U.S. v. Durant

• Decision Date: 24 November 1976
• Docket Number: No. 283,D,283
• Parties: UNITED STATES of America, Appellee, v. David DURANT, Appellant. ocket 76-1198.
• Court: U.S. Court of Appeals — Second Circuit

Page 823

545 F.2d 823

UNITED STATES of America, Appellee, v. David DURANT, Appellant.

No. 283, Docket 76-1198.

United States Court of Appeals Second Circuit.

Argued Oct. 1, 1976.

Decided Nov. 24, 1976.

Phylis Skloot Bamberger, New York City (The Legal Aid Society, William J. Gallagher, New York City, on the brief), for appellant.

Jonathan M. Marks, Asst. U.S. Atty., Brooklyn, N.Y. (David G. Trager, U.S. Atty., E.D.N.Y., Kenneth J. Kaplan, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Before FEINBERG, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

FEINBERG, Circuit Judge:

This case presents the important issue of the proper standard for appointment of a defense expert under the Criminal Justice Act of 1964, 78 Stat. 552 (1964), as amended, 18 U.S.C. § 3006A (1970). David Durant appeals from a judgment of conviction for armed bank robbery, 18 U.S.C. § 2113(d), entered in the United States District Court for the Eastern District of New York after a jury trial before Mark A. Costantino, J. The only claim on appeal is that the district court's failure to grant a defense request for appointment of a fingerprint expert was error. We hold that it was, and remand for a new trial.

I

Because Durant does not argue that the evidence was insufficient, we may summarize the facts only briefly. On October 10, 1975, three masked men with loaded guns robbed a branch of the Chase Manhattan Bank. One remained near the entrance of the bank, one went to the officers' section, and the third vaulted the teller's counter and took about $3,250. On October 21, the grand jury indicted appellant, his brother-in-law, Michael Reed, and a third person. ¹ Reed pleaded guilty in November, and the court appointed counsel for Durant, an indigent, under 18 U.S.C. § 3006A. At a pre-trial proceeding on January 13, 1976, Durant's counsel advised the court that the Government apparently planned to use fingerprints in its case and asked for appointment of a defense expert to examine the prints. The prosecutor objected, as follows We have an expert, he's employed by the FBI. I think it is ludicrous that the Government should pay for a second expert. . . . He could cross-examine our expert.

The judge denied the request, advising defense counsel to cross-examine the government expert to ascertain discrepancies.

At the trial three weeks later, two accomplices identified Durant as one of the robbers, but their credibility was open to sharp attack. One was co-defendant Reed, who faced a possible 20-year sentence on his guilty plea and had not yet been sentenced. ² On cross-examination, Reed also admitted various falsehoods. The other accomplice was one Ronald Freeman, in whose apartment the robbers met to divide up the stolen money. Freeman had agreed to cooperate with the Government after an FBI agent told him that he would be charged as an accomplice and could get up to 20 years in prison. Freeman was not indicted. Freeman also faced a charge of violating probation that had been imposed on a conviction for armed theft.

Fingerprint evidence was thus very important at the trial. The Government first offered the testimony of the agent who had lifted a partial latent fingerprint from the top of the glass partition where one of the robbers had vaulted the counter. Then, fingerprint expert John C. Saunders, employed by the FBI, testified that a comparison of this latent print with the known thumb print of appellant showed that the two prints were from the same finger. Saunders said that there were 14 points of identity between the two prints and that seven points of identity were enough to make a positive identification. Defense counsel attempted to challenge this testimony by cross-examination, as the judge had directed him to do. Saunders admitted without qualification that he had seen as many as 55 points of identity in comparing fingerprints in other instances, but maintained that he and the FBI did not have a rule requiring any specific number of points. Saunders also admitted that "You need an expert" to identify points of identity. He also said it was not possible for him to make a mistake and that he did not know how long the print was on the window. On redirect, Saunders testified that the print was less than a week old. Copies of the comparison prints were submitted to the jury, but only nine points of identity were marked.

