United States v. Marson

• Decision Date: 13 June 1968
• Docket Number: No. 11438.,11438.
• Citation: 408 F.2d 644
• Parties: UNITED STATES of America, Appellee, v. Jack Lesley MARSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

408 F.2d 644 (1968)

UNITED STATES of America, Appellee, v. Jack Lesley MARSON, Appellant.

No. 11438.

United States Court of Appeals Fourth Circuit.

Argued January 10, 1968.

Decided June 13, 1968.

John Wesley Vardaman, Jr. (Court-appointed counsel), Washington, D. C., Stephen A. Weiswasser, Washington, D. C., on brief, for appellant.

Paul M. Rosenberg, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.

Before BOREMAN, WINTER and BUTZNER, Circuit Judges.

BOREMAN, Circuit Judge:

On November 17, 1966, Jack Lesley Marson was convicted by a jury on two counts of an indictment charging him with the robbery of a federally insured bank. Although appointed counsel has carefully briefed and ably presented several issues, we find no error requiring reversal and, therefore, we affirm the conviction.

On March 4, 1966, a branch bank located in a suburb of Baltimore was robbed of approximately $18,000.00. According to the testimony of the bank employees, a lone male, undisguised and unmasked, entered the bank at about 1:00 P.M. and walked into the manager's office. There he pulled out a gun and a cloth bag or sack, of the type ordinarily used by banks and their customers, and ordered the manager to fill the bag with money from the tellers' cash drawers. Obediently the manager entered the area behind the tellers' counter and proceeded to fill the sack with cash from each teller's position. He also placed some United States savings stamp albums in the bag. The robber remained on the customers' side of the counter, moving along in front of the manager as he proceeded to the several positions. Arriving finally at the opposite end of the counter, the manager handed him the bag and the robber departed.

A week later, on March 11, the United States attorney in Baltimore, having been advised of the results of a thorough investigation by the FBI, authorized the filing of a complaint against Marson charging him with the robbery. This information, the details of the investigation, and a description of Marson were relayed to the Louisville, Kentucky, FBI headquarters, and later that evening Marson was found and apprehended at the home of his father-in-law in a small community in Kentucky. Counsel was appointed for him and on April 4 he was afforded a preliminary hearing in Lexington. Shortly thereafter he was returned to Baltimore and held in jail.

In his brief, Marson argues that his arrest without a warrant was illegal and that certain evidence seized as a consequence of his arrest was improperly introduced against him at trial. However, we think the evidence developed during the investigation clearly was sufficient to give the Baltimore FBI agents probable cause within the meaning of the fourth amendment and reasonable grounds within the meaning of 18 U.S.C.A. § 3052¹ to believe that Marson had committed the robbery.

Briefly, this evidence revealed that the bank bag and the savings stamp albums taken during the robbery were found by a lady in the alley behind her home in Baltimore a week after the robbery. They had been discarded there by her son who had discovered them in his car which he had lent to Marson during the time the robbery was committed. Both mother and son identified Marson as the person depicted in an artist's sketch prepared for the FBI from descriptions of the robber furnished by the bank employees. In light of this evidence we find no violation of Marson's fourth amendment rights.

Marson also argues that his arrest was illegal because of the officers' failure to comply with the provisions of 18 U.S.C.A. § 3109.² We find this argument is without merit and that substantial evidence in the record of the pre-trial hearing supports the trial court's ruling of legality. This evidence, although conflicting in some particulars, revealed that the entry by the officers at the front door of the home of Marson's father-in-law was peaceable and with no forcible breaking. It, therefore, involved no violation of section 3109. See United States v. Conti, 361 F.2d 153 (2 Cir. 1966); Dickey v. United States, 332 F.2d 773 (9 Cir.), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964). The witnesses apparently were in agreement that the entry at the front door preceded the entry of other officers into the kitchen. It is thus unnecessary to consider the evidence, much of it conflicting in its details, concerning the entry into the kitchen, as this entry, assuming it might have been improper, could not have invalidated the proper entry at the front door of the home. See United States v. Viale, 312 F.2d 595 (2 Cir. 1963); Cognetta v. United States, 313 F.2d 870 (9 Cir. 1963).

