Wade v. United States, No. 22976.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWARREN L. JONES, Circuit (dissenting)
Citation358 F.2d 557
PartiesBilly Joe WADE, Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 22976.
Decision Date11 May 1966

358 F.2d 557 (1966)

Billy Joe WADE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 22976.

United States Court of Appeals Fifth Circuit.

March 31, 1966.

Rehearing Denied May 11, 1966.


Weldon G. Holcomb (Court-appointed), Tyler, Tex., for appellant.

H. D. Nicholson, Asst. U. S. Atty., Wm. Wayne Justice, U. S. Atty., Tyler, Tex., for appellee.

358 F.2d 558

Before TUTTLE, Chief Judge, and JONES and WATERMAN,* Circuit Judges.

TUTTLE, Chief Judge.

Billy Joe Wade was arrested in Houston, Texas, on the 2nd day of April, 1965. He had been indicted by a federal grand jury for the Eastern District of Texas, which charged that, along with Briggs and Pickett, he had conspired with them to rob, and had robbed, a federally insured bank at Eustace, Texas. It is apparent that the indictment was based entirely upon the testimony given by the alleged accomplices, who had been arrested and sentenced on another offense some time earlier.

The trial court appointed counsel on April 26, 1965, at which time Wade was in custody in the Smith County Texas Jail. Thereafter, without notice to counsel, on May 12th, the appellant was taken from his cell to the second floor of the courthouse. At that time, the president and cashier of the bank, the only persons who were present at the time of the robbery, were in the courtroom, where a lineup was to take place. They observed Wade in the hall outside the courtroom in the custody of an officer, and thereafter, following the assembly of five other persons, Wade was put in the lineup of six people. Each of the six men in the lineup had had some bandages affixed to his face in a manner which the witnesses had stated had been worn as a disguise by the person who had robbed the bank. The lineup was conducted by Special Agent Albert of the Federal Bureau of Investigation. The record discloses that while they were in the lineup, "Mr. Albert asked them some questions — to step forward and so forth."

The witnesses, Mr. Gray and Mrs. Chambers, identified the appellant in the lineup as the individual who robbed the First State Bank of Eustace. Later, at the trial, both Briggs and Pickett testified as to their participation with Wade in the robbery and the identification was repeated by Mrs. Chambers and Mr. Gray. Wade was found guilty by the jury and sentenced by the trial court to serve five years on the first count and fourteen years on the second count, the sentences to run concurrently.

Although the record does not show exactly what oral statements were required to be made by Wade during the lineup, government counsel, in oral argument, commendably conceded that each of the persons in the lineup was required to repeat words something like, "Put the money in this bag", in order that the witnesses could hear similar words to compare with their recollection of the sound of the voice of the person who gave them such instructions at the time of the robbery.1

Appellant's attack on his conviction and sentence here is two-fold. He complains, first, that the manner in which he was brought to the attention of the principal non-accomplice witnesses against him for identification purposes, amounted to a requirement that he give evidence against himself in violation of the Fifth Amendment, and that, second, subjecting him to the lineup under the circumstances here stated, in the absence of his counsel, after the accusatory stage of the prosecution had commenced, deprived him of the right to counsel at a critical stage of the proceedings in violation of the Sixth Amendment to the Constitution. He says that the later identification by the bank officials in open court was necessarily poisoned by their earlier identification of him conducted in the prejudicial manner outlined, and that, thus, it was error to receive the testimony of the two witnesses who identified in open court. Appellant relies on

358 F.2d 559
the cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246

Appellant concedes that the courts have repeatedly held that an ordinary lineup of an accused person with others for the purpose of having them viewed by victims of the alleged crime for purposes of identification does not run afoul of the self-incrimination provisions of the Fifth Amendment. Although no Supreme Court decision on this precise point has been cited nor found by us, there is the well-known dictum of Mr. Justice Holmes in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, where it is said that the prohibition of the Fifth Amendment "is a prohibition of the use of...

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33 practice notes
  • Gilbert v. United States, No. 19940.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 24, 1966
    ...rights." United States ex rel. Stovall v. Denno, 2 Cir., 1966, 355 F.2d 731, 739. The exception is Wade v. United States, 5 Cir., 1966, 358 F.2d 557. Wade is a two to one decision. Judge Tuttle wrote the majority opinion; Judge Jones dissented. The casting vote was by Judge Waterman of the ......
  • Thigpen v. Cory, No. 85-1641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 19, 1986
    ...not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F.2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibili......
  • Fuller v. United States, No. 19532.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 20, 1967
    ...here material, was a new application of the right, though one Court of Appeals recently had made the same ruling. Wade v. United States, 358 F.2d 557 (5th Cir.). But the principle was not new, as is demonstrated by the above quotations from the Court's opinion. Non-retroactivity was based o......
  • United States v. Wade, No. 334
    • United States
    • United States Supreme Court
    • June 12, 1967
    ...held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights * * *.' 358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53, and set the case for oral argument with No. 223, Gilbert v. State of Ca......
  • Request a trial to view additional results
33 cases
  • Gilbert v. United States, No. 19940.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 24, 1966
    ...rights." United States ex rel. Stovall v. Denno, 2 Cir., 1966, 355 F.2d 731, 739. The exception is Wade v. United States, 5 Cir., 1966, 358 F.2d 557. Wade is a two to one decision. Judge Tuttle wrote the majority opinion; Judge Jones dissented. The casting vote was by Judge Waterman of the ......
  • Thigpen v. Cory, No. 85-1641
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 19, 1986
    ...not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F.2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibili......
  • Fuller v. United States, No. 19532.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 20, 1967
    ...here material, was a new application of the right, though one Court of Appeals recently had made the same ruling. Wade v. United States, 358 F.2d 557 (5th Cir.). But the principle was not new, as is demonstrated by the above quotations from the Court's opinion. Non-retroactivity was based o......
  • United States v. Wade, No. 334
    • United States
    • United States Supreme Court
    • June 12, 1967
    ...held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights * * *.' 358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53, and set the case for oral argument with No. 223, Gilbert v. State of Ca......
  • Request a trial to view additional results

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