On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Crim. No. 84-00053.
Before: HIGGINBOTHAM and BECKER, Circuit Judges, and LACEY, District Judge*fn*
This is a consolidated appeal by three defendants from judgments of conviction on charges arising out of three bank robberies. Appellant Franklin E. Sebetich was indicted on charges of robbing the Cal-Ed Federal Credit Union in California, Pennsylvania; of robbing a branch of Equibank in Finleyville, Pennsylvania; of robbing the Union National Bank of Pittsburgh in Bentleyville, Pennsylvania; and of placing the lives of tellers in jeopardy during the commission of these robberies. Sebetich was convicted of Counts II and III the charges arising out of the Cal-Ed robbery and sentenced to twenty years' imprisonment. Appellant Michael John Buhovecky was indicted on charges of robbing the Union National Bank branch in Bentleyville, and of placing the lives of the bank's tellers in jeopardy. Buhovecky was convicted on both counts and sentenced to twenty years' imprisonment. Appellant Earl Dean, Jr., was indicted on charges of participating in all three robberies and of placing the lives of tellers in jeopardy in connection therewith. Dean was convicted of the charges involving the Bentleyville and Finleyville banks and sentenced to two concurrent twenty-year terms of imprisonment. All three appellants were also indicted on charges of conspiring to rob federally insured banks and credit unions. Buhovecky and Dean were convicted of that charge and sentenced to five years' imprisonment each, to run concurrently with their other sentences.*fn1
The appellants raise a host of issues, including an attack on the sufficiency of the indictment, a contention that there was unconstitutional pre-indictment delay, a claim of illegal search and seizure, and a variety of attacks upon the district court's evidentiary and procedural rulings at trial. For the reasons that follow, we reject all but three of these arguments. Because we conclude that the district court erroneously rejected Sebetich's proffer of expert testimony on the subject of the reliability of eyewitness identification, we vacate the judgment of conviction against Sebetich on the charge of robbing the Cal-Ed bank, and remand so that the district court may hold a hearing in accordance with our opinion in United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) We affirm the convictions of Buhovecky with respect to the Bentleyville robbery, but reverse Buhovecky's conviction for conspiracy, instruct the district court to enter a judgment of acquittal with respect to that count, and remand for resentencing on the remaining bank robbery counts.*fn2 Finally, we affirm the convictions of Dean on the counts relating to the Bentleyville robbery and the conspiracy count, but we vacate the judgments of conviction against him on charges stemming from the Finleyville robbery and remand for further fact-finding concerning the seizure of physical evidence linking Dean to that robbery. If the district court determines that no constitutional infirmity barred admission of the evidence, it will reinstate this conviction.
Between the months of March and August 1979, two banks and a federal credit union located in three neighboring western Pennsylvania communities were robbed by men wearing ski masks. The evidence adduced at trial concerning these robberies is essentially as follows.
A. The Cal-Ed Robbery. The first of the three robberies occurred on March 28, 1979, when a man with a gun robbed the Cal-Ed Credit Union. Immediately after the robber left the scene, a call was made to Officer Charles Filoni of the California, Pennsylvania Police Department, stating that the robber had fled in a dark green pick-up truck. Filoni responded to the call and spotted a truck, matching this description, with a driver and one passenger. Filoni testified that he pursued the truck, and that, when his police cruiser was fifteen to twenty feet behind the truck, the passenger extended his upper body out of the window and pointed a semiautomatic pistol at him. Filoni ducked; the passenger fired; the bullet penetrated Filoni's windshield and lodged in the headrest. A fragment of the bullet pierced Filoni's left shoulder.
After Filoni had continued the chase for twenty-two miles, he lost and never regained sight of the truck. According to Filoni, during the chase the passenger leaned out of the window approximately eight more times and fired four to five more shots. At trial, Filoni estimated that he had viewed the passenger for a total of forty-nine seconds at distances of about thirty to forty yards, and at speeds ranging from forty to seventy-five miles per hour. Immediately following the incident, Filoni described the passenger as having light brown thick wavy hair, long sideburns, a full but closely cropped beard, and a thin mustache.
