United States v. Michael Medico

agree with the trial court. We VAN GRAAF- ment. MANSFIELD Before CARTER, Judges, and EILAND, Circuit Judge.* District Discussion display issue can photographic The CARTER, Judge: District L. ROBERT summarily. Agent of Carman disposed employ that he showed the bank 27, 1976, was an armed testified there May On inter eight photographs separate Bell at at 23-98 ees Bank of the Chemical robbery that one of the views, did not indicate York two Boulevard, Queens, New one of the bank was photographs the men held a one of men. While masked to look at employee He asked each manager, the robbers. bank to the assistant shotgun they to determine whether area, photographs took tellers’ into the came other being the individual recognized anyone the tellers’ $23,000 in cash from almost pho in the The robbery. participated Ro- who then left the bank. The two drawers. employee were handed to each tographs manager, and Bar- Frisina, the branch sario through They went them and teller, tellers’ Balzarini, group. in the bara pro photograph. Medico’s picked convicted out indicted and Appellant area. clearly proper. followed was Sim grounds appeals on cedure He crime. for the 377, States, 390 U.S. 383- hear- suppression mons v. pre-trial aat errors 967, (1968); 1247 384, 19 L.Ed.2d reversal. 88 S.Ct. trial warrant errors at ing York, * sitting by des- of New for the Southern District District Court United States Of the ignation. 312 Illinois, 682, 691, Kirby also 406 U.S.

see Maria Medico would have succumbed. 1877, (1972). 32 L.Ed.2d 411 92 S.Ct. agree Judge Wein

We also Brief of Defendant-Appellant at 28. In met its prosecution burden determining stein acquiescence whether vol- “freely that Mrs. Medico had proving untary, “account must be taken . voluntarily her to the F.B.I. given” consent possibly subjective vulnerable state of her apartment. to enter and search agents person who consents.” Schneckloth v. Carolina, 543, 391 v. North Bumper Bustamonte, supra, 412 U.S. at 797 A S.Ct. L.Ed.2d Mrs. Medico undoubtedly psy- pursuant to a valid consent is consti search chologically vulnerable2 when she agreed to v. Bus tutionally permissible, Schneckloth search, but the record discloses no evi- tamonte, 218, 227, S.Ct. 2041, that the F.B.I. agents dence took advantage all (1973), totality and the L.Ed.2d this weakness the use of subtle circumstances, id. at to pressure secure cooperation. overt her A no that freely leaves doubt consent was of agents number large in her apartment Mrs. Medico testified that the F.B.I. given. proved could have unsettling, but, as al- threatening were neither nor menac agents noted, ready Mrs. they Medico testified that (Tr. 51),1and ing eliciting her consent were neither nor threatening menacing. she had that read consent form before We also find it difficult to read the 48). (Tr. Appellant argues it that signing statement made agents one of the that Medico never she Mrs. was informed that “we don’t want to take a mother from her a right constitutional to refuse implied as an child” threat as appellant agents permission F.B.I. to enter and search do, in urges light us to of the fact that it apartment, “knowledge right her of a immediately preceded was by the state is a prerequisite to refuse not of a volun ment, “we are not here to arrest any wom consent,” ibid., it tary although is one of (Tr. 48). an with a child” Nor did Mrs. considered, argu to be ibid. No factors indicate that thought Medico she agent ment made that Mrs. Medico was unau challenged meant as a permit to search of the apart thorized threat.3 appellant ment she and shared. Mrs. Medico

