358 F.2d 557 (5th Cir. 1966), 22976, Wade v. United States

Docket Nº:22976.
Citation:358 F.2d 557
Party Name:Billy Joe WADE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 31, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 557

358 F.2d 557 (5th Cir. 1966)

Billy Joe WADE, Appellant,

v.

UNITED STATES of America, Appellee.

No. 22976.

United States Court of Appeals, Fifth Circuit.

March 31, 1966

Rehearing Denied May 11, 1966.

Weldon G. Holcomb (Court-appointed), Tyler, Tex., for appellant.

H. D. Nicholson, Asst. U.S. Atty., Wm. Wayne Justice, U.S. Atty., Tyler, Tex., for appellee.

Page 558

Before TUTTLE, Chief Judge, and JONES and WATERMAN, [*] Circuit Judges.

TUTTLE, Chief Judge.

Billy Joe Wade was arrested in Houston, Texas, on the 2nd day of April, 1965. He had been indicted by a federal grand jury for the Eastern District of Texas, which charged that, along with Briggs and Pickett, he had conspired with them to rob, and had robbed, a federally insured bank at Eustace, Texas. It is apparent that the indictment was based entirely upon the testimony given by the alleged accomplices, who had been arrested and sentenced on another offense some time earlier.

The trial court appointed counsel on April 26, 1965, at which time Wade was in custody in the Smith County Texas Jail. Thereafter, without notice to counsel, on May 12th, the appellant was taken from his cell to the second floor of the courthouse. At that time, the president and cashier of the bank, the only persons who were present at the time of the robbery, were in the courtroom, where a lineup was to take place. They observed Wade in the hall outside the courtroom in the custody of an officer, and thereafter, following the assembly of five other persons, Wade was put in the lineup of six people. Each of the six men in the lineup had had some bandages affixed to his face in a manner which the witnesses had stated had been worn as a disguise by the person who had robbed the bank. The lineup was conducted by Special Agent Albert of the Federal Bureau of Investigation. The record discloses that while they were in the lineup, 'Mr. Albert asked them some questions-- to step forward and so forth.'

The witnesses, Mr. Gray and Mrs. Chambers, identified the appellant in the lineup as the individual who robbed the First State Bank of Eustace. Later, at the trial, both Briggs and Pickett testified as to their participation with Wade in the robbery and the identification was repeated by Mrs. Chambers and Mr. Gray. Wade was found guilty by the jury and sentenced by the trial court to serve five years on the first count and fourteen years on the second count, the sentences to run concurrently.

Although the record does not show exactly what oral statements were required to be made by Wade during the lineup, government counsel, in oral argument, commendably conceded that each of the persons in the lineup was required to repeat words something like, 'Put the money in this bag', in order that the witnesses could hear similar words to compare with their recollection of the sound of the voice of the person who gave them such instructions at the time of the robbery. 1

Appellant's attack on his conviction and sentence here is two-fold. He complains, first, that the manner in which he was brought to the attention of the principal non-accomplice witnesses against him for identification purposes, amounted to a requirement that he...

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