*1 TUTTLE, Before GODBOLD and GEE, Judges. Circuit GODBOLD, Judge: Circuit This is a case which the proud has not done itself either at trial appeal. this court on Defendant Warf and a codefendant charged robbery, bank 2113(a)(d). U.S.C. In a § trial Warf convicted, and mistrial was de- clared with to the codefendant. The robbery was committed on Octo- 16, 1974, ber men, two masked wearing cap, a ski stocking pulled face, down over his sunglasses, wearing a baseball-type cap and a stocking over his face. Attempts eye- witnesses to Warf were fruitless except for witness Renee Lanier. A few *2 H71 the far table. Yes, Over Sir. A. dis- were photos robbery the after weeks pic- two selected that her, Well, she think and I don’t to COURT: played THE cap or facial without male aof tures of the of one being photos covering as codefend- for BUTTIMER [Counsel stated uncertainly she At trial robbers. Your Honor object, I ant]: “believed”, she mind” own her that “in I for ob- Warf]: MR. GASKIN [Counsel Warf, the sub- that were pictures .... ject Warf, like pictures “look[ed]” of the ject agree you. I to” “couldn’t swear she finally that and I-I photos MR. WHISENHUNT: of the identification positive a There robbers. of the will depicting you. I agree with THE COURT: Don’t_Do in- jury support a to sufficient evidence it. him for reprimand auto- Dodge Warf owned that again,--in ference this that not ever do robbers by the one used to mobile similar Court. near abandoned subsequently and beg your par- MR. WHISENHUNT: There was robbery. place don. used car like evidence Yes, You should. Sir. being fol- recently seen had been robbers to take jury right. I caution had car, and that Warf by a red lowed recently purchased in identi- consideration that into a red Oldsmobile. made. fication on Oc- Virginia in was arrested (Cont’d.) Q. possession in his He had tober cir- identify you Can —Under from money taken of bait amount small know Mr. Warf? do cumstances a red in traveling bank, and he him. Prison with was in Federal A. similar pistol had Also he Oldsmobile. Pris- holdup. in Federal long Q. used How to that him? on with posture this in the case year. Oh_-Approximately A. Walter as a witness called I--_I Honor, Your MR. GASKIN: and state multiple-offender, Hartman, a of vari- in and out federal, been had who entering and Well? breaking for prisons ous ensued There post offices. stores and objection. an I have actions but intertwined separate two jury out? You want he aided First prosecutor. Yes, Sir. MR. GASKIN: in or- the courtroom locating Let reprimand- He him. der damage Done rooms. go Immediately thereafter that. ed now. previously revealed Honor, I move prison. been a mistrial. caught revelation states that his answer though I’ll---ought by surprise, I think it But, with question. just can’t under- out. responsive to hear stand_let infor- inappropriate spend and inadmissible the Government jury, and come before of dollars mation thousands witness, knowing another down have nailed here and part make Following testify to answer. he’s cannot_Go actions: covering both transcript statement. such a your motion. make ahead Whisenhunt, Prosecutor]: Q. [Mr. Warf? Ted know do for a mistrial on I move Yes, they’ve put Sir. grounds [Hartman]: defendant prison —Is he Courtroom? Q. Is he into.-into where this table at over un_it’s highly ing table, prejudicial, and was goin’ reflects upon his character. “the table” in- troduce character. We think it THE COURT: You were directing his would be prejudicial my client. there, attention over but he would not_The Could verdict could not picked him out eventually. We know that. Go ahead make *3 THE COURT: Well. Proceed. your Your as record full you want. client, Mr.--Warf is to testify. MR. GASKIN: I move a mistrial You’re overruled. the grounds that the District At- MR. GASKIN: No. Your Honor. torney- -The - Government -indicated by pointing his finger THE at the COURT: Sir? table for the purpose of identification of MR. GASKIN: No Sir. Defendant, Warf, thereby lead- THE you COURT: What do mean? ing and indicating witness, to the MR. not going was to tes- Hartman, is it? . tify. MR. WHISENHUNT: Right. THE I COURT: don’t see how he can do MR. GASKIN: . . . Hartman, just that counsel. You must know your who he should identify. procedure. THE COURT: was there MR. WHISENHUNT: don’t have any discussion you between any-_any argument there, Your Government attorneys regard with Honor. I was caught by surprise. you were going to say about Oh, THE well, all right that’s having met him in prison? then, He out, blurted it then. Gra- No, A. Sir. cious, he ought to be warned about THE COURT: you Did just blurt that that. right I’m going to over- out, or they know it? rule it. You point, have a there. A. I just I’m going to answered the question carry the case asked. your overrule objection. THE MR. COURT: You thought GASKIN: I you would like to answer- renew my ed question?-.How objection. you knew him? THE COURT: It was involuntarily pro- Yes, Sir. duced. Well,
MR. No, BUTTIMER: he asked the very question, badly phrased. how he knew him? MR. Well, Well, BUTTIMER: there was no doesn’t mean way that — It could have badly phrased known him. ques- tion. Not it had been a minimum I’d also like go Well, my objection got haven’t to his anything to do with this table. I’d like to MR. BUTTIMER: ... but it was obvious . agree COURT: I with that. It’s badly handled, just_but people THE COURT: . But it hasn’t lapses. We all do. got anything world, even if I grant him mistrial, MR. Yes, your client is Sir. understand goin’ right on through but the trial. certainly--We’re_We’re trying the man robbery MR. BUTTIMER: I’m not askin’ for
one. MR. WHISENHUNT: May it please the THE COURT: All right. Well, it’s Court. I was not pointing at just-I’m goin’ overrule over Defendant there. point-