Appellant totality contends that the also that day testified on the question cocaine, of the circumstances she had “pot, used her- oin, (Tr. 50). methadone” The suggestion strong evidence of implicit psy “reveals drugs impaired that her faculties chological and there- upon coercion Mrs. Medico. made incapable fore her power drugs, hys con- voluntarily Under with an senting is daughter, just her controverted her terical husband arrest clear recol- by F.B.I., place cut off from lection incidents that took consulting ed friend, description . . . with her perhaps thought her her own Moreover, many agents apartment, in her processes. as ten this being frankly about fact with threats made incredible. reliability It’s is made ‘we want take questionable don’t to a mother more because it differs some- child,’ her it was surprising not what from her earlier testimony: transcript 1. All references to the in this section 3. This distinguishable situation is therefore pre-trial hearing held on denote June Bolin, (7th from United States 514 F.2d 554 transcript to 1976. References in the fol- 1975) police told which the defendant lowing section denote the actual trial held on they girlfriend,” “would arrest his id. 28, 1976. June Bolin, at if he consented to the search. In response given implied to consent such an Mrs. was While Medico under considerable voluntary. considered not threat was say pressure, be unfair that she was subjected “psychological coercion” agents meaning F.B.I. within of the cases voluntary dealing with consent. time, drugs (Tr. this you using robbery at seen him since the “Q. 92). Were A Medico? man young years Mrs. about old whom Car- mody sitting not know did was outside in a Yes. A. giving car the customer make and drugs you on? sort Q. What plate number of the getaway license car. I Well, program, methadone. A. relayed The customer information using—I smoking—her- started the door to through Carmody who took it pot.” smoking mean oin—I his down on check book. Carmody could circumstances, 49). Judge (Tr. Under young not hear what the man saying Weinstein, opportunity, who had an which (Tr. 94), although customer he could see not, Mrs. Medico’s de- to observe we do move youth’s lips as the customer was on the assess her behavior meanor was being him what telling said. Carmody stand, justified been would have in substan- description took down of the getaway disregard- discounting completely tially Dodge Valiant” car as a “tan with license story. of her aspect this ing CQA” (Tr. “700 plate 92). number Judge reasons, agree with the trial we these For Weinstein allowed the testimony in under freely Medico’s consent that Mrs. court 804(b)(5), Rule Fed.R.Ev. The judge of- voluntarily given. adjournment fered a five day testimony or his meet the make own inves- Errors The Trial Chimed (Tr. tigation 96). Appellant declined the Raymond agent Bernard identified F.B.I. asserting invitation the government he had taken from pants of red pair indicated that it made had had serious at- apartment on 2. The Medico June the to tempts locate two witnesses without holes in them contained numerous pants admitting success. Ibid. On the testimony to agent appeared testified be which judge the jury the district advised that shotgun” (Tr. from a possibly holes “pellet hearsay, that was since two witnesses shell, identified a 32 calibre a 80). He also present, were not the statement was not 22 calibre shell shell a Smith 22 calibre examination; subject to pro- cross that the apart- objects from the Medico taken as value of the statement bative was for the (Tr. agents’ 80-81). search during ment determine, jury bearing to mind Jerry three agent Loar identified F.B.I. missing subject two witnesses were not to which he testified had been fragments lead examination and their testimony cross bedroom from the wall of back removed (Tr. 95). under oath not apartment Medico two of of the appeared “to either 22 or fragments Carióla testified that he used William to slugs fired a calibre 25 calibre with Medico company work for a taxicab (Tr. 84). pistol” He testified there driving and would see Medico an off-white wall of the holes in bedroom plate CQA with license Dodge number being caused shots fired at apartment (Tr. 101). He denied of a ownership car (Tr. 85). Appellant argues wall CQA. bearing plate license number 700 At prejudicial highly and of such government the side bar the advised the respect charges value in of the probative no according to court that Carióla he had lost Therefore, urged, it is the indictment. then recovered his wallet. The wallet constituted reversible error. admission its all his identification. When contained he wallet, possession his regained of it con- Carmody, employee, testi- a bank William a registration tained certificate for a car five minutes after the rob- that about fied CQA, plate regis- license number 700 with funds and while had fled the bank bers (Tr. a door, party in Cariola’s name third tered locking the entrance bank he 102-3) whom Carióla believed to be Medico. Carmody knocked on the door. customer question government The wanted to Carióla monthly customer bank seen this (Tr. jury. Appel- he years 92), did about the matter before past five but 91) saying (Tr. name had not lant’s counsel demurred “I think we know his agreed poses court that out.” The of ought to leave these rules and the of interests rested. It 103) government (Tr. justice and the will best be served by admission of double of this hear- that admission claimed However, the statement into evidence. reversible er- constituted say testimony also may not be admitted under ror. exception this unless the proponent of it to makes known party adverse suffi- Determination ciently in advance of the trial or hearing hearsay provide party of the state the adverse with a The admission fair concerning get opportunity prepare bystanders it, ments of the meet his probl at first blush serious offer away car raises intention to the statement and the it, even become more particulars including ems.4 Those difficulties the name and hearsay kept sepa issue is not of the acute if the address declarant.” from the refusal of the apart rate This has not yet court had occasion to government to allow the district court proper scope define the 804(b)(5) of Rule closely more about question Carióla However, a criminal trial. in United States CQA plate being Dodge with license Iaconetti, (2d 1976), 540 F.2d 574 registered in name. Cariola’s upholding the hearsay admission of state- testimony was admitted under the The ments in reliance on 803(24), Rule a residual hearsay pro- as exception overall residual hearsay exception 804(b)(5), identical to this Fed.R.Ev., 804(b)(5), vided in Rule court found the question “statements in reads: possessed sufficient indicia of reliability,

