This case involves a federal bank robbery, with indictments under 18 U.S.C. § 2113(a) and (d) leading to conviction after jury trial. A spirited and able defense has raised a number of issues, none of which we feel is adequate to command reversal. The facts are best marshalled in connection with each issue.
I
The first issue, raised by a motion to dismiss, is whether the indictment was fatally defective for failure to allege that the forceful and violent taking of a bank’s money, by intimidation and by putting the lives of various persons in jeopardy, had been done knowingly and with felonious intent. Appellant argues that the crime is of the common law larceny genus and thus an essential element of allegation and proof is felonious intent, even though such requirement is not expressed in the statute. 1
The offense described in the first paragraph of section 2113(a) — “analogous” to common law robbery, Prince v. United States,
This differentiation shows careful draftsmanship. Entering and taking can be innocent acts, and therefore require felonious intent to constitute crimes
2
;
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receiving stolen property can be innocent, unless done knowingly. However, the other offenses describe acts which, when performed, are so unambiguously dangerous to others that the requisite mental element is necessarily implicit in the description.
3
Contra:
United States v. Margeson, Cr. No. 64-26 (D.Me.1964). It therefore is immaterial for sections 2113(a) and (d) whether the subjective intent of a bank robber is to steal that to which he has no claim or to recover his own deposit; the crime is his resort to force and violence, or intimidation, in the presence of another person to accomplish his purposes. United States v. Lester,
II
A second issue is directed to the admission in evidence of the incriminating contents of appellant’s safe deposit box. Appellant was arrested under the authority of a warrant at 9:30 p. m. on September 29, 1966, the day after the bank robbery. The arrest took place in a drug store, on which occasion an F.B.I. agent searched appellant for a weapon. No question is raised concerning the arrest or this search. Forty minutes later, at local F.B.I. headquarters, agents again searched appellant and found a bank safe deposit envelope and signature card, bearing the date of the day, September 29, and a key. These led to information from a vault attendant in the specified bank that appellant had, on the morning following the robbery, rented a safe deposit box in the bank and had “put something heavy” into it. A search warrant based on this information was issued and under its authority agents opened the box, finding a gun and sunglasses later introduced at the trial over objection and identified as those wielded and worn by appellant during the robbery.
Appellant argues that the search at F.B.I. headquarters was too remote in time and place to be incident to his arrest; that there was no probable cause to seize the envelope, card, and key; and that there was no probable cause for the issuance of the search warrant.
Concerning the propriety of the search, appellant properly recognizes the ominous relevance of such cases as United States v. Frankenberry,
Appellant asserts, however, that the teaching of these cases has been overruled by Chimel v. California,
“The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention had additional justifications, similar to those which justify a search of the person of one who is arrested.”
Although four Justices dissented vigorously from the major holding validating a search of petitioner’s hotel room, not one commented on the holding to which the above quoted language refers.
We disagree that Chimel v. California, supra, has overruled these eases. We are disinclined to read Chimel as teaching new doctrine on the subject of search of an accused shortly after his arrest at the first place of detention; the rationale of Chimel does not require its extension to cases like that at bar, for the evil sought to be rooted out is not present.
We read
Chimel
as being acutely concerned about the increasing legitimation of wide-ranging warrantless searches of lodgings and buildings based on the fortuity of arrest on the premises, which had been ushered in by United States v. Rabinowitz,
The difference between the situation in
Chimel
and that in the case before us is this: the arrest of a suspect in a particular place — be it his apartment, office, or house — has no such nexus with that place as, without more (i. e., a valid search warrant), would justify searching the premises; but the fact that a suspect, arrested in a public place, has been subjected only to a hasty search for obvious weapons has a reasonable nexus with the necessity of conducting a more deliberate search for weapons or evidence just as soon as he is in a place where such a search can be performed with thoroughness and without public embarrassment to him.
5
See
When, at F.B.I. headquarters, agents discovered a safe deposit envelope, key, and card evidencing the renting of a box the morning after the robbery by the 25 year , old appellant who had already been arrested under warrant and had been identified as one of the robbers, they had, to use the words of the Court in Warden, Md. Penitentiary v. Hayden,
Appellant’s attack on the validity of the affidavit is without merit because discovery of the recent renting of the safety deposit box was set forth in the affidavit for a warrant to search the box. The additional information in the affidavit concerning the bank vault attendant’s recollection of appellant’s renting the box, being reliable in our view, only strengthens the already valid affidavit.
