*1 advertising in this area not shrink from exer- that would avoid word and should statutory mandate. power conditions without a clear-cut when the cise of its supra. justify injunction. Seamans, v. Sea- Steinthal an Steinthal v. -, U.S.App.D.C. 455 F.2d mans, 147 involving particular case, In the day. 1289, decided this agency make the head to failure negotiation permitted determination injunction, present (14), 2304(a) have an ac U.S.C. § though action issued to the GAO tion, strictly to take or more a failure protest, limited in not bid agency action, dis is “committed to prevent considera duration so such as meaning cretion law” within the may supposed that a tion. But it not be Act, Procedure 5 U. Administrative preliminary injunction appropriate is (2) 701(a) S.C. § merely pending be matter because the GAO, brought before Reversed. fore or will be insistence, by an at the court’s GAO alogy procedure in Brawn- followed Shehyn, supra. prelimi
er v. Whether a granted pen
nary injunction should be separate question lite,
dente is a jurisdiction primary doc
whether invoked, though is
trine should be often inter-related. In view sues are of America UNITED STATES pro expeditious public interest v. preliminary injunction can curement a HINES, Appellant. William A. justified makes the court be unless probability judgment of a considered of America STATES UNITED Likelihood of on the merits. success injunc requirement success is a of an WARE, Appellant. Theodore M. though probing court’s tion even 23281, Nos. 23391. comprehen analysis may not be as injunction its limited sive when Appeals, United States Court period required for a determination District of Columbia Circuit. protest. the GAO on 21, Argued Sept. 1970. case, issuance In the Decided Nov. 1971. injunction, preliminary Feb. As Amended period consid not limited to the of GAO eration, on a basis that we consider injunc preliminary erroneous, and the
tion must terminated. The adminis procurement here at
trative decisions illegal
tacked consistent with favoring general policy adver nation’s clearly competition, expressed in
tised regulations. pertinent statutes scrutiny under
Judicial of actions taken Act
the Armed Services Procurement purpose fur
should be oriented to the
thering bidding open competitive Co. contract award. A. G. Schoonmaker Resor, U.S.App.D.C. reviewing (June 1971). A court eye to as action with administrative statutory suring compliance man policies action
dates and not take should
Bazelon, Judge, Chief concurred
part part opin- and dissented and filed
ion. *3 answer, everyone
for an ordered to lie on complied, all five floor. When rear office. entered the The second assailant ordered Mrs. Boggs get open (appointed off the and to floor Michael J. Mr. Valder 23,281. reen- The first intruder then court) safe. No. pulled area, tered main office (appointed Mr. A. Jackson William Mrs. Ricketson from floor her 23,391. court) appellant in No. arm, instructing open her to a cash draw- Clarke, Jr., Asst. U. S. John O. spotted er he had the coun- under Atty., Thomas A. whom Messrs. placing complied, ter. Mrs. Ricketson Flannery, Terry Atty., S. A. U. John money located the drawer Attys., Green, S. Thomas C. Asst. U. *4 bag paper which the had robber brief, appellee. were on the for gunman, her. second had been who Judge, BAZELON, WIL- Before Chief overseeing Boggs’ open- progress in Mrs. Judge, MILLER, Circuit BUR K. Senior ing safe, left her force the side to Mrs. McGOWAN, Judge. Circuit Heelen from the floor in order that she
might Boggs. Apparently assist Mrs. Boggs when was left unattended McGOWAN, Judge: Mrs. Circuit managed trip safe, at the had a she by jury of two Convicted a counts minutes, silent After a more alarm. few 2901), robbery (22 on this D.C.Code § opened, and, the two men safe was as the appeal appellants raise a series each transferring money the safe from dealing apprehensions their claims paper bag, to a a third man entered proce- police, the the identification police. arrival All announced the police, dures used conduct where, three raced to the office men rear carefully trial. exam- We through they window, made a a rear ined each of these claims and find them hasty leaving alley, an behind exit to without merit. bags money, pistol, a and several robbery ap- lasted fingerprints. I proximately ten minutes. 18,1967, approximate- December On McFarland, policeman first Officer P.M., ly men entered the 2:20 two armed scene, main to arrive on the entered company realty of a down- office of the three office and was informed area of town the District Columbia. the window exodus. He raced to men’s in the Present office at time were office, three run- viewed the rear president company, Mr. through ning alley, and climbed down Walshe; employees, three Mrs. Rieket- give chase. He in order to window son, Boggs, Heelen; and a Mrs. and Mrs. Frye. joined by Both offi- Officer company, Mr. contractor Gateau. was fu- cers soon realized the chase gunmen entered, the three em- When tile crime, returned to ployees were at desks in the located investigation activities had where of the main area behind a front office been commenced other officers. separated that counter which area immediately A sent radio run was out the office’s entrance. Mr. Walshe robbery. reporting just had finished Officer Wilson Mr. conver- Gateau company report first he was trav- sation the rear office heard when eling entering approximately car and were the main office area. in his scout four gunman robbery He im- The first around the blocks from the scene. walked location, area, push- mediately counter into the main headed toward that office ing ap- Mrs. Ricketson in order to had traveled further than two aside proach He blocks two men run- Walshe and Mr. Gateau. observed ning away company’s robbery from the location and asked two men where the waiting glancing money kept, continuously and, without over their shoul- Approximately had ten minutes an intersec- bers.2 At direction. ders passed had fled managed the three robbers block since Officer tion Wilson car, with his but the office. path the men one eventually flight, continued the other Lanigan, Detective one of the officers alley. turning nearby up Before Wil- scene, robbery reported say anything, man the first could son recognized immediately man the detained of the scout car opened door front Hines, individual he closing it, behind door and entered many suspect as a other encountered Wilson asked Officer him. When addition, criminal