U.S. v. Briggs

• Decision Date: 25 February 1983
• Docket Number: 81-2593,Nos. 81-2325,s. 81-2325
• Citation: 700 F.2d 408
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank BRIGGS and Daniel Schlacks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 408

700 F.2d 408

UNITED STATES of America, Plaintiff-Appellee, v. Frank BRIGGS and Daniel Schlacks, Defendants-Appellants.

Nos. 81-2325, 81-2593.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 29, 1982.

Decided Feb. 25, 1983.

Thomas C. Crooks, Chicago, Ill., Sheldon S. Grauer, Broadview, Ill., for defendants-appellants.

John W. Vandreuil, Asst. U.S. Atty., Madison, Wis., Frank M. Tuerkheimer, U.S. Atty., for plaintiff-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and WISDOM, Senior Circuit Judge. ^*

COFFEY, Circuit Judge.

The defendants-appellants, Frank Briggs and Daniel Schlacks, appeal from their judgments of conviction of violating the Travel Act and conspiring to violate the Travel Act. The defendants contend that because they intended to commit only one state crime (arson), the indictment charging them with multiple violations of the Travel Act ¹ was multiplicious, and also that the district judge erred in sentencing the defendants to consecutive terms of imprisonment. The defendant Briggs contends that the trial court likewise erred when it admitted into evidence the identification testimony of two witnesses that resulted from "unduly suggestive [identification] procedures." Schlacks asserts that the trial judge erred in denying Schlacks' motion for a new trial and/or resentencing based on newly discovered evidence, and both defendants allege that the trial court erred in denying their motions for judgment notwithstanding the verdict. Affirmed.

The defendants-appellants were charged with violating the Travel Act and conspiring to violate the Travel Act for their involvement in a scheme to burn down the Anson & Gilkey Company lumber mill in Merrill, Wisconsin. Specifically, Briggs and Schlacks were charged with conspiring to commit the state crime of arson and with causing other individuals to travel from Chicago, Illinois to Merrill, Wisconsin with the intent to commit the arson. Both defendants were also charged with using an interstate facility (i.e. a telephone) in furtherance of the arson scheme while Briggs was also charged with traveling in interstate commerce with the intent to commit the arson. Prior to trial, two of the defendants' co-conspirators (MacKenzie and Welchman) entered into plea agreements with the government, and in exchange for their testimony at trial, the government agreed not to charge them as co-conspirators of the defendants. ² At the close of a three week trial, the jury found the defendants Briggs and Schlacks guilty on all counts. The trial judge denied both defendants' motions for judgment n.o.v. and sentenced Briggs to three consecutive terms of 18 months imprisonment each on counts I, II and III and Schlacks to three consecutive one-year terms of imprisonment on counts I, III and IV. ³ Briggs was also sentenced to three years probation on count IV to commence upon his release from physical custody. Briggs and Schlacks have appealed from their convictions and sentences. Schlacks has also appealed from the trial court's denial of his motion for a new trial and resentencing based upon newly discovered evidence.

1. Identification Testimony

The government offered evidence demonstrating that during the course of the conspiracy to burn the Anson & Gilkey plant, the defendant Briggs traveled with Fred Welchman and Roderick MacKenzie from Chicago, Illinois to Merrill, Wisconsin to give them an opportunity to view the physical layout of the lumber mill. During the return trip to Chicago, Welchman was stopped and issued a speeding citation by Illinois State Trooper Leland Files. At trial Officer Files testified that at the time he issued Welchman the citation, the defendant Briggs and one other male were in the vehicle with Welchman. Defense counsel objected to this identification on the grounds that Files' in-court identification was "tainted," and the trial court granted counsel's request to conduct a voir dire examination of Officer Files. ⁴ At the voir dire examination, Officer Files testified that approximately two weeks after stopping Welchman for speeding an FBI agent visited his house and showed him two photographs and a candid snapshot and asked him to identify the men depicted therein. Files was able to identify the mug shots of Welchman and MacKenzie as being two of the three individuals in the car he had stopped for speeding, but was unable to identify Briggs from the family-type snapshot of Briggs and another person on the same picture. Files stated to the FBI agent that the third individual was "a heavy set man but I could not make out the description of the man because he was in the back seat." During voir dire Officer Files further testified that while he was waiting outside of the courtroom to be called as a witness he observed Briggs conversing with another individual and at this time without any prompting or suggestion from anyone, he realized that Briggs was the "heavy set man" he had seen seated in the back seat of the car at the time he (Files) stopped Welchman for speeding. Defense counsel moved for a mistrial arguing that Officer Files' in-court identification of the defendant Briggs was "impermissibly suggestive." The trial court denied the motion ruling that Officer Files' identification of Briggs was not impermissibly suggestive and that Files' previous inability to identify Briggs from the small family-type snapshot went to the trustworthiness of the witness's identification of Briggs and not to its admissibility and thus raised a question for the trier of fact, the jury.

