U.S. v. Crawford

• Decision Date: 12 May 1978
• Docket Number: Nos. 77-3193 and 77-3192,s. 77-3193 and 77-3192
• Citation: 576 F.2d 794
• Parties: UNITED STATES of America, Appellee, v. Eli CRAWFORD, Appellant. UNITED STATES of America, Appellee, v. Ernest Barrow BIARD, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 794

576 F.2d 794

UNITED STATES of America, Appellee, v. Eli CRAWFORD, Appellant.

UNITED STATES of America, Appellee, v. Ernest Barrow BIARD, Appellant.

Nos. 77-3193 and 77-3192.

United States Court of Appeals Ninth Circuit.

May 12, 1978.

Rehearing Denied June 14, 1978.

Paul Mike Goorjian, Fred Baker, San Francisco, Cal., for appellants.

Malcolm Segal, Asst. U. S. Atty., San Francisco, Cal., for appellee.

On Appeal from the United States District Court for the Northern District of California.

Before BROWNING and WRIGHT, Circuit Judges, and TAYLOR, District judge. ^*

PER CURIAM:

Appellants Crawford and Biard appeal from their convictions for armed robbery of United States Postal Service employees in violation of 18 U.S.C. § 2114. We affirm.

The evidence indicates that at approximately 2:00 p. m. on May 17, 1977, two men entered U.S. Post Office Station A on Steiner Street in San Francisco. One of the men, later identified as appellant Crawford, approached postal clerk Elbert Hicks, pointed a gun and demanded cash and money orders. Hicks complied, handing over both currency and blank postal money orders. A postal supervisor who happened to come within Crawford's view was ordered to stop or be killed.

During this time, Mrs. Lillie Freightman, the other postal clerk on duty, was approached at her window by a second man who also showed a gun and demanded money. Mrs. Freightman complied with the gunman's demand and managed to push a button activating a surveillance camera. The gunman, later identified as appellant Biard, briefly left the post office at one point to retrieve a customer who had observed the situation and fled. After relieving the anxious customer of the contents of his wallet, Biard and Crawford left the post office.

Shortly after the robbery, Postal Inspector Edward Schierberl caused the film from the surveillance camera to be processed and succeeded in identifying a suspect from the photos. That evening Inspector Schierberl, representing himself as a dishonest bank employee, telephoned the suspect whose voice Schierberl later identified as that of appellant Crawford. Crawford indicated that he had twenty-five postal money orders and that his partner had another twenty-five. Schierberl agreed to buy all fifty for $5,000. A meeting was subsequently arranged for the next afternoon, May 18, at a parking lot.

The next day, other postal inspectors and police officers set up surveillance at the parking lot. Crawford arrived as a passenger in a car driven by appellant Biard. Biard and the car he drove matched the description previously given to Inspector Schierberl by Crawford. As Crawford walked toward Schierberl's car, the other police and postal inspectors closed in and arrested both Crawford and Biard. Before he was apprehended, Crawford took an envelope from his coat pocket and threw it into the back seat of Schierberl's car. The envelope was found to contain fifty blank postal money orders, some of which carried appellant Biard's fingerprints.

On July 20, 1977, a jury found Crawford and Biard guilty of armed robbery of the two postal employees and placing their lives in jeopardy in violation of 18 U.S.C. § 2114 (Count One) and of receiving and possessing stolen blank postal money orders in violation of 18 U.S.C. § 500 (Count Two). Judgments of conviction were entered only on the armed robbery count. The receiving and possession count was dismissed by the court at the time of sentencing as duplicitous of the robbery charge. Each appellant was sentenced to 25 years imprisonment.

Three issues raised by these appeals merit discussion. The first issue, raised by appellant Biard, is whether the in-court identifications of appellant Biard by the two postal clerks should have been excluded from the evidence as the product of impermissibly suggestive identification procedures. The thrust of Biard's argument is that since neither of the postal clerks was able to identify him with certainty prior to trial as one of the armed robbers, their identifications of him at trial were the result of improper suggestive identification procedures on the part of the government, therefore violative of due process.

