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United States v. Lipowitz


decided: October 10, 1968.


McLaughlin, Kalodner and Aldisert, Circuit Judges.

Author: Per Curiam

In seeking a new trial following his conviction for bank robbery under the federal bank robbery statutes, 18 U.S.C. ยง 2113(a), (b) and (d), Robert William Muller complains that the introduction of eye-witness identification testimony and certain statements made by his co -defendants violated his constitutional rights.

At his trial a teller employed by one of the victimized banks identified Muller as one of the robbers.*fn1 Cross-examination disclosed she had previously viewed and identified the defendant at his arraignment when he was not represented by counsel. At the arraignment, the government had requested several tellers to sit in the courtroom to determine if they could recognize any of the men in the courtroom. This "lineup"*fn2 took place prior to the Supreme Court's decisions in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).*fn3

Appellant contends that the principles enunciated in these decisions require a reversal of his conviction, notwithstanding the Supreme Court's declaration in Stovall that its principles apply only to "those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date [June 12, 1967]." 388 U.S. at 296, 87 S. Ct. at 1967. Appellant's interpretation ignores the clear and unambiguous language of the court. As this court has already decided in U.S. ex rel. Bennett v. Myers, 381 F.2d 814 (3 Cir. 1967): "the doctrine of the Wade and Gibert cases is prospective only and its application is limited to cases in which lineups without counsel occurred after June 12, 1967." 381 F.2d at 816.

We are convinced that the question of the witness' identification was properly presented to the jury within the framework of constitutional standards. We do not agree with the appellant's contention that the conduct of the pre-trial identification was unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process of law.*fn4 The record does not disclose that "totality of circumstances" amounting to a denial of due process, and the procedure here did not offend those "canons of decency and fairness"*fn5 as was found in Palmer v. Peyton, 359 F.2d 199, 202 (4 Cir. 1966).*fn6

Appellant also assigns as error the introduction of testimony by a government witness concerning extrajudicial statements made by a co-defendant mentioning the appellant's name.*fn7 The witness testified that the co-defendant Smith had told him that someone had signed a statement implicating Smith in the robbery. This testimony then followed:

"He said that he is pretty sure that Lipowitz signed a statement on him, so I told him 'Are you sure it wasn't Muller?' He said, 'No, he knows Muller, and knew him for a long time, and Lipowitz was the green one, and that he figured it had to be Lipowitz that told on him.'"

Following the reception of this testimony, the trial judge ordered the witness' entire testimony stricken as to all defendants and carefully and emphatically instructed the jury to disregard it completely.*fn8

It is appellant's contention that the introduction of this testimony was prejudicial and requires a new trial under the authority of the Supreme Court's recent holding in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).*fn9 In Bruton, the Supreme Court held that the introduction at a joint trial of a defendant's extrajudicial confession, implicating a co-defendant, violated the co-defendant's right of cross-examination secured by the confrontation clause of the Sixth Amendment, despite specific limiting instructions by the trial judge as to the restricted use the jury might make of such a confession.

The facts presented in the instant appeal materially differ from the facts and holding in Bruton. Here, the entire testimony of the witness was stricken and the jury specifically instructed to disregard it as to all defendants. In Bruton, the testimony was received into evidence, allowing the jury to weigh its credibility and impact for a limited purpose, but not allowing the incriminated defendant his constitutional right to impugn the source of the testimony through cross-examination. Furthermore, the substance of the testimony introduced in the present case was of such a minor character as not to constitute the type of prejudice as was found in Bruton when an entire confession of a co-defendant was introduced. Any prejudice which may have resulted in the instant case was so insignificant as to constitute harmless error as that doctrine is enunciated in Chapman v. State of California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Similarly, we have found no merit to the other assignments of error which have been ably briefed and argued.

The judgment of conviction will be affirmed.



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