U.S. v. Higginbotham

Decision Date19 July 1976
Docket NumberNo. 76-1398,76-1398
PartiesUNITED STATES of America, Appellee, v. Walter HIGGINBOTHAM, Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before WRIGHT, KILKENNY and SNEED, Circuit Judges.

KILKENNY, Circuit Judge:

Appellant was convicted in a jury trial on two counts of an indictment charging violation of the Dyer Act, as a principal (18 U.S.C. § 2312), and as aider and abettor in the violation of the Act (18 U.S.C. § 2). His codefendant, Robert Jones, entered a plea of guilty to each count. Jones later testified as a witness on behalf of appellant. We affirm.

BACKGROUND

Viewed in the light most favorable to the government, the record supports the following summary of facts.

During the first week in December, 1974, the appellant and Jones were in Boise, Idaho, where they spent several hours over a period of days at an automobile dealership examining and test driving two 1974 Dodge vehicles. They told Aikens, a salesman, they were interested in a four-wheel drive vehicle and focused their attention upon a pickup and a van. On the evening of December 5th, the two men test drove the vehicles and returned them to the lot with full tanks of gas. The next morning, the vehicles were both missing and reported stolen.

Aikens remembers his contact with the two men, whom he had carefully observed, because he thought they were somewhat suspicious. He had observed them for well over an hour during which time he was "practically next to them." He had also called a taxi to take them from the lot to the place they were staying. Furthermore, Aikens was trained to closely observe faces of prospective buyers because he was interested in the commissions upon sales and wanted to be sure he would recognize the faces of customers with whom he had previously dealt when they returned to the dealership.

When the men first approached Aikens, they said they had flown in and had been looking at trucks on the lot the night before. They claimed to be in the export business, working in Arizona, and with an office in Medford, Oregon. When pressed toward talking turkey, the men told the salesman they had a partner in the South with whom they would have to confer before discussing price. To Aikens, it seemed they had come a very long distance to purchase vehicles needed in their business.

Some two days after the vehicles vanished, appellant and his codefendant, Jones drove up to a friend's house in Roseburg, Oregon, with the two vehicles. Appellant requested and received permission to leave the pickup truck on the property and both Jones and appellant drove off in the van. A few days later Jones was arrested driving the van, which contained appellant's suitcase, his prescription pill bottle and blank bills of sale, one of which was made out to indicate that Jones had sold the van to appellant for $5,500.00. Appellant's fingerprints were also discovered inside the van.

The following day, appellant was interviewed by special agents of the FBI in Roseburg. He told them he had been in Roseburg the preceding week and was seen by his wife and the proprietor of a local store. He told the agents that he had paid Jones $2,800.00 in cash for the van, but would not say where he had obtained the money. The next day, December 11, 1974, appellant was again interviewed by the agents and at this time admitted that he had lied to them the day before and that he was the person who arranged to have the pickup left at his friend's house.

On trial, appellant attempted to explain the previous discrepancies in his statements and testified that he was traveling in California and Nevada at the time of the theft. Codefendant Jones attempted to corroborate this story by testifying that he alone had transported the two vehicles to Oregon, towing one, and that appellant had not been with him in Boise. He also testified that he sold the van to appellant for $2,800.00, but casually wrote $5,500.00 on the bill of sale.

ISSUES ON APPEAL

I. Did the failure of the Boise, Idaho, police department to conserve fifteen of the eighteen photographs shown to the witness Aikens deny appellant due process and effective assistance of counsel?

II. Were the comments by FBI agents and state police officers in the pretrial photographic displays unnecessarily suggestive, thus denying appellant's right to due process?

III. Did statements by government's counsel during the course of the trial shift the burden of proof to appellant and deny him due process and a fair trial?

I.

Shortly after the arrest of appellant and Jones, the Oregon State Police forwarded to the Police Department of Boise, Idaho, three black and white photographs, one of which was the picture of appellant and two pictures of Jones. Upon receipt of these pictures, Richard Schuler of the Boise Police Department assembled a collection of eighteen black and white photographs of white, middle-aged men, including those of appellant and Jones. The fifteen other photographs were selected from the numerous pictures which were on file in the office of the Boise Police. The eighteen photographs were handed by Schuler to Aikens, the Dodge salesman who had the most contact with the suspects, and asked if the two men who had been looking at the pickup and the van the day before they disappeared from the lot were in the group. Schuler made no suggestions of any kind to Aikens. Without hesitation Aikens selected the picture of appellant and a picture of Jones as being the two persons with whom he had contact on the possible sale of the vehicles.

After the identification, Schuler retained all of the photographs for a period of several days. Then he received word that the case was probably going to be prosecuted in the federal courts, rather than in the Idaho state courts. Believing that the fifteen pictures from local files would not be of use in the federal prosecution, he returned them to the Boise police files and was later unable to produce them for appellant's inspection.

Recognizing that counsel is not required at a photographic identification procedure, appellant takes a big step and argues that when it is not possible to reconstruct a photographic display, the situation is analogous to that about which concern was expressed in United States v. Wade, 388 U.S. 218, 231, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in connection with the right to confrontation. Counsel attempts to read into the language of United States v. Ash, 413 U.S. 300, 315-316, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), a rule that when reconstruction is impossible there is denial of effective assistance of counsel. The language upon which appellant relies is related to the issue of confrontation, rather than to a failure to reproduce a photographic display. Far more pertinent to our problem is the language from Ash, which reads:

"Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor, who, as so often has been said, may 'strike hard blows' but not 'foul ones.' . . . If that safeguard fails, review remains available under due process standards. . . . These same safeguards apply to misuse of photographs." Id. at 320, 93 S.Ct. at 2579.

Here is a proper place to emphasize that the fifteen photographs were never in the possession of the prosecutor, the FBI or any other United States government agency. The Boise police, under these facts, cannot be said to be acting on behalf of the federal government but rather on behalf of the State of Idaho. Cf. United States v. Smith, 433 F.2d 1266 (CA5 1970). Under such circumstances we should be reluctant to impute to the federal government the mistakes, particularly relatively innocent ones, committed by local police. Moreover, the demand to produce these photographs might well be likened to an attempt to require production under the Jencks Act of statements in the possession of state police. See Beavers v. United States, 351 F.2d 507 (CA9 1965), where the statements were never in possession of the United States and production was not required. By analogy, it is evident that the United States is in no way responsible for the actions of the Boise police in disposing of the fifteen photographs by inadvertence or otherwise. Appellant's reliance, by analogy, on Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), is unsound. In Elkins, there was a clear-cut violation by state officers of the defendant's immunity from unreasonable search and seizure, and the use of the seized evidence in defendant's conviction. Here, at most, is the act of a state officer innocently replacing in proper files a group of fifteen photographs, which he can no longer identify, under the belief that they would no longer be of use.

In the trial, Aikens positively identified appellant as the other man who was with Jones on the car lot in Boise the day before the theft and, on cross-examination, successfully resisted appellant's efforts to demonstrate that his in-court identification was based on the Oregon State Police photographs rather than on his clear-cut recollection of appellant's features observed during the one to two hour observation on the Boise car lot.

Assuming, arguendo, that the prosecution in some manner could be viewed as responsible for the loss of the now unavailable fifteen photographs, the following factors should be considered: (1) the degree of negligence or bad faith involved, ...

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