Since the arrest of Marson was legal, certain evidence found two days later by his father-in-law, Mr. Rose, is free of possible taint from an illegal arrest. It is clear that Mr. Rose cooperated in every way with the officers after learning of the robbery and voluntarily continued the search two days after the arrest. We thus find no error in the introduction of the evidence which had been turned over to the agents by Mr. Rose.³

The remaining questions presented on this appeal, to which counsel has devoted most of his efforts and emphasis, involve the propriety of Marson's court-room identification by the bank's branch manager and four tellers, all of whom were eyewitnesses to the robbery. Discussion of these issues requires the recital of such further facts as are disclosed by the record.

Marson, as stated above, was afforded a preliminary hearing in Kentucky on April 4. Mr. Doyle, the bank's branch manager, was taken to Lexington to identify Marson. Sometime prior to the actual confrontation, Doyle was shown photographs of the defendant.⁴ At the preliminary hearing and later at trial, Doyle positively identified Marson as the robber. The four bank tellers were not taken with Doyle to Lexington, but on April 15, two days after Marson was returned to Baltimore, photographs of him were shown to three of them, and all identified Marson as the robber.⁵ The record is not complete with respect to the details of this identification, although it does contain copies of the photographs used. It is apparent that the tellers were shown three sets of standard "rogues' gallery" pictures, each set containing two or three views of the same person. The tellers were also shown two photographs of Marson in which he alone appeared. One of these resembled the close-up full-face view of the sort customarily used in the rogues' gallery pictures. The other, however, was a three-quarter length front view. There is nothing in the record to indicate the manner in which these photographs were displayed or even whether they were shown to the tellers assembled together or to each one individually. The record does reveal that the tellers knew at that time that the FBI had apprehended a suspect, but they did not know that Marson was the man, nor was his picture pointed out to them. Undisputed is the fact that neither Marson nor any attorney acting in his behalf was informed of the pending photographic identifications.⁶

Marson's trial was scheduled to begin on November 15, some seven months after these identifications. As Marson had previously made several pre-trial motions which required the taking of evidence, a hearing was set for Monday, November 14, and those witnesses who were to testify thereat were subpoenaed to appear Monday morning. At the start of the hearing defense counsel requested that the witnesses be sequestered. The request was granted, and the hearing began. However, the presentation of testimony in connection with the pre-trial motions was not completed on Monday, and the hearing was continued over until Tuesday. As it had not been anticipated that the hearing would continue beyond Monday, the prospective jurors and those witnesses whose presence was not necessary at Monday's hearing had been summoned to appear Tuesday morning. These witnesses, including the four bank tellers who arrived at the appointed time, were seated at the rear of the courtroom when Marson, in the company of deputy marshals, entered the room. All four tellers saw him enter and immediately recognized him. Apparently a brief conversation took place among the tellers at that time as they commented to one another that the robber had just entered the room. Testimony indicated that Marson and the officers accompanying him were all clad in business suits and Marson's attire and general appearance did not differ from that of the officers except that he was not as tall as the others in the group.

As the prospective jurors had then arrived, the court decided to postpone the hearing of the pre-trial motions until after the selection of the jury. During the voir dire examination, Marson was called by name and was told to stand and face the jury. This was witnessed by the bank employees who were still seated in the courtroom. Shortly thereafter, their presence was called to the attention of the defendant's counsel who moved that they not be permitted to testify at trial as they had violated the sequestration order. The motion was denied by the trial judge who expressed his opinion that the order of the previous day had been prompted by the desire of defense counsel that the testimony of each of the witnesses testifying at the pre-trial proceedings be received out of the hearing of the others. Those witnesses, the court announced, were still excluded and "all other witnesses will now be excluded whenever the defendant asks that they be excluded." The court further suggested that defense counsel might cross-examine the bank employees concerning whether they saw the defendant when he stood and was identified for the prospective jurors. At trial, however, counsel for the Government inquired on direct examination as to when the witnesses had next seen the defendant after the robbery. All the tellers replied that they had seen him enter the courtroom Tuesday morning...