H73 Honor, may it’s WHISENHUNT: MR. WHISENHUNT: MR. something before just_You’re wast- It’s THE COURT: Be- a minute. just Wait my time from now on ing your fore what? only thing viewpoint and the thread, by a we by a Before save might WHISENHUNT: that, while edge, is the fact uh-.say razor’s inartifi- inexpert, very asked What? THE COURT: entirely inno- it was question, cal we Before WHISENHUNT: not do it cent, you did testimony before the uh_-begin pris- eliciting this man’s intention jury. record. Say what? May please MR. WHISENHUNT: Instruct him WHISENHUNT: the witness We’ll withdraw Court. all. to make statement no to have you’ll instruct if *4 now, know that to whatsoever umm. reference Mr. Hartman? you, don’t Honor, harm GASKIN: Yes, Sir. . done been has the__is Ladies and right. All damage The Gentlemen, was that statement It’s not the record. in what’s this witness as to the by out blurted . he’s under which he had circumstances has harm . The . . relevant, it’s is not Warf known Mr. done been material, highly prejudicial it’s not tes- to to going Now, defendant, Warf. Mr. tify to. testimony with reference ignore not .We were this which under to conditions stand, on the client put our to going disa- him. If can witness knew my client put going not was and I try it. of do your mind buse not was stand, all. at it all the time I have to do do it. stand. take the going cases, try non-jury and when Put whatever right. All it like- do it. You do think I can now. the record to in want else wise, got anything it because hasn’t a mistrial. for motion your case, Make it and should with this to do it, it injected in and mistrial been a not have for I move un__ came into just an error that was improper identifica- first Mr. Hartman of don’t think case. pointing by tion it, Warf, cer- by and I’m any harm to Mr. meant Government, pointing sat; that expect counsel tain that Warf where table how asking question ground, answer that mistrial a move go ahead. him. So he knew mistrial a move for also and I asked was grounds that saw testified he answer and of Mr. 24, 1974, Virginia on solicited_was October or solicited that bit am little “I that Warf told indicated given that answer done, and, had hot,” asked what he when record, which of--prison past had had robbed a bank and that he my said prejudicial is harmful money since had bag of he a duffle mistrial we client, move verified seen Hartman. last ground on that car driving red Warf was I’m carrying pistol. doubt. much overrule Summarizing against the evidence Don’t back in. bring right, testimony without Hartman’s that, now. get into (1) very identification; argument was: dubious incredible to us that no identi- (2) Warf’s ownership of a car similar by to fication Warf Hartman was either robbery, that used plus necessary the fact Certainly intended. identi- description car of that fication had been was necessary. The incrimina- car, by plus ting seen followed a red statements were meaningless unless car; ownership (3) a red money bait was identified as person who arrested; on Warf he (4) when was uttered pos- them. And it cannot seriously gun resembling session of a be urged that used did not robbery. intend circumstantial evi- the consequences asking Hart- thin, dence man testimony to identify Warf and assisting the incriminating witness in statements made Warf locating him in the courtroom The incriminating critical. order that state- the identification come ments were no than about. stronger ability of Hartman to who man The further endeav said had uttered them. ors to justify the pointing incident The prosecutor assisted Hartman both setting out brief, in its wholly outside
verbally by pointing. explana- record, subjective tion made to the District Court he and impressions unrecorded that he at the table where Warf states caused him to point. This is inap was seated rather than Warf individu- propriate and we would not consider ally is no explanation at all. The trial these justification. statements as Actu judge’s statement that Hartman would ally they accentuate rather than dispel *5 picked eventually Warf was the government’s error. The explana and, speculative, in any event, delay or tion is that prosecutor the considered by indecision Hartman in making an that Hartman was wilfully avoiding might identification have diminished the looking where Warf was seated so effect of his testimony.1 after an pause,” “interminable prose the cutor acted in order to “localize testimony concern- Hart man’s attention.” ing having been prison, accept- ing expected Hart- The government has taken similar respond man to to his question first with approach with respect to Hartman’s no more than reference to meeting statement that he had known Warf in Virginia, Warf in counsel it up followed prison. Again proceeding outside the with the inquiry long “How were in record, the brief states that in a confer- Federal with not, Prison him?” This is ence before trial the prosecutor instruct- as the Judge District called “badly ed Hartman not to prison mention phrased question.” The phraseology is reference Warf. No representa- such enough. clear It is a direct and addi- tion should have been made to us. The tional inquiry subject into matter al- defendant cannot have rights his adjudi- ready inappropriately before the jury. cated appeal on the basis of counsel’s Rather than ameliorate already harm non-record statements concerning a pri- vate interview with witness, done, it added to it. asserted without confrontation, Under all of the circumstances “the cross-examination or thread, means of rebuttal. edge” razor’s to which the judge trial referred gossamer are too REVERSED and REMANDED. sharp. too We cannot that his ef- GEE, Circuit Judge forts to cure the prejudice (dissenting): carried enough probability of success. The majority opinion is properly crit- Before this court has ical of government’s performance not improved position. its It makes the case, both at trial and on appeal. possibility 1. Indeed this seems to be one of the prosecutor’s coming to Hartman’s aid. See reasons that offers for the discussion, infra.
