U.S. v. Burke

Citation506 F.2d 1165
Decision Date11 November 1974
Docket NumberNo. 73-3320,73-3320
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas BURKE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Nicholas R. Allis, Deputy Federal Public Defender (argued, Los Angeles, Cal., for defendant-appellant.

Darrell W. MacIntyre, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before TRASK and SNEED, Circuit Judges, and POWELL, * District judge.

OPINION

TRASK, Circuit Judge:

Robert Burke appeals from his conviction of two bank robberies, proscribed by 18 U.S.C. 2113(a), (d) (bank robbery; use of a dangerous weapon). Following trial by jury, the appellant was sentenced to two 20-year concurrent prison sentences.

A robber, wearing a stocking mask and armed with a revolver, robbed two banks on June 26, 1973, and July 16, 1973, respectively. During the first hold up the robber made his getaway in a stolen 1972 Plymouth Barracuda. This car was subsequently found nine blocks from the scene of the robbery. A search of the vehicle yielded green rubber gloves and a white towel with the designation 'Steiner American Corporation.' In the second robbery the getaway car was a 1967 Mustang reported stolen from Hessell Chevrolet on the date of the robbery. Mr. Jody Lilly, a salesman for Hessell Chevrolet, testified that the appellant was present on the car lot at noon of the previous day and that the keys to the Mustang were discovered missing at the end of the day. The appellant was arrested on August 28, 1973, while leaving his home in a 1973 Chevrolet van. The appellant's brother, the record owner of the van, gave the FBI permission to search the van and informed the agents that they would find the appellant's pistol hidden in the van. A subsequent (warrantless) search yielded a .357 revolver and two .38 caliber revolvers and cartridges; each of the revolvers was wrapped in a white towel with the 'Steiner American Corporation' designation. Other evidence linking the appellant with the commission of the crimes included: (1) identification testimony by witnesses at both banks and (2) photographs made by the surveillance cameras at each of the banks which revealed a tattoo on the robber's arm identical to that of the appellant. At the trial the appellant took the stand and testified that he had been at Hessell's Chevrolet on many occasions in connection with efforts to replace his wrecked car; the appellant further testified that he had a mustache since April 1973 (there was some confusion among the identification witnesses as to whether the robber had a mustache). The surveillance photographs showed a man who was clean shaven. On the basis of the foregoing evidence, the jury found the appellant guilty of both counts of the indictment.

At the close of the Government's case the appellant requested and received the statements of 13 witnesses in an FBI-conducted lineup. At the end of the trial defense counsel first discovered that one of these statements included a somewhat equivocal identification made by Sandra Alley, a government witness who positively identified the appellant at trial. Appellant argues that this transmittal of exculpating material violated both the Jencks Act, 18 U.S.C. 3500, and the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it was tardy.

Sandra Alley's lineup identification can fairly be designated a 'statement' within the purview of 18 U.S.C. 3500(e) 1 and one which related to the subject matter of the witness' in-court testimony as required by 3500(b). As such, the statement could have been subject to the appellant's discovery following the witness' testimony on direct examination. However, the appellant fails to allege one crucial fact essential to a demonstration of a Jencks Act violation: namely, the fact that the defendant actually moved for a production of the statement as required by 3500(b). 2

In Ogden v. United States, 303 F.2d 724, 733 (9th Cir. 1962), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964), this court discussed the 'demand' requirements at length:

'Recognizing all of this, it remains true that the burden rests upon the defendant to invoke the statute at the appropriate time. The Act provides that the Court shall order the production of statements to which the defendant is entitled 'on motion of the defendant.' 'No ritual of words' is required, but the defendant must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry. If he fails to do so he may not assert, on appeal, that failure to order production or to undertake further inquiry was error. It would defeat the important purposes of the Act to give its provisions a hypertechnical interpretation. But it would be equally destructive to permit the statute to be used as a device for creating inadvertent error. The responsibility for fairly directing the attention of the Court to the precise demand submitted for the Court's determination is appropriately placed upon the Defendant, who seeks the statute's benefits. 303 F.2d at 733.

Here, apart from the appellant's general request for production of 'Brady material' made at the beginning of the trial there does not appear to have been any specific request for a Jencks Act production of lineup statements, even though the appellant was aware that the lineup had occurred. Moreover, this case does not present an absolute refusal to produce materials. When the appellant renewed his request for 'Brady materials' at the conclusion of the Government's case (and for the first time, made specific the demand for the line up statements), the material was turned over to the appellant. Since the Government's witness Sandra Alley was excused subject to recall and further cross-examination by the appellant there is no basis for the appellant's allegation that the witness was no longer available or susceptible to recall. The fact that the appellant's counsel failed to read the line up statement until after the trial cannot be deemed a prosecutorial error or abuse of discretion by the court. The appellant was given the statement at 10:45 on the morning of the second day of trial. There was a noon recess of 90 minutes, defendant called several witnesses in the final afternoon session, and he had the right to recall the witness in question. He had the time 'reasonably required for the examination of such statement.' 18 U.S.C. 3500(c). Therefore, even assuming that a Jencks production request had been properly before the court, under these circumstances no violation of the statutory provisions occurred. See United States v. Amabile, 395 F.2d 47, 52 (7th Cir. 1968), vacated on other grounds, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Moore v. United States, 394 F.2d 818, 819 (5th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 641, 21 L.Ed.2d 573 (1969) (counsel was given Jencks statement prior to lunch recess with right to recall witness after recess).

It is arguable whether Alley's line up statement constituted 'exculpatory' evidence subject to the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requirement of voluntary production by the prosecution. Her statement was:

'. . . she could not be positive in her identification, she thought the number four individual (appellant) had a very similar build to the bandit that she observed. She added though, that the number two man who spoke in a very loud voice, sounded a little like the bandit.'

In light of the witness' positive in-court identification of the appellant and the emphasis placed upon the appellant's distinctive New York accent, in the testimony of Mrs. Olivares, another witness, the witness' line up statement might have had considerable impeachment value. However, the materiality of this testimony to the question of the appellant's guilt is debatable. This was not a case in which the Government's case 'depended almost entirely' on the identification testimony of Mrs. Alley (or Mrs. Olivares' voice identification) as was the situation in Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (a more recent application of the Brady principle). Finally, even if the line up statement is considered 'Brady material,' there was no absolute denial of the evidence to the appellant. As discussed previously, the appellant was given the evidence in ample time to examine it and had the privilege of recalling witness Alley to the Stand for further cross-examination. We conclude that the appellant's Brady argument is without substantial merit.

Two agents from the FBI testified as experts with respect to photographic identification based upon pictures taken by the banks' surveillance cameras during the robberies. Agent Herold testified as a firearms examiner from the FBI laboratory in Washington, D.C. He stated that the weapon shown in the surveillance film had certain similarities with a weapon taken from the van and concluded that the weapons were both of the same type although it was not possible to determine if the gun taken from the van was the identical gun used in the robbery. No error was assigned on appeal to the admission of this testimony. Agent Webb testified to comparisons between photographs of appellant taken after arrest with surveillance photographs for the purpose of establishing a similarity of physical characteristics and wearing apparel. All photographs were enlarged to the same size. Agent Webb's testimony called attention to similarities between details appearing on the shoes of appellant and on the shoes shown in the surveillance photographs; similarities between a tattoo of a female figure on the appellant's arm with such a figure on a surveillance photo; and similarities of...

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