# United States v. Larry Brown > Court of Appeals for the Second Circuit · March 16, 1981 · 644 F.2d 101 URL: https://www.frixlaw.com/law-library/cases/9467723 ## Case - **Full name:** UNITED STATES of America, Appellee, v. Larry BROWN, Appellant - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 16, 1981 - **Citations:** 644 F.2d 101; 1981 U.S. App. LEXIS 19200 - **Precedential status:** Published - **Opinion:** Dissent by Oakes - **Judges:** Moore, Mulligan, Oakes - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467723 ## How later opinions describe it (automated extraction) - declining to impose “a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other special relationships which might bear directly or indirectly on the circumstances of a given case, where . . . there is no showing of act… - declining to follow Allsup 's holding ## Opinion text OAKES, Circuit Judge (dissenting): I dissent. The majority holds that an in-court voice identification made in the presence of the jury was constitutionally proper. The majority justifies its holding on the following bases: (1) because the robber was disguised, voice identification was appropriate; (2) defense counsel was in the courtroom and had an opportunity to cross-examine the witness; (3) counsel was advised in advance that the in-court voice identification would take place and failed to mitigate the suggestiveness of this procedure by requiring another person to speak or by changing the text of what was spoken. I find it difficult to fathom this reasoning. First, that the robber disguised himself with a ski mask is an argument for permitting a voice identification; it is not an argument for permitting either a suggestive or a prejudicially conducted identification procedure. Second, that the identification was made in the presence of defense counsel who could cross-examine the witness can be said of any courtroom identification. But it is of no avail to a defendant that his counsel can cross-examine an identification witness after a suggestive and prejudicial identification has been made. Third, although it is true that counsel was “advised in advance” that this procedure would be employed, the record indicates that he was flatly denied the opportunity to mitigate suggestiveness either by having other persons also speak or by changing the words spoken. At a bench conference during the trial, the prosecutor said: "... in the context of the [identification] witness’ testimony, I would like to order Mr. Brown to get up and state ‘Give me your money or I am going to blow you up’ — so the members of the jury can hear what his voice sounds like.” Defense counsel replied: I would strenuously object.... [S]imply having the defendant say that in front of the jury is going to be very prejudicial .... The problem is suggestivity. By simply having this in-court proceeding, in front of the juiy, number one, the government is going to be raising an inference to the jury, simply by having him testify, that it is the guy.... I think if the procedure is going to be done it should be done out of the hearing of the jury, and then allow the witness to testify as to whether or not she had any opportunity to make any voice identification. I think it is akin to a show-up situation. But the court rejected counsel’s argument as to suggestiveness based upon the “show- *106 up” aspect of the procedure. 1 Counsel then specifically objected to the text of what was to be spoken. Counsel stated: The other part is the prejudicial effect of having the defendant utter those words in front of the jury alone.... [W]e would ask the Court to require the defendant to say something other than “give me all the money” — something like “it is snowing outside” — “my name is Larry Brown, I am from Burlington.” However, the court denied this objection as well. I do not know how counsel could have made more clearly his objections both to the inherent suggestiveness of the proposed voice identification procedure and to the prejudicial effect of having the defendant speak the very words in front of the jury— “give me your money or I am going to blow you up” — that the witness testified the robber had used. In my view, the court erred in not sustaining the objections. There are instances in which in-court identifications, or other similar procedures, are so suggestive that they constitute prejudicial error and require a new trial. For example, in United States v. Warf, 529 F.2d 1170, 1174 (5th Cir. 1976), the prosecutor called a key witness to identify the defendant as the person who had made incriminating statements to the witness regarding a bank robbery. During direct examination, the prosecutor assisted the witness in this identification both verbally and by pointing. The court found this behavior to be completely inappropriate and, because the witness’ testimony was critical, ruled that this and another error at trial were prejudicial. In another series of cases, see, e. g., Gaito v. Brierley, 485 F.2d 86, 88-89 (3d Cir. 1973); Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972); Hernandez v. Beto, 443 F.2d 634, 636-37 (5th Cir.), cert. denied, 404 U.S. 897 , 92 S.Ct. 201 , 30 L.Ed.2d 174 (1971), courts have held that compelling a defendant to appear before a jury in his prison clothes unconstitutionally infringes his due process right to be presumed innocent until proven guilty. The problem in each of those cases, of course, was that the very sight of the defendant in prison garb suggested to the jury that he was guilty of a crime. See also United States v. Roth, 430 F.2d 1137, 1140-41 (2d Cir. 1970) (held erroneous, though harmless, to permit a witness to walk through the courtroom during a recess to see if he could identify the individual who had operated a mail fraud scheme; “when a walk through occurs ... more likely than not, the defendant will be sitting at the counsel table, the very place the witness would look to find him”), cert. denied, 400 U.S. 1021 , 91 S.Ct. 583 , 27 L.Ed.2d 633 (1971). 