Prior to this incident but during the same return trip to Chicago, Welchman, MacKenzie and Briggs stopped at a pizza restaurant in Wausau, Wisconsin and asked for directions to an automobile junkyard or bodyshop in the area, as they were looking for an old car to steal a set of Wisconsin motor vehicle license plates therefrom in order to conceal the ownership of the automobile they intended to use on the contemplated arson trip. At trial, the government offered the testimony of Lance Longo, a waiter in the Wausau pizza restaurant, who stated that on the night in question he had waited on three men, two of whom he identified as Welchman and Briggs. During the voir dire examination Longo explained that when he was shown the home-type candid snapshot of Briggs and another person on one picture, he was unable to identify Briggs as one of the men. However, he related that while waiting to testify at trial he saw Briggs in the courtroom and later in the hallway and, without any prompting or suggestion, he alerted federal agents that he recognized Briggs as one of the three men he had spoken with in the restaurant. Defense counsel again objected to this type of in-court identification of Briggs on the grounds that the identification was "impermissibly suggestive." After an exhaustive voir dire examination of the witness during trial but in the absence of the jury, the district judge denied counsel's motion, ruling that Longo's inadvertent presence in the courtroom while others were testifying did not taint his identification of Briggs and was not "impermissibly suggestive." In fact no proof was offered at trial that anyone had suggested to Longo that he identify Briggs as one of the men in the restaurant on the night in question. The court stated:

"However, I'm not persuaded that the testimony that Mr. Longo heard was influential or would have impaired his ability to be a fair witness; and I am not persuaded in view of the number of people at counsel table, that Mr. Longo's being in the courtroom and seeing all those people lined up would have made his identification of Mr. Briggs so impermissibly suggestive as to be disallowed in this proceeding."

Relying upon Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the defendant Briggs asserts that the district court erred in refusing to apply the "totality of the circumstances" test to determine the reliability of the witnesses' in-court identification of Briggs. Briggs argues that Neil v. Biggers requires an examination of a number of factors (such as the witness's degree of attention at the initial confrontation between the defendant and the witness, the accuracy of the prior description of the defendant, etc.) in order to determine whether the witnesses' identification of the defendant should be admitted at trial. 409 U.S. at 199, 93 S.Ct. at 382. However, in this fact situation we disagree with the defendant's interpretation of Neil v. Biggers as requiring an examination of the "totality of the circumstances" surrounding Files' and Longo's ability to identify Briggs. The Biggers Court stated that the central question was "whether under the 'totality of the circumstances' [test] the identification was reliable even though the confrontation procedure was suggestive." Id. (Emphasis supplied). Thus, it is incumbent upon a defendant to establish that the confrontation procedure in fact was suggestive prior to reaching the threshold "totality of the circumstances" test of reliability.

Before a court excludes an in-court identification of a defendant by a witness on the grounds that the identification procedure was suggestive, the defendant must establish that there has been "a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 381. See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Briggs contends that "intervening circumstances [exist] which cast doubt on the accuracy of [Files' and Longo's] identifications" of Briggs. The defendant asserts that Files' identification is not reliable because Files initially observed Briggs during an "unremarkable" traffic stop on an unlighted highway in the middle of the night. The defendant ignores the fact that the traffic stop was not "unremarkable" since Officer Files testified that he was wary of stopping the individuals in Welchman's car as officers in...