The Cal-Ed robbers made good their escape, and the police and FBI remained without a suspect for approximately a year and a half. In September or October of 1980, Officer Filoni noticed a photograph on the bulletin board at the police station and spontaneously identified it as that of the man who had fired at him during the chase following the robbery. The photograph, which was of appellant Sebetich, showed a man without a beard or mustache and with dark, straight hair. It had been taken in 1971, about nine years before the robbery.
In December of 1980, Agent Scupien of the FBI showed Filoni a photo spread containing the picture of Sebetich that had been posted on the bulletin board. Filoni once again identified Sebetich as the Cal-Ed robber. He also identified, with some reservation, a picture of appellant Dean, referring to him as the driver of the green get-away truck. Over Sebetich's objections, evidence of Filoni's two out-of-court identifications was admitted at trial. Filoni also made an in-court identification of Sebetich as the passenger in the green truck who had fired at him. Additionally, Filoni testified concerning his out-of-court identification of Dean and made an in-court identification of Dean as the driver of the truck.
B. The Bentleyville Robbery. On May 17, 1979, two armed men robbed the Union National Bank in Bentleyville, Pennsylvania. After leaving the bank, they escaped in a yellow American Motors Gremlin that was parked in an alley across the street. A third accomplice, who had been waiting in the car, drove it about a mile and a half outside the business area of Bentleyville to the Chippewa Gold Course. There all three abandoned the Gremlin and continued their escape in a second getaway car driven by a fourth man.
On July 12 or 13, 1979, William Stankovich, Chief of the Bentleyville Police Department, was patrolling near appellant Buhovecky's residence when, according to Stankovich's trial testimony, Buhovecky approached him and asked how much money had been taken in the Bentleyville robbery. Stankovich told him the amount, and Buhovecky seemed surprised. Stankovich testified that on the 16th and 17th of the same month he encountered Buhovecky in the parking lot of the American Legion Post in Bentleyville, and that Buhovecky requested a meeting with the FBI or the state police to discuss possible immunity regarding his involvement with the Bentleyville robbery in exchange for his help in the investigation. Stankovich testified that Buhovecky then related in detail the events surrounding the robbery and admitted that he was the driver of the first getaway car.
Stankovich testified that he met with Buhovecky several more times to discuss the robbery and Buhovecky's possible immunity from prosecution and that during the course of these discussions, Buhovecky implicated appellants Sebetich and Dean in the Bentleyville robbery. Buhovecky also met with an FBI agent, Stankovich, and a representative of the state police to discuss the case, but no agreement concerning immunity was ever reached. Additionally David Daniels testified that Buhovecky had told him that the Bentleyville robbery was a "clean job" and that the "feds would never catch him."
Several persons also testified that Dean spoke of the robbery both before and after it occurred. David Daniels testified that on one occasion in April or May of 1979, while at his sister Cindy Williams' home, he overhead Dean admit to Williams' husband that he had a master plan to rob Bentleyville. Daniels testified that he then told Cindy Williams what he had overhead, and that she listened to the rest of the conversation from the utility room of the house. Williams testified that she heard Dean tell her husband that he was going to rob the Bentleyville bank. Daniels further testified that in June or July, 1979, Dean told him that he had robbed the Bentleyville bank. Moreover, Charles Powers testified that Dean admitted that he robbed the Bentleyville bank and two others.
Margaret Wilks, Dean's stepmother-in-law, testified that Dean was the owner of a yellow Gremlin similar to that used in the Bentleyville escape. She testified that this car was stolen the night before the robbery, and that Dean was aware of the Wilks family practice of leaving car keys in the automobile.
Finally, after denying Dean's pretrial motion to suppress, the court admitted into evidence at trial a pair of boots, obtained from a search of the Dean residence, that matched a pair of boots shown in a photograph taken during the Bentleyville Bank robbery.
C. The Finleyville Robbery. On August 27, 1979, a Chevrolet El Camino sped into the parking lot of the Finleyville office of Equibank. Two men wearing ski masks and carrying guns got out of the car and ran into the bank. One of the robbers, who was also wearing what a teller testified were "glasses with a nose on like you would wear at Halloween," vaulted over the counter and looted open cash drawers. In so doing, he left a sneaker print on a certificate lying on the counter; a surveillance camera photograph also showed that he was wearing sneakers.
