608 F.2d 1175 (9th Cir. 1979), 76-3465, United States v. Cook

Docket Nº:76-3465.
Citation:608 F.2d 1175
Party Name:UNITED STATES of America, Appellee, v. Mark Edwin COOK, Appellant.
Case Date:June 29, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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608 F.2d 1175 (9th Cir. 1979)

UNITED STATES of America, Appellee,


Mark Edwin COOK, Appellant.

No. 76-3465.

United States Court of Appeals, Ninth Circuit

June 29, 1979

Rehearing and Rehearing En Banc Denied Sept. 12, 1979.

Certiorari Denied Jan. 14, 1980.

See 100 S.Ct. 706.

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[Copyrighted Material Omitted]

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Timothy K. Ford, Smith, Kaplan, Withey, Schapira & Ford, Seattle, Wash., Robert T. Czeisler, King, King & Davidson, Kirkland, Wash., for appellant.

J. Ronald Sim, U. S. Atty., Jack A. Meyerson, Asst. U. S. Atty., Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before TRASK and GOODWIN, Circuit Judges, and KELLEHER [*], District Judge.

GOODWIN, Circuit Judge:

Mark Cook appeals a judgment following his conviction of violating 18 U.S.C. § 2113(a) and (d) (bank robbery) and of related conspiracy and firearm counts.

On January 23, 1976, four men attempted to rob the Tukwila Branch of the Pacific National Bank. Three of the robbers entered the bank while the fourth remained across the street in an automobile. Tukwila police officers, responding to a silent alarm, arrived at the bank while the robbers were still inside. A gun battle erupted between the robbers inside the bank and the officers outside. The fourth robber fired several shots at the police. He then drove away in the automobile.

The three robbers remaining in the bank surrendered and were taken into custody. They were later identified as Edward Meade, John Sherman, and Bruce Seidell. Shortly after his surrender, Seidell died from wounds. Meade stood trial and was convicted. His conviction was affirmed by this court in an unpublished disposition on August 19, 1977. Sherman, who was wounded, and tried separately, is not involved in this appeal.

On March 10, 1976, Officer Johnson of the King County Police was escorting Sherman

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to Harborview Medical Center for Sherman's weekly medical appointment. As Johnson and the prisoner were entering the police van, a black man in a white coat approached Johnson from the rear and said: "I'm taking your prisoner!" The man then shot Johnson and fled with Sherman. Hospital witnesses later identified Mark Cook as Johnson's assailant. Cook was indicted as the fourth bank robber.

Jack Stockham and Douglas Fluaitte witnessed the gun battle at the Tukwila Bank. Stockham viewed the "get-away" man for two five-second intervals at a distance of some 30 to 40 yards. Fluaitte viewed the same man for "a few seconds" at a distance of 30 to 35 feet and he "got a really fast look" about "a foot away" as the man sped by in his car. A few hours after the attempted robbery, Stockham and Fluaitte gave descriptions of the "get-away man" to the F.B.I. These descriptions in a general way applied to Cook.

About six weeks after the robbery, a Tukwila police officer displayed pictures of six black males, including Cook, to Stockham. Stockham selected three of the photos from among the six but was unable to make a positive identification of the person he saw at the time of the attempted robbery. He indicated that Cook's photograph most closely resembled the man he had seen. Fluaitte was shown the same photos and was unable to make any identification.

On March 15, 1976, a lineup was conducted at the Tacoma police station. Stockham positively identified Cook as the man he had seen at the Tukwila Bank. He also said he recognized Cook as one of the men pictured in the photo spread. Fluaitte also chose Cook from the lineup, but he was uncertain of his identification.

At trial, both witnesses made in-court identifications of Mark Cook as the man they had seen at the bank. They also testified that they had earlier picked Cook out of a lineup. On cross-examination, Fluaitte admitted that he could not be sure, but that Cook strongly resembled the robber he had viewed.

