978 F.2d 964 (7th Cir. 1992), 91-2247, United States v. Larkin

Docket Nº:91-2247, 91-2258.
Citation:978 F.2d 964
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francis LARKIN and Francis Bolduc, Defendants-Appellants.
Case Date:October 13, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 964

978 F.2d 964 (7th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francis LARKIN and Francis Bolduc, Defendants-Appellants.

Nos. 91-2247, 91-2258.

United States Court of Appeals, Seventh Circuit

October 13, 1992

Argued April 7, 1992.

Rehearing and Rehearing En Banc Denied

in No. 91-2258 March 10, 1993.

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[Copyrighted Material Omitted]

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Eric J. Klumb (argued), Stephen J. Liccione, Matthew L. Jacobs, Asst. U.S. Attys., Office of U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

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Jerome F. Statkus (argued), Menomonee Falls, Wis., for defendant-appellant Francis Larkin.

Anthony J. Deutsch (argued), Gonzalez & Saggio, Milwaukee, Wis., for defendant-appellant Francis Bolduc.

Before FLAUM and MANION, Circuit Judges, and SHADUR, Senior District Judge. [*]

FLAUM, Circuit Judge.

A federal jury convicted Francis Larkin and Francis Bolduc of one count of armed bank robbery, 18 U.S.C. § 2113(a) & (d), one count of attempted armed bank robbery, id., and two counts of possessing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1), and the district court sentenced them to 390 months and 580 months of imprisonment, respectively. Larkin and Bolduc appeal their convictions, and Larkin appeals the calculation of his sentence. We affirm.

I.

The convictions in this case were based almost exclusively upon the testimony of bank employees present during the robberies who identified Larkin and Bolduc as the perpetrators. These employees provided in-court identifications of Larkin and Bolduc, and several also testified that they had identified either or both of the defendants at a lineup conducted approximately six months before trial. Larkin and Bolduc contend that the district court committed reversible error by not suppressing the testimony (which for convenience sake we shall call the "lineup testimony") offered by the witnesses who had participated in the lineup. The defendants argue, first, that the government's method of bringing them from Massachusetts to Wisconsin and compelling them to take part in the lineup contravened their rights under the due process clause. Second, they maintain that the government's refusal to furnish appointed counsel at the lineup abridged their sixth amendment rights. Third, Larkin contends that the lineup was unduly suggestive and unreliable in violation of the due process clause. We consider each contention in turn.

A.

Prior to August 6, 1990, Larkin and Bolduc were incarcerated in Massachusetts state prison. The federal government obtained custody of the pair from Massachusetts authorities on that date via a writ of habeas corpus ad prosequendum--a writ we shall discuss at greater length in a moment--issued by the federal district court in Milwaukee. Both defendants appeared before a federal grand jury in Milwaukee on August 21, 1990, and the grand jury ordered them to participate in the lineup later that day.

Larkin and Bolduc insist that the process by which federal officials in Wisconsin obtained their custody was irregular, and they are correct. Before explaining why, it would be helpful to first summarize the proper procedures under which the government can acquire custody over state prisoners, as well as compel their appearance before a grand jury and in a lineup. Once a valid subpoena has been issued, the government may apply to a federal court for a writ of habeas corpus ad testificandum to gain custody over a state prisoner and secure his presence before the grand jury. 28 U.S.C. § 2241(c)(5); United States v. Lach, 874 F.2d 1543, 1548 (11th Cir.1989); Carmona v. Warden, 549 F.Supp. 621, 622 (S.D.N.Y.1982); see generally Ex parte Bollman, 8 U.S. (4 Cranch) 74, 97-98, 2 L.Ed. 554 (1807); In re Liberatore, 574 F.2d 78, 89 (2d Cir.1978). The court must examine the application, and may in its discretion issue the writ after considering both its necessity and purpose. Once the writ has issued, the government may bring the prisoner before the grand jury; the grand jury may then hear the prisoner's testimony, order him to participate in a lineup, or both. After the purposes for which the writ was granted have been accomplished, the government must return the prisoner to state custody.

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These procedures were not followed in this case. First, the government sought, and the district court granted, a writ of habeas corpus ad prosequendum, not a writ of habeas corpus ad testificandum. While the same statutory provision authorizes both writs, 28 U.S.C. § 2241(c)(5), their functions are different. A prosequendum writ permits the government to remove a prisoner to the proper jurisdiction for prosecution, Carbo v. United States, 364 U.S. 611, 615, 81 S.Ct. 338, 340-41, 5 L.Ed.2d 329 (1961); Flick v. Blevins, 887 F.2d 778, 781-82 (7th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2179, 109 L.Ed.2d 508 (1990), while a testificandum writ grants custody over a prisoner for the purpose of providing testimony before a grand jury, Lach, 874 F.2d at 1548, in a civil case, Miles v. Evans, 591 F.Supp. 623, 625-26 (N.D.Ga.1984), or in a criminal case involving other defendants. United States v. Smith, 310 F.2d 121, 122 (4th Cir.1962). The government acknowledges that both it and the district court incorrectly designated the writ used here as a writ of habeas corpus ad prosequendum. Such errors in form, while regrettable, do not render a prisoner's transfer invalid so long as the writ expressly indicates that it was issued for a proper purpose. Gilmore v. United States, 129 F.2d 199, 202 (10th Cir.1942); see also Ford v. Carballo, 577 F.2d 404, 407 n. 1 (7th Cir.1978). The writ in this case indicated that it was issued to compel the defendants' presence before the...

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