matters. Detective car, voluntarily why he had entered Lanigan had once arrested of run- responded tired was] “[he Edward, pickpock- brother, Hines’s running ning.” he was asked what When eting Realizing offense. forthcoming. from, no answer merely Hines’ residence three blocks robbery, upon the scene of officer of a fellow With the assistance learning that all three of robbers car, his own scout arrived in who had initially direction, fled in that Detective car, pat- removed from the man was Lanigan decided to visit address handcuffed, down, and returned ted interrogate order Edward Hines. then drove the car. Officer Wilson accompanied him on Lieutenant Wallace time, where, by realty company this mission. had assembled.1 Officer officers *5 suspect brought Upon arriving home, ap- handcuffed Wilson at Hines twenty four proximately office area where into the main minutes after standing they witnesses, robbery, all behind five commission of the counter, immediately Frye, simultane- met Officer who had been wait- ing one of the rob- ously as identified him a one-man scout car across the vague exact as to the 1. While the record is Walshe Boggs testified at trial Mrs. also appears police present, appellant it number of Hines identified at had might Finally, what be con- the number exceeded time. clear that Mrs. is robbery. response opportunity a Boggs to the normal to sidered best ob- had the “po- sup- appellant The was that an erroneous reason since he was serve posedly Hines signal had sent lieeman-in-trouble” who her side the robber stood attempted open out. to the safe. while she suppres- presiding over the The Walshe, apparently gave hearing makes that Mr. 2. The record clear to credence sion Gateau, Boggs Ricketson identi- Mr. and Mrs. he Mrs. since Officer Wilson and fairly appellant findings Boggs It is fied also Hines. that Mrs. stated identify appellant not certain Mrs. Heelen did had identified Hines. appellant judge presiding at time. There Hines over the trial reaf- controversy ample finding. Mrs. some over whether There evi- firmed that Boggs De- made such an identification. to it. dence Sergeant Reilly, appel- tective who oversaw the had identified After the witnesses him, investigation, Hines, and Mrs. Ricketson entire took back lant Officer Wilson preliminary hallway, both ing at hear- testified where he met the front into Reilly Reilly. Sergeant Boggs Sergeant had not identified had Mrs. confron- Hines. to the first not been able observe jury Boggs grand hearing, tation, Mrs. informed he ordered Wilson Officer Sergeant Reilly the main she identified Hines back into take might show-up. Moreover, he at the Officer area order office evidentiary identifications. testified at the hear- Wilson a “clear view” ing reappearance, that, brought appellant when he first Hines’ Prior crime, Reilly Sergeant witnesses not Hines back to the of the four asked the suspect identification until witnesses had identified the make their second to appellant —two of- men from the main and two Since Mrs. Heelen was removed women. apparently identification, then observed made no Mrs. area. The witnesses fice Boggs reappearance, appellant’s must waited until have been one of the two spe- again removed, made their identi- women. At Officer Wilson cifically Boggs named of the Mrs. one fications. eyewitnesses who identified Hines. question. the residence ant street Wallace himself to Mrs. Frye explained Lani- and informed her Detective Officer gan that, chasing talking after the three robbers interested in the man who just way, returned to alley he- had entered the al- house. Mrs. Hines down eyewit- realty question lowed the office officers to enter. De- receiving partial Lanigan de- tective After a man nesses. observed began robbers, top place scription staircase a black rain- Even- coat on a the area in his scout car. bannister and then cruise descend Negro Lanigan, realizing tually to a staircase. indi- his attention was drawn ap- Hines, vidual raincoat Edward male black asked description suspect general peared for his name. to meet He refused to an- placed swer, arrest, one of He watched under the robbers.3 and was suspect yard of a resi- later identified as enter the front Mrs. Ware. dence, engage Hines also informed the in a conversation officers that glance person back at the other was in woman, older over his the house car, the home. time. and then enter scout Frye about said that he was Officer P.M., day, lineup At 6:30 that same help Lanigan and Wallace radio police headquarters was conducted at Frye Lanigan told arrived. Detective lawyer Legal present. with a Aid sus- arrest of lineup consisted of four offi- involved, picion and that that Hines was cers, including Wilson, Officer Frye had house into which Officer separately lants. Three witnesses viewed suspect Hines res- seen enter was the lineup, rearranged which was after it idence. had been seen the first of the three witnesses, approached then Mrs. The officers Ricketson. Both Mr. mother, recognized ap- the Walshe and Mr. Gateau house. Hines, pellant Frye previously woman Officer while Mrs. older Ricketson *6 described, appellant Lieuten- Gateau identified answered the door. Ware.4 wearing uncertainty the informa- Ware was a white as to shirt There Frye spotted Frye possessed Moreover, the him. about he tion Officer Officer began tie, at the his investi- admitted that he robbers time he also suit, noticed no dark suppression pants gation. appellant. He testified at the or dark How- forgot- Frye hearing ever, and at trial that he had can assume that Officer description part appellant the better of the ten noticed the matched by eyewit- weight, age height, descriptions him the which was and em- prior patrol, phasized he did re- nesses to his but in the radio run as well as the Negro looking wearing Negro a member he was he was fact male Appellant Ware, a black male of medium build raincoat. in black Frye attempts sig- brief, disparage both at Officer insisted raincoat. the evidentiary hearing stating raincoat, at the of the nificance black description raining day time was the had at that that because was question on the provides sup- certainly more detailed. The record such raincoat would port distinguishing for the it is undis- contention since not be a characteristic. responsible Frye puted that Officer was early sending concerning which for gave out an run radio 4. There was some confusion description partial appellant the of the rob- Mr. Walslie’s identification of lineup. Sergeant Reilly The text was as fol- bers. run at the tes- preliminary lows : both the tified and evi- at male, 23, 5'9", Negro dentiary hearing “That’s LOF #1 that Mr. Walshe suit, pounds, shirt, tie, dark 145 white Ware at that time. coat, general, pants, evidentiary Sergeant hearing, dark dark same #2 the at subject apprehended, memory 2 Reilly’s one jects was sub- was when he refreshed copy armed are still out and #2 #1 “line- to view a of the was asked up revolver, completed with a short black obtained sheet” which was after the an unknown amount of No in- cash. had made their identifica- juries.” Typed on the sheet was a nota- tion. Frye trial, however, ap- Officer conceded at tion that Mr. Walshe had identified pellant recognize however, notation, that he did not Ware. That