The evidence shows that postal clerk Hicks was present at each of two lineups held May 19, 1977, two days after the robbery. He was told that the lineups included two men apprehended as suspects. He was able to identify one of the suspects (apparently Crawford), but was unable to positively identify Biard. Hicks was also unable to identify Biard a few days prior to trial from photos of the same lineups. At trial, the identification of Biard by Hicks was positive and remained unshaken on cross-examination.

Lillie Freightman was not present at the May 19 lineups, but was shown a video tape of the lineups approximately a week after the robbery. She was also shown the photos taken by the surveillance camera. She then identified Biard from the lineup. At a meeting prior to trial, Freightman saw an enlarged mug shot of appellant Biard on the postal inspector's desk, but the photo was not discussed. At trial, she identified Biard but the certainty of her identification wavered somewhat on cross-examination.

A conviction based on an in-court eyewitness identification following the use of pre-trial photographic identification procedures will be set aside only if the photo identification procedures were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). This Court has generally followed a two-part approach in applying the test set forth in Simmons. See e. g., United States v. Valdivia, 492 F.2d 199, 210 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). First, the necessity of the photo identification procedure is examined. Then the likelihood of irreparable misidentification is evaluated on the basis of several factors, i. e., the witness's opportunity to observe the perpetrator during the commission of the crime, the similarity between the witness's prior description of the criminal and the characteristics of the defendant identified at trial, the presence and influence of other witnesses at the time of the prior identification, and the conduct on the part of the government agents tending to focus the witness's attention on the defendant. ¹

This court has held, however, that the lack of necessity for a pre-trial identification procedure is not sufficient by itself to invalidate an in-court identification or require reversal. United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977); United States v. Valdivia, supra. Thus the first part of the two-part approach seems to be of no real consequence. If the photo identification procedure was unnecessary and if that fact is to be given effect at all, it must be considered within the second part of the approach.

It should be recognized that only the second part of the stated approach is mandated by Simmons. According to Simmons, the sole standard to be applied is whether a "very substantial likelihood of irreparable misidentification" existed in light of the totality of the surrounding circumstances. 390 U.S. at 383, 88 S.Ct. at 971. The Supreme Court in Simmons did, however, consider the necessity of the pre-trial photo identification procedures employed there, but only in relation to the conduct of the law enforcement officials. The same is true of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), cited in Simmons. It therefore appears that the necessity, or lack of it, for pre-trial photo identification procedures should properly be considered, not as a separate standard, but as part of the evaluation of the conduct on the part of the government agents which may have tended to focus the witness's attention on the defendant.

Turning, then, to the Simmons test, it is clear that both postal clerks had ample opportunity to observe the second robber during the course of the robbery. Freightman was directly confronted by this man for an estimated five to ten minutes. Hicks testified that he looked over at the second gunman and also watched him retrieve the customer who had fled.

The general descriptions of the second robber given by Hicks and Freightman prior to trial did not materially differ from Biard's physical appearance at trial, except for the fact that the robber wore a hat and sunglasses during the robbery. Furthermore, there is no indication that one postal clerk had any influence on the other during the identification process since they viewed the lineups and photos at different times.

The record does not indicate that the government agents excessively focused the attention of the postal clerks on Biard. Although Hicks was told before hand that the two suspects apprehended would be present in the May 19 lineups, there were no comments specifically directing his attention to Biard. The same is true of the showing of the lineups and photos to Freightman. Freightman's glimpse of the enlarged photo of Biard on the postal inspector's desk was not requested nor was the photo the subject of any discussion.

The photo identification procedures used in this instance by the government agents were not necessary in order to aid in Biard's apprehension. He was in custody at the time that Hicks and Freightman viewed the lineups and photos. However, a positive pre-trial photo identification of Biard by one or both of the postal clerks would more clearly have established the evidentiary connection between Biard and the robbery, and assured the government agents that they were on the right track. Cf. Simmons, supra, 390 U.S. at 384-385, 88 S.Ct. 967.

Considering in the in-court identifications in light of all the circumstances, including the lack of urgent necessity, we cannot say that the...