I. Identification

Cook contends, on appeal, that the use of his picture in the early photo spreads was impermissibly suggestive and that the identifications in the lineup and in court were therefore defective. Although neither witness identified Cook as the robber upon first viewing his photo, Cook argues that the allegedly suggestive photo display carried over to the lineup and ultimately infected the in-court identifications. Cook points out that he was the only one in the lineup whose picture had been previously included in those displayed to the witnesses. However, there is nothing unusual about the lineup being conducted after a photo spread, and nothing Per se illegal about this lineup.

A mere suggestion that the accused committed the crime does not turn a lineup or a photo spread into a due process violation. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976); United States v. Sambrano,505 F.2d 284 (9th Cir. 1974). Rather, the suggestion must be so "unnecessary" or "impermissible" as to create a "substantial likelihood of irreparable misidentification" under the "totality of the circumstances". Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In the application of this test, each case must be considered on its own facts. Simmons v. United States, supra; United States v. Williams, 436 F.2d 1166 (9th Cir. 1970), Cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). Here, we find no basis for concluding that the lineup and the photo spread were conducive to "irreparable misidentification".

Fluaitte did not appear to be influenced by the pretrial identification procedures. He was uncertain of his identification at the lineup, and remained uncertain throughout the trial. The probative value of this identification was slight, but like that of other witnesses, was for the jury to consider. United States v. Higginbotham,

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supra; United States v. Valdivia, 492 F.2d 199 (9th Cir. 1973), Cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), Cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973).

Stockham, who was unable to make a positive identification from the photo spread, recognized Cook immediately in the lineup. As with all photographic identification procedures, there is a possibility that the prior photo array tainted this later identification. See Simmons v. United States, supra. However, in this case, the suggestion, if any, was not so great as to create a substantial likelihood of misidentification.

Stockham was a retired police officer who returned for a second look at the gunman so that he would be able to identify him. Only a few hours after the gun battle Stockham gave a description of the gunman to the F.B.I. It is not disputed that this description reasonably fit Cook. When asked about the lineup, Stockham testified that he recognized Cook when the prisoners walked through the door "to get lined up." Stockham also stated that, although he recognized Cook as one of the men portrayed in the photo spread, his identification was based upon his observations at the bank. See United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974).

Based upon the totality of the circumstances, we cannot say that the pretrial identifications in this case were impermissibly suggestive. The photo spread and the lineup did not create a "substantial likelihood of irreparable misidentification". Simmons v. United States, supra. The trial court did not err in admitting the testimony of Fluaitte and Stockham.

II. Access to Witness

Cook next argues that he was denied pretrial access to two government witnesses in violation of his Sixth Amendment rights in preparing his defense. These witnesses, Autrey Sturgis and Suzanne LeBray, were enrolled in the Federal Witness Protection Program 1 and were held virtually incommunicado until the trial.

On March 9, 1976, Sturgis, a "friend" of Cook, received a federal grand jury subpoena. Three days later he met with John Henry Browne, an attorney. At the trial Browne testified that Sturgis had told Browne at that meeting that Cook was not involved in the attempt to rob the Tukwila Bank.

On March 16, 1976, Sturgis testified before the grand jury and immediately thereafter enrolled in the Federal Witness Protection Program. His whereabouts were not made known to the defense, and he was not interviewed.

At trial, Sturgis appeared and testified that Cook had told him that he had been involved in the attempted robbery and that at one time Cook had invited Sturgis to participate in it. In support of this testimony,

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Sturgis recited numerous details about the robbery, details which he claimed to have learned from Cook, but which Cook says Sturgis invented.

Suzanne LeBray was a former roommate of Sturgis. On March 10, 1976, she was taken into protective custody as an informant. On March 11, warrants were issued authorizing Cook's arrest and a search of his apartment. These warrants were issued on the basis of LeBray's statement that Cook had told her about his involvement in the bank robbery. On March 12, LeBray enrolled in the Federal Witness Protection Program and was also harbored by government agents until the trial. She was not made available by the government for a pretrial interview by defense counsel.

Cook's counsel sought access to Sturgis and LeBray to determine if they would be willing to speak with him. The government attorney refused to disclose their whereabouts or to allow access to them.

On April 8, Cook moved to dismiss the indictment, citing, Inter alia, that the prosecution had interfered with defense attempts to interview government...

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