1323 lineup approximately explained sup- or six five times at later Mrs. Ricketson throughout hearing identify pro- the course of various pression that she did Boggs ceedings. shown was indi- she Mrs. Hines because believed testifying pictures prior suspect only identify the who vidual be- she was grand jury. time, fore At that she to the scene returned not been reported volun- explanation she confirmed Ser- crime —an charge identifying geant Reilly, teered to serve as an witness grand hearing. jury. suppression Mrs. before the lineup, at seriously hearing shaken rob- suppression appellants Heelen was At the stayed Boggs bery validity and Mrs. incident arrest and attacked their realty assist her. procedures. office to at the various identification event, police were under time the presiding ar held both the impression wom- neither of these lineup rests and the to have been an identification. proper. However, en could make on-the- he found the photo- lineup, color one identification Prior to the sepa- precepts graph each violative established taken of together. Supreme A rately, two States v. one of the Court United lineup Wade, 1926, 218, photograph also taken of 388 87 18 U.S. S.Ct. Ricketson, eye- first L.Ed.2d 1149 also held that as seen Mrs: He Boggs Subsequently the Mrs. could an in-court to view not make witness it. Ware, pictures police displayed to each of identification be viewings photographs preparation cause her witnesses hearings. Supreme testimony pretrial violated Court’s decision at various 377, States, colored individual Simmons v. United 390 viewed the U.S. Mr. Walshe 967, (1968), suppression photographs prior L.Ed.2d S.Ct. one- hearing, held no demonstration nine independent upon she commission basis could half months after the robbery. have made an in-court identification. viewed both Mr. Gateau lineup photo- appealed suppres pictures individual Government hearing, grand ap jury show-up graph prior sion of the identification Hines, pellant after after decision held than a month our which was less lineup U.S.App. robbery; Russell v. United saw denied, photographs to D.C. 408 F.2d cert. two or three times hearing. testimony suppression U.S. 23 L.Ed.2d S.Ct. (1969), court, individ- on the Government’s Mrs. also viewed Ricketson *7 motion, grand jury in order photographs remanded the matter prior to her ual might evidentiary his rul testimony reconsider and ing. to hearing, trial confrontation was then held at and testified she photograph proper.5 of the she had viewed the consistently pencil out and written testified was crossed in Mr. Walshe proceedings throughout that Mr. Walshe various in a fresh notation was Sergeant appellant appellant Hines at identified had identified Hines. had Reilly judge presiding lineup. an Officer Gould at evi- testified lineup dentiary hearing sheet and he must cre- had filled out Sergeant that at that time he had noticed dence Walshe’s and recalled Mr. incorrectly depicted Reilly’s testimony, since he found that that Gould had Hines He had in fact identified Walshe’s identification. checked Mr. Walshe lineup. *8 robbery, arrested, fingerprints with the tried with and before trial that the Ware only appellants. against compared The evidence had never been with the fin- him, Boggs’ gerprints aside from Mrs. at the the rob- identifica- found scene of testimony tion, bery. time, prosecutor, was the of Officer Mc- At that the foul-up preparation Farland. He testified at that Hines the discovered police department was one of the robbers he had chased asked the alleyway. However, fingerprints down the Edward found at the examine the presented appellants a Hines well-substantiated alibi with and scene those of Hines Philadelphia that he was when the rob- Ware. This examination conducted bery acquitted morning He was committed. of the trial. The jury. fingerprint expert that one of concluded fingerprints found at the scene match- appellant fingerprint. ed Ware's
1325
afoot,
Appel-
tempo-
activity
may
The Detention and Arrest
criminal
he
A.
of
pur-
rarily
lant
Hines.
detain that individual for
Ohio,
Terry
pose
questioning.
See
argues
Appellant
Hines
that he
1,
1868,
L.Ed.2d
392 U.S.
20
placed
path
under
when his
arrest
that
Wil-
889
Officer
We believe
car, and
blocked
Officer Wilson’s
degree
suspicion
requisite
son had
that
invalid
arrest was
because
given the fact
such
detention
make
a
prob-
requisite
did
officer
have
robbery
com-
he knew
had been
that
support
cause
such a detention.
able
vicinity,
that
mitted in the immediate
Alternatively,
argues that,
appellant
even
fleeing
Hines was
only
“suspicious
stopped
if he was
due to
robbery,
he was
direction of the
and that
time,
circumstances”
that
was ar-
at
he
continuously glancing over his shoulder
invalidly
rested
he was handcuffed
when
in that direction.
placed
pur-
in the car
back
Further,
un
appellant Hines’
being
pose
realty
to the
com-
driven
investigatory stop
response
usual
to the
pany for an on-the-scene identification.
magnified
degree of
Officer Wilson’s
Appellant
thus
that
the on-the-
asserts
suspicion
that
an extent that at
such
identification,
in-
lineup,
necessary
point,
believe,
he
identifications,
court
all
which were
Appellant Hines’s
to arrest Hines.
cause
directly
arrest,
must
attributable
voluntary
into the officer’s
entrance
suppressed
were
because
car,
that he was
and his statement
scout
illegal
fruit of an
detention.
light
running,
tired
when viewed
vicinity,
prob
if
that
Even
it be assumed
behavior in the
of his
lacking
man
cause to
at the
a
able
arrest was
reasonable
evidence
point
stopped
first
Hines
have believed that
could
Wilson,
robbery.
does
Brine
Officer
the result claimed
See
was involved
charged
160,
States,
gar
not follow.
officers
with
Police
U.S.
