U.S. v. Thomann

• Decision Date: 14 November 1979
• Docket Number: No. 79-1075,79-1075
• Citation: 609 F.2d 560
• Parties: 5 Fed. R. Evid. Serv. 614 UNITED STATES of America, Appellee, v. Bruce Thomas THOMANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 560

609 F.2d 560

5 Fed. R. Evid. Serv. 614

UNITED STATES of America, Appellee, v. Bruce Thomas THOMANN, Defendant-Appellant.

No. 79-1075.

United States Court of Appeals, First Circuit.

Argued Sept. 6, 1979.

Decided Nov. 14, 1979.

Cornelius H. Kane, Jr., Boston, Mass., by appointment of the Court, for defendant-appellant.

Robert T. Kennedy, Asst. U. S. Atty., Concord, N. H., with whom William H. Shaheen, U. S. Atty., Concord, N. H., was on brief, for appellee.

Before KUNZIG, Judge, U.S. Court of Claims, ^* CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant was convicted after a jury trial of bank burglary and theft under 18 U.S.C. §§ 2113(a) and (b). On this appeal, he raises the following issues, which we discuss seriatim:

1. whether the district court erred in ordering defendant's wife to submit to fingerprinting and in denying his motion for a new trial;

2. whether the district court erred in not ordering severance of the codefendants;

3. whether the district court erred in its charge to the jury; and

4. whether the defendant was deprived of his sixth amendment right to effective assistance of counsel.

In the early morning hours of September 5, 1977, Labor Day, a burglary occurred at the Seabrook, New Hampshire, branch of the Hampton National Bank and approximately $6,500 was removed from the safe. An elaborate bypass of the bank's alarm system and the cutting of a hole in the roof of the building afforded the burglars entrance into the bank. One safe was then pried open, but access to the night depository vault was thwarted due to failure of a sophisticated process involving explosives and water.

In early 1978, Richard Lewis entered a guilty plea in the District Court of New Hampshire for his participation in the burglary and theft. He was sentenced to two years incarceration, after such a recommendation by the government, in exchange for the plea and Lewis' agreement to testify against his coparticipants, Eugene LaRue and appellant, Bruce Thomann.

Lewis was the chief witness for the government in the five day trial of LaRue and appellant. His testimony detailed the planning and execution of the bank burglary by the three men. The jury found both defendants guilty on both counts of the indictment and appellant was subsequently sentenced to two concurrent ten year terms of imprisonment.

I. The Fingerprint Evidence

Appellant argues that his constitutional rights were violated by the admission into evidence of his wife's fingerprint. We hold that appellant lacks "standing" to raise this issue.

Some background facts are necessary. Lewis testified that the three robbers had come to New Hampshire on the weekends of August 20 and 26 to plan the bank robbery. They stayed at Pawtuckaway State Park in Raymond on each weekend and gave false names, addresses, and automobile registrations on the camping permits they were required to fill out. Lewis also testified that on the weekend of August 26, appellant's wife, Patricia Thomann, accompanied appellant to New Hampshire. She gave the name of Patricia Avery on the camping permit and a Georgia automobile registration number that differed only slightly from her actual Georgia registration.

During the course of its investigation, the government discovered a latent fingerprint on the August 26 camping permit in the name of Patricia Avery. Since the government knew that appellant was married to a Patricia Thomann and that she owned an automobile registered in Georgia, it had good reason to believe that the fingerprint was that of appellant's wife. If it were, this would be strong corroboration of Lewis' statement that appellant and his wife had been in New Hampshire on August 26 to help plan the bank robbery. The government, therefore, subpoenaed appellant's wife prior to trial in order to obtain her fingerprints and match them against the one on the permit. Mrs. Thomann refused to comply with the subpoena and a court order was obtained. One of the fingerprints taken matched the one on the camping permit and was introduced at trial to corroborate the testimony of Lewis.

Fingerprint evidence does not fall within the fifth amendment's privilege against self-incrimination. Compelling a criminal suspect to exhibit his identifying physical characteristics, such as a blood sample or fingerprints, is not the forced extraction of testimonial or communicative evidence contemplated by the fifth amendment. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California,384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1965); Appeal of Maguire, 571 F.2d 675 (1st Cir. 1978), Cert. denied, 436 U.S. 911, 98 S.Ct. 2249, 56 L.Ed.2d 411.

While identification evidence does not come within the protection of the fifth amendment, the detention by the government of a person for the purpose of fingerprinting is a "search" within the meaning of the fourth amendment and is subject to its constraints of reasonableness. Schmerber v. California, supra; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1968).

In Davis, the Supreme Court held that the "dragnet" fingerprinting of Black youths was constitutionally impermissible. The question expressly left open in Davis was "whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest." Davis v. Mississippi, supra, 394 U.S. at 728, 89 S.Ct. at 1398. See In Re Melvin, 550 F.2d 674 (1st Cir. 1977).

While it might appear that this heretofore open question is the issue in this case, we need not address it until we have disposed of whether or not appellant has "standing" to raise it.

In order to base a challenge to illegally seized evidence on the fourth amendment, a petitioner must show that he or she has a protectable interest in the items seized or property searched, or that he or she was the subject of an unlawful search or seizure. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

In order to qualify as a "person aggrieved by an unlawful search and seizure" one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

Id. at 261, 80 S.Ct. at 731. Appellant urges us to allow him to challenge the search as "one against whom the search was directed." He contends that, since the government was seeking evidence to be used against him at his trial, he is entitled to standing. This "target theory" was expressly rejected by the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Petitioners, there, sought to exclude evidence seized from a car in which they were passengers and which they did not own on the basis that, since they were the ones against whom the search was directed, they had standing to invoke the fourth amendment. The Court rebuffed this attempt to broaden the Jones test for standing by reaffirming the scope of the amendment's protection as articulated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is not enough, the Court said, that petitioners might have been legitimately on the premises at the time of the search; rather, since fourth amendment rights are personal, petitioners must prove that they have a "legitimate expectation of privacy in the invaded place." Rakas v. Illinois, supra, 439 U.S. at 143, 99 S.Ct. at 430. See also Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Dall, No. 79-1198, 608 F.2d 910 (1st Cir. 1979); United States v. Salvucci, 599 F.2d 1094 at 1097 (1st Cir. 1979), Petition for cert. filed, 48 U.S.L.W. 3178 (U.S. August 14, 1979) (No. 79-244); United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir. 1978).

The language in Jones v. United States, supra, 362 U.S. at 261, 80 S.Ct. at 731, "one against whom the search was directed," which appellant contends extends the fourth amendment's protection to encompass anyone who may be the target of a search, was said by the Court in Rakas to be merely an appositive, restating the immediately preceding phrase and not meant to be interpreted as an extension of the rights protected by the fourth amendment. Rakas v. Illinois, supra, 439 U.S. at 135, 99 S.Ct. 421. The Court grappled with the concept of standing.

We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of "standing," will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones also may have been aware that there was a certain artificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks.

362 U.S., at 261, 263, 265 (, 80 S.Ct. 725, at 731, 732, 733).

Id. at 139, 99 S.Ct. at 428.

Thus, in order for appellant here to have "standing," it is not enough merely for him to assert that his rights were prejudiced by the evidence or even that the evidence was sought in order to convict him. Appellant must allege and prove that he was the one whose actual privacy was invaded by the search. Katz v. United States, ...