2 Here, we have the worst aspects of both the Warf and the “prison garb” cases. In arranging for Brown alone to stand up in court to speak, the prosecutor in the instant case sought to provide the same type of assistance to the witness that the prosecutor provided in Warf . The prosecutor here could have contacted defense counsel in advance of the trial and arranged a non-suggestive voice identification procedure. Alternatively, the court could have ordered the witness, during the trial, to listen to several voices and then attempt to identify the one belonging to the robber. Beyond this, by having the defendant utter the threatening and menacing words that the robber had allegedly used, the Government, as in the “prison garb” cases, gave the defendant an aura of criminality, *107 thus providing a strong suggestion to the jury of his guilt. It is hard for me to conceive of a more prejudicial method of establishing a voice identification. Only if the jury had gone down to the bank and watched the defendant put on a ski mask, wave a toy gun, and shout “Give me your money or I’m going to blow you up,” could Brown have been worse off. I know of no case — certainly neither the Government in its brief nor the majority in its opinion has found one — which justifies the use of an in-court identification procedure as suggestive and prejudicial as the one used here. Without belaboring this dissenting opinion, I would only add a comment on the conflict between circuits created by the majority’s holding that a juror who was a bank teller employed in a branch of the very bank that was robbed may sit on the case, once having said that she felt no prejudice. This court has long recognized that a distinction must be drawn between “actual bias” and “implied bias,” a distinction which led Judge Waterman to write in United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968) (citation omitted), cert. denied, 393 U.S. 1120 , 89 S.Ct. 996 , 22 L.Ed.2d 124 (1969): The question of implied bias remains. In determining whether a prospective juror should be excluded on this ground his statements upon voir dire are totally irrelevant; a person “may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.” And I believe that the Ninth Circuit, in United States v. Allsup, 566 F.2d 68 (9th Cir. 1977), a case on all fours with the instant one, provides an eminently reasonable explanation for its conclusion that employees of a branch office of the bank that was robbed would probably be biased. Based on the fact that “[pjersons who work in banks have good reason to fear bank robbery because violence, or the threat of violence, is a frequent concomitant of the offense,” Judge Hufstedler’s opinion in Allsup held that “[t]he employment relationship coupled with a reasonable apprehension of violence by bank robbers leads us to believe that bias of those who work for the bank robbed should be presumed.” Id. at 71-72 ; see United States v. Panza, 612 F.2d 432, 441 (9th Cir. 1979), cert. denied, 447 U.S. 925 , 100 S.Ct. 3019 , 65 L.Ed.2d 1118 (1980). Indeed, the situation in the instant case was exacerbated because the mechanics and timing of the bank alarm system were to be the subject of heated examination and argument, and the juror in question conceded her familiarity with the operation of the security system. In short, I find the Ninth Circuit’s analysis preferable to the one enunciated by this circuit for the first time today. Furthermore, I am disturbed that defense counsel had to use one of Brown’s peremptory challenges to remove this juror, and was forced to leave on the jury a person who had seen a newspaper photograph of the defendant in handcuffs. The denial or impairment of the right to challenge peremptorily is reversible error, even without a showing of prejudice. See, e. g., Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759 (1965); United States v. Turner, 558 F.2d 535, 538-39 (9th Cir. 1977); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). For all these reasons, I would reverse and remand for a new trial. . The court refused to accept the alternative procedure suggested by the defense of having the witness blindfolded and asked to choose from among several voices. . To be sure, there are instances in which potentially unconstitutional in-court identifications are permitted because a confrontation between the witness and the defendant had not been anticipated or arranged by the prosecutor. See, e. g., United States v. Gentile, 530 F.2d 461, 468 (2d Cir.) cert. denied, 426 U.S. 936 , 96 S.Ct. 2651 , 49 L.Ed.2d 388 (1976); United States v. Kaylor, 491 F.2d 1127, 1131-32 (2d Cir. 1973), modified on other grounds, 491 F.2d 1133 (2d Cir. 1974) (en banc), vacated on other grounds sub nom., United States v. Hopkins, 418 U.S. 909 , 94 S.Ct. 3201 , 41 L.Ed.2d 1155 (1974). But in the instant case, the prosecutor brought about the confrontation between witness and defendant. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467723. Public record. Not legal advice.