U.S. v. Manko, 82-1523

• Decision Date: 15 December 1982
• Docket Number: No. 82-1523,82-1523
• Citation: 694 F.2d 1125
• Parties: UNITED STATES of America, Appellee, v. Paul Richard MANKO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1125

694 F.2d 1125

UNITED STATES of America, Appellee, v. Paul Richard MANKO, Appellant.

No. 82-1523.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 12, 1982.

Decided Dec. 15, 1982.

Robert Bennett, Delaney, Thompson & Solum, Ltd., Minneapolis, Minn., for appellant.

James M. Rosenbaum, U.S. Atty., Janice M. Symchych, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

Appellant Paul Richard Manko challenges his conviction for robbery of a federally insured financial institution, a violation of 18 U.S.C. Sec. 2113(a). For reversal, Manko contends (1) that the district court erred in refusing to suppress certain in-court and out-of-court identifications; (2) that he was denied effective assistance of counsel; and (3) that insufficient evidence was introduced to support the conviction. We affirm.

The circumstances from which this case arose are briefly as follows. On October 29, 1981 a lone white male robbed a Minneapolis bank. As the assailant left the institution, he was photographed by a bank surveillance camera; on behalf of the Federal Bureau of Investigation this photograph was broadcast on the local news on the night of the robbery. As a result, the man depicted in the photograph was identified as the appellant, Paul Manko.

This surveillance photograph was utilized by the FBI during the ensuing investigation. Both the teller on duty at the time of the robbery and her supervisor, who was also present during the incident, identified the person in the photograph as the perpetrator. A security guard in the city's skywalk system also identified the individual depicted in the surveillance photo as the man he had encountered in the skywalk near the bank, twice prior to the robbery and once directly thereafter. In addition, two bartenders in a nearby bar identified the man in the photograph as the same person who had spent several hours in their establishment shortly after the robbery had occurred. Along with purchasing numerous drinks, the individual had exchanged approximately $250.00 in one dollar bills, the amount of that denomination taken in the robbery, for larger currency.

Thereafter, the FBI constructed a six-person photographic lineup, which included a photograph of Manko. With the exception of one bartender, this lineup was shown to each of the above-mentioned persons, all of whom identified Manko as the person they had encountered.

Manko was subsequently arrested and charged with the robbery. Following trial to a jury, he was found guilty and sentenced to six years imprisonment. This appeal followed.

In his initial assignment of error, Manko contends the district court ¹ erred in refusing to suppress certain in-court identifications, along with testimony concerning the pretrial identification by the skywalk security guard. He argues that improper out-of-court identification procedures tainted both the in-court and pretrial identifications, resulting in a denial of due process.

Prior to trial, Manko filed a motion to suppress the pretrial identifications, alleging that the utilization of the single surveillance photograph and the six-person photographic lineup was impermissibly suggestive. At a hearing on this motion before a United States magistrate, the bank teller and her supervisor were scheduled to testify. While waiting to enter the courtroom, they observed Manko being escorted by two marshals, in handcuffs and attired in jail-issue clothing. Both bank employees identified Manko at that time as the individual who had committed the robbery. At the hearing, both also identified appellant as the perpetrator of the crime.

The magistrate's subsequent recommendation that Manko's suppression motion be denied was adopted by the district court. Based on the courthouse confrontation with the bank personnel, however, a second motion to suppress was filed. Following a hearing based in part upon a stipulation concerning the manner in which the confrontation had occurred, the magistrate recommended the denial of Manko's second motion. The district court also adopted this recommendation.

At the outset of trial, Manko again unsuccessfully sought to suppress the identifications. During trial, the bank teller and her supervisor identified Manko as the perpetrator of the robbery. In addition, both bartenders testified that Manko was the individual present in the bar shortly after the robbery. Finally, the skywalk security guard's pretrial identification of Manko from the photographic display was also introduced as evidence.

As indicated, Manko now contends the district court erred in allowing this identification testimony. He contends the confrontation with the bank personnel, use of the single surveillance photograph and use of the six-person photographic lineup all constitute impermissibly suggestive identification procedures, and that due process requires the suppression of the identification evidence resulting therefrom.

Our analysis of allegedly improper identifications focuses on the reliability of the challenged evidence. "[R]eliability is the linchpin in determining the...