Bailey
(1949);
responsibility
patrolling
our urban
where the
have
supports
the
The record
contentions
placed un
suspect
tion of the
women,
witnesses, especially
that
the
the
suspect
arrest,
has
der
or
the
where
show-up,
the
were nervous at the time of
uninterrupted
been under
surveillance
appellant Hines was
and that
victims, witnesses,
police from
or
brought
into
handcuffs when he was
until
crime
committed
moment
However,
Russell
main office
.area.
apprehension.
support
As
validity
opinion,
upholding
theory, appellant
points
num
to a
show-ups,
diffi-
such
foresaw that
opinions
have
ber of this court’s
balancing the
culties would arise. When
implemented
doctrine
the Russell
considerations,
competing
said:
the court
criteria
which one of the two above
Unquestionably,
confrontations
present.10
of this
our review
single suspect
is viewed
that,
suggests
show-up
while
court’s
cases
sugges-
custody
police
highly
of the
are
may
tend
such factual circumstances
say
actually
tive. Whatever
show-up
validity
iden
viewer,
apparent
to the
it
must
tification,
held
never been
has
caught
they
they
him that
have
think
required
validate
in order to
seen in
a man
villain. Doubtless
fact,
procedure.
an examination
In
po-
through
grill
or
handcuffs
reveals
Russell decision itself
wagon
than
lice
looks more like a crook
continuing
surveillance
there was
standing
the same man
at ease and
and,
suspect prior
while
to arrest
liberty.
may
uncon-
There
also be
give
eyewitness
the offi
was able
pressures
the wit-
or overt
scious
suspect,
description
cer a detailed
cooperate
ness to
the court
lamented the fact
confirming
suspicions.
And
of its
had never been a determination
emotionally un-
may
viewer
States,
accuracy. See Russell v. United
experience.
[Emphasis
settled
supra, at 1285.
added.]
something
egre-
finally
Thus,
Id. at
more
maintains
1284.
gious
surrounding
part of
this iden-
on the
the circumstances
than nervousness
eyewitnesses
presence
“special
tification were
chaotic that
and the
so
present,
suspect
contem-
elements of
handcuffs
on the
unfairness” were
sug-
making
unduly
“spe-
plated
procedure
thus
when the court referred
so
gestive
shelter
cial circumstances
unfairness.”
it lost its
proscriptions
Russell v.
of Stovall. See
many
The record
unclear as to how
States,
sup-
supra,
United
In
policemen
Es-
in the office.
port
claim,
points
of this
three
ran
two or
timates
between
policemen present
unusual number
eyewit-
any event,
In
all
twelve.
identifica-
office at the time of the
neither
at trial
nesses testified
tion,
“police-
because of the mistaken
police,
nervous-
additional
nor their own
call;
ap-
man-in-trouble”
the fact
matter,
impeded their abil-
ness
brought
pellant
recognize
ity
ad-
be-
was handcuffed when
Hines.
dition,
eyewitnesses;
all of the
nervous state
fore the
(1970)
(show-up
A.
States,
held at 10:45
supra,
308
M.)
at 1283-1284.
However, any weight which was intended
ig-
to be
this factor has been
States,
10. See,
g.,
United
e.
Jackson
heavy
em-
nored
later decisions and
U.S.App.D.C.
F.2d 149
phasis
placed
inherent
has been
on the
;
(detailed description)
(1969)
Solomon
reliability
prompt
on-the-scene show-
U.S.App.D.C.
v. United
ups. See,
g.,
(continuous
(1969)
e.
v. Wash-
States
sur-
F.2d 1306
ington,
U.S.App.D.C. 338,
veillance)
.
447 F.2d
Lineup
2. The
Hines himself
testified
lant
Identification.
the office blocked
view
counter
appellants
Both
line-
contend
handcuffs.
up, conducted four
after the com-
hours
*12
unduly
robbery,
mission
the
so
of
require
Russell
not
While
did
suggestive
Fifth
that
it violated the
present
show-up, it
at
did
counsel
be
Denno, 'su-
See Stovall
might
Amendment.
suggest
con
such absence
be
pra.
must
The
which
standard
we
suggestivity
viewing
of
when
the
sidered
.pro-
claim
is whether
the
“totality
line-up
the
in the
cir
the
of
employed
lineup
at the
were “un-
cedures
given the fact
cumstances.”
suggestive
necessarily
conducive
appear to
none
the othér
factors
irreparable mistaken identification.”
Id.
suggestiveness,
to "undue
amounted
301-302,
at 388
at 1972.
U.S.
say
the
of counsel
we cannot
absence
in
made
Such
determination must be
alone, in a
is not
situation where counsel
“totality
view
the
circum-
Amendment,
required under the Sixth
surrounding
stances”
identification.
show-up in
un
invalidates the
this case
Id.
der the Fifth.
complaint
primary
appel-
of each
Finally,
legitimacy
we note that
physical
lant is
were noticeable
of this identification
reinforced
disparities
between themselves and
eyewitness’s
opportunity
each
excellent
placed
lineup.
four
in the
officers
appellant
to observe
Hines
the scene
at
appellants
Both
19 and
were between
undisputed
There was
tes-
crime.
years
age,
height
20
5
inches
hearing
feet 9
in
timony,
suppression
both at
shorter,
pounds
in
or
or
lighting
less
at
that the
conditions
weight,
and had
facial hair.
four
very good.
realty
In
in
office were
ranged
age
police participants
addition,
appel-
undisputed that
it was
height
late 20’s to
between
or
lant
no mask
inches,
feet
feet 2
object
inches
prevent an
other
would
ac-
which
weight
pounds
pounds
to 170
between
Ricketson
curate identification. Mrs.
them
Both
three of
wore mustaches.
an ex-
at
she had
testified
appellants
suggestivity of
assert that the
opportunity
appellant
cellent
to observe
aggravated by
lineup
par-
employees
Hines when all of
female
ticipation
line-
of Officer Wilson
with
assailants
at the safe.
both
up
ap-
policeman who had detained
Mr. Walshe testified that he observed —the
pellant
brought
him before
floor,
position
Hines from
on the
es-
eyewitnesses. Appellant
Ware adds
pecially
appellant Hines
at
the time
eye-
prejudiced
each of the
since
forced
Heelen from the floor.11
Mrs.
lineup had
at
witnesses
he had an
Mr. Gateau also testified that
appellant
just
hours
a few
viewed
opportunity
appellant Hines from
to view
realty company.
earlier
Boggs
at the
position
floor.
un-
Mrs.