During the search of Dean's house, see supra, the police confiscated a pair of sneakers matching those in the surveillance picture. In addition, an expert witness testified at trial for the prosecution that the shoe print on the certificate of deposit was made by the right sneaker found during the search of Dean's residence. The search also uncovered a pair of glasses and Groucho Marx-type nose mask; the government introduced the mask into evidence at trial, contending that it was the mask worn by the robber who vaulted over the counter during the robbery.
The search of Dean's residence also yielded a number of state automobile inspection stickers. Edmund J. Sedney, owner of an automobile dealership in Charleroi, located some ten to twelve miles from Finleyville, testified that on the date of the Finleyville robbery, inspection stickers and a Chevrolet El Camino (the type of vehicle used in the robbery) were stolen from the dealership. The stickers were admitted into evidence at trial.
Appellants Sebetich, Buhovecky, and Dean each raise a number of issues on appeal, some of which are common to all the appeals. First, we shall address first the contentions of Sebetich, then those of Buhovecky and Dean, respectively. Finally, we shall discuss the issues raised in common by all three appellants. We shall recount additional facts relevant to the specific legal contentions when necessary.
II. ISSUES RAISED BY SEBETICH
A. The Identification Procedures
At trial, Officer Filoni was permitted to identify Sebetich as the man who shot at him from the pickup truck, and to testify that he had selected a photograph of Sebetich after examining a spread of five photographs some 18 months after the robbery. Sebetich challenges both portions of this testimony on due process grounds. He argues that the photo spread was suggestive because it contained the photograph that Filoni had earlier, albeit spontaneously, identified as that of his assailant. Sebetich further argues that this allegedly suggestive procedure tainted the in-court identification, and that no independent basis for that identification could exist in view of the circumstances surrounding Filoni's encounter with the pickup truck.
Evidence of an out-of-court identification comports with due process unless the taint of suggestiveness created "a very substantial likelihood of misidentification." Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 , (1972). For the reasons that follow, we conclude that the out-of-court identification was not impermissibly suggestive and was properly admitted. The in-court identification could not therefore be suppressed.
As we have noted, the impetus for the photospread occurred some 18 months after the robbery, when Officer Filoni noticed a photograph posted on the wall in the police station. According to his testimony at the preliminary hearing, Filoni, upon seeing the photograph, immediately and spontaneously identified the man in the picture, appellant Sebetich, as his assailant.*fn3 Approximately two months after Filoni's spontaneous identification of the single photograph, Agent Scupien showed Filoni a spread of five photographs, including the photograph which Filoni had identified earlier. Once again, Filoni selected Sebetich's picture as that of the man who had shot him.
We reject Sebetich's contention that Filoni's initial viewing of the photograph tainted the later identification from the array of photos. There is no contention that, except for the complaint that the previously identified photograph of Sebetich was included, the spread was suggestive. An inspection of the spread confirms that it was a fair one containing men of similar age and appearance.*fn4 Filoni, faced with a number of similar photographs, might have qualified his earlier identification. At the session with Agent Scupien, however, Filoni reiterated his belief that Sebetich's photo was that of his assailant. Inasmuch as the spread contained this photograph, it could be argued to the trier of fact that it has little independent probative value, but the second identification was not thereby tainted by the first. Nor was the photospread evidence flawed by any suggestive remarks by the law enforcement officer. Thus, evidence of the out of court identifications was properly admitted.
Because we conclude that the out-of-court identifications were not tainted, we perforce conclude that the in-court identification of Sebetich is admissible, for the only colorable (or asserted) basis for the claim that the in-court identification is inadmissible is the supposed suggestiveness of the out-of-court identification procedures.*fn5
B. Exclusion of Expert Testimony as to the Reliability of Eyewitness Identification
Five days before trial, Sebetich moved for permission to retain Dr. Robert Buckhout, a psychologist experienced in the subject of eyewitness identification, to testify as an expert witness concerning the anticipated identification testimony by Officer Filoni.*fn6 At argument on the motion, counsel for Sebetich emphasized the stressful conditions under which Filoni raced with the pickup truck and the 18-month lapse of time between the chase and Filoni's first identification of Sebetich, as circumstances about which Dr. Buckhout would testify. Although the identification testimony by Filoni was the crucial evidence in the government's case against Sebetich, the district court denied ...