U.S. v. Danzey

• Decision Date: 14 May 1979
• Docket Number: Nos. 511,D,514,s. 511
• Citation: 594 F.2d 905
• Parties: 4 Fed. R. Evid. Serv. 1 UNITED STATES of America, Appellee, v. Alexander DANZEY and Warren Gore, Appellants. ockets 78-1342, 78-1343.
• Court: U.S. Court of Appeals — Second Circuit

Page 905

594 F.2d 905

4 Fed. R. Evid. Serv. 1

UNITED STATES of America, Appellee, v. Alexander DANZEY and Warren Gore, Appellants.

Nos. 511, 514, Dockets 78-1342, 78-1343.

United States Court of Appeals, Second Circuit.

Argued Jan. 8, 1979.

Decided March 19, 1979.

Certiorari Denied May 14, 1979.

See 99 S.Ct. 2179.

Barry Bassis, The Legal Aid Society, Federal Defender Services Unit, New York City, for appellant Danzey.

Peter J. Fabricant, Brooklyn, N. Y. (Peter A. Passalacqua, Brooklyn, N. Y., of counsel), for appellant Gore.

Thomas D. Sclafani, Asst. U. S. Atty. (Edward R. Korman, U. S. Atty. for the Eastern District of New York, Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before KAUFMAN, Chief Judge, and SMITH and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal, like a number of others involving bank robbery charges, entails questions of similar act evidence and identification testimony. It also involves a severance issue. Appellants Alexander Danzey and Warren Gore were convicted in the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, following a jury verdict on two counts of bank robbery and armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and 18 U.S.C. § 2. Danzey was sentenced to twenty-five years' imprisonment and Gore to twenty years' imprisonment for armed bank robbery; the conviction on the bank robbery count was merged into the armed bank robbery count at sentencing. Appellant Gore contends that he was unfairly prejudiced by the introduction of evidence that he had admitted to robbing fifteen other banks, using a modus operandi similar to the one utilized in the robbery for which he was convicted but which he did not admit. Appellant Danzey argues (1) that the trial court erroneously refused to suppress testimony about a photographic identification and subsequent in-court identification of him; (2) that the evidence against him was insufficient as a matter of law because the only testimony linking him to the crime was too full of inconsistencies to support the jury's verdict of guilty beyond a reasonable doubt; and (3) that he was denied his right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because he was not permitted a severance and his codefendant's admissions were insufficiently redacted. We affirm as to Gore and reverse and remand as to Danzey.

THE BANK ROBBERY

The Community National Bank and Trust Co. is located at the corner of Clove Road and Niagara Street in Staten Island, New York. At about 9:30 a. m. on July 30, 1977, a young woman who was sitting in a car outside the bank waiting for her sister to transact business inside observed two men wearing ski masks and gloves getting out of a white car with a black vinyl top bearing New Jersey license plates. One man carried a bag and a gun while the other, who was "slumped over," wore sneakers and carried a bag. A third man sat in the driver's seat. The two masked men walked into the bank, remained inside about three minutes, rushed out, and re-entered the white car which then sped away from the bank. The young woman's sister, who was in the bank, was ordered to the floor several times by the shorter of the two men from whose voice she concluded that he was black; the man ultimately knocked her to her knees. She also observed the second masked man, the taller of the two, run into the bank, "hunched over like a monkey or an ape," vault the teller's counter carrying a bag, take the entire money trays from two of the tellers, and stuff the booty into a canvas bag. He revaulted the teller's counter and left with the shorter man. None of the bank employees or the two sisters could identify anyone as the bank robbers.

However, another young woman, Sylvia Csuros, a nineteen-year-old college student, had been studying in her mother's bedroom in their second floor apartment located only about two blocks from the bank. The corner apartment overlooked Grand and Dudley Avenues, quiet residential streets in Staten Island. Shortly after 9:00 a. m. on July 30, 1977, a bright and sunny morning, from a window facing Grand Avenue Csuros saw a large gold car followed closely by a smaller white car speed down Grand Avenue These were the essential parts of Ms. Csuros's testimony, but, as will be seen, there was, at the very least, considerable confusion on her part.

