U.S. v. Larkin, s. 91-2247

Decision Date13 October 1992
Docket Number91-2258,Nos. 91-2247,s. 91-2247
Parties36 Fed. R. Evid. Serv. 1032 UNITED STATES of America, Plaintiff-Appellee, v. Francis LARKIN and Francis Bolduc, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

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

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.

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 grand jury--a proper purpose of a testificandum writ, Lach, 874 F.2d at 1548--and hence was not constitutionally defective.

The second irregularity regards the manner in which the government applied for the writ. The government stated in its writ application that it sought the writ for the purpose of producing Larkin and Bolduc for a scheduled lineup. This was improper, for at the time the government submitted the application, the grand jury had not yet ordered the defendants to participate in a lineup. Settled law provides that the grand jury has the sole authority to compel a witness to appear at a lineup, and that the government may not short-circuit the grand jury process by obtaining on its own motion a court order to compel such an appearance. In re Melvin, 546 F.2d 1, 4-5 (1st Cir.1976); see also United States v. Santucci, 674 F.2d 624, 628 (7th Cir.1982) (discussing and approving Melvin ), cert. denied, 459 U.S. 1109, 103 S.Ct. 737, 74 L.Ed.2d 959 (1983). The government, from all indications, planned first to bring the defendants before the grand jury, and then to ask the jury to compel them to participate in the lineup already scheduled for later in the day. In the application, however, it jumped the gun by focusing on the ultimate purpose underlying the writ--Larkin's and Bolduc's appearance in the lineup--rather than on the proper means by which that purpose could have been accomplished.

The government's casual approach and want of proper care in preparing the writ application is regrettable, see Santucci, 674 F.2d at 633 n. 4 (such errors cause delays, create avoidable issues on appeal, and cast doubt upon fairness of the grand jury process), but in the end does not impermissibly taint the defendants' transfer from Massachusetts to Wisconsin. Notwithstanding the fact that the application, by its terms, was sought for an improper purpose, the writ itself rests upon a proper purpose: to command the defendants' appearance before the grand jury. See In re Bolduc, Writ of Habeas Corpus Ad Prosequendum, Grand Jury No. 90-0085 (E.D.Wis. July 31, 1990). The defendants criticize the court for taking it upon itself to alter the writ's mandate, but significantly do not say how that action prejudiced their rights.

There is another reason for declining the defendants' suggestion that the lineup testimony should have been suppressed owing to any defects in the way in which the federal government obtained their custody in Wisconsin. The grand jury here, unlike the grand jury in Melvin, actually ordered Larkin and Bolduc to take part in the lineup. This vitiates the defendants' argument for suppression--an argument, as acknowledged by both defense counsel at argument, which rests upon the same foundation as the exclusionary rule. The "inevitable discovery" exception to the exclusionary rule provides that courts should not suppress illegally seized evidence if such evidence would inevitably have been discovered even absent police misconduct. Nix v. Williams, 467 U.S. 431, 441-48, 104 S.Ct. 2501, 2507-11, 81 L.Ed.2d 377 (1984); United States v. Rodriguez, 831 F.2d 162, 166-67 (7th Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1234, 99 L.Ed.2d 433 (1988). The same principle applies to evidence obtained through questionable grand jury procedures. In United States v. Scott, 784 F.2d 787 (7th Cir.), cert. denied, 476 U.S. 1145, 106 S.Ct. 2257, 90 L.Ed.2d 702 (1986), for example, the government compelled a witness to provide fingerprints and handwriting samples pursuant to a grand jury subpoena that referred only to oral testimony. Although the government exceeded the scope of the subpoena, we held that suppression was not warranted because the government "would have eventually been able to obtain the evidence" with a valid subpoena. Id. at 793. The present case is closely analogous. Because the grand jury, when given the opportunity, ordered the defendants to take part in the lineup, the government would have eventually been able to obtain a valid writ through the proper procedures. The defendants do not contend that any defect related to the writ itself--including those we have not mentioned--or any of the consequences ensuing from the court's issuance thereof (e.g., the defendants' presence before the...

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