414 F.2d 407 (9th Cir. 1969), 23711, United States v. Allison

Docket Nº:23711.
Citation:414 F.2d 407
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. A. D. ALLISON, Defendant-Appellant.
Case Date:June 17, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 407

414 F.2d 407 (9th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,


A. D. ALLISON, Defendant-Appellant.

No. 23711.

United States Court of Appeals, Ninth Circuit.

June 17, 1969

Page 408

James F. Hewitt (argued), Legal Aid Society, San Francisco, Cal., for appellant.

John G. Milano, Asst. U.S. Atty., (argued) Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., Crim. Div., San Francisco, Cal., for appellee.

Page 409

Before BROWNING and CARTER, Circuit Judges, and GRAY, District Judge. [a1]

BROWNING, Circuit Judge:

Defendant appeals from his conviction of armed bank robbery in violation of 18 U.S.C. § 2113(a)(d) (1964). We affirm.

On March 28, 1968, two men entered a San Francisco branch of the American Savings and Loan Association, held several employees at gunpoint, and escaped with bank funds. Several days later, defendant was identified as one of the bandits from a spread of photographs shown to employees of the bank by agents of the Federal Bureau of Investigation. Defendant learned that he was being sought and surrendered to authorities.

At trial, two of the bank's employees identified defendant as a participant in the robbery. In addition, one William Langley testified that defendant solicited his assistance in robbing the bank, but that he refused and left San Francisco before the date of the robbery. Mrs. Langley also testified, corroborating her husband.

The defense was mistaken identity and alibi. Defendant's sister testified that defendant was with her at the time of the robbery, and nearly continuously from 9:00 or 10:00 in the morning until midnight on that day. Defendant testified to the same effect. He also testified that on several occasions Mr. and Mrs. Langley sought to involve him in various criminal endeavors, including robbery of a bank which they did not identify. According to defendant, he resisted these advances, on one occasion throwing Langley out of his apartment, and the Langleys told him, 'We'll make you suffer for this.' He further testified that he had been mistaken for Langley on several occasions and that two days before the robbery he saw Langley on the street not far from the bank which was robbed.

Defendant was convicted and senenced to fifteen years' imprisonment. We turn to his specifications of error.


After the jury was sworn, defendant's counsel made an oral motion in chambers to suppress the identification testimony of the bank employees. The ground advanced was that the pretrial display of photographs to these witnesses 'to our way of thinking would be a lineup in violation of the requirements of the Wade and Gilbert cases, 1 and therefore any identification (the witnesses) * * * make in court would be tainted thereby and should be inadmissible.' In addition, counsel cited Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), as a case 'in which certain standards are laid down for the out-of-court identification by photographs.' Counsel concluded that 'if the identification does violate those cases,' its fruit was inadmissible.

The trial court denied the motion, remarking that 'the fact that these witnesses may or may not have identified the defendant from photographs * * * is wholly immaterial, except for purposes of cross-examination at the election of the defense.'

As defendant points out, the view expressed by the trial court is no longer the law, for the Supreme Court has held that pretrial photographic identification procedures may so taint incourt identification testimony as to render such testimony inadmissible on due process grounds. This is the clear thrust of the statement in Simmons v. United States, supra, 'that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification

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procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' 2 The Court restated the rule in Foster v. California, 394 U.S. 440 n.2, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969):

'The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury. But it is the teaching of Wade, Gilbert, and Stovall, 3 supra, that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law.' 4

Defendant does not contend, however, that the record establishes that the incourt identifications were inadmissible under due process principles. He argues, rather that the district court erroneously refused to permit inquiry into the subject, thus depriving defendant of a determination of the issue of admissibility by the judge out of the presence of the jury.

We agree that where a timely and sufficient motion is made to suppress identification testimony on the ground that it has been tainted by pretrial photographic identification procedures, it must be heard and determined by the court outside the jury's presence in the same manner as any other motion to suppress evidence alleged to be inadmissible because unlawfully obtained.

Here, however, the motion was plainly insufficient to require inquiry into the due process issue. 5 An evidentiary hearing on this issue was required only if the supporting allegations were 'sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim (was) * * * presented.' Cohen v. United States, 378 F.2d 751, 761 (9th Cir. 1967). 6

We have quoted defense counsel's oral motion virtually in its entirety. Counsel did not allege, in detail or at all, that the photographic identification procedures employed in this case were so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Except for the possible inference from his passing reference to Simmons, this was not the ground of his motion. He contended, rather, that the pretrial photographic identification interviews with the bank employees were equivalent to a lineup, and hence required the presence of counsel-- a contention not made on appeal. 7 If counsel did intend to raise the due process issue, his motion fell far short of Cohen's standards.

It would be improper to apply the Cohen requirements strictly to a defendant who did not know the procedures followed by the government in exhibiting photographs to potential identification witnesses, and no doubt many defendants

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would fall in this category. Here, however, defense counsel did not dispute the Assistant United States Attorney's representation that he had, in the course of pretrial discovery, furnished defense counsel with 'all of the particulars pertaining to the photo identifications which were made by the bank witnesses * * *.' Thus the inadequacy of defendant's motion is not attributable to lack of information, and the inference is strong that the motion was not more specific and the Simmons issue was not explicitly advanced because counsel was satisfied that the procedures employed were not in fact impermissibly suggestive.


Defendant urges reversal on the ground that the trial court's ruling that defendant's prior felony convictions were admissible for impeachment failed to conform with the standards first set forth in Luck v. United States, 121 U.S.App.D.C., 151, 348 F.2d 763 (1965). 8

As we read the record the trial court acted on the assumption that it had discretion to exclude evidence of defendant's prior convictions. 9 Although not often the subject of explicit comment, such discretion clearly exists as a facet of the trial court's broad power to exclude or limit the use of evidence which is 'particularly prejudicial * * * even though admissible under an accepted rule of evidence.' Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). See also United States v. Palumbo, 401 F.2d 270, 273 (2d Cir.1968). The exercise of this discretion necessarily requires a 'balancing of intangibles-- probative values against probative dangers * * *.' C. McCormick, Evidence § 152, at 320 (1954). 10

While our decisions 11 make clear that convictions offered to impeach are

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'admissible under an accepted rule of evidence,' they do not hold that such evidence must always be admitted. To the contrary, we have recognized that proof of prior convictions for impeachment should be excluded if the trial judge, in the exercise of his discretion, concludes that it lacks sufficient probative value because of the remoteness in time of the convictions. 12

In exercising its discretion in the present case, the trial court appears to have given exclusive consideration to the historical remoteness of the convictions. In balancing the probative value of the evidence against its prejudicial effect, many other factors may also be relevant; 13 and, under Luck an exercise of discretion in disregard of the full range of relevant criteria would, if prejudicial, require reversal. See Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242, 245 (1966).

Whether a panel of this court could properly reverse for failure to consider the full range of relevant criteria has been questioned. 14 Assuming that it could, however, reversal would be warranted only if there had been a 'meaningful invocation' of the trial court's discretion in terms of those criteria. Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949, 951 (D.C.Cir.1966). 15 In this case, counsel did no more than cite Luck and request total exclusion of any reference to defendant's criminal record in the event he took...

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