United States v. Milano

Decision Date13 July 1971
Docket NumberNo. 531-70.,531-70.
Citation443 F.2d 1022
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronald Anthony MILANO, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

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Donald M. Burkhardt, Denver, Colo., argued the cause for appellant.

Gordon L. Allott, Jr., Denver, Colo., argued the cause for appellee.

Before SETH, COFFIN* and DOYLE, Circuit Judges.

COFFIN, Circuit Judge.

This case is an appeal from defendant's conviction for bank robbery in violation of 18 U.S.C. § 2113(a). On appeal, defendant asserts a variety of reasons for reversal.

Continuance of Preliminary Examination

Defendant's preliminary examination was set for April 2, 1970, but was continued until April 7 over defendant's objection. The April 7 date was chosen in part because defendant was concerned that an indictment would be handed down before the preliminary examination could be held. On April 7, defendant moved for another continuance which was granted. The following day, April 8, an indictment was handed down, and no preliminary hearing was held. Defendant argues that the first continuance was error.

It does not appear in the record before us whether the first continuance, issued over defendant's objection, was an order of a judge of the district court made after the appropriate findings required by 18 U.S.C. § 3060(c). But even if this were not the case, there would be no grounds for reversal. First, a defendant's remedy for an improperly delayed preliminary examination is discharge from custody or the requirement of bond under 18 U.S.C. § 3060(d). This release is without prejudice to the institution of further proceedings upon the same charge. Second, no preliminary examination is required if an indictment is obtained first. 18 U.S.C. § 3060(e). We take these two sections to mean that defendant's remedy, if he was entitled to any, was release when his preliminary hearing was delayed, but that he could still be tried for the same offense if an indictment were subsequently handed down. The statute, as we read it, determines that the sole purpose of the preliminary examination is to test probable cause in order that innocent persons will not continue under arrest. If that determination is made by another means, there is no prejudice to defendant.

Defendant relies on Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965), and Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967), which did say that the preliminary examination also provided the defendant with discovery. But that is merely an incidental benefit — which varies widely from case to case, depending on how much evidence the government produces at this early state — and not the statutory purpose. Blue and Ross have not been followed in other circuits. Cf. United States v. Karger, 439 F.2d 1108 (1st Cir. 1971). Moreover, 18 U.S.C. § 3060 was enacted after both cases, and, we think, clarifies the statutory purpose. See generally United States v. Hinkle, 307 F.Supp. 117 (D.D. C.1969); Weinberg & Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968, 67 Mich.L.Rev. 1361, 1390-93 (1969).

Absent evidence of deliberate prosecutorial connivance to deprive a person of a preliminary hearing by delay until after indictment, as to which we express no opinion, a defendant is not entitled to a new trial even if the hearing were improperly delayed.

The Identifications

Three witnesses identified defendant as the bank robber at trial. At least two had picked him out of a line-up previous to the in-court identification, but all had observed a picture of defendant in the newspapers prior to the line-up. Defendant argues that the publication of his picture along with an account of the bank robbery and his prior criminal record so tainted the subsequent identifications as to make them inadmissible.

The Supreme Court has held that the reliability of eyewitnesses' identification is generally a matter for the jury, but that in some cases the procedures leading to the identification may be so conducive to mistaken identification as to be a denial of due process. Foster v. California, 394 U.S. 440, 442 n. 2, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). A court's frame-work for determining whether identification procedures were impermissibly suggestive is "the totality of the circumstances." Foster, supra, 394 U.S. at 442, 89 S.Ct. 1127.

We have reviewed the testimony in this case and decide that the publication of the newspaper picture did not lead to irreparable mistaken identification. All of the witnesses testified that the pictures were not the basis for their identification. All testified to details of defendant's appearance not evident in the picture; one witness even testified that the picture hardly resembled defendant. It appears that at least one witness may have picked defendant's and another man's pictures from a group of pictures when asked, before the newspaper items appeared, to select photographs that resembled the robber. This case is considerably different from the Foster case where the witness was uncertain until two line-ups and a one-to-one confrontation between the witness and the suspect had been held, and more like Simmons where the Supreme Court upheld identification testimony of witnesses who had been shown snapshots of some of the robbers during the investigation.

We agree with defendant that it would be better if witnesses made positive identification before seeing newspaper photographs of identified suspects. But we are unwilling to make a per se rule that such photographs indelibly taint subsequent identification. To do so might require us to tread on delicate First Amendment ground. Furthermore, we hesitate to discourage law enforcement agencies from releasing pictures of wanted suspects to the press in order to obtain the public's help in apprehending them. See Simmons v. United States, supra, 390 U.S. at 384-385, 88 S.Ct. 967. We cannot say that such identification was so unreliable that a jury should not have been allowed to consider it.

Search and Seizure

When the robber left the bank, he threw the money, part of which was in a brown paper bag, into a waiting car, driven by another person, who turned out to be defendant's sister. She was made a co-defendant and tried separately. Meanwhile, in the bank an alarm was sounded, and a nearby police officer responded. He arrived at the bank and was met by an employee who described a pink Thunderbird automobile with license number SD6648 as having pulled away after the hold-up. The officer and the bank employee drove in pursuit of the car and spotted a pink Thunderbird with license number SD5648, which the employee said looked like the same car. The officer pulled the car over to the side of the road and radioed for a backup car. When a second officer arrived, the first policeman informed him of what was happening, and the two men approached the car from opposite sides. While making the arrest of co-defendant, the second policeman opened the passenger side door and saw some currency. Further investigation turned up the loot and a brown paper bag with defendant's fingerprints on it.

Defendant argues that this search was illegal because the second officer did not have probable cause to arrest. The facts we have stated above are sufficient to refute this assertion, assuming that defendant has standing to raise it. As a second argument, defendant claims that the search which turned up the evidence went beyond what was incidental to the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We disagree. It was manifestly proper for two policemen to approach the car of a suspected participant in a bank robbery with considerable caution. This caution led the officers to open the car doors on each side in making the arrest, thereby decreasing the suspect's opportunity to forceably resist. The opening of the passenger side door was therefore a part of the arrest and not a gratuitous search. Some of the loot was in clear view as a result of the arrest. The remainder of the money and the paper bag were found in the back seat when the arresting officer gathered the visible evidence. There was no illegal search here; money was in plain view, and the remainder of the evidence came into view as the visible money was gathered in.

Fingerprint Evidence

Subsequent analysis revealed that the brown paper sack taken from co-defendant's car, contained fingerprints of the defendant as well as smudged, partial, and unidentifiable prints. Defendant argues that this fingerprint evidence was inadmissible because there were other unidentifiable prints on the bag and because there was no evidence that these prints were made during the robbery. This particular bag was not identified as the bag used by the robber, and defendant argues that he could have handled it before the robbery.

Defendant relies on cases which say that similar fingerprint testimony "is not sufficient to support a conviction". We agree that standing by itself, this testimony would be insufficient to support a conviction, but there was ample additional evidence in this case linking defendant to the crime. The fingerprint testimony was relevant; this is not a case where there was no evidence, direct or circumstantial, linking the fingerprints to the commission of the crime. Cf. Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967).

Handwriting Testimony

The bank robber used the standard procedure of...

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