United States v. Howard Brown and Alexander Bishop

VAN GRAAFEILAND, Circuit Judge,

dissenting:

Although I agree with my colleagues that Agent Shea’s questioning of appellant Brown subsequent to Brown’s indictment violated his Sixth Amendment right to the assistance of counsel, see United States v. Henry, 447 U.S. 264, 269-75 , 100 S.Ct. 2183, 2186-89 , 65 L.Ed.2d 115 (1980), I disagree with their conclusion concerning the harm that resulted. The explanation for my differing view requires a more extensive discussion of the facts than appears in the majority opinion.

*595 Maxine Williams, who was an admitted participant in the bank robbery and who was identifiable as such in the bank surveillance photos, was questioned by FBI agents at her home on May 21,1980. This was two days prior to her arrest. At that time, she gave the agents a written statement admitting her participation in the robbery and identifying both Bishop and Brown as participants, although at that time she knew Brown only as “Hughie”.

Thereafter, all five of the participants were indicted, and three of them, Williams, Elizabeth Robinson, and Rahmien Sudan, pled guilty to charges flowing from the indictment. Williams agreed to cooperate with the Government, and, despite a Government report that she had been severely beaten by three men because of her anticipated role as a witness, she did testify. She told the jury that the five participants had planned the robbery at Elizabeth Robinson’s house on the night preceding the robbery and that they had walked from there to the bank on the day of the robbery. She described the robbery in detail and told the jury how the robbers fled in different directions on foot but ended up at Bishop’s house where the loot was divided.

Williams’ description of the robbery was corroborated one hundred percent by John Jackson, the assistant bank manager. Mr. Jackson was a retired police officer, who had had special training in observing incidents related to crimes. He testified that he had a clear and unobstructed view of Brown at a distance of twelve feet and for a period of seven seconds during which time Brown was unmasked. Jackson watched Brown as he then pulled down a stocking mask, climbed over the glass bandit-barrier fronting the teller’s cage and took the bank’s money. When Brown and his cohorts left the bank, Jackson ran to the window to see where they went. He then ran out the back door of the bank to get his car and follow them, saw them again, but lost them when they turned a corner. Jackson’s in-court identification of Brown as the robber who climbed over the bandit-barrier and Bishop as the man wielding a gun in the public area of the bank dovetailed exactly with the testimony of Williams.

The testimony of these two witnesses, standing alone, conceivably could have been rejected by the jury. However, no reasonable thinking person could have rejected two undisputed pieces of physical evidence which the Government offered. The first concerned the construction and dimensions of the bandit-barrier over which Brown climbed. The second concerned the existence and location of Brown’s fingerprints on that barrier.

The lower part of the barrier is constructed of wood, and is about four feet high. Above this is a horizontal wooden ledge, upon which customer transactions are conducted, and which protrudes about four inches from the wooden surface below it. Above this wooden ledge is a vertical sheet of plexiglass about seven to eight feet in height. Near the top of this glass is another wooden ledge which also protrudes about four inches. Undisputed testimony showed that a print of Brown’s thumb was lifted from near the top of the customers’ side of the glass barrier and that three of Brown’s fingerprints were lifted from the teller’s side, about four inches below the top of the barrier. Undisputed testimony also showed that blood was found in the same area as the fingerprints and that it was the same blood type as Brown’s.

Brown’s explanation that the fingerprints resulted from a demonstration of his leaping ability to his girlfriend two days prior to the robbery was described by Bishop’s counsel in a side-bar conference as “incredible”. 1 My learned colleagues disagree. They say that, if Brown “had been attempt *596 ing to dunk an imaginary basketball, he would have reached up and over the rim of the plexiglass barrier, leaving his fingertips just inside the top.” I cannot decide whether my colleagues really believe Brown’s fairy tale or whether they believe that jurors are more simple and gullible than they. Without attempting to solve this riddle, I merely point out that (1) assuming a person 5'11" tall could reach over two protruding wooden ledges and “dunk” a basketball, jumping from a standing position in his street clothes, that person would not touch the inside of the basket netting four inches below the hoop as he “dunked”, (2) Brown made no claim that he was attempting to “dunk” an imaginary basketball, and (3) Brown’s actual testimony, assuming one could bring himself to accept it, was that he “touched the top” of the plexiglass barrier, not that he reached four inches down the opposite side. It is not at all surprising that the “girlfriend” who allegedly saw Brown performing his prodigious athletic feat in a busy urban bank was not produced as a witness. I am convinced that there is only one explanation for the presence of Brown’s fingerprints on the inside of the bandit-barrier — Brown climbed over the barrier as Williams and Jackson testified he did. Because I have no doubt whatever that the jury would have convicted Brown without agent Shea’s testimony, Sales v. Harris, 675 F.2d 532, 541 (2d Cir.1982), I believe that its admission was harmless er: ror.

