United States v. Fitzpatrick

• Decision Date: 24 December 1970
• Docket Number: No. 339,Docket 34792.,339
• Citation: 437 F.2d 19
• Parties: UNITED STATES of America, Appellee, v. Donald Joseph Alan FITZPATRICK, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

437 F.2d 19 (1970)

UNITED STATES of America, Appellee, v. Donald Joseph Alan FITZPATRICK, Appellant.

No. 339, Docket 34792.

United States Court of Appeals, Second Circuit.

Argued November 11, 1970.

Decided December 24, 1970.

COPYRIGHT MATERIAL OMITTED

Desmond J. O'Sullivan, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., E. D. N. Y., on the brief), for appellee.

Haliburton Fales, 2d, New York City, for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON, Circuit Judges.

LUMBARD, Chief Judge:

This is an appeal from a judgment of the Eastern District of New York, rendered April 10, 1970, wherein appellant Fitzpatrick was convicted, after trial without a jury, of violating 18 U.S.C. § 2314 by causing falsely made and forged securities to be transported in interstate commerce. He was sentenced pursuant to 18 U.S.C. § 5010(b) for treatment, supervision, training and observation. On this appeal Fitzpatrick challenges his conviction on several grounds. We reverse the conviction for the reason that defense counsel's cross-examination of two of the government's witnesses was unreasonably curtailed and we remand for a new trial.

Fitzpatrick was employed by Travelers Express Company from March 6 to 17, 1967. During this period he was introduced to Irving Weissman, the proprietor of a store doing business with Travelers, as a representative of that company. On May 21, 1967, after he had left Travelers, he returned to Weissman's store under the pretext of still being a representative of Travelers and obtained from Weissman a full money order book containing two hundred orders.

Between May 22 and June 20, 1967, several of the money orders which Weissman had handed over to Fitzpatrick were deposited in the Flatbush Saving Bank in Brooklyn by a "John Harrison." When five of the money orders were returned unpaid, the bank notified the FBI. During the course of the investigation, FBI agents obtained a picture of Fitzpatrick from Travelers and arrested him on July 9, 1967. After the arrest, the agents mixed Fitzpatrick's picture with seventeen other photographs and showed them to several bank employees who picked out Fitzpatrick as the "John Harrison" who had cashed the money orders. On July 24, 1967, Fitzpatrick was released on his own recognizance until trial, about two and one-half years later. He was indicted on May 28, 1968. Several weeks prior to trial, which commenced on January 27, 1970, the witnesses again made a photographic identification of Fitzpatrick.

At the commencement of trial, counsel for Fitzpatrick moved pursuant to Rule 43, F.R.Crim.P., to waive Fitzpatrick's right to be present in the courtroom, but his motion was denied. The main issue at trial was the identification of the defendant; and to prove its case on this issue, the government offered the testimony of four witnesses — Weissman and the three bank employees, Mildred Toma, Henrietta Campbell, and Edward Hoffman. All four also made in-court identification of Fitzpatrick. At the end of the government's case, Fitzpatrick's counsel moved for acquittal on the grounds that the photographs shown to the witnesses were impermissibly suggestive and that Fitzpatrick's right to a speedy trial had been violated. The motion was denied. Finally, Fitzpatrick testified in his own behalf and denied that he had cashed the money orders in question. Fitzpatrick was convicted by Judge Rayfiel, having waived trial by jury.

Fitzpatrick alleges five reasons why his conviction should be reversed. The first four have no merit and will be discussed later.

Fitzpatrick's fifth contention is that the trial court unreasonably curtailed defense counsel's attempt on cross-examination of two of the three bank employees who identified the defendant, to determine whether those witnesses remembered particular physical characteristics of the defendant. On this issue we agree with Fitzpatrick, and we reverse his conviction and remand for a new trial.

Bank Teller Mildred Toma testified that she had seen John Harrison come into the bank to cash the money orders on three or four occasions and that she had seen him for five or ten minutes each time. She thought Harrison was about twenty-five years old and approximately six-feet tall, and she positively identified Fitzpatrick as Harrison. During cross-examination the following exchange took place:

The Court: Are you sure that is the gentleman?