In his first summation, the prosecutor strongly emphasized the fingerprint evidence, mentioning it no less than eight times. This was understandable, in view of the vulnerability of the testimony of accomplices worried about future sentence disposition and anxious to cooperate with the Government. In reply, defense counsel contended that Saunders was psychologically predisposed to his findings because he was an FBI agent and because the only prints sent to him were appellant's and Reed's. Counsel argued that Saunders' statement that he never made a mistake should not be taken literally. In rebuttal, the prosecutor again stressed the fingerprint evidence:

The defense would have you believe that this testimony concerning the fingerprint is not conclusive when a man of eighteen and a half years of experience, who's been doing this for half his life, this is his job, he sits there and he analyzes fingerprints, he told you millions of fingerprints, and you think this man is going to put his reputation as a professional on the line, traveling from Washington to New York, he's going to get on the stand and he's going to identify a fingerprint as positive? He doesn't say maybe. He doesn't even say seventy-five per cent. He says this is a positive identification. This fingerprint is the same as the fingerprint on Durant's card. The same. And he says, "All I need is seven points." You have a hundred points, you can have fifty points, you have twelve points. We have fourteen in this case.

And I made a nice little diagram, if you want to use it, and he put nine points on.

Now, if there were twenty-seven points, you'd have a tough time putting the numbers in. These are the ones that might have been visible on the diagram. But he says fourteen points and he says a positive identification.

I suggest to you that there's no more powerful evidence in the law than fingerprint examination.

The prosecutor also repeatedly implied to the jury that Reed would receive a 20-year sentence. ³ During their deliberations the jury requested, and received, the fingerprint exhibits. ⁴

II

On appeal, Durant claims that denial of his pre-trial request for a fingerprint expert was reversible error. The Criminal Justice Act of 1964, as amended, provides that:

Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary . . . the court . . . shall authorize counsel to obtain the services.

18 U.S.C. § 3006A(e)(1). ⁵ Use of this section of the Criminal Justice Act to obtain expert assistance has been relatively sparse, compared with applications for court-appointed counsel. Thus, for fiscal year 1974, the total amount expended nationally for services of experts was approximately $190,000 compared with payments of over $10 million thus far to court-appointed private attorneys for that year. ⁶ Nevertheless, a number of decisions deal with the key phrase in this section of the Act, "necessary to an adequate defense."

One of the earliest discussions of the meaning of that standard appears in Judge Bright's opinion for the Eighth Circuit in United States v. Schultz, 431 F.2d 907 (1970). In that case, the district judge had denied defendant's request that the court appoint, under 18 U.S.C. § 3006A(e), an "independent psychiatrist for the purpose of supporting his defense of lack of requisite mental capacity" at the time of the alleged crime of bank robbery. The court first observed that the issue was apparently "a case of first impression" for "the federal courts of appeal," and then noted that:

No standard can be arbitrarily articulated covering all circumstances under which an accused demonstrates his entitlement under the Act to services of experts to present an adequate defense.

431 F.2d at 909. The court went on to phrase the applicable test as follows:

While a trial court need not authorize an expenditure under subdivision (e) for a mere "fishing expedition", it should not withhold its authority when underlying facts reasonably suggest that further exploration may prove beneficial to the accused in the development of a defense to the charge. Considering the purpose of § 3006A(e) of the Criminal Justice Act to provide the accused with a fair opportunity to prepare and present his case, the application of the accused's counsel for such services must be evaluated on a standard of reasonableness. (Footnote omitted.)

Id. at 911. Applying this standard, the court reversed the conviction and ordered a new trial.

Less than a year later, the issue was again thoroughly discussed in Judge Wisdom's concurring opinion in United States v. Theriault, 440 F.2d 713, 716 (5th Cir. 1971). In that case, which also involved denial of a defense request to authorize employment at government expense of a psychiatrist, the Fifth Circuit reversed a conviction. The majority opinion did not discuss the meaning of the phrase "necessary to an adequate defense" other than to point out that this test is "not susceptible of arbitrary articulation but can best be developed on a case by case basis." Id. at 715. Judge Wisdom, however, did explore that question at length and concluded that the statute required

authorization for defense services when the attorney makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial means to support his defenses.

Id. at 717. Support...