United States v. Moss, 17298.

• Decision Date: 01 May 1969
• Docket Number: No. 17298.,17298.
• Citation: 410 F.2d 386
• Parties: UNITED STATES of America v. C. L. MOSS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

410 F.2d 386 (1969)

UNITED STATES of America v. C. L. MOSS, Appellant.

No. 17298.

United States Court of Appeals Third Circuit.

Argued March 3, 1969.

Decided May 1, 1969.

Rehearing Denied June 27, 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.

OPINION OF THE COURT

PER CURIAM:

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 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 notorious bank robber appeared in the local news media. The other man was being tried contemporaneously before another judge. Defendant was not identified in the photograph but nine of the jurors and both of the alternates saw it and recognized the defendant. An in camera examination of each juror was conducted by the trial judge, and none indicated prejudice against defendant and all answered affirmatively that their verdict would not be influenced by anything they saw outside the courtroom. Defense counsel moved that two of the jurors who stated that they had not seen the photograph be replaced by alternates; however, he acquiesced in postponing such replacement until the conclusion of the testimony and then withdrew his request entirely. In his charge, the trial judge instructed the jury to disregard any impression or information about defendant obtained from any source outside the courtroom.

The jury having returned a verdict of guilty and defendant's post-trial motion for a new trial having been denied, on January 25, 1968, defendant was given a suspended sentence on Count I (violation of 2113(a)) and sentenced to five years on Count II (violation of 2113(d)).

On this appeal defendant makes three contentions: (1) in-court identifications of an accused are improper where he is the only member of his race present in the courtroom; (2) the trial judge erred in his charge as to...