further admission Appellee-Appellant. he, words, majority’s use 74-1378. 74-1345 Nos. not, independent impres- of the “could photo arrays, made sions remem- Appeals, of Court image Circuit. Eighth ber the of bank robber whom Boston,” gave he had identified rise to 15, 1974. Oct. Submitted such substantial likelihood misiden- 27, 1974. in-court Dec. tification that Dente’s identifi- Decided cation not have been admitted. should Rehearing Rehearings En Bane photograph of Boston furnished Denied Jan. law press enforcement authorities to the publication story with the of his ar- impermissibly suggestive. rest
subsequent photo displays to Dente subject litigation. it See United too was maintains that since previous The Government Harrison, robberies,” F.2d States v. “experienced bank had he fication, 862, 93 L.Ed.2d eyewitness 409 U.S. importance identi knew yet (1972). simply enough do not know We concentration his “intense” and that empirically, independent much less from the record this ba an the robbers evidenced authoritatively case, speak about the effect Dente’s his in-court identification. sis photo states of mind testimony (that independent of emotional upon motivational own perception Levine or recall. See & arrays image) the robber’s not remember he could Psychology previ Tapp, of Criminal Identifica argument. The tion: The His undercuts Kirby, Gap moreover, might Wade to experience, have indeed ous capable psychologically U.Penn.L.Rev. 1103-08 him less recall, particularly since *9 observation clear