doubtedly
opportunity to ob-
the best
photo
examination of
Our
Hines,
appellant
had di-
serve
since she
graph
lineup
record
before
spent
him
safe
rected
and had
sev-
suggests that,
physical
us
dis
while the
being
eral
him while it was
minutes with
crepancies
between the
opened.
policeman
impressive when ex
seem
statistics,
they
sum,
pressed
do
fade
not believe
in terms
suggestive,
unduly
lineup actually
looked
confrontation
viewed as
successfully
police headquarters.
nor do we
can
also note
believe
We
distinguished
all of
from other
situations
careful
dress
garb,
participants
applied.
same
Russell has been
'
Mr.
sister.
if
Mrs. Heelen was
Walslie’s
ed
get
kill Mrs. Heelen
she refused
expeditious
Mr.
testified that he had taken
the floor in more
Walslie
off
particular
Hines at
notice
manner.
juncture
threaten-
because Hines had
raincoat,
open
Ricketson
Mr. Gateau
Mrs.
consisted
a black
appel-
shirt,
pants.
two witnesses
white
and dark
lineup.
Ricketson
lant
at the
Mrs.
Ware
regard
presence
Offi-
With
Ware,
testified at trial
Wilson,
eyewitnesses tes-
cer
each of the
whom
assail-
identified as the first
she
hearing
suppression
both
tified
and at trial that
actually
office,
ant to
enter the
“was
recognize
did not
sight
he en-
out of
time
from the
[her]
arresting
as the
officer
him
left,
ex-
until
with the
tered the office
testimony
Hines. This
is substantiated
’’.
ception
.
.
a few short
seconds.
only appeared
fact
that he
trial that
Gateau testified at
rob-
the scene of the
Hines at
ap-
lant
was the intruder who
*13
bery
periods
time.
In addi-
for short
of
they
proached Mr.
him as
Walshe and
police
tion,
headgear
entering
were
area
the main office
appeared
uniform
with
time, appellant
the rear office. At that
crime,
Hines at the scene of the
but
away from
three to four feet
casually
lineup.
more
dressed for the
him
and he had
full
of his face.
view
presence
Hines’
could
Viewing
totality
the circum
the
of
prejudiced appellant
seriously
not have
relating
lineup,
find it
to this
we
stances
still four other
Ware since there were
suggestive
unduly
neither
nor conducive
present
unfamiliar
which eliminat
faces
irreparable
mistaken identification.12
sig
focusing
any
upon
ed
It
Ware.
regard
one
Appel-
nificant in this
witness
Photographic Viewings
3.
of
lineup
picked
not
out of the
but
lants.
Ware.
testimony
preparation
at
for their
police
It should also
noted that the
pretrial
proceedings,
each
various
precautionary
took
measures to insure
eyewitnesses
photographs
viewed
validity
lineup.
the
providing
Aside
appellants separately,
depicted
to
garb,
police moved
appel
similar
gether,
lineup.
in the
Both
participants
the first
around between
photographic
lant
ings
that these
show
assert
viewing
in or-
lineup
second
Amend
Fifth
violated the
Sixth
guard against
der to
communication be-
they
First,
ments.
contend
tween the
showings
and,
witnesses.
unduly suggestive,
were
while
intro
evidence of them
not
Lastly,
validity
lineup iden-
trial,
duced
at
Government
supported by the
tifications is
opportunity
excellent
eyewitnesses’
identi
tainted the
in-court
eyewitnesses
ob-
Clemons United
fications. See
lighting
appellants.
con-
serve both
U.S.App.D.C.
408 F.2d
realty
very
company
in the
ditions
(1968). Second, appellants complain that
Gateau,
good, and Mr.
Walshe
showings
photographic
ab
eyewitnesses
ap-
the two
who
abridged
sence
their Sixth
of counsel
pellant
lineup,
at the
both
rights.
Amendment
opportunity
extended
to observe
point
Additionally,
Hines.
lant
out
Appellants cite Simmons v. United
that,
case, appel-
as in
States, supra,
con
for their
attempt
lant Ware
made no
to hide
unduly
tention that the
exhibitions
by using
identity
a mask or
suggestive.
other
was, however, con
Simmons
object.
eliminating suggestivity
cerned
Legal
lineup,
Aid
at the
counsel
for iden-
Hines to
the crime
who became
trial, complimented
Ware’s
at
purposes.
gave
counsel
in-
tification
He
some
police
having
on the fair-
however,
at
dication
aware,
lineup
completed.
ness of the
after it was
lineup,
the time of
This factor is somewhat diminished
re-
fact
Hines had been
may
fact
that he
have known that
arresting
not
the scene
of-
turned to
Officer Wilson
returned
ficer.
Act
D. Jencks
photographs were be
Statements.
the situation where
ing
prosecution
police
or
used
Appellants insist
Justice
suspects. Mr.
field
narrow a
strike
court’s denial of their motion to
opin
Harlan,
author of the Simmons
testimony
eyewitnesses
each
haz
ion,
constantly
therein to
refers
motion
was reversible error. The
by photo
of “initial identification
ards
pro
based on the Government’s failure
procedures
graph,”
that such
his fear
duce the handwritten notes of the
irreparable
might
mistaken
to “an
lead
questioned
officers
identification.”
Simmons
realty company immediately
at the
fol
S.Ct.
States, supra,
390 U.S.
lowing
argue
robbery. Appellants
be
supplied).
We do
(emphasis
required
produce
that the
eyewitness
made
has
once an
lieve that
Act,
these notes under the
Jencks
identification,
at
positive
counsel’s
that,
testimony
in order for the
directs
tempt
identification
review that
admissible,
to be
the Government must
pre
through
in a
photographs
use of
give
“any
defendant
statement” of a wit
paratory
the bounds
within
session falls
testimony.
ness
which relates to his
an identification
case. Such
3500(b), (d).
