U.S. v. Marchand

• Citation: 564 F.2d 983
• Decision Date: 09 January 1978
• Docket Number: D,No. 1288,1288
• Parties: 2 Fed. R. Evid. Serv. 1130 UNITED STATES of America, Appellee, v. Robert P. MARCHAND, Jr., Appellant. ocket 77-1131.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 983

564 F.2d 983

2 Fed. R. Evid. Serv. 1130

UNITED STATES of America, Appellee, v. Robert P. MARCHAND, Jr., Appellant.

No. 1288, Docket 77-1131.

United States Court of Appeals Second Circuit.

Argued June 9, 1977.

Decided Aug. 22, 1977.

Rehearing and Rehearing En Banc Denied Nov. 1, 1977.

Certiorari Denied Jan. 9, 1978.

See 98 S.Ct. 732.

Jeanne Baker, Cambridge, Mass., Alan M. Dershowitz, Cambridge, Mass. (Rosenberg, Baker & Fine, Cambridge, Mass., and Joseph S. Oteri, Martin G. Weinberg, and Oteri & Weinberg, Boston, Mass., of counsel), for appellant.

Jill A. Jacobson, Asst. U.S. Atty., District of Vermont (George W. F. Cook, U.S. Atty., District of Vermont, Rutland, Vt., of counsel), for appellee.

Before FRIENDLY, TIMBERS and MESKILL, Circuit Judges.

FRIENDLY, Circuit Judge:

Robert P. Marchand, Jr. appeals from his conviction, after a jury trial before Chief Judge Holden in the District Court for Vermont, on one count of an indictment charging the possession and distribution of 180 pounds of marijuana in violation of 21 U.S.C. § 841. ¹

Apart from a serious question under the Fourth Amendment discussed in Part IV below, the appeal has been presented as if this were a case where there is substantial doubt that defendant is the person who committed the crime charged in the indictment. Marchand relies on an array of cases, somewhat weakened as a result of recent Supreme Court decisions, which had laid down stringent requirements to prevent "the awful risks of misidentification" by persons with relatively scant opportunity to observe the defendant, Brathwaite v. Manson, 527 F.2d 363 (2 Cir. 1975), rev'd, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). But, as the trial judge and the jury seem to have been well aware, that is not this case at all. The case is rather one of accomplice witnesses, one of whom had known the marijuana supplier for years. The jury could well have inferred that any difficulty these witnesses expressed about identification was due to unwillingness rather than inability to identify. It was a similar case of seeming unwillingness that led us, in United States v. De Sisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), to rule that previous identification or grand jury testimony of a trial witness could be used not simply for " impeachment" but as substantive evidence a ruling which Congress has now translated into Federal Rule of Evidence 801(d)(1)(A) and (C). None of this means that Marchand did not have the right, accorded every criminal defendant, to a fair trial in accordance with governing rules of law. It does mean that statements in decisions involving dubious identifications by bystanders, law enforcement officers or victims ² should not be woodenly applied to the wholly different situation here and that the case offers ample occasion for recalling Judge Learned Hand's observation in Dyer v. MacDougall, 201 F.2d 265, 269 (2 Cir. 1952), that a jury is free, on the basis of a witness' demeanor, to "assume the truth of what he denies" although a court cannot allow a civil action, much less a criminal prosecution, to go to the jury on the basis of this alone.

I. A Chronological Summary

Marchand challenges his conviction on the grounds both of trial error and of insufficiency of the evidence properly admitted. ³ Before considering these challenges it will be useful to summarize what admittedly occurred. When we include material that was not before the trial jury, we will so indicate.

Sometime before June 1971, Victor Roy, Jr. became acquainted with a man at bars in Amherst, Mass. When testifying before the grand jury, Roy identified this person as "Big Foot" or "Bob"; at trial he insisted on the appellation "Big Foot". In March or April, 1975, Roy met the same individual, again in a bar in Brattleboro, Vermont; he was with a girl whom Roy identified before the grand jury as Ann. ⁴ The man gave Roy a telephone number, which Roy called occasionally. In May 1975, Roy, accompanied by Richard Perkins, met the individual at a Howard Johnson's restaurant in Springfield, Mass., to discuss the purchase of marijuana. On two occasions within the following three weeks, Roy and Perkins made purchases of marijuana from Big Foot at the Springfield Howard Johnson's.

