Rech v. United States

• Decision Date: 20 June 1969
• Docket Number: No. 10127.,10127.
• Citation: 410 F.2d 1131
• Parties: Peyton Ralph RECH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

410 F.2d 1131 (1969)

Peyton Ralph RECH, Appellant, v. UNITED STATES of America, Appellee.

No. 10127.

United States Court of Appeals Tenth Circuit.

May 13, 1969.

Rehearing Denied June 20, 1969.

Fred W. Vondy, Denver, Colo. (Anthony L. Worth, Denver, Colo., was with him on the brief), for appellant.

Richard T. Spriggs, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty. for Dist. of Colorado, was with him on the brief), for appellee.

Before WARREN L. JONES,^* BREITENSTEIN and HOLLOWAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The defendant was charged in a three-count indictment with passing counterfeit $20 Federal Reserve Notes. The jury found him guilty on all counts and he appeals from the judgment of sentence.

Within a short period of time on the early afternoon of June 23, 1967, a man passed three counterfeit bills, each in a different store at a Denver shopping center. In every instance he made a small purchase and received change. The incidents were promptly reported to Secret Service agents.

The thrust of the appeal is that the defendant was prejudiced by pretrial identification of photographs in violation of the principles stated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. The Court there said, 390 U.S. 377, 384, 88 S.Ct. 967, 971:

"* * * we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

Positive courtroom identification was made by six witnesses. Three of these, Cordova, Walker, and Lenoch, made positive pretrial identification by photograph. One, Jake, made a tentative pretrial identification by photograph. Two, Edmunson and Jones, had not seen photographs and had made no pretrial identification. The number of photographs shown to the various witnesses is uncertain. Their estimates ran from four or five to "hundreds." The manner of exhibition of the photographs is described in a memorandum signed by the attorneys for the parties and made in connection with a defense motion to produce. It is stated that a Secret Service agent

"assembled and presented photographs in the usual and customary manner, consisting of approximately six photographs of male persons the approximate age and physical description of the Defendant in conformity to the estimated age and physical description furnished by witnesses. Reassembly of the specific spread is impossible."

The times of the displays of the photographs covered a period from a couple of days after the transactions to about two months thereafter. The displays took place in the Secret Service office, in the stores, and once in the home of a witness. No two witnesses viewed the pictures at the same time.

The first witness to make an identification was Cordova, a clerk in a Woolworth store. A Secret Service agent then prepared a criminal complaint which was filed with a United States Commissioner on July 14, 1967. The defendant was arrested on the next day at Council Bluffs, Iowa, and was then photographed. This picture was identified positively by Cordova, Walker, and Lenoch.

The criminal complaint was later dismissed. The order of dismissal bears the notation "Parole revocation proceedings instituted by Nebraska authorities." Defendant was in a Denver jail for an unstated period but no line-up was conducted. The indictment was returned October 26, 1967.

Of the clerks who received the bills, Cordova of Woolworths and Walker of Republic Drug made positive photograph...