U.S.C. §
likely
to lead
is it
neither “initial” nor
At the
*14
note
outset we
that the testi-
has
misidentification, since the witness
a
already
mony
eyewitnesses,
of one of the
suspect
in a consti
Walshe, cannot
at
here
to
be
issue
due
tutionally acceptable manner.
undisputed testimony
his
at trial that
eyewitnesses
that each
We note
any
officer had taken notes about
state-
testifying
already
iden-
trial had
made
at
concerning
ment he had made
the rob-
lineup
showup or
at a
tifications
prior
valid
bery. There
no indication of
also
viewing
These
photographs.
to
any
pursuant
having
to
notes
taken
been
ability
eyewitnesses
their
had established
questioning
Gateau,
a second
of Mr.
viewing
identify
suspects;
to
eyewitness.
Ricketson, however,
Mrs.
photographs merely
to refresh
served
testify
did
on cross-examination at trial
pre-
they had
men
their memories of the
speaking
that
a uni-
she
to
remembered
viously chosen.
formed officer who took notes as she
questions.
answered his
testi-
also
She
argue
under
Appellants
that
also
Sergeant Reilly
fied that
had conducted
necessary
counsel be
Wade it
that
her at
a more intensive interview with
during
photographic show
that time and
Boggs
also
notes. Mrs.
had
taken
only
ings.
indicates
But that decision
ques-
also testified that she was
present at those
that counsel must be
Sergeant
by
Reilly.
tioned
stages
accused.
which
critical
Where,
here, positive identifications
court
a voir
The trial
conducted
dire
as
made,
point
Sergeant
already
Reilly,
at
examination of
ad-
been
merely
intensively questioned
review
mitted
which
the witnesses
normally
eyewitnesses.
prior
several of the
identifications cannot
stage
steadfastly
for Sixth he
all
a
maintained that
notes
considered
critical
by
pertaining
purposes.13
ques-
review
that he had taken
Amendment
Such
tioning
general
photographs
taint an
does not
nature.
means of
Ser-
geant Reilly
destroyed
identification,
may affect its
in-court
added that he had
but
weight
develop
they
his
in the
chooses to
notes after
were used
if
defense
preparation
police depart-
of various
matter
cross-examination.
recently
upon
suppression
en
re
the fact
13. This
court
banc has
based its
just
had,
versed, upon
appeal
in an interview
Government
Govern
ment,
pretrial suppression by
the Dis
shown
the witness
a
testimony
lineup
photograph of
trict
identification
at
a
witness
Court
Proctor,
pres
Brown,
where
had attended and
counsel
trial. United States v.
(No. 24,452, order entered
and Williams
ent.
15, 1971).
The District
March
Court
important
forms,
ment
all of which were tendered
facts which were needed
along
jury
Supreme
grand
purpose.
appellants,
has
with
Court
Frye
testimony.
that,
held
when the evidence introduced
Officers Casern
destroyed
they
taken
had made notations
indicates
also stated that
notes
investigating
questions
or
responses
made
were informal
various
officials
“rough,”
eyewitnesses.
they
tes-
considered “sub-
Officer Casern
cannot be
only spoken
stantially
one
tified
within
that he had
verbatim”
statements
identify
meaning
witness,
of the Act.
See United
whom he
unable
He,
Augenblick,
too,
*15
States,
U.S.App.D.C. 327,
oral
statements]
401 F.2d
recital[s]
[an]
130
by
392,
(1968); Hedgepeth
made
therefore
and
[the witnesses]”
395
v.
States,
293,
the
the
U.S.App.D.C. 291,
were “statements” within
*16
Prejudicial
Joinder of Defendants.
already
*17
United
States v.
“guilt by association”
Hines’
824,
(7th Cir.),
denied,
389 U.
cert.
argument
somewhat tenuous.
In
591,
S.
88 S.Ct.
19 L.Ed.2d
place,
first
jury
carefully
in
(1967);
Barney,
United
F.
States
v.
inferring guilt by
structed to avoid
as
(7th
1966).15
2d
Cir.
joinder,
sociation due to the
and there
Appellant
counsel,
complying
some
indication that
heeded this
Ware’s
they acquitted
admonition since
with the trial
Edward
mandate when
court’s
motion,
Hines. Edward
denied
Hines’
did not
one defendant
who had
directly
jury
to fear
ad-
most
from associa
ask the
to draw
tion,
against
as the Government’s case
Hines’
verse inference
Practice ¶
15. See also 8 Moore’s Federal
in
take the stand but
the situation to
14.04[3].
directed.”)
which the
comment was
(“The
prejudice
(footnote omitted)
real
in the De Luna case
was not
in the comment on failure to
merely
Instead,
jointly
light
testify.
in
with Ware
Ware’s
failure
to
closing
in-
jury
jury
a favorable
counsel’s
comment
to
to draw
to
asked
willingness
the effect
that an inference of innocence
his client’s
ference from
strong
willingness
course,
should
testify.
to his
be drawn from
due
Ware’s
Of
testify.
testify
possibility
phraseology,
did
Hines
not
there is
judge
potential
informed the
jury’s
drawn to
attention
trial
problem
Hines’
to trial
motion for
silence.
lant Hines’
“no more
severance.
denied
The trial court
to take
stand
failure
”16
incidentally
up’
‘pointed
motion and instructed
not
both counsel
than
exaggerated
form
comment on Mr. Hines’ failure to tes-
did not
“an
constitute
tify.1
inherently prejudicial
fac-
of one of the
17 We
trials.”
tors
multi-defendant
ruling
entirely
While this
within
remedy in such
adequate
that an
believe
discretion,
the trial
court’s
I cannot
cautionary
an immediate
a situation is
agree
prohibition
should have
judge.
part
on
instruction
been understood to be
confined
com-
Krechevsky, supra,,
United States v.
See
guilt
on an inference
ments
did offer
here
at 292. The trial
could be drawn from Hines’
silence.
appellant Hines’
an instruction and
such
my opinion,
comments made
cir-
it.
In view of these
counsel declined
Ware’s counsel were not “innocuous”2
cumstances,
find
abuse
we cannot
point
and served to
out
Hines
refusing
judge’s
the trial
discretion
right
remain silent but that
to sever
Hines’ case.
right.
innocent would not
exercise
judgments
conviction
both
agree
joinder may
I
the in-
serve
23,281
23,391
No.
