United States v. Butler, No. 7452.

• Decision Date: 03 June 1970
• Docket Number: No. 7452.
• Citation: 426 F.2d 1275
• Parties: UNITED STATES of America, Appellee, v. Patrick Vincent BUTLER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

426 F.2d 1275 (1970)

UNITED STATES of America, Appellee, v. Patrick Vincent BUTLER, Defendant, Appellant.

No. 7452.

United States Court of Appeals, First Circuit.

Heard May 6, 1970.

Decided June 3, 1970.

Joseph T. Travaline, Somerville, Mass., by appointment of the Court, Edward S. Guidoboni, Somerville, Mass., on brief, for appellant.

Frederick W. Faerber, Jr., Asst. U. S. Atty., Providence, R. I., Lincoln C. Almond, U. S. Atty., Providence, R. I., on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

On January 9, 1968, a federally-insured bank located in North Providence, Rhode Island, was robbed by two men, one of whom remained in the getaway car. Defendant, who was identified by six witnesses as the man who entered the bank, was convicted of the crime and appeals. He assigns four grounds as error. He first claims that pre-trial photographic identifications made by four witnesses were improperly suggestive and vitiated subsequent in-court identifications because the government failed to sustain its burden of establishing an independent basis for the in-court statements. Second, it is argued that due process required the presence of counsel at any pre-trial photographic identification under the teachings of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and that evidence of the photographic identifications was therefore improperly admitted. Third, it is contended that the failure of the police to hold a lineup in lieu of the photo identification sessions constituted a denial of due process. Finally, we are asked to reverse the conviction because of unconstitutional delay between defendant's indictment and arraignment.

We begin with the photographic identifications. Six persons who were present in the bank at the time of the robbery identified the defendant in court. Of these, four had previously selected photographs of the defendant from groups shown them by F.B.I. agents under circumstances which defendant claims were suggestive. For purposes of decision we shall asume that the photographic showings by the F.B.I. failed to meet the standard set in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This established, the issue is whether there was clear and convincing evidence of an independent basis for the in-court identifications. United States v. Johnson, 412 F.2d 753, 754 (1st Cir. 1969); see United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926. Relevant criteria were set out in Wade and include:

"the prior opportunity of the witness to observe the alleged criminal act, the existence of any discrepancy between any pre- photo identification description and the defendant\'s actual description, any identification prior to photo identification of another person, * * * failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the photo identification." 388 U.S. at 241, 87 S.Ct. at 1940.

Much is common to the four challenged witnesses. The bank was robbed in daylight hours and, despite the absence of direct testimony on the point, it is therefore fair to infer that the bank was well lighted. The witnesses were apparently all in positions from which they could see the robber clearly, one as close to him as five feet. All had several minutes in which to observe the robber, who was surely the center of attention under the circumstances, particularly as he was armed and fired a pistol shot. All were bank employees and there was evidence that the employees were trained to observe a robber carefully for possible identification if the occasion were to arise. All gave roughly similar descriptions of the robber to the F.B.I. and there was no evidence that defendant failed to meet the descriptions.

The factors enumerated above weigh heavily in favor of the admissibility of the subsequent in-court identifications. Moreover, the witnesses' identifications were definite and unshaken by extensive and searching cross-examination. Accordingly the delay between the crime and the identifications is, of itself, insufficient to prevent us from concluding that the witnesses' in-court identifications were independent of their photographic identifications.¹

Our resolution of the courtroom identification question makes it unnecessary for us to deal with defendant's second and third arguments.² Even if the pre-trial viewing of a spread of photographs is a "critical stage" requiring the presence of counsel, it is apparent that defendant was in no way prejudiced by counsel's absence in this case. To the extent that the argument depends upon a defect in the in-court identifications it is rejected by our finding that those were independently based. To the extent it depends upon the introduction before the jury of evidence of tainted photographic identifications it is without merit, as we think there is no reasonable possibility that the jury gave determinative weight to such out-of-court identifications where six witnesses, two of whom had not made photo identifications, identified the defendant before the eyes of the jurors. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gilbert v. California, 388 U.S. 263, 274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814, 818-20 (1970).

Defendant's speedy trial contention is substantial. He was indicted on September 27, 1968, but was not arraigned until June 17, 1969, despite the fact that he was in federal custody throughout that period. On oral argument the government admitted that there was no reason for the delay other than defendant's incarceration and the government's supposition that any new sentence would be consecutive and that defendant could not, therefore, be harmed by the delay. It is clear that the delay is in no way attributable to actions of the defendant. Moreover, the parties are agreed that the arraignment finally took place only after the defendant, on May 24, 1969, wrote a letter to the United States Attorney demanding arraignment.

We are deeply disturbed by the government's conduct here. While there is little doubt that the right to a speedy trial "is consistent with delays and depends upon circumstances,"³ the delays must serve some legitimate purpose. Here the government has no excuse for its conduct. In this case, where the result turned on eyewitness identifications which necessarily became less reliable with the passage of time, we think a delay of nine months is overly long absent a legitimate reason therefor.

The government contends, however, that time elapsed prior to defendant's demand for arraignment cannot be counted in considering the claim of constitutional deprivation.⁴ There is considerable difference of opinion as to the effect of a tardy demand. Although most federal courts hold that some demand is a prerequisite to a denial of speedy trial claim, we have found none which has dealt directly with the status of time elapsed prior to a demand. The American Bar Association has rejected the demand requirement in toto. ABA Project on Minimum Standards for Criminal Justice: Speedy Trial § 2.2, Commentary (App. Draft 1968). The conflict stems from two well-founded views. On one hand, the government surely has the obligation to bring an accused to trial and to dispose promptly of criminal cases. E. g., Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687-688 (1966). On the other hand, it cannot be doubted that delay in criminal cases often works to the advantage of the defense. United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963). It therefore has seemed anomalous to many courts to allow a defendant to silently acquiesce in delay by the government, reaping whatever benefits such a course may bring, and then suddenly move for dismissal at trial. Cf. Needel v. Scafati, 412 F.2d 761, 764 (1st Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24...