Ill
Appellant makes a more impressive argument that his Sixth Amendment right to a speedy trial was violated. Appellant was arrested on September 29, 1966, one day after the robbery; the first indictment was issued on October 11, 1966. However, trial did not take place until March 18, 1969, some twenty-nine months later. In the interim, no fewer than eleven continuances were sought by the government. Counsel for appellant asserts, without contradiction, that on each instance he was ready to *494 proceed with hearings on motions; that on the occasions when trial had been set, appellant was ready; that on no occasion was he consulted in advance of the decision. Not only the length of the post-indictment period but the large number of continuances sought by the government force us to scrutinize carefully the government’s conduct during this period and the effect of the delay on appellant.
Appellant would have us forego such scrutiny and rule that the mere passage of time in this case — being so much longer than that held permissible in Fleming v. United States,
In our review of the federal cases, we have found occasional references to a rule that after some period of time, prejudice to the defendant will be presumed and it becomes the government’s burden to show that no prejudice to the defendant arose from the delay. Pitts v. North Carolina,
Appellant’s major argument is that “the delay of almost 30 months was improperly motivated and was occasioned by purposeful and oppressive action on the part of the Government.” Clearly, such improperly motivated delay would constitute a denial of speedy trial. Pollard v. United States,
Without attempting a full chronological explanation of the proceedings, we can account for most of the delay by the following occurrences: preparation time for defense, government continuances, a second grand jury indictment charging appellant and additional defendants, unavailability of government witness, hearings on defendant’s motions, misunderstanding between counsel and trial judge, illness of government attorneys, more hearings on motions, a mistrial, the conversion to a new federal jury selection system, and the involvement of the trial judge with two other substantial cases, all of which were interspersed with periods of inaction by counsel on both sides and by the court. Of all the delays, only one period — for some 2 weeks in late March 1967 — can, in our view, be attributed to deliberate government stalling, motivated apparently by an effort to obtain evidence from an alleged co-conspirator of appellant on which to found the new indictment. We
*495
do not deem such two-week delay to constitute the kind of culpable delay which denies a speedy trial. Epperson v. United States,
Moreover, the effect of the delay on appellant was not even alleged to be adverse. There was no incarceration prior to trial, appellant being free on bail; his reputation during this period may have been tinted by the pending prosecution in this case, but was dyed increasingly darker by arrests for unrelated crimes in other jurisdictions in May and August of 1967 and in early 1968; and there is no evidence that appellant’s ability to defend himself had been impaired by the delay.
Elwell, supra
We therefore hold that while the period between indictment and trial was unfortunately lengthy, there was no improper governmental motive behind it, no discernible hardship imposed on appellant in the interim, and no interference with the fairness of the trial which appellant ultimately had. The Sixth Amendment’s speedy trial was not denied here.
Concerning appellant’s argument that there was “unnecessary delay in bringing defendant to trial” within the meaning of Rule 48(b),
7
F.R.Crim.P., we agree that that Rule imposes a more stringent standard than the Sixth Amendment. United States v. Cartano,
We are, however, prompted to comment on the government’s explanation that a portion of the delay is attributable to the trial judge’s involvement with two other complicated criminal cases during a portion of the time in question here. This problem arises not at all from a lack of conscientiousness on the part of the judge but from the method employed in the District of Massachusetts whereby a judge stays with a case from assignment to final disposition. Our comment is addressed to the problem of harmonizing this system with the need to insure that some cases do not receive low priority treatment because of the burdens facing that judge. We can do no better than cite the admonition of the Eighth *496 Circuit in Hodges v. United States, supra at 551-552:
“Where a multiple-judge court uses the individual calendar system, all judges must share responsibility for the prompt disposition of criminal cases, must employ a team approach to those cases, and, when necessary, must reassign them in order that they may be tried according to the commands of the Sixth Amendment and Criminal Rules 48(b) and 50. If a judge is otherwise long committed in another case or is delayed in getting to the criminal cases on his calendar by reason of illness, personal misfortune or press of other business, this obviously does not serve to toll the enforcement of the right of a defendant awaiting trial on that judge’s criminal calendar.”
