United States v. Phillips

• Decision Date: 02 June 1970
• Docket Number: No. 24485.,24485.
• Citation: 427 F.2d 1035
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Dale PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

427 F.2d 1035 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Dale PHILLIPS, Defendant-Appellant.

No. 24485.

United States Court of Appeals, Ninth Circuit.

June 2, 1970.

Tom O'Toole (argued), Tom Karas, Federal Public Defenders, Phoenix, Ariz., for appellant.

Lawrence Turoff (argued), Asst. U. S. Atty., Richard E. Burke, U. S. Atty., Phoenix, Ariz., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

BARNES, Circuit Judge:

On February 2, 1968, a national bank was robbed in Phoenix, Arizona, by an armed man, dressed in woman's clothes, wearing a wig, heavy pancake makeup and lipstick. On July 2, 1968, appellant was charged in two counts with robbery and armed robbery of a national bank, and on July 9th, 1968, he was indicted for it. After a not guilty plea, the trial court had an evidentiary hearing on the appellant's motion to suppress any "in-court" identification of appellant as the person who robbed the bank, based on the trilogy of 1967 cases (Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) and on Simmons v. United States, 390 U.S. 377, 88 S.C. 967, 19 L.Ed.2d 1247, decided in 1968.

The motion to suppress was denied, renewed at the trial which began on December 3, 1968, and again denied. At the conclusion of the Government's case a motion to dismiss on the same ground was made, and renewed after all evidence was in. Again each such motion was denied. Appellant was convicted on both counts, sentenced to ten years and takes this appeal.

Jurisdiction below rested on 18 U.S.C. § 3231; the statutes he was charged with violating were 18 U.S.C. § 2113(a) and (d). Jurisdiction of this appeal rests on 28 U.S.C. § 1291.

Two errors are urged: (1) the trial court's denial of the appellant's motion to dismiss, because of an unconstitutional line-up identification; (2) the denial of appellant's motion to acquit at the conclusion of the Government's case because of failure to prove the bank was insured with the Federal Deposit Insurance Corporation (hereinafter "F.D. I.C.").

I.

We consider the last point first. Appellant cites four cases, and appellee discusses the same four. None, as appellee states, "requires that proof that the bank deposits were federally insured be made only through the introduction of the certificate of insurance. These cases merely hold that such certificate was proof, but not the only acceptable method of proof." (Gov.Br. 14-15) That is true — but neither do they hold that the testimony here presented to establish this essential fact is sufficient to prove it, for in each case cited the bank's certificate was introduced in evidence. United States v. Bostic, 258 F.Supp. 977 at 978 (E.D.Penn.1966); Callahan v. United States, 367 F.2d 563 at 563 (9th Cir. 1966); United States v. Skiba, 271 F.2d 644 at 644-5 (7th Cir. 1959); Bayless v. United States, 147 F.2d 169 at 171 (8th Cir. 1945).

There is no question but that a proper showing that the bank was F.D. I.C. insured is an essential element of the crime charged. Hewitt v. United States, 110 F.2d 1 (8th Cir. 1940), and cases cited in n. 1, p. 5.

However, two of the four cases cited by both counsel solve our problem. We first note there is no evidence, testimonial or otherwise, in this case challenging the testimony of Walter Decker, operations manager of the bank, that the deposits of the bank were insured with the F.D.I.C. (R.T. 61). Therefore, "under such circumstances and for the purpose of this case it was not error to assume" the bank was so insured. (Skiba, supra, 271 F.2d p. 646) Furthermore, United States v. Bostic, supra, sets forth a different basis for the sufficiency of the reliability of the uncontested facts.

"Courts may take judicial notice of any fact `capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.\' Uniform Rule of Evidence 9(2) (d) (1965). See also McCormick on Evidence, § 325 at 691 (1954); 4 Barron Federal Practice & Procedure, Criminal, § 2153, page 171 (Wright Cum.Supp. 1964); IX Wigmore on Evidence, § 2571 at page 548 (3rd ed. 1940)." Id., 258 F.Supp. at 978. We find no merit in appellant\'s second contention.

II.

