United States v. Gilmore
Decision Date | 25 July 1968 |
Docket Number | No. 16318.,16318. |
Citation | 398 F.2d 679 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Keith GILMORE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
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.
Before SCHNACKENBERG, KILEY and FAIRCHILD, Circuit Judges.
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:
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:
(Italics supplied for emphasis.).
Introduced as Court exhibit No. 1 is an FBI statement dated November 12, 1965, which relates:
Court exhibit No. 5, an FBI report dated March 10, 1966, recites:
During cross-examination of Gardner at the trial, the following occurred:
However that may be, the value of Gardner's "identification" of defendant as the bank robber when Gardner was confronted by a "lineup" consisting of only defendant Gilmore, is drastically minimized by the language of the court in United States v. Wade, 388 U.S. 218 (1967), where at 235-236, 87 S.Ct. 1926, at 1936, 18 L.Ed.2d 1149 the court said:
While the holding in Wade is not controlling here, the reasoning thereof as above-quoted by us was not criticized in Stovall v. Denno, 388 U.S. 293, 295 (1967), where the court said at 301, 87 S.Ct. 1967, at 1972, 18 L.Ed.2d 1199:
To continue reading
Request your trial-
Biggers v. Neil, 20540.
...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
...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
...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, EX REL. RAYMOND v. PEOPLE OF STATE OF ILL.
...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......