United States v. Sheehan, Crim. No. 75-394-F.

• Decision Date: 01 November 1977
• Docket Number: Crim. No. 75-394-F.
• Parties: UNITED STATES of America v. William Joseph SHEEHAN.
• Court: U.S. District Court — District of Massachusetts

442 F. Supp. 1003

UNITED STATES of America v. William Joseph SHEEHAN.

Crim. No. 75-394-F.

United States District Court, D. Massachusetts.

November 1, 1977.

Asst. U. S. Atty., Robert B. Collings, Boston, Mass., for U. S.

Martin G. Weinberg, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

FREEDMAN, District Judge.

This matter is before the court for consideration of William J. Sheehan's motion for a new trial. On November 25, 1975, a jury found Sheehan guilty of bank robbery and assault in violation of 18 U.S.C. § 2113(a) and (d). The court subsequently dismissed the count involving 18 U.S.C. § 2113(a). He was sentenced by this court on December 10, 1975 to a term of imprisonment of twelve years. His conviction was affirmed by the Court of Appeals for the First Circuit on July 13, 1976 (No. 75-1484). The basis of the present motion centers around the failure of the government to provide the defendant Sheehan with certain information regarding a William A. Coale. Coale was apparently the only eyewitness to the bank robbery who had seen the unmasked faces of the robbers.

The Trial Evidence

Sheehan was indicted for the robbery of the First National Bank of Yarmouth, Massachusetts on Route 28, which occurred on August 19, 1975. Evidence presented at the trial indicated that shortly before the robbery a tan van, owned by the "Bits and Baggage" store and stolen earlier that day, had pulled up in front of the bank. Three occupants of the van alighted from the vehicle, and wearing ski masks on their faces, entered the bank and robbed it. Trial Transcript, Vol. 2, pp. 7, 43, 56, 58-61, and 129-131. None of the witnesses called at the trial saw the unmasked faces of the three robbers who entered the bank.

The government theorized that Sheehan was the short, stocky man with a shotgun who remained in the lobby area of the bank. Various government witnesses estimated this man's height at 5'6" to 5'9". Tr. Vol. 2, pp. 8, 25-26. A bank teller who testified for the defense estimated this robber's height at about 5'9", under 6'. Tr. Vol. 3, p. 3-11. However, other witnesses in the bank described the shortest robber only as short and stocky. Sheehan is 5'4". Tr. Vol. 3, pp. 3-35 and 3-36. The government also presented bank surveillance photographs taken during the robbery which tended to show that the man with the shotgun had a short right thumb, as does Sheehan. Other surveillance photographs did not reveal this characteristic.¹

Other evidence which was actually presented against Sheehan at trial may be summarized as follows. A government witness testified that soon after the robbery he followed the getaway van for a short while and saw it turn into a dirt road. Tr. Vol. 2, pp. 70-71. He reported this information to a police officer, Tr. Vol. 2, p. 71, who found the van abandoned on the dirt road and observed automobile tracks leading from the van. Tr. Vol. 2, pp. 74-75. Another witness, an employee of a zoo located near the dirt road, testified that at approximately 3:00 p. m., on August 19, 1975, she observed a yellow or tan Pontiac or Oldsmobile traveling down the road. Tr. Vol. 2, pp. 77-78. Another witness, who was waiting for his family in a car in a parking lot near the zoo, testified that he saw two or three persons get out of a tan² car in the parking lot³ and approach another vehicle directly in front of the tan car. Tr. Vol. 2, pp. 83-86. One of these individuals placed something in the trunk of the second vehicle, although the witness did not see the object actually removed from the first car. Tr. Vol. 2, p. 86. The witness stated that he heard the individual in the tan car say, "I have got to get out of here," and then the tan car took off rather quickly toward the main entrance to the parking lot. Tr. Vol. 2, p. 87. The witness could not tell which direction the tan car went on Route 28 upon leaving the parking lot, but was able to observe that the vehicle had a Massachusetts registration with the last three digits 912. Tr. Vol. 2, pp. 87-88. The two or three other individuals got into the second car⁴ and followed the first vehicle. Tr. Vol. 2, p. 88. This information was transmitted to the police who subsequently stopped a yellow vehicle with a license number having the last three digits 912. Tr. Vol. 2, pp. 97-102. The witness also observed the vehicle while it was stopped on Route 28 by the police and noted that it "looked like the one I had seen in the parking lot . . .." Tr. Vol. 2, p. 90. The stopped yellow car belonged to, and was driven by, the defendant Sheehan. Tr. Vol. 2, p. 104. No weapons were found on Mr. Sheehan or in the car. Tr. Vol. 2, pp. 103, 108-109. Nor was other evidence of the robbery found in the car. Tr. Vol. 2, pp. 108-109.

