Caruso v. United States, 258

Decision Date02 January 1969
Docket NumberNo. 258,Docket 32942.,258
Citation406 F.2d 558
PartiesCiro Michael CARUSO, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Second Circuit

Thomas E. Baynes, Jr., Legal Assistance for Inmates, Emory University School of Law, Atlanta, Ga., for appellant.

Richard P. Crane, Jr., Asst. U. S. Atty., Jon O. Newman, U. S. Atty., New Haven, Conn., for appellee.

Before KAUFMAN and ANDERSON, Circuit Judges, and MacMAHON, District Judge.*

PER CURIAM:

Ciro M. Caruso was convicted of armed robbery of a national bank in violation of 18 U.S.C. § 2113(a) and (b). This court affirmed the conviction. United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U. S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966).

After making several collateral attacks upon his conviction and sentence, all of which were unsuccessful,1 Caruso on May 24, 1968, filed a new motion to vacate his sentence under 28 U.S.C. § 2255. Judge Zampano denied the application without a hearing, and Caruso appeals.

The substance of Caruso's instant claim is that his conviction rested on an identification by witnesses under circumstances so inherently unfair as to have deprived him of due process. The undisputed facts concerning the identification disclose that on the morning of April 13, 1965, three armed men robbed a branch of the Connecticut National Bank in Fairfield, Connecticut. After continuous pursuit by a bank employee and then a policeman, Caruso was apprehended within fifteen minutes. The policeman immediately brought him back to the bank for identification, and in the presence of the bank employees he was required to put on a ski type hood which one of the robbers had dropped as he fled the bank. Thus garbed, Caruso was identified by the bank employees as one of the three who had committed the robbery.

The test to be applied in determining the constitutional propriety of Caruso's identification is whether "the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).2 We do not believe that the confrontation in this case was either so suggestive or so conducive to mistaken identification as to amount to a denial of due process. The confrontation took place after a continuous pursuit and within a period of approximately 15 minutes after the robbery had occurred. Wise v. United States, 127 U.S. App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). Moreover, requiring a suspect to wear an article of clothing does not violate due process, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); United States v. Ball, 381 F.2d 702 (6th Cir. 1967), cert. denied, 390 U.S. 962, 88 S.Ct. 1066, 19 L.Ed.2d 1161 (1968), any more than does requiring him to submit to a blood test, to write or speak for identification or to submit to fingerprinting. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nor do we believe that in this case requiring Caruso to wear the ski hood was likely to evoke a mistaken identification of him as one of the robbers. It appears from Caruso's own brief on direct appeal that at the time of his apprehension and confrontation with the witnesses to the robbery he was wearing...

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7 cases
  • Foster v. State
    • United States
    • Maryland Court of Appeals
    • July 26, 1974
    ...was driven back to the scene of the accident), all the confrontations took place 'within minutes' of the offense. In Caruso v. United States, 406 F.2d 558 (2d Cir.) cert. denied, 396 U.S. 868, 90 S.Ct. 141, 24 L.Ed.2d 122 (1969), the defendant was returned to the scene of a bank robbery wit......
  • State v. Wisniewski
    • United States
    • Iowa Supreme Court
    • November 12, 1969
    ...which holds an identification under circumstances similar to those under examination here violates due process. See Caruso v. United States, 2 Cir., 406 F.2d 558, 559; People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, We find no merit to defendant's claim the identification testimony was imp......
  • Haskins v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 23, 1970
    ...United States, 133 U.S.App.D.C. 133, 409 F.2d 168, 169 (1969); United States v. Lipowitz, 407 F.2d 597 (3d Cir. 1969); Caruso v. United States, 406 F.2d 558 (2d Cir. 1969). 2 In Solomon v. United States, 133 U.S. App.D.C. 103, 408 F.2d 1306, 1309 (1969), the D. C. Circuit suggests that "it ......
  • Voyles v. City of Nampa, 11764
    • United States
    • Idaho Supreme Court
    • April 22, 1976
    ...218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Caruso v. United States, 406 F.2d 558 (2d Cir.), cert, denied, 396 U.S. 868, 90 S.Ct. 141, 24 L.Ed.2d (1969); United States v. Iacullo, 226 F.2d 788 (7th Cir. 1955), cert......
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