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United States v. Lewis

decided: March 7, 1972.

UNITED STATES OF AMERICA
v.
MOSES LEWIS, APPELLANT



Seitz, Chief Judge, and Aldisert and Gibbons, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This appeal from a judgment of conviction of bank robbery, in violation of 18 U.S.C. § 2113(a) and § 2113(d), presents evidentiary and jurisdictional questions and challenges the legality of the in-court identifications of appellant upon which the conviction was based.

On April 23, 1970, three armed men entered the Fort Mylner Branch of the Virgin Islands National Bank and, at gun point took $36,255.00. Appellant was arrested and charged with bank robbery in two counts on May 20, 1970. A photographic array was presented to one witness the next day. He could make no positive identification. The same array was shown to a second witness on June 1, 1970, and again no identification was made. On June 25, 1970, a line-up was held by court order. Counsel for appellant was present, and he participated in the selection of the ten persons displayed in the line-up. When the witnesses to the line-up made their identifications and were questioned by the government, however, counsel was excluded. A trial of appellant and two co-defendants resulted in a hung jury. Appellant was retried and the jury returned a verdict of guilty on both counts on December 5, 1970. This appeal followed.

To mitigate the impact of three positive eyewitness identifications at trial, appellant forges a challenge predicated on United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and United States v. Zeiler, 427 F.2d 1305, 1307 (3d Cir. 1970), in which this court held that "the considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody." For several reasons, however, appellant's reliance on Zeiler is misplaced.

No testimony was adduced relating to the photographic examinations. Indeed, no photographic identification was made by any witness. Appellant argues that this is of no moment, "because the Wade decision was aimed solely at nullifying any chance for suggestiveness." But the inability of eyewitnesses to make an identification from the photographic display belies any notion of suggestiveness. Moreover, it is only when a pre-trial identification has been made that concern is generated because "[a] witness once induced by such a suggestive confrontation into making a mistaken identification, is extremely unlikely later to change his mind." Zeiler, supra, 427 F.2d at 1306-1307. The admission of a photographic identification as substantive evidence of guilt is a sine qua non of a Wade-Zeiler claim. Thus, Zeiler may be distinguished on the very two grounds on which constitutional error was there found: photographic identification in the absence of counsel and testimony to that effect at trial. Zeiler, supra, 427 F.2d at 1307.*fn1 In any event, the trial court expressly found that "on examination of the 18 photographs I find no such suggestiveness as the record in Zeiler indicates."

Similarly, the court-ordered line-up was expressly found by the district court to be devoid of any suggestiveness. Nonetheless, the court excluded any evidentiary reference to the line-up. Out of exceptional caution, Judge Christian ruled that despite the absence of suggestiveness and the presence of counsel both at the time of participant selection*fn2 and during the line-up itself, the failure by the government to permit counsel's presence when the viewers made their identifications rendered inadmissible all identification testimony based on the line-up. In so doing, Judge Christian noted that no objection to the line-up had been posed, and that his rejection of the proferred identification evidence came from the spirit, rather than the letter, of Wade.*fn3 See Government of the Virgin Islands v. Callwood, 440 F.2d 1206, 1208 (3d Cir. 1971).

So postured, the government's proof of identification was thus made subject to the formidable standard enunciated in Wade : the Government must be given "the opportunity to establish by clear and convincing evidence that the incourt identifications were based upon observations of the suspect other than the lineup identification." Wade, supra, 388 U.S. at 240, 87 S. Ct. at 1939. Government of the Virgin Islands v. Callwood, supra, 440 F.2d at 1209. This standard, characterized by Judge Christian as a "heavy burden," was deemed by the trial court, after an exhaustive hearing out of the jury's presence,*fn4 to have been met by the government. The finding was based on the court's evaluation of the potential witnesses' credibility.*fn5

Assuming, without deciding, that the government was properly put to the "clear and convincing evidence" standard in adducing its identification testimony, we must agree with Judge Christian that the in-court identifications of all three witnesses were free from any possible taint.*fn6 Thus, while we need intimate no view toward the necessity of excluding the line-up identification testimony, we hold that the incourt identification testimony was properly admitted for the jury's consideration.

Appellant argues next that the admission of a bag containing $90.00, allegedly found in an area into which the robbers were alleged to have fled, created reversible error. Although the bag and the money were admitted at the outset of the trial, defense counsel objected on the ground of irrelevancy. At the close of trial, the court reversed itself and excluded the money and bag because the prosecution had failed to establish a connection relevant to the robbery. Thus, appellant contends that the display of this evidence before the jury "had a prejudicial effect" because "the jury had, from the time of admittance of this evidence, some four (4) days to ponder and consider this evidence in relation to the crime and the rest of the evidence brought before the court."

No argument is presented suggesting any way in which appellant was actually prejudiced. Indeed, if the temporary presence of this evidence had any effect on the jury at all, in light of the trial court's thorough instruction on this point, it may have been to cast the government's case in an unnecessarily weak light:

It was testified that about $90 worth of U. S. currency was found and it was displayed before you. I have stricken it from the record. It is now no longer a part of the case and you are to disregard it entirely. The same applies to a paper bag that I at one time admitted into evidence. I have now reversed that ruling and it is no longer to be considered by you. I have taken this step because there is not sufficient connection between that $90 and any money shown to have been taken from the bank. There is no connection between that paper bag ...


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