The following day, a stolen car was found abandoned at a beach parking lot and impounded by the authorities. Tr. Vol. 2, pp. 140-141, 146-147, and 162. This car contained a sales slip from "Bits and Baggage", Tr. Vol. 2, p. 145, which was identified by the store's owner as having been in the van sometime prior to its theft. Tr. Vol. 2, pp. 135-136. A parking receipt from a restaurant lot was discovered in the radiator shroud of this car. Two attendants from that lot identified Sheehan as being one of the two individuals who had been in this stolen car on August 13, 1975, six days before the bank robbery. Tr. Vol. 2, pp. 165-170, 180-181.

Undisclosed Information Provided to the Government by William Coale

William Coale, who was never called as a witness at trial, saw the unmasked faces of the three robbers who entered the bank, as well as that of the driver who remained in the van. According to the information Coale provided to the Federal Bureau of Investigation ("FBI"), he was parked in an automobile directly in front of the bank on August 19, 1975, waiting for his father-in-law, Gustav R. Woernle, who had just gone inside the bank. While there, the tan van pulled up and parked to the right of Coale's car.⁵ Coale was apparently the only one to observe the robbers alight from the van and then put on their masks. The driver remained in the vehicle and pointed a handgun at Coale while the other robbers were in the bank. Shortly after taking out the gun, the driver pulled a light colored handkerchief over his face.

The information obtained from Coale was not directly given to Sheehan at any time prior to sentencing.⁶ Rather, it was only discovered subsequently by Sheehan's counsel during the course of discovery concerning another defendant allegedly involved in the same robbery.

Coale was initially interviewed by the FBI on October 28, 1975, although the government asserts it only received the information regarding this interview no more than ten days before the trial. Collings Affidavit ¶ 8. During the interview, Coale related the information noted, supra at p. 5, and gave a description of the three robbers who entered the bank and the driver who remained in the van. He was shown an array of photographs from which he identified one picture as "looking like the guy in the truck, the driver."⁷ Sheehan's picture was not included in this display, although he had already been indicted. The government maintains that since it has never contended that Sheehan was the driver of the van, it was not necessary to include his picture in the photographic display shown to Coale. However, this court notes that before any pictures were shown to Coale, he had given the FBI a description of all four robbers. The court thus finds it rather curious that Sheehan's picture was not included within this photographic display.

On November 28, 1975, three days after Sheehan's conviction, but before he was sentenced, the government again displayed a group of photographs to Coale. Sheehan's photograph was included in this group. According to the FBI report, Coale selected Sheehan's picture and stated that "this individual appears to be similar to a face I've seen, but someone I do not know." However, the FBI report states that Coale was unable to indicate that Sheehan was similar or identical to any of the individuals he had seen entering the First National Bank of Yarmouth on August 19, 1975.⁸ The information from this interview was not received by the United States Attorney until February 12, 1976. Collings Affidavit ¶ 9.

Subsequently, on June 10, 1976, Coale was again shown a spread of photographs which included Sheehan's picture. According to the FBI record of this interview, Coale advised the FBI that "the photograph of Sheehan was similar in appearance to one of the individuals who exited a van in front of the bank and entered the bank while putting on a mask." However, Coale also stated that "he could not be positive in this identification" but that "Sheehan was similar in appearance to one of these individuals." Coale then selected two additional photographs which also appeared familiar to him.⁹

Conclusions of Law

The court rejects at the outset any argument advanced by the government that its failure to turn over to Sheehan evidence obtained from or concerning Coale was justified since that evidence was not received by the United States Attorney's office until either shortly before trial or after conviction. The government's constitutional obligation to disclose exculpatory evidence to the defendant is a continuing one. United States v. Seijo, 514 F.2d 1357 (2d Cir. 1975).¹⁰ In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court, in holding that prosecutors are immune from suit under 42 U.S.C. § 1983, commented upon the prosecutor's

duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial this duty is enforced by the requirements of due process, but after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the

...