United States of America v. Moses Lewis, Appellant, 456 F.2d 404 (3d Cir. 1972)

This appeal from a judgment of conviction of bank robbery, in violation of 18 U.S.C. § 2113(a) and Sec. 2113(d), presents evidentiary and jurisdictional questions and challenges the legality of the in-court identifications of appellant upon which the conviction was based.

On April 23, 1970, three armed men entered the Fort Mylner Branch of the Virgin Islands National Bank and, at gun point took $36,255.00. Appellant was arrested and charged with bank robbery in two counts on May 20, 1970. A photographic array was presented to one witness the next day. He could make no positive identification. The same array was shown to a second witness on June 1, 1970, and again no identification was made. On June 25, 1970, a line-up was held by court order. Counsel for appellant was present, and he participated in the selection of the ten persons displayed in the line-up. When the witnesses to the line-up made their identifications and were questioned by the government, however, counsel was excluded. A trial of appellant and two co-defendants resulted in a hung jury. Appellant was retried and the jury returned a verdict of guilty on both counts on December 5, 1970. This appeal followed.

To mitigate the impact of three positive eyewitness identifications at trial, appellant forges a challenge predicated on United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and United States v. Zeiler, 427 F.2d 1305, 1307 (3d Cir. 1970), in which this court held that " [t]he considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody." For several reasons, however, appellant's reliance on Zeiler is misplaced.

No testimony was adduced relating to the photographic examinations. Indeed, no photographic identification was made by any witness. Appellant argues that this is of no moment, "because the Wade decision was aimed solely at nullifying any chance for suggestiveness." But the inability of eyewitnesses to make an identification from the photographic display belies any notion of suggestiveness. Moreover, it is only when a pre-trial identification has been made that concern is generated because " [a] witness once induced by such a suggestive confrontation into making a mistaken identification, is extremely unlikely later to change his mind." Zeiler, supra, 427 F.2d at 1306-1307. The admission of a photographic identification as substantive evidence of guilt is a sine qua non of a Wade-Zeiler claim. Thus, Zeiler may be distinguished on the very two grounds on which constitutional error was there found: photographic identification in the absence of counsel and testimony to that effect at trial. Zeiler, supra, 427 F.2d at 1307.¹  In any event, the trial court expressly found that "on examination of the 18 photographs I find no such suggestiveness as the record in Zeiler indicates."

Similarly, the court-ordered line-up was expressly found by the district court to be devoid of any suggestiveness. Nonetheless, the court excluded any evidentiary reference to the line-up. Out of exceptional caution, Judge Christian ruled that despite the absence of suggestiveness and the presence of counsel both at the time of participant selection²  and during the line-up itself, the failure by the government to permit counsel's presence when the viewers made their identifications rendered inadmissible all identification testimony based on the line-up. In so doing, Judge Christian noted that no objection to the line-up had been posed, and that his rejection of the proferred identification evidence came from the spirit, rather than the letter, of Wade.³  See Government of the Virgin Islands v. Callwood, 440 F.2d 1206, 1208 (3d Cir. 1971).

So postured, the government's proof of identification was thus made subject to the formidable standard enunciated in Wade: the Government must be given "the opportunity to establish by clear and convincing evidence that the incourt identifications were based upon observations of the suspect other than the lineup identification." Wade, supra, 388 U.S. at 240, 87 S. Ct. at 1939. Government of the Virgin Islands v. Call-wood, supra, 440 F.2d at 1209. This standard, characterized by Judge Christian as a "heavy burden," was deemed by the trial court, after an exhaustive hearing out of the jury's presence,⁴  to have been met by the government. The finding was based on the court's evaluation of the potential witnesses' credibility.⁵ 

Assuming, without deciding, that the government was properly put to the "clear and convincing evidence" standard in adducing its identification testimony, we must agree with Judge Christian that the in-court identifications of all three witnesses were free from any possible taint.⁶  Thus, while we need intimate no view toward the necessity of excluding the line-up identification testimony, we hold that the in-court identification testimony was properly admitted for the jury's consideration.

Appellant argues next that the admission of a bag containing $90.00, allegedly found in an area into which the robbers were alleged to have fled, created reversible error. Although the bag and the money were admitted at the outset of the trial, defense counsel objected on the ground of irrelevancy. At the close of trial, the court reversed itself and excluded the money and bag because the prosecution had failed to establish a connection relevant to the robbery. Thus, appellant contends that the display of this evidence before the jury "had a prejudicial effect" because " [t]he jury had, from the time of admittance of this evidence, some four (4) days to ponder and consider this evidence in relation to the crime and the rest of the evidence brought before the court."

