U.S. v. Bush

• Decision Date: 18 March 1985
• Docket Number: No. 83-2147,83-2147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William BUSH, a/k/a William Turner, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1227

749 F.2d 1227

UNITED STATES of America, Plaintiff-Appellee, v. William BUSH, a/k/a William Turner, Defendant-Appellant.

No. 83-2147.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 9, 1984.

Decided Dec. 10, 1984.

Certiorari Denied March 18, 1985.

See 105 S.Ct. 1771.

Michael J. O'Leary, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Linda L. Listrom, Jenner & Block, Chicago, Ill., for defendant-appellant.

Before COFFEY, Circuit Judge, and FAIRCHILD and PELL, Senior Circuit Judges.

FAIRCHILD, Senior Circuit Judge.

Appellant Bush was convicted of armed robbery of a federally insured savings and loan association.

The Princeton, Illinois branch of a savings and loan association was robbed just before closing on January 19, 1980. Tellers Karen Metternich and Rita Miller were on duty. Ms. Metternich testified that a man entered and conversed with her, asking directions to the restroom. He started in that direction, but then returned to the counter. He came through a gate into the teller area and told the tellers this was a robbery. He displayed a handgun. About that time a second man came in and stood in front of Ms. Metternich's window.

The second man told Ms. Metternich not to touch anything. The first man took money from the drawers. The men then directed the tellers to a closet and told them to stay in it. The tellers remained until they heard the back door shut.

Ms. Miller testified generally to the same effect although she remembered that the second man had the gun. Although the tellers' testimony recounting the men's acts and statements often did not ascribe them to a particular one, the phrasing made clear the tellers' understanding that both men were acting together.

Ms. Metternich testified that defendant "resembles" the first man, but could not positively state that he was the man. Ms. Miller was asked whether she thought she could identify either of the men. She answered, "The first one, I don't think with certainty. And I'm not sure about the second one either."

A state crime scene technician and fingerprint examiner was accepted by the court as an expert in those fields. About two hours after the robbery he had secured latent prints from a blue box on the first shelf of the safe and from a smaller white box on the floor in front of the safe. He testified that in his opinion a print from the blue box matched a known print of defendant's right thumb and a print from the white box matched defendant's left thumb. ¹

I. Sufficiency of Evidence

Appellant's principal point is that the evidence was not sufficient to dispel a reasonable doubt that his prints were left on the boxes during the course of the robbery.

The record shows nothing concerning the history of the blue box. As to the white box, it shows only that it was received in the mail from another bank. It is, of course, theoretically possible that appellant may have handled each of the boxes on some earlier occasions between their manufacture and their receipt and use by the savings and loan association. The Government did not prove that earlier contact was impossible. We conclude, however, that enough was shown so that the mere possibility does not compel, as a matter of law, a reasonable doubt.

Ms. Miller testified that the blue box was an ordinary envelope box that the association used to catch night deposits dropped directly into the safe from an exterior chute. The smaller white box contained blank deposit tickets and had been mailed to the association. Miller testified that white boxes of blank deposit tickets are normally kept on the top shelf of the safe close to the blue box until needed. She indicated the only explanation for the white box being on the floor after the robbery was that the two robbers had moved it or dropped it. Access to the area of the bank where the safe is located is restricted to bank employees. There was testimony that Bush had never been an employee or depositor.

It is clear that the two boxes reached the association through different channels. In the nature of things it is very highly improbable that at some time before the white box had been mailed to the association, the two boxes had been together in some location or channel where Bush handled them or that he had handled each of them while they were in different locations or channels. We think the jury could properly disregard the mere possibility that these things might have happened, and find, beyond a reasonable doubt, that Bush had his hands on them during the course of the robbery.

Our only hesitation in so holding arises out of a majority decision of a very distinguished court. Borum v. United States, 380 F.2d 595 (D.C.Cir.1967). Chief Judge Bazelon wrote the opinion for the court. Circuit Judge J. Skelly Wright concurred and then Circuit Judge, now Chief Justice, Burger dissented.