“(b) Hearsay exceptions. following The and were the best evidence to corroborate” are not excluded rule if the account one government’s as a the declarant unavailable witness: witnesses as to what place. took It was

also pointed out that “the statements were proposition fact,” relevant to a material exceptions. (5) Other A statement not id. at 578. by any forego- specifically covered equivalent ing having cir- exceptions proposed new Rules Federal of Evi- guarantees dence, trustworthi- prescribed by Supreme cumstantial Court ness, (A) that if the court determines the and Congress transmitted to contained statement is offered as evidence of a ma- provisions identical in Rules 803 and 804 fact; (B) terial the statement authorizing more federal any courts to admit point the which probative hearsay on for it is not covered stated any than other evidence which exceptions. offered The Advisory Committee Note procure through the can rea- proponent advises that these hearsay residual excep- efforts; general (C) pur- and the sonable tions were included in the proposed rules difficulty upholding (1970) generally designed little pro- 4. We would have 213 and “are to ruling values,” Judge proper Green, Weinstein’s as a exercise tect similar v. California 399 149, 155, 1930, 1933, this been a civil case. We are discretion had U.S. 90 S.Ct. 26 L.Ed.2d however, here, (1970), See, with the Sixth Amend- faced reach 489 their is not coextensive. prosecu- Stubbs, 204, that in “all criminal ment’s mandate also Mancusi v. 408 U.S. tions, enjoy right 2308, (1972); Page, the accused shall the . . 293 33 L.Ed.2d Barber v. against 719, 1318, with to the witnesses 88 be confronted 390 U.S. S.Ct. 20 L.Ed.2d 255 Texas, (1968); 400, him.” has created some confusion as to v. This Pointer 380 85 U.S. S.Ct. hearsay 1065, (1965). of the rules and the whether the reach 923 The L.Ed.2d Sixth confrontation, guarantee clause are confrontation coterminous. See Amendment there- Hearsay: fore, Younger, reality A Look blind us to Confrontation should not the that the Backward, Forward, question hearsay A Peek 1 Hofstra L.Rev. of the admission of the state- Note, (1973); ments, case, Confrontation and the Hear- in a whether criminal or civil turns Rule, say fairness, process L.J. 1434 The 75 Yale Su- on due considerations of relia- however, Court, preme bility Experience clear has made that and trustworthiness. has hearsay taught exceptions while rule and the confrontation stated the that the now codified roots,” the Dutton clause “stem from same Rules of the Federal Evidence meet these Evans, 74, 86, 27 L.Ed.2d conditions. to “presumptuous as- This present would be situation was here. it because Defense exceptions desirable possible all readily govern- sume that counsel conceded that the catalogued; have been hearsay rule to the had made serious ment efforts to locate the ” unfettered exercise and that . they so that testify two witnesses could contemplated, was not discretion judicial person. hearsay in Rules exception residual but meets all the specif- Indeed to permit the courts deal ic for a requirements present admission as situa- presently unanticipated with new 803(1)5 under impression sense Rule under a demonstrate trustworthiness tions which hearsay which a statement will not be ex- spirit specifically stated within though even cluded declarant is availa- exceptions pro- The residual exceptions. Advisory ble. As Committee Note to however, rejected by House posed, indicates, 803(1) Rule theory for this Judiciary it was on the because Committee exception that “contemporaneity of injected provisions “too the two felt negate event and statement the likelihood uncertainty in the law of evidence much misrepresenta- of deliberate or conscious impair] ability practition- [might tion.” Precise contemporaneity is re- Rep. No. trial.” H. for prepare ers quired, “slight thus lapse is allowable.” 5-6, Cong. & 1st Sess. Code Cong., 93rd Ibid The Committee Advisory Note points 1974, p. News Admin. out the cases reveal a hesitancy to Committee, on Judiciary The Senate the statement admit without more when hand, feared that without residual other identity Ibid bystander’s is unknown. specifically exception “the enumer- hearsay This well may Judge reason Wein- become tortured be- exceptions ated could rely stein decided 804(b)(5). Rule reasonable circumstances which any yond fact, however, That the statement . to include . .” they were intended all the specific meets for standards admis- Cong., 93rd 2d Sess. Rep. No. S. 803(1) sions under but fails to meet all the Cong. p. Admin. News & U.S. Code forth in the judicial criteria set supportive Accordingly adopted the committee surely brings rationale within the grant 804(b)(5) present 803(24) and in their Rules 804(b)(5) of discretion accords to a report committee indicates form. The judge, trial consonant with legislative as “a broad provisions are not intended which the purposes exception residual trial to admit judges license” to achieve. designed exceptional circum- use under rare judge being trial admon- stances Moreover, several factors contribute to care, less “exercise no reflection ished to reliability Carmody’s testimony. under the than the courts did and caution at the two unavailable witnesses were scene establishing now-recog- law common