Kapatos v. United States, 18

• Decision Date: 06 October 1970
• Docket Number: No. 18,Docket 34638.,18
• Citation: 432 F.2d 110
• Parties: Thomas KAPATOS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

432 F.2d 110 (1970)

Thomas KAPATOS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 18, Docket 34638.

United States Court of Appeals, Second Circuit.

Argued September 14, 1970.

Decided October 6, 1970.

Patrick M. Wall, New York City (Theodore Rosenberg, Brooklyn, N. Y., of counsel), for petitioner-appellant.

John M. Walker, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, and Peter L. Truebner, Asst. U. S. Atty., of counsel), for respondent-appellee.

Before FRIENDLY, SMITH and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

This is an appeal from an order of the District Court for the Southern District of New York denying, without an evidentiary hearing, Kapatos' third petition under 28 U.S.C. § 2255¹ to vacate his conviction, after trial before Judge Weinfeld and a jury in October 1966, for stealing an interstate shipment of jewelry on November 8, 1963.

The jewelry was in a station wagon bearing six messengers employed by AAA Jewelry Service — Moots, Figueroa, Kreisman, White, Tretter and Savoca. The station wagon was overtaken by a black sedan bearing two men dressed in police uniforms. One, allegedly Kapatos, directed Moots, the driver, to pull over and, on the latter's doing so, drew a pistol and said "Get out. This is a hold-up." Two more men, carrying pistols and wearing masks, positioned themselves on either side of the station wagon. As the six AAA employees emerged, they were ushered into a panel truck driven by a fifth man and were shackled and handcuffed by the two masked men. The black sedan followed the truck. With the bad luck that happily so often attends such ventures, the "policemen" were unable to drive the station wagon because it had a standard gear shift which they did not know how to operate. One of them, a man who was between five feet ten and six feet in height, weighed between 180 and 200 pounds, and had a red crop of hair, approached Mullett, an iron-worker foreman who was working nearby, and asked whether he knew how to drive a standard shift car. Mullett answered affirmatively and went to the car, but on observing its contents and hearing a shouted warning from his fellow workers, he decided to have no part of the job.

The only substantial issue at Kapatos' trial was identification. The Government presented no other evidence connecting him with the crime, he did not take the stand, and the defense offered no alibi. With varying degrees of certainty, Kreisman, Figueroa, White and Moots made in-court identifications of Kapatos as one of the two men who had approached the station wagon. These were bolstered by reference to out-of-court identifications made by Kreisman, Figueroa, and White approximately two years after the robbery. Tretter and Savoca said they would not be able to identify the robbers if they saw them again. Mullett, two other iron-workers and a sidewalk frankfurter vendor testified that Kapatos was not the "policeman" who had solicited Mullett's aid, and a nearby shop-keeper testified he was not the man who had hurriedly bought a jacket some six hours later. The Government explained this testimony by asserting that Kapatos, who apparently bore no resemblance to Mullett's description, was the other "policeman."

The defense naturally attacked the identifications. It brought out that shortly after the robbery a New York City policeman had accumulated photographs of various suspects, including Kapatos; that he had handed these to one Orbach, an officer of AAA, with the request that Orbach display them to the six messengers; and that he made no arrests as a result. On its own examination of Kreisman, who made the most positive identification, the Government elicited that his first sight of Kapatos after the robbery was in November 1965 when two F.B.I. agents took him to view Kapatos on Delancey Street underneath the Williamsburgh Bridge where Kapatos was working. Figueroa who, viewing Kapatos in court, could say only that Kapatos looked like the man who approached the AAA car, stated that in November 1965 two F.B.I. agents took him and Moots "to recognize" Kapatos and that he then thought Kapatos "was very much alike to that man who stop us." Moots was somewhat less sure. White thought Kapatos looked "very much like" the man who had approached the car. The Government brought out that in December 1965, F.B.I. agents had taken White to view Kapatos in front of a restaurant, and he had then made an identification. Cross-examination of Mullett disclosed that the F.B.I. had shown him a photograph of Kapatos, had taken him down to the north side of the Williamsburgh Bridge where Kapatos was working, and had asked him whether Kapatos "was the fellow who couldn't drive the stick shift." As indicated, Mullett's answer was negative. Practically the sole issue for the jury was the credibility of the identification testimony; the prosecutor said in summation that if the jurors didn't believe Kreisman, they should not convict.

An appeal was taken to this court. A principal point in appellant's brief was that "The prior show-up suggestive identification procedure under the circumstances was a flagrant violation of the `due process of law' clause of the Fifth Amendment to the U. S. Constitution." The brief vigorously contended that the one-to-one exhibition of Kapatos to Kreisman, Figueroa, Moots and White was unduly suggestive and cited Mullett's testimony to support this claim. The error was said to be "much more flagrant" than in Wade v. United States, 358 F.2d 577 (5 Cir. 1966), which then had not yet been reviewed by the Supreme Court. We affirmed without opinion.

A petition for certiorari was filed prior to the Supreme Court's decisions of June 12, 1967 in the Wade-Gilbert-Stovall trilogy, 388 U.S. 218, 263, 293, 87 S.Ct. 1926, 1951, 1967, 18 L.Ed.2d 1149, 1178, 1199, but the Government's memorandum and petitioner's reply brief were filed thereafter, and the latter made extensive reference to those cases. The brief supporting the petition argued, as had the brief in our court, that the identification procedures, especially the show-up of Kapatos to Kreisman under the Williamsburgh Bridge, were impermissibly suggestive and cited the lower court decisions in Wade, Gilbert and Stovall. The Court denied certiorari on October 9, 1967, 389 U.S. 836, 88 S.Ct. 46, 19 L.Ed.2d 97.

The instant petition under 28 U.S.C. § 2255 was founded on three affidavits, one by Isidore Zimmerman, an investigator employed by Kapatos' counsel, another by Mullett, and a third by Theodore Rosenberg, co-counsel at Kapatos' trial and his counsel in this proceeding.² All that Mullett's affidavit added to his trial testimony was that when he was taken to the construction site under the Williamsburgh Bridge, the agents told him not simply that he was to look at a suspect, which was surely inferable from his testimony, but that they thought they had "a very good suspect," who would be pulling up in a car they described, and also that there was an attempted voice identification — all, as stated, unsuccessful. After interviewing Mullett, Zimmerman went to AAA's office, where he encountered Orbach, Moots and Figueroa. The two latter reminded Zimmerman that they did not positively identify Kapatos. When Zimmerman asked whether they were influenced in any way by the F.B.I. in the identification on Delancey Street, Orbach refused to let them answer but they allegedly said, "I did not identify the defendant at Delancey Street." Zimmerman was unable to locate Figueroa afterwards, and White refused to give any information without clearance from the F.B.I. and the United States Attorney. Although he promised to call Zimmerman after receiving such clearance, he never did; whether he ever called the F.B.I. or the United States Attorney, we do not know. A visit by Zimmerman to Moots' home was unproductive. Kreisman also declined to answer the investigator's questions. Judge Weinfeld denied the petition without an evidentiary hearing, and this appeal followed.

In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Supreme Court, dealing with the provision of § 2255 that "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner," held that this should not be read so as to apply a res judicata standard to successive applications by federal prisoners. Rather the provision "is to be deemed the material equivalent of § 2244" (dealing with successive habeas corpus petitions by state prisoners), 373 U.S. at 14, 83 S.Ct. at 1076. In either case, the denial of a prior petition may serve as the basis for refusing a hearing on a later petition only if three conditions are met: (1) the ground urged in both...