We refrain from saying that “a team approach" is the only mechanism possible; it may well be that one judge could be assigned the responsibility of surveying the calendar. The important point is that there must be some central supervision over crowded dockets in multi-judge courts utilizing the individual calendar system, 8 or that, at a minimum, there be a recognized collective obligation to respond to the self-generated action of the judge whose docket, particularly whose criminal docket, is in arrears. The advantages of the individual calendar cannot justify rigid, adherence to that system at the expense of the rights of individual litigants.
IV
Appellant, in support of his dismissal motion addressed to lack of a speedy trial, offered to prove that his indictment had been procured by perjured testimony from a co-defendant and that the same co-defendant had reported to the F.B.I. appellant’s defense strategy — all part of a cat-and-mouse game being played by the co-defendant in seeking favorable disposition of other prosecutions. These allegations became part of a separate effort to dismiss the indictment.
As for the alleged activity of the co-defendant in serving as a double agent, appellant has made little of this, apart from his argument that the desire of the government so to use the co-defendant contributed to the delay. Even if the government did prevail on the co-defendant to report his conversations with appellant, this does not seem to us to constitute an invasion of appellant’s rights. Appellant had the responsibility of choosing his own confidants.
See
Hoffa v. United States,
The charge of perjury by the co-defendant before the grand jury lay in his alleged testimony that he had not received any promises or threats, appellant’s offer of proof being that the co-defendant had had many talks with an F.B.I. agent and had been promised a light sentence, and the dismissal of other prosecutions, with opportunity to continue his education. The co-defendant did not testify at trial, so his credibility was never put to the test. But appellant’s reliance on Mesarosh v. United States,
V
Appellant challenges the admission of identification testimony of the bank manager (Mr. Daly), two tellers (Mrs. Doherty and Mrs. McCollum), and a policeman (Officer Walsh). The manager and the two tellers had all observed the robbery at close range in the well lighted bank for periods ranging up to five minutes; Officer Walsh had stopped two men in a ear shortly after the morning robbery. The robbers wore no masks, although appellant was wearing sunglasses. Each witness separately and without suggestion identified appellant’s photograph the day after the robbery. Appellant concedes that this procedure comported with the due process standard expressed in Simmons v. United States,
Subsequent identifications, however, give rise to his objections. The first concerns the showing of photographs to Mrs. McCollum and Officer Walsh. In Mrs. McCollum’s case, after identifying two photographs of the appellant, she asked to see others of the same person so that she could be positive. She was then shown another group of nine photographs and again picked appellant. Certainly this subsequent showing of a group of photos at her request which in no way emphasized appellant was as fair as the police could have been in this regard. Secondly, Officer Walsh, after positively identifying appellant in a group of photos, asked to see a different picture of appellant, which was shown him the following day. This single-photo incident presents more difficulty, for it does tend inherently to focus the witness’s attention on that individual. However, when such focus is the result of the witness’s request, the image may become clearer but the inference of guilt does not arise as it does when the police are the ones who isolate or focus on the particular individual. In light of this and Officer Walsh’s initial positive identification, we do not believe that this viewing of the single photo was unnecessarily conducive to irreparable mistaken identification. Foster v. California,
Appellant’s second challenge is to the identification testimony of Mrs. Doherty and Mr. Daly. Five weeks after their identification of appellant’s photographs, they were asked by the F.B.I. to visit a courtroom, no statement being made as to what or whom they were to see. Each entered and departed separately. Several people were in the courtroom, including the appellant, who was sitting alone in the front row. Mrs. Doherty almost immediately told the agent that she wanted to leave the room, pointing to appellant as the man who had robbed the bank. Mr. Daly also identified appellant, though less traumatically.
These pre-trial identifications having occurred before June 12, 1967, they are not to be judged by the right to counsel rule of United States v. Wade,
VI
Appellant, by two motions for disclosure of exculpatory evidence, 9 sought any government evidence that prospective witnesses or co-defendants had expressed inability or uncertainty in identifying appellant or his co-defendants; that a co-defendant had been unable to identify the bank or its environs; that the co-defendant’s testimony before the grand jury had been perjured; 10 and disclosure of any promises which had been made to informants or witnesses and “any other matters * * * which would be of material assistance to the defendant.” The trial court did order the government to furnish the defense with any exculpatory evidence it had, but when the court was assured by government counsel that it had none, the court denied appellant’s motions for disclosures.