position per- of the crime. One was in Id, the rule.” exceptions hearsay to nized the car plate ceive and describe and license Cong. & Code Admin. News at number the robbers used to effect their proposals The Senate p. 7066. and the escape; while other did not claim to the and enacted accepted by Conference the have himself observed car or the license present in their form. into law relayed to plate, Carmody he that informa- by told to him the deals, others, just bystander tion first among situa- Rule 804 seen personally had the robbers proponent of a witness’ who drive tions in which the getaway car. by process away or in the The time sought has other frame statement passed the of the the information was procure to attendance which means testify person. to the to the bank eyewitness at the trial customer and witness impression. (1) 803(1) provides: Present sense A statement 5. Rule describing explaining an event or or condi- by following not the are excluded hear- perceiving the declarant was made while tion rule, though say the even declarant availa- condition, immediately or or the event there- as a witness: ble after. Carmody the customer to then from was What in fact makes the admission of Car- followed actual very brief the getaway and testimony problematic mody’s is not the the closely,that likelihood inaccuracies so likelihood of its unreliability or untrustwor- that possibility the truth was is small and thiness but the testimony of William Cario- speculation by undercut or fabrication re- linking la Medico to getaway the car de- probability the duced. The informa- scribed in Carmody’s testimony. Cariola was accurate is tion enhanced fact testified that for about two months he and Carmody transcribed onto his check- employed Medico were by the same taxicab being was as it told to him. book company and that he had seen Medico driv- ing “an off-white 1965 Carmody’stestimony highly Dodge, was plate rel license (cid:127)evant, clearly material, CQA” (Tr. 98). the need for and great.6 No that evidence was other evi While it strains credulity person that a providing dence same information or could remember the exact number of his being probative of fact for more which plate, co-worker’slicense apparent- when he was offered was available the statement to ly had known his only co-worker casually pre It have been government. would the, and had seen him regularly over a short ferable, certainly, youth to have had the time, span of that is an issue credibility bank testify. customer How and/or jury. A crucial fact affecting Cari- ever, government made serious efforts ola’s credibility was never told to the jury, avail, locate these no to witnesses to and however—the Dodge, fact that the license adjournment the defense offered an plate CQA, Cariola, oath, under this or prepare to meet evidence make in owned, he denied was in registered fact of its offer vestigations own. The was dec conference, him. At a sidebar the U.S. 96). (Tr. In light lined7 of these circum Attorney revealed the highly unusual story stances, Carmody’s the admission of testi mony proper 804(b)(5). under Rule identification, “Cariola had lost his wal- Clearly necessity and trustworthiness let, subsequently found, and it was for the admission he there said that the car in specific warranting facts circumstances information, wallet allowing to come before the identification for a jury par justify are on with those which car that been registered, him exceptions. enumerated individual, another and that was Yates, U.S.App.D.C. applicable States v. hearsay In United exception to the residual set (1975) 803(24) 804(b)(5), the court held 524 F.2d forth in Rules Fed.R.Ev. bar the confrontation clause would the admis- Dutton was decided before the new federal hearsay testimony, require- requirement if the rules sion of even were enacted. The Yates 803(24) 804(b)(5) express language or are would run counter ments Rules satis- fied, require the two rules which where none the three conditions set such evidence to be Moreover, Evans, subsequent of a fact. material forth in Dutton v. proposed by (1970), Supreme Dutton the rules met: 27 L.Ed.2d are hearsay Court itself had broader residual ex- reliability’ “(1) are ‘indicia of there surround- ception finally than was enacted and made no evidence; (2) ing ‘periph- being peripheral. reference to the matter A ‘devastating’; eral’ rather than ‘crucial’ analysis, suggest, require we better (3) equally witness is available to exclusion of evidence which is “cru- prosecution and the defense.” “devastating” only cial” or where the unavaila- Yates, supra, 524 F.2d States bility deprives of the declarant the trier of fact precise conceded that “the con- 1285-86. It satisfactory evaluating of a basis for the truth requirements tours of three are not these free extrajudicial of the See declaration. United doubt, nor is it from certain whether all three Wolk, F.Supp. 405, (E.D.Pa. States v. 398 410 every Id. at must be satisfied case.” 1286 1975). omitted). (footnote may prior requires that its To the extent conclusion differ 7. The rule notice to the adverse ours, party, by we do not it. We do from follow omission this was cured agree grant five-day the Dutton that that standard court’s offer to the defense a “devastating” adjournment. be “crucial” evidence not or is