No argument is presented suggesting any way in which appellant was actually prejudiced. Indeed, if the temporary presence of this evidence had any effect on the jury at all, in light of the trial court's thorough instruction on this point, it may have been to cast the government's case in an unnecessarily weak light:

It was testified that about $90 worth of U. S. currency was found and it was displayed before you. I have stricken it from the record. It is now no longer a part of the case and you are to disregard it entirely. The same applies to a paper bag that I at one time admitted into evidence. I have now reversed that ruling and it is no longer to be considered by you. I have taken this step because there is not sufficient connection between that $90 and any money shown to have been taken from the bank. There is no connection between that paper bag and any paper bag to which it was testified the alleged bank robbers held in hand. Therefore, you are to disregard those items completely.

Assuming the propriety of the ruling which struck this evidence, we find no error here.

Finally, appellant contends that the Virgin Islands District Court, because it is a legislative, rather than constitutional court, lacked the power under 18 U.S.C. § 2514 to grant immunity to a witness who testified for the government. Sec. 2514 vests such power only in "court [s] of the United States." Section 22 of the Revised Organic Act of the Virgin Islands (48 U.S.C. § 1612) states that " [t]he District Court of the Virgin Islands shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties and laws of the United States. . . ." Yet "vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a 'District Court of the United States."' Mookini v. United States, 303 U.S. 201, 205, 58 S. Ct. 543, 545, 82 L. Ed. 748 (1938).⁷  See also, Hendricks v. Alcoa Steamship Co., 206 F. Supp. 693, 696 (E.D. Pa. 1962). Thus, a territorial court may be a "court of the United States" for some purposes, but not for others. Compare Talbot v. McCarrey, 218 F.2d 565, 566 (9th Cir. 1955) with International Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 72 S. Ct. 235, 96 L. Ed. 275 (1952).⁸ 

Although the district court found the authority conferred by Sec. 2514 to be an implementary power implicit in the jurisdictional mandate of the Revised Organic Act, we find ourselves precluded from resolving this troublesome issue. We are persuaded that appellant does not have standing to challenge the grant of immunity to the witness.

In Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965), the court found that in light of the Supreme Court's decision in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964), the trial court had erred in overruling a claim of privilege against self-incrimination asserted by witnesses called by the government to testify against defendant. The court then held:

This, however, does not entitle Bowman to a reversal. It has long been settled that the privilege against selfincrimination is personal to the witness. (Hale v. Henkel, 1906, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652; McAlister v. Henkel, 1906, 201 U.S. 90, 26 S. Ct. 385, 50 L. Ed. 671; United States v. Murdock, [284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210]; United States v. White, 1944, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542; Rogers v. United States, 1951, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344; Communist Party of United States v. Subversive Activities Control Board, 1961, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625.)

Thus, the court concluded:

It makes no difference, we think, that the two witnesses did attempt to assert the privilege and that the court erroneously overruled their claim of privilege. Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. On this point the authorities are practically unanimous. (Citations omitted and emphasis supplied.)

Bowman, supra, 350 F.2d at 916.

The challenge to the admission of witness Parson's testimony on the ground that the court erroneously granted him immunity is on no firmer footing than would be an objection to evidence seized in violation of Parson's Fourth Amendment rights. See Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 967, 22 L. Ed. 2d 176 (1969):

We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights may not be vicariously asserted. Simmons v. United States, 390 U.S. 377, [88 S. Ct. 967, 19 L. Ed. 2d 1247] (1968); Jones v. United States, 362 U.S. 257 [80 S. Ct. 725, 4 L. Ed. 2d 697] (1960); Compare Tileston v. Ullman, 318 U.S. 44, 46 [63 S. Ct. 493, 494, 87 L. Ed. 603] (1943).⁹ 

Constitutional considerations aside, moreover, cogent policy reasons underscore the concept of minimizing challenges to relevant testimony. As Judge Gibbons noted in In re: Grand Jury Proceedings, 450 F.2d 199, 222-223 (3d Cir. 1971) (dissenting opinion):

[I]t has been recognized for at least three centuries that the public has the right to every person's testimony. Every witness privilege is seriously in derogation of a general and fundamental duty. United States v. Bryan, 339 U.S. 323, 333, 70 S. Ct. 724, 94 L. Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S. Ct. 252, 76 L. Ed. 375 (1932); Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979 (1919). . . .

Next, we must keep before us the nature of the American judicial process. It resolves cases and controversies in an adversary setting. It does not have machinery for righting all wrongs which may surface in any given case or controversy. Determination of the rights of third parties inevitably interrupts, delays and confuses the primary litigation. . . .

. . . Speaking of the less drastic step of an exclusionary rule to which a party may resort, Justice Frankfurter wrote:

"Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land." Nardone v. United States, 308 U.S. 338, 340, 60 S. Ct. 266, 267, 84 L. Ed. 307 (1939).

We hold, therefore, that appellant has no standing to contest the propriety of the grant of immunity to a witness who testified against him. United States v. Le Pera, 443 F.2d 810, 812 (9th Cir. 1971); Long v. United States, 360 F.2d 829, 834 (D.C. Cir. 1966); United States ex rel. Berberian v. Cliff, 300 F. Supp. 8, 14 (E.D. Pa. 1969). Cf., Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 799 (1969).

The judgment of conviction will be affirmed.