410 F.2d 386 (3rd Cir. 1969), 17298, United States v. Moss

Docket Nº:17298.
Citation:410 F.2d 386
Party Name:UNITED STATES of America v. C. L. MOSS, Appellant.
Case Date:May 01, 1969
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 386

410 F.2d 386 (3rd Cir. 1969)



C. L. MOSS, Appellant.

No. 17298.

United States Court of Appeals, Third Circuit.

May 1, 1969

Argued March 3, 1969.

Robert E. Tucker, Berger & Berger, Pittsburgh, Pa., for appellant.

Lawrence G. Zurawsky, Asst. U.S. Atty., Pittsburgh, Pa. (Gustave Diamond, U.S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before KALODNER, FREEDMAN and SEITZ, Circuit Judges.



This is an appeal from a judgment of conviction of the United States District Court, Western District of Pennsylvania, entered after a jury verdict finding the defendant-appellant, C. L. Moss, guilty of violating 18 U.S.C. § 2113(a)(d).

On the afternoon of August 15, 1967, defendant attempted unsuccessfully to rob a branch of the Pittsburgh National Bank. Three female tellers had an opportunity to observe the robber for various lengths of time. After the attempted robbery, each of the tellers separately picked out defendant's photograph as being that of the robber. Furthermore, on about September 12, 1967, two of the tellers were taken to the Public Safety Building in Pittsburgh where defendant was being arraigned on state charges, and recognized him when he entered the magistrate's courtroom. A federal grand jury indictment followed on September 18, 1967. At trial, the Government made no attempt to introduce evidence of the pre-trial identifications of

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defendant or his photograph on direct examination, relying solely upon the tellers' account of the attempted robbery and their in-court identification of defendant. Testimony as to the pre-trial identifications, however, was elicited by defense counsel on cross-examination and by the prosecution on re-direct.

Prior to trial, on January 15, 1968, defendant's counsel moved that the United States Marshal be ordered to bring four members of defendant's race from the Allegheny County Jail to sit with the defendant at trial so that he would not be the only member of his race in the courtroom when the Government's witnesses testified. This motion was denied. However, defendant was granted a continuance so that he might obtain males of his race to sit with him. He could find no one willing to do so and did not renew his motion.

The trial commenced on January 23, 1968. During its course a photograph of defendant handcuffed to a...

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