The Witness: I am sure.

Q. Were there any physical characteristics of Mr. Harrison that you remember?

Mr. O\'Sullivan: Objection, your Honor.

The Court: Sustained.

The Witness: I\'m sorry?

The Court: Don\'t answer, please. I sustained the objection to the question.

Q. How did Mr. Harrison comb his hair?

Mr. O\'Sullivan: Objection.

The Court: Sustained.

She said she is positive that is the man that she understood to be Mr. Harrison. She is positive about it.

Q. Were there any — was he wearing glasses at the time you saw him in the bank?

Mr. O\'Sullivan: Objection.

The Court: Sustained.

Mr. Burns: Exception.

Q. Did you ever have any conversation with this John Harrison in the bank? A. No, not that I remember.

Q. Did he ever say anything to you?

Mr. O\'Sullivan: Your Honor —

The Court: Did he ever what?

Q. Say anything to you?

Mr. O\'Sullivan: I\'m going to object to that. Just answer —

The Court: Sustained.

Q. Did you ever say anything to John Harrison?

Mr. O\'Sullivan: Objection, your Honor.

The Court: Sustained.

She stated she had no conversation. She can\'t remember any conversation.

Subsequently Bank Officer Edward Hoffman testified that that he saw John Harrison in the bank on two occasions, once for five minutes from twelve to fifteen feet, and once for two minutes from about twenty feet. He testified that Harrison had not worn glasses, and he positively identified the defendant as Harrison. The record shows the following during the cross-examination of Hoffman:

Q. For how long a period of time, if you added it together, would you say that you observed this gentleman, Harrison, in 1967?

Mr. O\'Sullivan: Now, your Honor —

A. 7 minutes, maybe, all together.

The Court: All right.

Q. Did that 7 minutes give you any particular impression of Mr. Harrison? A. Well, I wanted to —

Q. No. Did it give you any particular impression —

Mr. O\'Sullivan: Your Honor, I object.

The Court: Sustained.

A. I wanted to see —

The Court: No. Don\'t answer, please.

The Witness: I\'m sorry.

The Court: I have sustained the objection.

We have had Mr. Hoffman\'s testimony respecting the two occasions that we sic saw him, one, when he was about 20 feet away, and one when he was about 12 or 15 feet away, when he was at the window. He observed him on one other occasion for about five minutes.

Full and fair cross-examination is the cornerstone of the adversary system. As Dean Wigmore has stated, cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth."¹ The New York Court of Appeals stated in the famous case of People v. Becker, 210 N.Y. 274, 305, 104 N.E. 396, 407 (1914), quoting from Wigmore:

"For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience."²

We have recently reemphasized that wide latitude should be allowed in defense cross-examination regarding the credibility of government witnesses. United States v. Wolfson, 437 F.2d 862 (2d Cir. 1970); United States v. Padgent, 432 F.2d 701 (2d Cir. 1970). See also United States v. Masino, 275 F.2d 129, 132-133 (2d Cir. 1960). In Gordon v. United States, 344 U.S. 414, 422-423, 73 S.Ct. 369, 375, 97 L.Ed. 447 (1953), the Supreme Court stated:

"The Government, in its brief, argues strongly for the widest sort of discretion in the trial judge in these matters and urges that even if we find error or irregularity we disregard it as harmless and affirm the conviction. We are well aware of the necessity that appellate courts give the trial judge wide latitude in control of cross-examination, especially in dealing with collateral evidence as to character. * * * But this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony."

In Gordon, as in the instant case, counsel was attempting to focus his cross-examination on matters dealing with the credibility of the witnesses.

The necessity for full cross-examination is particularly acute when its purpose is to demonstrate the lack of credibility of an identification by attempting to determine whether or not the witness had recollection of specific characteristics of the defendant. It is axiomatic that the identification of a suspect at a much later time by witnesses who have seen the actual criminal on only a few occasions and then only for short periods is fraught with dangers because of the fallibility and suggestibility of human memory. As Mr. Justice Brennan stated in United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed. 1149 (1967):

"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: `What is the worth of identification testimony when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.\' The Case of Sacco and Vanzetti 30 (1927). * * *"

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