United States of America, Appellee, v. Nestor A. Mojica, Appellant, 442 F.2d 920 (2d Cir. 1971)

Nestor A. Mojica appeals from conviction on four counts of attempted bank robbery (one count), assault in the course of attempted bank robbery (two counts) and carrying a firearm in the commission thereof (one count) on trial to the jury in the United States District Court for the Western District of New York, Harold P. Burke, Judge. We find no error and affirm the judgment.

This appeal and the companion case of Homer O. Baker, Jr. arise out of a single trial. Mojica was charged with four counts, involving attempted bank robbery and assault with a dangerous weapon. Baker was charged with three counts, aiding and abetting Mojica in his criminal activities. A gunman had attempted to rob a bank in Irondequoit, New York, and when the teller fled he shot her "in the posterior section." He fired another shot at the manager and left the bank, getting into a Ford Econoline van, which was driven by another individual. Mojica was accused of being the gunman, and Baker the driver. They were found guilty on all counts. Both defendants claim that the showing of photographs of them to the witnesses after they had been subpoenaed and when defense counsel were not present denied defendants a fair trial and the right to counsel. We have ruled, however, that absent some showing of real prejudice, the pre-trial showing of defendants' photographs to witnesses does not deny due process or the right to counsel. United States v. Bennett, 409 F.2d 888, 899 (2d Cir. 1969), cert. denied sub nom. Haywood v. United States, 396 U.S. 852, 90 S. Ct. 113, 24 L. Ed. 2d 101 (1969); United States v. Baker, 419 F.2d 83, 89-90 (2d Cir. 1969), cert. denied, De Norscio v. United States, 397 U.S. 971, 976, 90 S. Ct. 1086, 1096, 25 L. Ed. 2d 265, 271 (1970). Here, defendants have failed to demonstrate the existence of anything more than speculative prejudice.

Mojica objects to the admission into evidence of certain items seized after a search of his place of abode, where he lived with his brother. At a suppression hearing, the government agents testified that the defendant's brother had consented to the search. Although the brother denied this, Judge Burke was certainly entitled to believe the government agents. Defendant Mojica further argues that his brother was incapable of consenting to the search vis-à-vis the defendant. However, the items seized were taken from the basement, an area not specifically set aside for the defendant. Therefore, the defendant's brother was fully competent to consent to the search. See, e. g., United States v. Cataldo, 433 F.2d 38 (2d Cir. 1970) (where there is joint control over an apartment, either tenant may consent to the search).

Judgement affirmed.