317 Department of character to the State was bad or that he had a given over propen Vehicles.” sity violently, Motor to behave its admission would have United constituted error. v. States (Tr. 103). 1196, (2d Ravich, Cir.), 421 F.2d 1204 cert. bring asked out government to The denied, 834, 69, 400 27 91 S.Ct. L.Ed.2d stated, but defense counsel this information States, (1970); 66 Walker v. United 490 (Tr. to leave that out” ought we “I think 683, 1974). (8th However, F.2d 685-85 Cir. We that 103). agreed. recognize court The the evidence were introduced to identify if which make us be hindsight nuances robbers, it appellant as one of the al testimony should have been lieve the 401, have been relevant under Rule Fed.R. have been as evident at may not lowed Ev.,9 and under therefore admissible Rule was not evident to de certainly trial. It 402,10 to opportunity prepara establish or and the Both he court were fense counsel. charged. tion to commit the crime United of testimo pursuit that Cariola’s concerned Robinson, 611, v. (2d States 544 F.2d 615 far from to matters removed ny might lead 1976); Ravich, United Cir. States v. supra, think, however, We hand. at issues 421 F.2d at 1204. had have this informa jury should that the Be credibility. Cariola’s evaluate tion to Rule judge 40311directs the trial to acquiesced in the trial the defense cause probative weigh value of such evidence facts, exclude these how to court’s decision prejudicial its against effect on the jury in ever, that now find decision con we cannot to determine order though whether even error. plain stituted relevant, such evidence should be excluded. of er Turning appellant’s to claim “a balancing generally This is matter left pants, to the red we note respect wide, wise, ror with within discretion of the object failed initially appellant Robinson, trial court.” v. United States of this evidence at trial on 616; the admission v. supra, Harvey, United States 526 prejudicial it was and of no ground 529, 1975); (2d denied, 536 cert. F.2d Cir. v. Under United probative value.8 States 956, 1432, 47 424 U.S. 96 L.Ed.2d S.Ct. 362 (2d 1965), 276 Cir. cert. F.2d Indiviglio, Montalvo, 352 (1976); United States F.2d denied, 383 U.S. (2d 1959), denied, cert. therefore, review of the (1966), L.Ed.2d 4 L.Ed.2d 543 ground this foreclosed error on is asserted probative value of the trousers and “plain error.” absent pellets in identifying as intro of the bank robbers rested on the jury’s this evidence been one If imply appellant’s drawing two inferences12 this only to evi- duced thority. prejudi- which is not Appellant raise the of Evidence relevant did not issue object not admissible.” did at trial. He to the evi- cial effect grounds Mrs. Medico had not on the dence given provides: 11. Rule 403 The trial court found no consent. her relevant, “Although may evidence be exclud- and, claim, opinion our indi- this basis for probative substantially value is ed if its out- cates, nor do we. weighed by danger prejudice, of unfair issues, misleading confusion of the or provides: Rule jury, delay, by of undue or considerations “ having means evidence ‘Relevant evidence’ time, presentation or needless waste any tendency any to make existence of cumulative evidence.” consequence to determina- fact that is rejected “as 12. This court has untenable the probable prob- less action more or tion urged may that an inference often claim not be be without the evidence.” it would able than inference,” grounded on an States v. Ravich, n.10, provides: supra, although 10. Rule 402 421 F.2d at 1204 recognized that it also admissible, except “All relevant by provided length Constitution inferences of the chain of neces- as otherwise “[t]he States, by Congress, sary Act evidence with the ulti- the United connect necessarily rules, prescribed