1175 to Warf Hartman. to ments attributed action in The admit- statements is weight of The these to Warf’s references ward ability of than the greater tedly im no obviously were incarceration prior defendant re Hartman are improprieties these But proper. ignores declarant, majority signifi is a if only there versible error identifica- strong of reliable indicia had a substan they possibility that cant by the circumstances g., provided E. tion verdict. jury’s impact tial the de- Hartman identified 1284, Constant, this ease. v. States United ac- to an and testified denied, by name 420 fendant 1974), cert. (5th Cir. 1289 spanning defendant quaintance 840 L.Ed.2d 42 95 S.Ct. U.S. Lanier, Renee Unlike Arenas-Granada, year. about a United States (1975); Warf as identifying was not 1973). respect (5th Cir. F.2d robber, seen bank previously unknown major believe because fully dissent occa- only and occasion on one weight to insufficient attaches ity opinion for which sion of crime conse evidence totality of the her, As being tried. the “harmless performing errs quently at all him out pick could she whether balance. error” By con- present. among others from testimony, aside Leaving dispute trast, is real doubt no there evi- opinion describes majority the defendant known that Hartman “cir- as “thin” against Warf dence well. and known previously place, the first In cumstantial.” sense identifying him "Was Lanier Renee of Warf identification trying was, sense Lanier that Ms. guilt. of Warf’s direct im- earlier single basis of purports majority uncertainty which deter- the robber to viewing of perfect emerged identification to find suf- her recollections whether mine cross-examination, and relentless under indeed, or, upon Warf to fix ficient clear- testimony is her weakening of any stating merely anyone. of defendant’s to the skill attributable ly could without whom he whether inherent than rather attorney court- present identify was doubt See identification. in her *6 weakness parallel; not Thus, are cases room. 331, 339 Bonds, F.2d v. 526 States United degree large inis prosecution summary majority’s 1976). The Cir. (5th byWarf of no identification correct omits “circumstantial” of sense, either strict earlier significant fact—referred con- its Given necessary or intended. automobile, Warf’s opinion —that con- may be testimony text, Hartman’s used as similar identified guilt for Warf’s of as evidence sidered day of robbers, was found possibili- determining the of purpose of the scene near the robbery, abandoned indiscretions prosecutor’s ty that summary, be added If this crime. verdict. impact substantial gun ear a defendant seewe the fact all the evidence Considering crime, identified used those like instruc- prompt judge gave trial crime, apparently scene improprieties, disregard both tions to near car abandoned his run created improprieties believe loot. of the with some crime, caught 1 error.” only “harmless call deference, not With to the references thin. incarceration, persist- prior as- majority’s significantly, Most asking a fol- ence of impact possible sessment impro- low-up question exacerbated the virtually ig- indiscretions automatically cre- but it priety, incriminating state- strongly nores making quotes to the trial not be that after majority and refers should lost 1. comments, edge” them denied a mistrial. judge’s and “thread” “razor ate reversible error. See United States Barcenas, v. 1110, (5th 1112-14 Cir.), denied, cert. U.S. 95 S.Ct.
521, 42 (1974). L.Ed.2d 312 The forceful
instruction to the jury to disregard these mitigated
references- impact, their any error remaining was harmless. America,
UNITED STATES
Plaintiff-Appellee, (1) AIRCRAFT,
ONE DOUGLAS A-26B
UNITED STATES REGISTRATION N320, Defendant-Appellant.
#
No. 75-3983
Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
April *7 18, Cir.; Enterprises, see Isbell * Rule Inc. Casualty Citizens Company of New York et al., Cir., 1970, Part I.