No.
judicial
terests
administration
Affirmed.
economy, but
should never
such factors
Judge
BAZELON,
(concurring
excuse violations of
defendant’s consti-
Chief
rights.
dissenting
part):
part
tutional
The comment made
trespassed
Ware’s
counsel
I think that a mistrial
should
rights
Fifth
I
Amendment
cannot
after
been declared
majority’s
accept
in conscience
con-
prejudicial
made
comments
co-defendant;
clusion
this case can be distin-
counsel
for his
by police
guished
officers imme-
taken
*18
posed in
lemma
both Rhone v. United
silence’,
accused’s
ferences
from an
States,
U.S.App.D.C.
47,
F.2d
125
365
having
thing
quite
different
States,
(1966) and
980
Kolod v. United
emphasized
comment.
silence
(10th
denied,
Cir.),
F.2d 983
cert.
371
silence,
guilt
it
imputation
if
834,
40,
389
88
ed.4
would
precise
description
words of
which
majority’s
I
con
also cannot share the
to, in-
and could
used
be ascribed
cautionary in
viction that an immediate
dividual
which
witnesses —information
part
judge
struction on the
would
appear
police re-
does not
in the formal
Rather,
impact
remedy
error.
ports.
testimony
Police
the tak-
about
of such
to re
an instruction would be
ing
notes
of these handwritten
does
testify,
jury
mind the
that Hines did not
fact,
would
refute
this claim.
improper
which in the
com
wake of the
only
specific
seem
words
reasonable
again
ment would
the inference
invite
description
down
would be written
something
to hide. See
Hines
roughest note-
the course of even the
States, supra,
F.
De Luna v. United
308
taking.
improper
2d at 154-155.
soon as the
As
rather
than com-
Because a few words
made,
comment was
and counsel
for
plete
in-
or
are
statements
sentences
judge
objected
it,5
trial
volved,
there
no reason to doubt
should have declared
mistrial
good
appellants’
Identifi-
faith
claim.
granted
separate
Hines a
trial.
testimony
much of
cation
constituted
Accordingly,
case,
impeachment
entitled to
is now
Government’s
initial
with their own
a new trial.
descriptions might
In this
crucial.
case,
appears
confusion
to be some
II.
entered the
about which of the robbers
realty office
outside
and which remained
description
Accepting
majority’s
lookout,
conflict
as well as some
police of-
of the notes taken
various
descriptions
wearing apparel of
robbery
immediately
after
ficers
each.
agree
majori-
question, I cannot
with the
I
treat
In cases of this kind
would
ty’s narrow construction of what consti-
rough
likely to contain
notes
tutes
statements” within
“verbatim
by eyewit-
descriptions
first offered
meaning
It
is not
of the Jencks Act.
“substantially
verbatim state-
nesses as
gave
disputed that
brief
witnesses
meaning of the Jencks
ments” within the
descriptions of the three robbers which
Augenbliek, 393
Act. United
v.
States
searching
to start
enabled
528,
L.Ed.2d
U.S.
willing
them,
I am
to concede
contrary
(1969)
since
is not
notes,
were,
descriptions
like the
abridged
rough
*19
Even if
notes are within
asserts,
Act, the
Jencks
Government
BACON, Petitioner,
Leslie
applied for the
sanctions should be
Gov-
produce them since
failure to
ernment’s
UNITED
of
STATES
America
destroyed.
or
were either lost
Un-
Anthony Papa.
and
der this
recent decision in United
court’s
No. 71-1312.
Bryant,
U.S.App.D.C.
States v.
Appeals,
United States
of
Court
(1971), in
Notes
Officer as he drove robbers who two tions other Furthermore, large. Wil- with Hines back to the scene Officer still at crime, clearly recognized de- received radio run this was son scribing replied none of robbers he over case because descriptions saw, wear- matched I “Those are the ones radio: appearance through light suit, ing time. went blue argues probable alley whatever rain- . the one in the . . Also point why existed cause vanished Officer While it is unclear coat.” responded he should been released. text seen two Wilson of the radio testi- run was follows: when all of his other individuals only mony Cruiser information hold- seen indicated up, one, There from Number un- officer is clear that Officer Wilson descriptions are three them I did not understand. derstood that jacket Hence, pertain one the blue has been Hines. way caught Negro probable are two was in no more to arrest cause males, possibly dispatch. dissipated in the late teens. One points Second, appellant had a black out coat on the other had
States v. 393 U.S. 354- trial. stated his general they nature, 21 L.Ed.2d (1969) reports, incorporated .14 into thorough that, after search a personal records, to locate he was unable E. The Fairness the Trial. Frye Finally, testified them. Officer Speedy Trial Issue. descrip- only hurried had received robbers, tak- these were tions appellants complain that Both group en from a delay period of this case for a of sev committed, minutes after the crime was enteen and one-half between months best, sketchy only notes were time arrest the time of trial vio been used also right lated their Sixth Amendment filling out of He also tes- forms. speedy trial. The court has been tified that he to locate was unable delay view exceeds notes at the time of trial. period year of one arrest between Appellants prima speedy contend that the notes trial raises trial claim question “substantially g., Harling See, verbatim v. United merit. e. facie
124 364 meaning 3500(e) Act, examining 684, (1966). of the 18 U.S.C. F. de 2d 686 § (2). argue Appellants length re- lays then that their period, which exceed “the ceipt police reports incorporating delay; delay; of the dili for the reasons the gence the for statements was not sufficient prosecutor, de of the court and purposes reports counsel; possibili of the Act the because fense and reasonable amalgam incomplete merely ty prejudice delay” and in of the making given, of all the statements thus order dicia which utilized in have been impossible it to determine which witness claim. to determine the merit of this gave what Hedgepeth information. 