United States v. Fernandez

• Decision Date: 24 February 1972
• Docket Number: No. 473,Docket 71-2129.,473
• Citation: 456 F.2d 638
• Parties: UNITED STATES of America, Appellee, v. Fred FERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

456 F.2d 638 (1972)

UNITED STATES of America, Appellee, v. Fred FERNANDEZ, Defendant-Appellant.

No. 473, Docket 71-2129.

United States Court of Appeals, Second Circuit.

Argued January 27, 1972.

Decided February 24, 1972.

Howard J. Stechel, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., and David G. Trager, Asst. U. S. Atty., of counsel), for appellee.

Eleanor Jackson Piel, New York City, for defendant-appellant.

Before FRIENDLY, Chief Judge, and ANDERSON and MANSFIELD, Circuit Judges.

FRIENDLY, Chief Judge:

Fred Fernandez appeals, on numerous grounds, from a judgment of the District Court for the Eastern District of New York sentencing him, after trial before Judge Costantino and a jury, to two concurrent terms of twenty years for armed bank robbery, 18 U.S.C. § 2113(a) and (d). At a previous trial before Judge Bruchhausen, the jury had convicted a co-defendant but had disagreed with respect to Fernandez.

The robbery, of the First Federal Savings and Loan Association in Queens County, New York occurred on the afternoon of December 24, 1970. Four men participated; one, allegedly Fernandez, was wearing a cap and a navy blue pea jacket and was carrying a pistol which two witnesses identified as a .45 automatic. During the robbery George Pesch, a guard, was able to activate the bank's surveillance camera which produced 17 photographs of a light skinned black wearing a dark pea jacket whom the Government claims to have seen Fernandez. Although the photographs showed only the man's left side, they were reasonably clear.

On the basis of an informer's tip, FBI Agent Sweeney obtained a warrant for the defendant's arrest. Apparently it is conceded that this was issued with probable cause. Sweeney and four other agents proceeded on the morning of February 18, 1971, to the home of Fernandez' mother, also in Queens. At this point it suffices to say that the agents arrested Fernandez and seized a navy blue pea jacket, $470 in bills, a considerable amount of ammunition, and a .45 automatic pistol. On the basis of Agent Sweeney's testimony to what eyewitnesses and the confidential informant had told him and of the seizure, the surveillance photographs and a photograph of Fernandez taken after his arrest, a grand jury indicted him. Thereafter four bank employees made a photographic identification, in a manner hereafter described; two of them, Mrs. Kalata and Mr. Pesch, testified to this and made an in-court identification at the trial which led to the conviction here under review.

I. The Validity of the Search and Seizure.

The validity of the search and seizure at Mrs. Fernandez' home had been the subject of a suppression hearing before Judge Bruchhausen prior to the first trial. The version given by Agents Sweeney, Landolfi and Terefenco was as follows:

At about 7:00 A.M., Agents Sweeney, Smith and Terefenco went to the front door of the residence; Agents Murphy and Landolfi went to the back entrance. Landolfi encountered Mrs. Fernandez, who was coming out with two dogs. He identified himself as an FBI agent, stated he had a warrant for Fred's arrest, and asked whether Fred was home. Mrs. Fernandez said "No." Landolfi called for Sweeney to come around back. Upon arriving at the back of the house Sweeney asked whether Fred was at home; Mrs. Fernandez answered in the affirmative. The two dogs then started growling and baring their teeth at the agents; Landolfi and Sweeney drew their guns in the direction of the dogs. Mrs. Fernandez told the agents she wanted to secure the dogs, since they were very vicious and would attack strangers; the agents then reholstered their guns. She went inside the house with the dogs and stayed for ten minutes. She then returned to let the agents inside and told them that Fred was upstairs in his bedroom. Sweeney and Smith ascended, found Fred sitting on the bed, and arrested him. These agents seized 37 rounds of ammunition, including .45 caliber cartridges, $470 in bills, and other items which were in plain view on a dresser next to the bed. They observed a navy blue pea jacket in a nearby open closet and also seized this. Meanwhile the other three agents were talking with Mrs. Fernandez downstairs. Landolfi told her that they had reason to believe there were weapons in the house; that they wished to make a search but did not have a search warrant; and that she had a right to require them to get one. She responded that they would find no weapons in the house. Landolfi showed and read her a consent to search form; she said she "didn't prefer" to sign it but had no objection to a search. Agent Terefenco went upstairs and found a fully loaded .45 automatic pistol and 2 clips hidden between the mattress and box spring of a bed in a room adjacent to that where Fred had been arrested—a maneuver which the Government suggests might have been performed during the agents' ten minutes wait before Mrs. Fernandez admitted them to the house. Fred later admitted at FBI headquarters that the gun was his. Mrs. Fernandez signed a form acknowledging what items were being seized.

