U.S. v. Cueto, 78-5746

• Decision Date: 14 February 1980
• Docket Number: No. 78-5746,78-5746
• Citation: 611 F.2d 1056
• Parties: 5 Fed. R. Evid. Serv. 1081 UNITED STATES of America, Plaintiff-Appellee, v. German Fidel CUETO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1056

611 F.2d 1056

5 Fed. R. Evid. Serv. 1081

UNITED STATES of America, Plaintiff-Appellee, v. German Fidel CUETO, Defendant-Appellant.

No. 78-5746.

United States Court of Appeals, Fifth Circuit.

Feb. 14, 1980.

R. Scott Laing, Rivera Beach, Fla., (Court-appointed), for defendant-appellant.

Karen L. Atkinson, Ralph N. Person, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, RONEY and TATE, Circuit Judges.

THORNBERRY, Circuit Judge:

German Fidel Cueto appeals his conviction following a jury trial on a one-count indictment for attempted bank robbery under 18 U.S.C. §§ 2, 2113(a) (1976). Cueto seeks a new trial, and contends that the district court committed reversible error in denying his motions (1) for a continuance, (2) to exclude the testimony of a government witness who violated the witness sequestration rule, (3) to suppress evidence obtained at the time of his arrest, and (4) for a mistrial because at trial the government relied upon an improper photographic display to identify Cueto as a participant in the robbery. Because we find that the trial judge erred when he failed to suppress certain evidence and when he allowed the Government to rely upon an improper photographic display, we reverse the appellant's conviction in the court below, and remand the case for a new trial.

I. Facts.

On May 18, 1978, a teller at a drive-in window at Century National Bank in Boynton Beach, Florida, was confronted by a lone white male in a burgundy and white Chrysler automobile. He placed a canvas bag into the teller's drawer and said, "This is a holdup, give me all your money and don't call the police, I have a bomb." Record at 43. He claimed that he had a detonating device in his hand, and repeated that it was a holdup. Instead of cooperating, the teller dropped to the floor, set off an alarm, and crawled out of the room; the robber drove away. The Boynton Beach police arrived immediately, along with the FBI.

The FBI was investigating a nationwide string of about twenty bank robberies with a similar modus operandi involving a hoax bomb. Once FBI agents obtained a description of this robbery from the teller, they believed that it fit the pattern. They anticipated that the bomb was a hoax, and that the automobile had been stolen and would be abandoned near the bank. They also expected that the robber had an accomplice who would meet him with a second vehicle, and that the two would proceed to a small motel in a nearby town.

The canvas bag left in the teller's window was inspected and found to contain a hoax bomb made of highway flares. The police soon discovered an abandoned burgundy and white Plymouth Volare behind a Pizza Hut restaurant a block from the bank. The car had been stolen the previous morning from a Delray Beach, Florida, Chrysler-Plymouth dealership. From the odometer reading the FBI calculated that the car had been driven about twenty-two miles between the theft and its discovery at the Pizza Hut. A crumpled slip of paper bearing the toll-free telephone number provided by the Century National Bank for its customers in Boca Raton, Florida, appeared on the ground by the car. FBI agents began a canvass of motels located along the twenty-two mile stretch of highway between Boynton Beach and Boca Raton in an effort to locate the suspected robbery team.

At the Boca Raton Motel FBI agent Heaney spoke with Will Senkowicz, the motel owner. The agent displayed a photograph of a prime suspect in the string of robberies, and Senkowicz thought he recognized the person depicted. The agent then recounted the events at Century National Bank, including the use of a hoax bomb made of flares. Senkowicz recalled that at ten o'clock that morning he had seen a flare in his Dempster Dumpster; the flare had not been there when he had emptied the trash a few hours earlier. The agent inspected the Dumpster and discovered a flare and other materials from which the hoax bomb had been constructed, along with Sears, Roebuck and Company receipts for their purchase. The agent examined the motel registration cards for the prior evening and found one for a Larry Ray, with a New Jersey address; an FBI check revealed that the address was fictitious. The card also contained a license tag number for Ray's automobile. The FBI traced the number to a car registered to the Gold Coast Car Leasing Company in Dania, Florida. At Gold Coast Car Leasing, FBI agent Williamson spoke with Frank Kosiba. Kosiba recalled renting a green Chevrolet Monte Carlo with that license number to Frank Bavosa, who, it later turned out, was the person who actually attempted the robbery. Kosiba had rented vehicles to Bavosa on several previous occasions. He identified a photograph of Cueto as depicting the man who accompanied Bavosa when he rented the Monte Carlo. Another agent traced the receipts found in the Dumpster to a nearby Sears store, where a sales clerk, Robert Lamar, remembered selling flares identical to those in the hoax bomb to two men whose photographs he identified.