125 U.S. v. United 952, 19, 21, App.D.C. 954 F.2d need not reach the latter We Florida, (1966). Dickey See also that since record makes clear issue the 48, 1564, 30, 26 L.Ed.2d U.S. to purpose the main of the officers was concurring). (Brennan, J., (1970) begin sufficient information to obtain argues investigation. The notes an immediate delayed needlessly the Government hastily ap question in taken hearing As suppression months. for five pear only highlighted most have rationality in insistence recently emphasized of our the neces 14. We have by the Government systematic preservation for the future sity case for position “show contempo must be in enforcement officials of law attempted promulgated, enforced and has for in the search records useful raneous sys rigorous good overriding objective to follow faith truth, which is preserve designed procedures tematic trial. United States of a criminal omitted) (footnote evi 142, Bryant, U.S.App.D.C. 132, all discoverable gathered crim of a in the course dence 642, events investigation.” long happened inal before before us issue decided, Brymt but underscore was points contention, We he out are at a loss understand in what for this way constitutionally preju- relevant that all which were was motions hearing discovery. diced filed the middle last minute Of course, that, pre- 1968, April, he was had the case tried at an while been hearing date, earlier pared suppression at that had the evidence sought discovered, appellant time, been case had Ware’s Government 1968, gained April substantially would on have been aided. But continuance prosecutor’s hearing Sep- delayed fact evidence and the until was strengthened date, exami- was at a due to our later tember 1968. discovery re- evidence nation the docket reveals demonstrative always lationship would had the continuance between delay slight. confusion, police it not been for the five Gov- cannot be month ernment, consent, prejudicial appellants’ termed Sixth Amend- April discovery granted delay ment sense. The evi- a three week May necessarily dence when the continuance is not to the de- On related assigned. lay. expired, The evidence a trial found because prosecutor’s establishing thoroughness difficulty prepara- There proceeding expected tion date due we could have certain for disap- part fact same on the fastidiousness prosecutor peared out on for a month while he was the trial been sched- found, Finally, uled for an earlier note bond. When Ware was date. hearing could afforded suffi- earliest date on which the Ware was day opportunity prepare cient in- for the be set the above-mentioned September. In a troduction of this bench evidence. during colloquy cross-examination argument Appellant’s second police fingerprint expert, delay prejudiced that he was due Ware’s counsel stated that he had notes, destruction finger- necessary time to examine thereby ability hampering his to cross- prints, he ex- was satisfied with his examine and the inves amination, and that had received ad- tigating Similarly, officers. concerning expert vice from own argues prejudiced that he was fingerprints. failing memories. Government witnesses’
held that
We have
Appellant
not
the mean-
that the trial
“statements” within
contends
Therefore,
ing
court erred in its
his motion for
of
Act.
denial of
the Jencks
separate
by
prejudiced
destruc-
trial. He
two theories
lant was
offers
not
First,
tion,
support
point
in
he
he entitled
of this contention.
since at no
was
being
brother,
Moreover,
claims
study of
his
examine them.
our
tried with
Edward,
appellant
amounted
the record
the Government
Ware
reveals
“guilt
urges
extensively,
equally,
association.” He
was
if not more
unnecessarily implicated
prejudiced by
he
in the
of its
was
the dulled memories
strength
crime due to the
the case
own witnesses.
against
appellant Ware, combined with
Appellant
complains that
Ware
appellant
fact
Ware was
prejudiced
he
in
was
the last-minute
arrested.
residence when
was
fingerprints
troduction
into evidence.
argues
given
Moreover,
that,
Throughout
proceedings
presented
weak case
the Government
trial,
Ware
Government
assured
against
brother,
only conceivable
his
fingerprint
evidence
was
brought
reason
was
Edward Hines
linking
However,
im
him to the crime.
highlight
appellant Hines’
mediately
prosecution
before
in the crime.
involvement
in
did
fact
such evidence
discovered that
Appellant
Second,
not informed
Hines notes
exist.
Ware was
argument
ap-
closing
jury,
day
trial.
his
fact until
1334
Second,
pellant
him
counsel drew attention to
the weakest.
the taint
Ware’s
being
the fact
had taken
tried
suffered
stating
behalf,
“as
with the other
mini-
stand
own
two defendants was
you
I,
innocent,
closely
Surely
we would mal.
if we were
that he was
fact
try
take the
to exonerate our-
associated with his
stand to
brother could
argues
prejudiced
selves.
...”
him.
Since
Govern-
against
jury to ment had
that such an assertion invited the
such a weak case
latter,
just
possible
make an
inference about
own
adverse
as
jury
against
failure to take
would feel the case
the stand.
both
Moreover,
weak.
while there was sub-
appellants
both
Since
implicating
stantial evidence
charged
the same
with the
commission
robbery,
equal,
Ware in the
there was an
crime, joinder of their cases
au
greater,
if not
amount of evidence im-
8(b)
thorized
Rule
Federal plicating Hines.
Although
Rules of Criminal Procedure.
jury
The statement made to the
recognizes
may
Rule 14
required
that severance
concerning
taking
Ware’s
joinder
prejudice
where
tends
Ap
question.
stand
a more
raises
serious
codefendants,
one or
the trial
both
pellant Hines
refers De Luna v. United
has been
wide latitude
States,
(5th
1962),
Luna
De
diately
robbery
“state-
after
(5th
1962)
involved case rough, sketchy general in nature. lengthy whole of a interview steadfastly However, appellants have at issue. sentences statements throughout their trial maintained suggestion strong Kalin, in it F.2d 824 not find 4. United States only applicable Cir.), denied, when co-de (7th De Luna is cert. 389 U.S. mutually de (1967), sup exclusive fendants 19 L.Ed.2d S.Ct. case, ports In that fenses. this conclusion. upheld the District Circuit Seventh clos- made their both counsel co- 5. After denial of severance to several Court’s judge statements, ing preju the trial before but defendants who claimed jury, upon inability counsel to comment instructed diced objection. 'While he did not single of a co-defendant made formally the failure mistrial, stated grounds for a move decision the stand. The take one, you’d grant supra, did, think I don’t “if I in Rhone prejudicial com- it was a U.S.App.D.C. I think but do F.2d 980 involve Contrary therefore entirely ment.” different issues. prejudicial majority’s reading error. I do of that case aware
refrain from appearance before the so grand consequence probable jury, discussion of cause.