Expectably Mrs. Fernandez gave a different version. She claimed that she was afraid when the agents drew their guns; that she asked them to produce a search warrant; that they said it was not necessary; that she let them into the house for that reason; and that she had never consented to a search.

On this appeal only the search for and seizure of the gun is seriously contested. If the judge believed the agents, the Government satisfied its burden, which we now take to be only of meeting the preponderance of the evidence test, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, (1972); contrast United States v. Bracer, 342 F.2d 522, 524 (2 Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), of proving that Mrs. Fernandez' consent was "freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Even on her own version, any effect of the pulling of the guns, itself not an unreasonable response to the vicious dogs, had been dissipated by the lapse of time before the consent was sought. Nothing said or done by the agents indicated any intention to use force, although they lawfully could have in order to make the arrest if Mrs. Fernandez had refused to permit it. Determination of credibility was for the judge who saw and heard the witnesses.

II. The Validity of the Indictment.

Little need be said with respect to appellant's contention that the indictment was invalid because no eyewitnesses to the robbery were called before the grand jury. Despite some earlier statements that might be taken to indicate a more drastic attitude, this court's present position with respect to indictments based on hearsay is that stated in United States v. Leibowitz, 420 F.2d 39 (2 Cir. 1969); United States v. Rosenstein, 434 F.2d 640 (2 Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971); United States v. Catalano, 439 F.2d 1100 (2 Cir.), cert. denied, 404 U.S. 825, 92 S.Ct. 56, 30 L.Ed. 2d 53 (1971); and United States v. Olsen, 453 F.2d 612 (2 Cir. 1972). The grand jury had a considerable quantity of non-hearsay evidence—the surveillance photographs of the robber wearing a dark pea jacket; Fernandez' post-arrest photograph; and Sweeney's testimony about the search and seizure. The only hearsay was the agent's statement that three confidential informants had told him that Fernandez was one of the robbers shown in the surveillance photographs and that two eyewitnesses had said the robber used a .45 automatic pistol. While we see no reason why the eyewitnesses' photographic identification should not have preceded the grand jury proceedings so that they could have been called as witnesses, the grand jury was not deceived and there is no reason to believe it would not have indicted if eyewitnesses had been called.

III. Impermissibly Suggestive Identification.

Appellant also unsuccessfully sought before Judge Bruchhausen the suppression of testimony by the bank employees with respect to the identification of Fernandez on the ground that the array of photographs shown to them after the indictment was impermissibly suggestive.¹ Sweeney presented six photographs, all of blacks in a manner that apparently was in no way exceptionable. Only one of the six was of an individual with an Afro haircut and with an extremely light skin, which the surveillance photographs showed the man wearing the dark pea jacket to be.

If this were all, it would be tolerably clear that the array was impermissibly suggestive, although other questions would remain. While the Government cannot be expected to produce photographs of persons identical with the accused except in minor details, here the surveillance photos showed a "black" with a skin almost that of a white; none of the five other photographs even approached this in lightness of color. Also, despite the Government's assertion that the robber's Afro was concealed by a cap, examination of the surveillance photographs shows enough hair protruding below the rear of the cap that an attentive observer would have little doubt the robber had an Afro haircut; the eyewitness descriptions notably made reference to this. The Government's photograph collection must be extensive enough that, particularly with the lack of time pressure here, it could have produced another picture of an individual more nearly approximating Fernandez in skin color and hairstyle.

A more nearly persuasive argument by the Government is this: On January 25, 1971, Agent Sweeney had exhibited to bank employees an array of five photographs, one (but only one) of which was of a black with light skin and an Afro haircut—notably, an individual mistakenly arrested for this crime. The employees did not identify this individual as one of the robbers. This, argues the Government, shows that the identification of Fernandez was not based on his...