proved other rules mate fact to be lessens these evidence, statutory probative may pursuant Supreme au- value of the Court ap- dence. The first inference involved the distances. Balzarini testified that she saw possession weapons of pellant’s used to appellant’s face tip from the of the nose to discharge pellets into the wall trou- chin his before it was covered. Since the robbery. at the time The second sers man also came in close proximity to her have been one inference would or more taking money while from the area, tellers’ weapons robbery, was in the of these used she testified that she was able to see his Robinson, supra, nose, v. at 616— United States eyebrows, moustache hair through the mask and that his features were not distorted. Both had positive- also testified employee One bank that one of appellant, ly identified ante, as indicated a the robbers carried rifle the other before trial as one of the robbers from an (Tr. 13). shotgun em- carried Another photographic F.B.I. spread.14 It stipu- testified that one of ployee robbers had Castabile, lated that eyewitness another long gun” (Tr. 44). was, “a There conced- crime, would have testified that Medi- linking no edly, shotgun evidence used picture co’s “closely resembled” the individ- robbery the shotgun in the fired in Medi- (Tr. he saw in ual the bank 109-10). Final- apartment. factors, co’s Absent additional ly, there was also testimony that before the has this court indicated that mere simi- robbery Medico had driving been seen weapons larity of the be would an insuffi- car used for the getaway. ground admission, cient v. States Robinson, supra at 618 n.10. inferences court, The trial course, of required jury—that be drawn at justified been have in excluding this evi crime, the time of the appellant had access light dence in its very of prejudicial nature. weapons, at least one of which was used However, earlier, as indicated this was a robbery—without in the more would be too matter in which the judge trial has wide 616, Id. at weak. discretion, and under all the circumstances, Where, however, direct and circumstan- particularly since no objection proper independent tial evidence of the defend- made, say we cannot that he abused this guns13 possession ant’s exists to link him discretion or plain committed and reversible crime, the basis to the for those inferences error. strengthened, at is id. and admission of questionable. such becomes less Appellant raises one additional eyewitnesses Two to the crime identified claim: that his counsel at trial was so inad in court as one of perpetrators. Medico equate as to violate his Sixth Amendment Frisina testified that stopped rights. This claim has no merit. The rec leaving near him tellers’ area with ord reveals that any might standard that $23,000 eyes, in cash and that his mous- applied, be appellant’s counsel at trial was tache, part ears and of his face visible. constitutionally sufficient. United States glasses wears Frisina and did not have his Wight, (2d v. 176 F.2d 1949), Cir. glasses place. on when the took robbery denied, He cert. nearsighted but can clearly see at short (1950).15 L.Ed. 586 Nothing in the record susceptible therefore it more render to exclu- April necessary 1977), un- the court held that it was prejudicial sion as . . .” in- to reconsider the standard for adequate Ibid. counsel enunciated in United States Wight, supra v. at “a lack effec- 379—that quanti- 13. Evidence that Medico had access to tive assistance counsel must of such the Court guns inherently suspicious. Compare ties of kind as to shock the conscience Ravich, supra, United States v. and United proceedings and make the a farce mock- Robinson, supra, v. States at 617. ery justice.” again This is the situation facing the court. Even liber- under the more infra,

