United States v. Gilmore

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation398 F.2d 679
Docket NumberNo. 16318.,16318.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard Keith GILMORE, Defendant-Appellant.
Decision Date25 July 1968

398 F.2d 679 (1968)

UNITED STATES of America, Plaintiff-Appellee,
Richard Keith GILMORE, Defendant-Appellant.

No. 16318.

United States Court of Appeals Seventh Circuit.

July 25, 1968.

398 F.2d 680

Edward G. Maag, E. St. Louis, Ill., for appellant.

Carl W. Feickert, U. S. Atty., Joel A. Kunin, Asst. U. S. Atty., E. St. Louis, Ill., for appellee.



Richard Keith Gilmore, defendant, has appealed from his conviction on two counts of an indictment, following a trial by jury, of the theft of $1897.95 from Mt. Erie State Bank, Mt. Erie, Illinois, on or about November 1, 1965, the deposits of which were insured by the Federal Deposit Insurance Corporation, said theft being by the use of a gun and putting in jeopardy the life of a bank employee, Lemuel S. Gardner, in violation of Title 18 U.S.C. §§ 2113(a) and (d).

Defendant entered a plea of not guilty and made motions for a bill of particulars, for an order requiring the government to elect between counts I and II, which motions were denied, and for discovery and inspection under rule 16 of the Federal Rules of Criminal Procedure. The motion for discovery and inspection was allowed.

The jury found defendant guilty on both counts and the court denied defendant's motion for a new trial. Sentence to imprisonment for eight years was imposed on defendant.

1. The only eye witness testimony to the November 1, 1965 robbery was given on January 24, 1967 by Lemuel S. Gardner, who when testifying for the prosecution some fifteen months after the crime occurred, identified defendant as the robber of the bank. Gardner testified that he was then "past 70 years old" and he was, then and on November 1, 1965, wearing bifocals.

However, in a typewritten statement made by federal agent Lyle on February 25, 1966 and typed under date of March 10, 1966 (Court Exh. No. 5), the agent wrote:

"Mr. Lemuel S. Gardner viewed Richard Gilmore in a lineup in the Wayne County Courthouse in Fairfield, Illinois. Mr. Gardner picked Richard Gilmore from the lineup and positively identified him as the individual who had held up this bank on November 1, 1965. Mr. Gardner hesitated for quite a while before identifying Gilmore but did make a positive statement that this is the man, `I am sure of it; however, I will not swear to it.\' He stated he is as sure as he can be that this is the man; however, he is afraid of making a mistake.
"After viewing Gilmore, Mr. Gardner stated Gilmore had small, high cheekbones which he had recalled previously and was dark complected and also had the proper height as he recalled. Mr. Gardner stated he would be willing to testify against Gilmore if one other witness could be developed who could identify him in the area. Mr. Gardner stated, in other words, he would like to have a second witness who agreed with him in this matter." Italics supplied for emphasis.

In regard to the reference in this statement to the "lineup" from which Gardner picked defendant, it becomes important to note that when Gardner was testifying at the 1967 trial of defendant, the following colloquy occurred on cross-examination:

Q. Mr. Gardner, on the 25th day of February, 1966 did you see Mr. Gilmore in a lineup of a number of people, or when you saw him there in the Fairfield courthouse was he just alone, by himself?
398 F.2d 681
A. He was alone until we went in.
Q. He was alone until, you say, "we went in"?
A. Yes.
Q. Now, who went in?
A. Lyle and the sheriff.
Q. Lyle and the sheriff?
A. Yes.
Q. And was there a lineup where a number of individuals in addition to Mr. Gilmore stood up together and you were asked if you recognized anybody in the group?
A. No, there was no lineup.
Q. What?
A. No, there was no lineup.
Q. There was just one single person in the room besides you and the sheriff and Agent Lyle?
A. That\'s right.
Q. And that single person in the room was Mr. Gilmore?
A. That\'s right.

(Italics supplied for emphasis.).

Introduced as Court exhibit No. 1 is an FBI statement dated November 12, 1965, which relates:

That Gardner was "sorting pennies" when he turned around and an unknown individual was holding a longbarreled gun on him — that he placed in the bag the money from the drawer; that he was told by the robber to lie down on the floor, which he did, and that on later getting up he saw that no one was then in the bank, but saw a car with one person in it driving away at a high rate of speed; that he could not describe the vehicle as to make or model and that he (Gardner) did not observe any license as it drove out of town.
Gardner further stated according to exhibit No. 1, that he could not recall any of the man\'s facial features, although he wore no disguise, nor the clothing he wore except that the robber did not

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15 cases
  • Biggers v. Neil, 20540.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 18, 1971
    ...and the identification, the hesitancy of the witness in identifying the petitioner,5 the circumstances of "5. See United States v. Gilmore, supra 398 F.2d 679 (7th Cir. 1968) and accompanying text." (Footnotes in the stationhouse confrontation coupled with Mrs. Beamer\'s knowledge that peti......
  • United States v. Holmes, 17722-17729.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 27, 1972
    ...that it was the product of improper police suggestion. There was no "one man lineup" such as that involved in United States v. Gilmore, 398 F.2d 679, 682 (7th Cir. 1968); see also Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402; Stovall v. Denno, 388 U.S. 293, 302, 87......
  • Hill, In re
    • United States
    • United States State Supreme Court (California)
    • September 11, 1969
    ...which permits a complaint to select, From among several persons one about whom he is certain.' (Italics added.) (United States v. Gilmore (7th Cir. 1968) 398 F.2d 679, 682--683.) Under the totality of the circumstances we think that the identification procedure was so unnecessarily suggesti......
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 24, 1972
    ...denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L. Ed.2d 1164 (1968); Harris v. Dees, 421 F.2d 1079 (5th Cir. 1970); cf. United States v. Gilmore, 398 F.2d 679 (7th Cir. 1968). In the instant case, where there were two reports of attacks in the same five block area, within fifteen minutes of each o......
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