and turn right onto Dudley. She left her mother's bedroom and went into the living room which faced both Grand and Dudley Avenues and with her view unobstructed observed the gold car park across the narrow street below the living room window and the white car park directly behind the gold car. She then saw a man emerge from the street side of the gold car carrying a brown paper bag. She watched him walk in the street back to the white car and either toss or pass the brown bag into the front seat of the white car, then return to the gold car. She then saw a taller man exit from the driver's side of the gold car. She described him as black and tall and said that he wore a wig, a bright orange shirt, and elevated shoes. The man walked along the sidewalk to the white car and got into the front seat of the white car on the driver's side, causing the original driver, whom Ms. Csuros never saw, to slide over to the passenger side. Ms. Csuros then saw the first man, who had tossed the brown bag into the front seat of the white car, return from the gold car to the white car and enter it by the rear door. The white car drove off, shortly after returned, and the occupants transferred back to the gold car and drove off at a high rate of speed.

According to Ms. Csuros's testimony at the suppression hearing, she had described the robbers to a special agent of the Federal Bureau of Investigation (FBI) on the day of the robbery as follows:

There was a short man with relatively light Negroid skin. And what he was wearing wasn't anything really noteworthy. And I didn't even see him that well because he was lighter. But I saw the other man much better because he was rather conspicuously dressed. He had on a bright orange shirt which immediately attracted my attention to him, and he was a very dark skinned man with very definite features and face.

Ms. Csuros expanded on this last characterization by describing this second man as having "a very long face . . . (a)nd his eyes were kind of bulging." She further indicated that the darker man was the taller of the two and that because of the difference between the coloration of the two men, "the contrast . . . was pretty much night and day."

About a month and a half after the bank robbery, the agent showed her two sets of photographic arrays, each containing six "mug shots." According to the agent's testimony at trial, he told Ms. Csuros, in order "to refresh her recollection as far as number one and number two," that "(n)umber one was the fellow with the brown bag" and "(n)umber two was the fellow on the other side driving." After studying the first set of photographs, Ms. Csuros selected appellant Danzey's picture as "number one," "the individual with the brown bag," whom the agent, on the basis of Ms. Csuros's statement to him on the day of the robbery, further identified in his testimony as the shorter and lighter skinned man. From the second set of photographs, Ms. Csuros selected one Richard Irving, not a codefendant and not tried for this robbery. The agent testified that Ms. Csuros had commented on his facial features when she identified his picture. The agent allowed at trial that this second man would be the taller and darker one.

Almost a year after the robbery, Ms. Csuros received a telephone call from an FBI agent who asked her to come to the United States Attorney's office because "the men who were involved in the robbery have been apprehended." The prosecutor then showed her the same two sets of photographic arrays that the special agent had shown her, and she immediately recognized them as the same. He instructed her "to see if (she) could still pick out the same person as (she) picked out the last time, and she did so quite easily. Counsel for Danzey argues that this second procedure was unnecessarily suggestive and tainted her subsequent in-court identification. Appellant Danzey, it may be noted, had been in custody At the pretrial suppression hearing Ms. Csuros stated that her identification of the two men had been "tentative" but that she was more certain about the second identification, that is, the taller man, whom she now knew to be appellant Danzey. At trial, however, where Ms. Csuros was permitted to make an in-court identification of appellant Danzey over his counsel's objection, she testified that the man carrying the bag was short and that he was the one with bulging eyes. She then identified appellant Danzey as one of the robbers and stated that she was "reasonably certain" that he was "the first man, that being the shorter of the two." (Danzey is 5' 7 .) But she now identified the first man as the darker man. After she reviewed the officer's memorandum of her description on the day of the robbery, she once again stated that the second man was darker and taller. She repeated that description later in her testimony and finally characterized "number one" as the "day" of the "day and night" color contrast. She then identified appellant Danzey as "number one" and as the lighter skinned man.

for some time, and the Government could have conducted a lineup. See United States v. Fernandez, 456 F.2d 638, 641 n. 1 (2d Cir. 1972); See also Simmons v. United States, 390 U.S. 377, 386 n. 6, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). But appellant does not and could not successfully contend that the presentation of photographs after indictment and without the presence of counsel was per se illegal. ¹

Ms. Csuros also testified that she had had a "better look at" the first man, having...