During the period June 9-July 16, 1975, there were four one minute phone calls from Perkins' number in Waitsfield, Vt., to the numbers listed in the name of Ann Curtis and Robert Marchand in Guilford, which is near Brattleboro, Vermont; there was proof that Bob Marchand was living with Ann Curtis at the time. On July 17 there was a four minute phone call from Perkins' number to Marchand's. The next day, July 18, Perkins and Roy drove to Brattleboro, waited for a while at the Howard Johnson's restaurant there, met Big Foot and another male, and then drove out into the country, where 180 pounds of marijuana were transferred from Big Foot's car to Perkins'. On this date there were three phone calls to Ann Curtis' number in Guilford which were billed to Perkins' number in Waitsfield. The first, from Perkins' home phone, lasted three minutes. The other two each lasting not over one minute were from Brattleboro, where Perkins and Roy met Big Foot for the marijuana transaction. Perkins and Roy were arrested later in the day when they tried to sell the marijuana to an undercover agent.

Roy refused to make any statement to the arresting officer, Agent Handoga of the Drug Enforcement Administration (DEA). Within two weeks after the arrest, Perkins gave Agent Handoga a description of the seller as "a six foot one, 220 pound man with blond hair", aged between 25 and 30, and "big features", defined to include "a big nose, big hands, broad shoulders". About a month later, Perkins who had some ability as a portraitist, drew a sketch which was designed to be a picture of the marijuana supplier.

Agent Handoga testified at the suppression hearing later referred to that in August 1975 he had received information from an undisclosed source that Marchand was the supplier. Accordingly the Government sought an indictment of Marchand. ⁵

In September 1975 Perkins testified before a grand jury. He stated that "he found out (Big Foot's) name was Bob Marchand." Roy did not appear before this grand jury and it was discharged before the investigation was complete, without the filing of an indictment against Marchand.

On April 26, 1976 Perkins was shown fifteen photographs by Agent Handoga and was asked to pick two that most closely resembled the people he had seen at the time of the marijuana transaction. He first picked three and later narrowed his choices to two. One was a photo of Marchand. Perkins testified at the suppression hearing that he did not feel he was being encouraged or pressured to select the photograph that he did but was not certain that the individual depicted was the supplier. Roy, according to his testimony at the suppression hearing, was in Colorado during this period. On his return to Vermont he was served with a subpoena to appear before the grand jury. Immediately before his appearance on July 1, 1976, Roy arrived at the office of the United States Attorney in Burlington and went to a small interview room accompanied by Agent Handoga and Assistant United States Attorney O'Neill. Roy informed the agent that he had received the marijuana from someone named "Bob" or "Big Foot". Agent Handoga showed Roy a series of 14 photographs. On his first and second viewings he selected a photograph of someone he thought to be Jim Hathaway of Burlington; he was told he was in error. On a third viewing Roy selected a photograph of Marchand but added "this picture looks funny." The agent then produced a larger photograph of Marchand, interjecting "Oh, here's a Bob, what about this one?" Roy responded that the larger photograph "looks similar". ⁶ The agent then said "Ah, that's Marchand."

In the afternoon Roy testified before the grand jury. We have already covered much of this testimony. Important additions were a statement that he had known the person with whom he and Perkins had communicated in order to buy the marijuana as "Bob" and a confirmation that he had selected the photograph of the person he believed to be Big Foot. After hearing Agent Handoga present his own observations and Perkins' testimony before the earlier grand jury, the second grand jury returned an indictment against Marchand on July 22, 1976. An arrest warrant issued on the same day.

In the interval between Roy's appearance and the indictment, Timothy S. Hillman, a Massachusetts assistant district attorney who was to be called as a defense witness at trial for a reason that will later appear, came to Vermont. Marchand was a "civil client". Hillman had had "occasion to hear that photographs of (his) . . . client had been shown to the Grand Jury" in Vermont. ⁷ After talking with Roy, Hillman received "the impression that Victor had spoken to some people about an incident involving himself and some marijuana and that during the conversation he had had (sic) that Bob had been mentioned and the whole thing involved some sort of a transaction at the University of Massachusetts." ⁸ He had also received information that before testifying before the grand jury Roy had been shown pictures of Marchand and possibly of Ann. Hillman got "the impression . . . that the whole transaction went down at the U. Mass. Bar but whether or not the transaction went down with Bob or that is what he told him. I don't know . . .." He communicated all this to Marchand, who asked what he should do; Hillman gave Marchand directions how to get to Roy's house and "told him to get himself a darned good criminal lawyer and to get investigators sent up right away, because I believed that he was in trouble."

Some time after this, Marchand departed for the Miami area in Florida. ⁹ Apparently the Government knew that he had, for it sent a photograph of...