We read Brady v. Maryland,
The only specific instances now raised by appellant involve a possible inconsistency in the identification of appellant by Mrs. Doherty, a teller,
11
and an inconsistency in the description of the gun by one of the four bank witnesses. The government denies knowing of any such inconsistencies, to which appellant responds with a plea for a presumption of knowledge, even though the alleged inconsistencies were spoken to local police, not the government’s investigators on the scene immediately after the robbery. We are inclined to believe the government in these circumstances. However, even assuming both the alleged inconsistencies and the government’s awareness of them, we cannot say that the prosecutor’s failure to disclose them amounts to reversible error. Defense counsel learned of the inconsistency concerning the color of the gun prior to trial and introduced testi
*499
mony at trial concerning the inconsistency. Thus, even assuming it was material — which we doubt — there was no possible prejudice to appellant arising from the nondisclosure. Keeping in mind that the prosecutor’s duty of disclosure is imposed to assure fairness to the accused rather than to punish the prosecutor or the public, Brady v. Maryland,
supra
VII
The remaining contentions can be summarily disposed of. Concerning the alleged ex parte conversations between government counsel and the trial judge, we are assured by the former that only one such conversation took place. This incident was clearly improper, particularly since it occurred in the judge’s chambers behind the bench just before the jury trial was to begin.
See
Haller v. Robbins,
We deem appellant’s objection concerning allegedly false statements by government counsel about the procedural status of the case to be of insufficient consequence to merit discussion. Appellant’s objection to the exclusion of testimony that at least one witness saw a nickel-plated gun rather than a black gun is without merit, because the information had already reached the jury through another’s testimony; it was hearsay not offered for a limited purpose; and it was not in any sense reversible error even if such exclusion had been error.
Affirmed.
Notes
. 18 U.S.C. § 2113 provides, in relevant part,
“(a) Whoever, by force and violence, or by intimidation, takes * * * from the person or presence of another any property or money or any other thing of value belonging to * * * any bank * * * shall be fined * * * or imprisoned * * *.
*****
“(d) Whoever, in committing * * * any offense defined in subsections (a) and (b) * * * puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined * * * or imprisoned * *
. As the Court stated in Prince v. United States,
*491
Moreover, taking seemingly abandoned property from a government bombing range in the hinterland, Morissette v. United States,
The frequent citation of Morissette and Hughes, as boiler-plate mandates for allegations or proof of specific felonious intent in all sorts of irrelevant situations evidences either a widespread misunderstanding of the narrow questions there involved or the adherence of the bar to the principle that hope endureth forever, i
. We are fortified in our view by the approving reference of the Court in Prince v. United States,
supra
See also Portnoy v. United States,
. Such concern was common to all of the cases held pending the disposition of
Glmnel
and disposed of the same day: Von Cleef v. New Jersey,
. This difference is pointed up in Barnett v. United States,
. Compare Brett v. United States,
. Appellant’s only written motion to the trial court in this regard related to the Sixth Amendment. The colloquy between the counsel and the judge was confusing on this point but it does appear that the district court treated appellant’s objection as encompassing a Rule 48(b) motion,
. This accords also with the observation of the President’s Commission on Law Enforcement and Administration of Justice :
“For cases to move expeditiously through a court with many judges and thousands of cases, it is necessary that all the cases and all the judges be centrally supervised. Central supervision of cases makes it possible to keep track of the status of every case, to shift eases from one judge to another according to their various caseloads, to set up special calendars for cases that inherently demand prompt action or that have fallen behind the normal schedule. * * * ” “The Challenge of Crime in a Free Society”, p. 156, 1967.
. One was a very general motion, followed some months later by a more specific one. We consider only the second.
. Appellant sought any government evidence that the co-defendant had perjured himself. He made no request, and no showing of “particularized need”, for the grand jury testimony itself. Dennis v. United States,
. Appellant asserts that after the trial he learned from a Randolph police officer that Mrs. Doherty had described the robber differently to him than to the P.B.I. However, her description given to the F.B.I. a few minutes after she had allegedly talked to the Randolph officer included height, sex, color, weight, build, age, hair, complexion, and beard —which description substantially withstood vigorous cross-examination. Appellant has alleged only that his investigator reported that Mrs. Doherty’s description to the Randolph officer “was materially different”. No further detail has been presented to us.