Turning to the "line-up" issue, we note that United States v. Wade, supra, held that a defendant is entitled to the aid of counsel at any time a "critical stage" exists, such as a post-indictment line-up. This was a pre-indictment line-up,¹ but we find no different general rules apply between a pre-indictment and a post-indictment line-up. Each must be fair to the ultimate defendant. We hold the defendant was entitled to counsel at either, so as to promote and insure fairness at the confrontation, and a full hearing at the trial on the issue of identification.

But every line-up had without counsel does not require a reversal of a conviction, or the rejection of in-court identification by a witness to whom the accused was exhibited before trial, if it can be established that such evidence had an independent origin² or that error in its admission was harmless,³ or both.⁴

In Wade, neither the line-up nor anything required of him therein violated Wade's Fifth Amendment right against self-incrimination. Specifically, in Wade, he was required to exhibit himself, and to speak. Using his voice thus as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself. (Wade, supra, 388 U.S. pp. 221-223, 87 S.Ct. 1926.) Here, Phillips was required to wear a wig. Cf. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).⁵

Because the Supreme Court could not determine from the record whether the court of appeals applied the prescribed rule of exclusion, or that the trial court had considered the nature of the in-court identification, the Wade case was remanded to the district court for the resolution of such issue.

In Gilbert,supra, the Supreme Court remanded the matter because Gilbert's counsel was not present at the line-up, and the trial court had not determined whether the in-court identification had been tainted by the illegal line-up procedure, or had an independent source or was harmless error. Counsel for Gilbert had asked for a hearing outside the jury's presence on the alleged illegality of the line-up, and this having been denied him — created a constitutional error.

Stovall v. Denno involved a one man show-up (or line-up) at the victim's hospital bed, and held only that the Wade and Gilbert constitutional rule was non-retroactive, thus denying Stovall relief.

In Simmons v. United States, supra, the facts are more closely parallel to those in the matter sub judice. In it, the Supreme Court taught that each case involving pretrial initial identification by photographs must be considered on its own facts, and convictions based on eyewitness' identification at trial, after such pretrial identification, will be set aside as prejudicial only if the pretrial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

With these cases in mind we first note that here a hearing was had on appellant's motion to suppress the in-court identification. That hearing disclosed certain facts. As appellant states:

On Friday, February 2, 1968, in a 3-4 minute period (M.S. 134), at approximately 5:15 p. m., the 27th Avenue and Camelback Road branch office of the Arizona Bank, Phoenix, Arizona, was entered and robbed by a lone bandit attired in knee socks, skirt, sweatertype blouse with a female bustline, shoulder length blonde wig with bangs, lipstick and heavy pancake make-up. (M.S. 63, 104, 116, 134-35).⁶

"At gunpoint (M.S. 100), and in a gruff male voice (M.S. 89, 116, 126, 134) the bandit robbed a teller, Mrs. Theodora Warnken, of approximately $862.00. The bandit fled the bank and drove off with an accomplice who was in a car waiting in an adjacent parking lot. (M.S. 141)"

We then continue by quoting from appellee's statement of facts.⁷

It was stipulated at the hearing the line-up was conducted without counsel for appellant present, and therefore that the Government had the burden to show by clear and convincing proof that the identification of the appellant at the trial was not tainted by the line-up.

After a full hearing, the court held there was no taint; denied the motion to suppress; and the matter proceeded to trial.

Appellant's brief devotes twenty-five pages to a detailed description of what the eye-witnesses testified to at the hearing on December 2, 1968, at the trial on December 4th and 5th, 1968, and what was stated to the F.B.I. by them at the pretrial showing of photographs on March 7th and 8th, 1968, and at the line-up of April 24th, 1968. Appellant urges that because:

(1) at the first pretrial showing of photographs there was no positive identification of appellant (though appellant was singled out as resembling the bandit);

(2) at the line-up one eye-witness positively identified the appellant and the other three tentatively identified him, being aided by voice identification, and appellant being the only one asked to speak;

(3) at the hearing and trial the four eye-witnesses positively identified the appellant as the armed robber;

these matters made his identification unfair, and tainted it.

We have read the testimony given at the motion to suppress and examined the photographs in evidence. We agree with the Government that there was nothing developed during the motion to suppress to indicate in any manner that the line-up was suggestive or unfair. The court held "that the government has sustained its burden by clear and convincing proof that the basis of the in-court identification is upon the observation of the respective witnesses, at the time of the robbery, of the defendant in this...