14. See discussion Part III. circuits, al see standards followed other Rickenbacker, supra, supra, Taylor, at 65 and Warden, 15. In Rickenbacker v. Auburn Correc- 2829-30, plaintiff’s trial counsel ade- Facility, (2d 1976) 550 F.2d 62 Cir. tional quate. Taylor, (2d United States 76-1210 No. arguably support finding even any within exception to the hearsay rule.1 contrary. the license Since number and identification were obtained during the armed robbers’ MANSFIELD, Judge Circuit (dissenting): flight hurried from the crime, scene of the young man in the car may well have ground on the respectfully I dissent excitement, erred due to poor eyesight, poor get- the double identification of the lighting conditions or visual obstructions. away car admitted the trial court lacked possible Indeed it is young man any guarantee of trustworthiness entitling may have been sufficiently confused or it to admission under the residual hearsay frightened to have identified a car that 804(b)(5), FRE exception, upon relied getaway not the vehicle at all. This type of majority. any In the absence of guar- such eyewitness identification long has been con- opportunity antee or of an to test the relia- sidered proof bility through cross-examina-

tion, “peculiarly the admission of this in my riddled with innumerable dan- an gers view constituted abuse of variable discretion and factors which might “harmless.” Kotteakos v. seriously, error was not even crucially derogate from a States, fair trial. The vagaries eyewitness well-known; (1946). identification are L.Ed. 1557 I would therefore the annals of criminal law are rife reverse and remand for a new trial. with instances of mistaken identification.” United States The sole issue in this trial the identi- Wade, 218, 228, fication of as one of two robbers 1933, 18 L.Ed.2d Queens, Bank of a Chemical branch in New Yet, because the evidence was admitted On this issue plate York. the license num- Carmody from rather than from the out-of- description alleged ber and getaway court declarant himself, the defendant was element, was a critical car which the deprived of the opportunity to cross-exam- sought prove government through Wil- declarant, ine the which might signifi- have Carmody, a bank employee. Carmody, liam cantly reduced the reliability of the evi- however, did see the car himself. He dence in the eyes of jury. obtained information from a man he customer, recognized as a bank but who It is further evident that some of the was neither identified name nor located same factors which might have interfered customer, trial. Nor according for did young with the man’s direct identification Carmody, getaway He, see the car. of the vehicle might well prevented have turn, had obtained the license number and the bank customer correctly relaying description some five minutes after the rob- the young man’s description, including bery “young from a man” seated in a car faulty hearing, noise, background excite- bank, outside the who also ment, could not be Yet, and similar circumstances. be- identified or located for the trial. Carmody cause the bank customer was also unavaila- testified that the young man relayed the cross-examined, ble to be accuracy license number and description to the cus- his statement could not be tested. tomer who shouted through the closed bank The record in present case reveals to Carmody, door who wrote the informa- that fears of distortion in this crucial identi- tion down on his checkbook. Carmody fur- unjustified. fication are not Car- nished the description after referring to the testified, mody instance, for geta- checkbook refresh his recollection. Valiant,” way car was' a “Brown problems presented Serious are as to the Plymouth. checkbook, would indicate a His trustworthiness of this hearsay, which indi- evidence, which was admitted into noted cate that it should not qualify as falling Brown, “tan,” that the car was not hearsay exceptions The (Chadbourne foundation for all 1974); dence 1420-22 §§ rev. Ad- Notes, circumstantial of cross-examination. visory Introductory trustworthiness in the absence Committee Note: Wigmore, Hearsay See 5 Evi- Problem. Valiant,” a non-existent mod- man “Dodge nor the bank was a customer produced Carióla, corroborating wit- cross-examination, motives, el. William their biases to and ness, possible car driven connections testified with appellant or “off white job by Medico was an Carióla could not be explored. Neither, his percep- therefore, in significant compelled Thus errors could Dodge.” to “stand face way jury into the found their to face with in they communication order that may tion or evidence, and presence judge of look at him by even without the the his demeanor and upon the stand the cross-exami- declarants for manner in which he the out-of-court his gives whether worthy he is of nation. belief.” Mattox United States, 156 U.S. hearsay unreliability of the testimo- 337, 39 L.Ed. was in- identifying getaway the car ny guard against just It tois possible such by government’s the disclosure of a creased consequences that the evolved, hearsay rule witness re- key circumstance. The bizarre for exceptions nonhearsay only where by government appel- the link upon lied there are circumstantial guarantees Carióla, of getaway the car appel- lant in trustworthiness lieu of cross-examina- though co-worker. Even the former lant’s my tion. view it In was a serious error for only acquaintances, casual Carió- were two judge the trial to resort to the residual la, testimony which, according to in the exception hearsay 804(b)(5) found in FRE majority, credulity,” “strains was able to for as the basis admitting the double hear- the exact license remember number present say the case.3 The effect is to to work on car driven the emasculate hearsay rule and violate the This number to be the occasion. turned out purposes fundamental it. underlying In car, that of the getaway as as identi- same formulating the residual exception, the Carmody’s hearsay double fied testimo- the of Federal drafters Rules of Evidence important, in ny.2 offering More this testi- cautioned should be sparingly: used government mony advised the trial that the “It is intended hearsay residual a side bar conference judge in of extra- will be used exceptions very rarely, and ordinary fact that the automobile had actu- exceptional only in circumstances. The registered ally been in the of Carióla name