The search for the Monte Carlo ended at the Holiday Beach Hotel in Hollywood Beach, where the car was parked in the hotel lot. The hotel manager recognized a photograph of a suspect and said that the man was a guest, along with Larry Ray, later identified as Frank Bavosa, in room 136. FBI agents surrounded the room. Agent Potter telephoned the room, identified himself, and asked the occupants to open the door. Moments later other agents knocked on the door and identified themselves as the FBI. Either Cueto or Bavosa opened the door slightly and looked out. The agents quickly gained entry and arrested Cueto and Bavosa, the only occupants of the room. The agents handcuffed both suspects and removed them for a while to the next hotel room. The agents observed a number of items in the room, including opened suitcases and clothes. The agents conducted a thorough search of the room and uncovered a hat and shirt like the ones worn by the robber, rolls of tape like that used on the hoax bomb, and various other pieces of evidence.

On August 23, 1978, Cueto was indicted for attempted bank robbery. A federal public defender was appointed to represent him. A possible conflict of interest subsequently arose when Bavosa, who previously had been represented by the federal public defender, pled guilty and agreed to testify for the Government in Cueto's case. In return for Bavosa's cooperation, the Government agreed not to prosecute Bavosa for nineteen other bank robberies in which they suspected that Bavosa and Cueto participated. Bavosa received a ten-year sentence for the Boynton Beach robbery. New counsel, R. Scott Laing, was appointed for Cueto approximately one month prior to trial.

At trial the Government established most of the above facts. Frank Bavosa testified for the Government and thoroughly incriminated Cueto. He related how he and Cueto flew from New Jersey to Florida, planned the robbery of the Century National Bank, and attempted to carry it out. He said that Cueto was with him when he signed the rental agreement for the Chevrolet Monte Carlo, bought the materials for the hoax bomb at Sears, and registered at the Boca Raton Motel and the Holiday Beach Hotel. Bavosa told how Cueto stole the Volare from the Chrysler-Plymouth dealership and later met him behind the Pizza Hut with the getaway car, the Monte Carlo, after Bavosa's aborted robbery attempt. An FBI explosives expert testified that pieces of electrical tape discovered in the Dumpster at the Boca Raton Motel and in room 136 at the Holiday Beach Hotel matched the tape used to construct the hoax bomb.

As a result of his subsequent conviction, Cueto received a ten-year sentence to run consecutively to a ten-year sentence Cueto received in state court for the same bank robbery.

II. Continuance.

Cueto first contends that the district court erred when it denied the motion for a continuance filed by his substitute defense counsel, Laing, on the day of trial. Laing contended that he had been unable properly to prepare Cueto's defense for several reasons. He claimed that his lack of experience in federal court and lack of access to an adequate law library made it difficult for him to ready Cueto's case for trial. He also claimed that a heavy state court workload had left him little time to meet with Cueto.

During the Thursday morning docket call Laing had an appointment with the dentist and a state court trial later that day. He telephoned his associate Joseph Kuharcik that morning and told Kuharcik to tell two other associates to appear on behalf of Cueto at the docket call. Kuharcik was unable to contact the other two associates; he called the court clerk to tell her that Laing had a state court case and would be unable to attend docket call. The clerk told Kuharcik that the trial would be at nine o'clock Tuesday morning. Kuharcik replied, "(F)ine, I'll relay the message to Mr. Laing." Record at 31. Laing did not then inform the judge about his need for a continuance until the time for trial, when the Government appeared with several out-of-state witnesses. The judge told Laing that he should have informed the judge earlier about his problems preparing for the trial, and denied Laing's motion for a continuance.

A motion for continuance is directed to the sound discretion of the trial judge, and his decision will not be disturbed on appeal unless an abuse of that discretion is demonstrated. See, e. g., United States v. Henderson, 588 F.2d 157, 159 (5th Cir.), Cert. denied, 440 U.S. 975, 99 S.Ct. 1544, 59 L.Ed.2d 794 (1979). In review, we evaluate each situation on a case-by-case basis and normally consider only the reasons for continuance presented to the trial judge. United States v. Uptain, 531 F.2d 1281, 1285-86 (5th Cir. 1976). When Laing presented his motion and affidavit to the judge, he failed to specify...