In Borum, the defendant had been convicted of housebreaking. A coin collection had been taken during the break-in and Borum's fingerprints were found on two glass jars which had contained the collection. There was evidence that the prints could have been on the jars "indefinitely" or "for a period of years." "The Government introduced no evidence which could account for, or even suggest an inference about, the custody or location of the jars during that period.... With evidence so inconclusive, a reasonable person must have a reasonable doubt about Borum's guilt." 380 F.2d at 596-97. The judgment was reversed. ² Judge Burger concluded that the majority was going beyond the requirement of proof beyond a reasonable doubt and requiring proof beyond all and every doubt. 380 F.2d at 601.

Appellant also relies on United States v. Lonsdale, 577 F.2d 923 (5th Cir.1978).

In Lonsdale, defendant's thumbprint was found on an unlawfully uttered United States treasury check. The check was endorsed with defendant's name, as well as the payee's name, and bore defendant's social security number. The Fifth Circuit found the only "truly damning evidence" introduced by the Government was the thumbprint on the check. ³ The court noted that the Government was required to prove the defendant "uttered the check, not [just] that he touched it." 577 F.2d at 926. The court concluded that without evidence that the defendant had no opportunity to touch the check under innocent circumstances prior to the time it was cashed, the Government had not met its burden. Id. at 927.

The Ninth Circuit has declined to find reasonable doubt as a matter of law in cases where a defendant has relied on Borum or Lonsdale.

In United States v. Scott, 452 F.2d 660 (9th Cir.1971) defendant was convicted of theft from a federal savings and loan association. The evidence presented against him at trial consisted of his fingerprints found on a battery inside a flashlight left at the scene of the crime and his fingerprint on a blank check and on a packet of travelers checks taken during the theft. In upholding the defendant's conviction, the Ninth Circuit explained that:

The identification of the defendant's fingerprints upon one battery inside the flashlight might well have been insufficient circumstantial evidence to survive a motion for acquittal. But when that evidence is combined with positive fingerprint evidence upon the Association's stolen check and its stolen travelers checks, the ring of circumstantial evidence tightens around the defendant. We agree with the trial court that it justified submission to the jury.

Id. at 662. See also United States v. Talbert, 710 F.2d 528, 530-31 (9th Cir.1983) (extremely unlikely that out of one hundred bowling pins defendant innocently touched the one used in murder).

In these cases the court in reviewing a jury finding of guilt made a judgment of the extreme improbability of a theoretically possible event and decided that acknowledgement of a reasonable doubt was not compelled as a matter of law, and the question could properly be left to the jury.

But whether or not we would have decided the same as the Borum court if presented with identical facts, we conclude here that the evidence did not establish reasonable doubt as a matter of law, and the jury was left free to make a finding of guilt beyond a reasonable doubt.

Appellant argues in addition that even if there is sufficient evidence of his presence there is insufficient evidence that he participated in the robbery. The argument has not merit. The fingerprint evidence placed him back of the counter, reaching into the safe and touching the boxes. Ms. Metternich testified that while one man took cash the other told her not to touch anything. Ms. Miller testified that one man said "We want the money. That's all we want." The tellers' testimony, in context, made clear their belief that the men acted in concert.

II. Testimony as to Resemblance

The prosecutor asked Ms. Metternich, "Do you see anybody here in the courtroom today that resembles one of the two men who robbed you on that day ...?"

Pointing out defendant, she answered "He resembles him." There was no objection. On cross-examination she testified that the resemblance was to the man who first entered the bank, but that she could not positively state whether he was the robber. Nothing in the record suggests any prior out-of-court identification.

Appellant argues that this was a suggestive identification procedure which denied due process of law.

The question whether conditions of an in-court identification itself may be so suggestive as to deny a defendant due process of law has been considered by only a few federal courts of appeals. In United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir.1976), this court dealt with a petition for a writ of habeas corpus based in part on a challenge to in-court identification testimony in an Illinois prosecution. Petitioner contended that the testimony of a Mrs. Kent was inherently unreliable principally because the perpetrator of the crime was...