committee does intend to establish rather appellant. than that of Al- himself for judges broad license trial to admit appellant’s though apparently counsel failed hearsay statements that do not with- fall exploit and grasp implications of this the other exceptions in one of contained disclosure, it par- raises a question, serious 804(b).” and in rules 803 S.Rep.No. ticularly view of criminal rec- Cariola’s 2d Cong., 93d Sess. (1974), 18-20 U. S. ord, young to whether the failure of as Cong. & Code Admin. p. News 7066. (who the bank customer had been man or frequently at the bank before the rob- seen The admission of the double-hearsay thereafter) bery but not to come forward of identification the getaway car testify may and not have been attributable present case violated spirit both the and by the others to conspirators to efforts or purpose 804(b)(5) of FRE as thus expressed, against full disclosure the rob- protect of any since the evidence failed to satisfy of identity. the young Since neither bers’ the basic conditions for exceptions to the separately By resolving raised 803(1), only the issues FRE stage cover the first getaway alleged connection with the Cariola’s hearsay, double from the Carmody’s and the testi- vehicle admission of customer, “young man” to bank because conveniently ignores mony, majority only “young perceiving man” the star- concerning effect of the revelations serious i.e., tling describing, getaway he was event probative value trustworthi- Carióla and Moreover, of the robbers. it is difficult con- testimony. ness of identification description the license number clude that description expla- would be a of the vehicle best, majority’s At conclusion Car- “event,” meaning within nation of the mody’s testimony would be under admissible usage 803(1). FRE common impressions, exception present for sense any It lacked circumstantial (Stern rule. two witnesses Goodman) trustworthiness, hardly it was guarantee a previous to statements of (Lioi) witness point on the for which it is probative “more regarding the defendant request Iaconetti’s which the any other evidence than offered money. significant for But the difference admission procure,” can and its proponent (Stern, is that there the declarants Good justice.” “the interests not serve did man, Lioi, Iaconetti) were all available danger of serious error was there only Not jury cross-examination and the was al part young man on the perception lowed to resolve conflict in credibility but Cariola’s testi- bank customer and the who among present witnesses provide the essential mony purporting to judged. whose demeanor could be In ad being was far from to the link mitting statements similar to those Ia suspicion. As the of doubt Su- free conetti, it has often been stated that where Wade, supra, a criminal Court said preme declarant present the and on the witness right” “most basic is that of a defendant’s stand, present provides cross-examination against at which the witnesses trial “fair protection against sufficient unreliable out- might meaningfully cross-exam- him of-court statements. Green, California v. 224, 388 U.S. at 87 at 1930. ined.” S.Ct. 149, 158, 1930, 90 399 26 L.Ed.2d past, policy two centuries “For (1970); States, 489 DiCarlo v. United 6 F.2d Anglo-American system of evidence has 364, (2d Cir.) (L. Hand, J.), denied, 368 cert. regard necessity testing by been 706, 69 L.Ed. 1168 as a vital feature of cross-examination (1925). protection No such was available in safeguard law. The belief that no for this case. testing the value of human statements is availability of the out-of-court de- comparable by to that furnished cross-ex- clarants for cross-examination at the trial amination, and the conviction that no expressly upon relied in United States (unless by general exception) Leslie, (5th F.2d 1976), v. Cir. testimony until it has be used should only other criminal uphold case to test, by and sublimated probed been testimony introduction of under the residu- increasing strength length- has found There, hearsay exceptions. agents . al FBI experience. . . is be- ening [I]t engine written greatest legal by doubt the corroborated statements the de- yond Wigmore truth.” discovery by fendants which recorded trial, Evidence introduced at agents § after had taken the stand defendants and denied authority supports application No Thus, those statements. the truth of 804(b)(5) hearsay exception in a residual that case both defendants and the present ques- one when serious like case agents, credibility whose had to be deter- have been raised in the reliability tions of jury, mined were available and the con- of cross-examination. On absence at the trial.4 present apply circuit has refused to trary, one poses serious constitu- because exception case present In the neither of the out-of- Yates, v. United States problems. tional upon declarants reliability court whose 524 F.2d 1282 U.S.App.D.C. accuracy the identification of the getaway available, based was car was with the result majority are relied on The cases credibility that their could not be distinguishable. In United v. tested readily States Moreover, Iaconetti, 1976), (2d appellant. only we were there 540 F.2d 574 Cir. hearsay ex- support in the residual indications distortions had occurred in found identification, admission rebuttal substance of the visual ception for applied safety recommendations); In other cases which have the residu- air codes and Ark- hearsay exceptions reliability States, of the evi- al Mo Farms v. United 530 F.2d question. was not in Muncie dence admitted (Ct.Cl.1976) (admitting Corps Engi- 1386-87 Fleet, Party Corp. v. Doil 519 F.2d Aviation study). hydrological neers’ 1974) (5th (admitting national supplied by Carióla linking as to undermine the entire suspicious was so identification.

theory of the reasons I would reverse.

For these HABER, Goods, as Executor of the

Max George and Credits that were of

Chattels

Haber, Deceased, Haber, and Max Indi-

vidually, Plaintiff-Appellant,

The COUNTY OF NASSAU and Robert

Sehlmeyer, Defendants-Appellees. 1022, Docket No.

No. 76-7493. Appeals,

United States Court of Circuit.

Second

Argued March June

Decided

Case Details

Case Name: United States v. Michael Medico

Court Name: Court of Appeals for the Second Circuit

Date Published: May 25, 1977

Citation: 557 F.2d 309

Docket Number: 807, Docket 76-1426

Court Abbreviation: 2d Cir.