Appellant Bishop has no standing to assert reversible error on the ground that Brown was deprived of his Sixth Amendment right to counsel. United States v. Guanti, 421 F.2d 792, 799 (2d Cir.), cert. denied, 400 U.S. 832 , 91 S.Ct. 95 , 27 L.Ed.2d 64 (1970); United States v. Van Scoy, 654 F.2d 257, 266 (3d Cir.), cert. denied, 454 U.S. 1126 , 102 S.Ct. 977 , 71 L.Ed.2d 114 (1981). See also United States v. Ballentine, 410 F.2d 375 , 377 n. 2 (2d Cir.1969), cert. denied, 397 U.S. 928 , 90 S.Ct. 935 , 25 L.Ed.2d 107 (1970). My colleagues overturn Bishop’s conviction on the ground that he was deprived of his constitutional right to confront Brown as a witness. Again, I must disagree.

Maxine Williams testified that four persons, whom she named, participated with her in the bank robbery. Whether or not Brown named the same five participants when he talked with Agent Shea, went squarely to the weight which the jurors would give Brown’s alleged confession. A confession which dovetails with the testimony of one of the admitted participants in a crime is much more likely to be given credence than one which omits all details. The prosecutor quite logically, therefore, did not limit his questions to Bishop’s status as a participant; he also asked whether Brown had identified Robinson, Black (Sudan) and Williams as his cohorts in the robbery. Although Brown’s answer in each instance was “no”, my colleagues argue as if it were “yes”.

The “well-established rule in our Circuit is that a co-defendant’s statements must be ‘clearly inculpatory’ standing alone for Bruton to apply.” United States v. Slocum, 695 F.2d 650, 655-56 , (2d Cir.1982), quoting United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 439 U.S. 986 , 99 S.Ct. 581 , 58 L.Ed.2d 659 (1978) and United States v. Wingate, 520 F.2d 309, 314 (2d Cir.1975), cert. denied, 423 U.S. 1074 , 96 S.Ct. 858 , 47 L.Ed.2d 84 (1976) (emphasis in original). Assuming that Brown’s negative answers and Shea’s reference to four unidentified persons satisfied this requirement, the fact remains that Brown took the stand, exercised no Fifth Amendment rights, and was subject to full interrogation by Bishop’s counsel.

Half-quoting Bruton v. United States, 391 U.S. 123, 128 , 88 S.Ct. 1620, 1624 , 20 L.Ed.2d 476 (1968), my colleagues state, “the introduction of Brown’s statement was ‘in a form not subject to cross-examination ....”’ 2 I am afraid that my colleagues confuse “cross-examination” with “confrontation”.

*597 The right of cross-examination is not necessarily to be equated with the right of confrontation. When the declarant of the hearsay statements introduced into Peterson’s trial took the stand and willingly testified, Peterson’s sixth amendment right to confront the witness against him was afforded adequate recognition no matter what the trial testimony of the hearsay declarant turned out to be.

United States v. Peterson, 435 F.2d 192, 196 (7th Cir.1970), cert. denied, 403 U.S. 907 , 91 S.Ct. 2212 , 29 L.Ed.2d 683 (1971).

No legal magic attaches to the words “confrontation” and “cross-examination.” The only question is: did the defendant, whom the confession implicates, have an opportunity to confront the confessor?

United States v. Bujese, 434 F.2d 46, 48 (2d Cir.1970), cert. denied, 401 U.S. 978 , 91 S.Ct. 1208 , 28 L.Ed.2d 328 (1971).

John’s choice not to cross-examine Nathaniel regarding the confession does not destroy the reality that Nathaniel was available for that purpose. The right of confrontation is satisfied where there is the opportunity for cross-examination and does not require that the opportunity be exercised.

Wade v. Yeager, 415 F.2d 570, 572 (3d Cir.), cert. denied, 396 U.S. 974 , 90 S.Ct. 466 , 24 L.Ed.2d 443 (1969).

There may be occasions when the testimony of a witness on direct is sufficiently favorable that cross-examination becomes unnecessary. That such testimony comes voluntarily “instead of being wrung from him on cross-examination shows only that cross-examination was unnecessary and not that it was unavailable.” Id. at 573. A “witness, favorable to the defendant, should be more than willing to give the usual suggested explanations for the inaccuracy of his prior statement, such as faulty perception or undue haste in recounting the event.” California v. Green, 399 U.S. 149, 160 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970); see United States v. Rogers, 549 F.2d 490 , 501 n. 12 (8th Cir.1976), cert. denied, 431 U.S. 918 , 97 S.Ct. 2182 , 53 L.Ed.2d 229 (1977). Accordingly, when the defendant’s failure to examine his co-defendant is the “product of his own inaction”, he has not been deprived of his constitutional right of confrontation. Trigg v. United States, 430 F.2d 372, 375 (7th Cir.), cert. denied, 400 U.S. 966 , 91 S.Ct. 379 , 27 L.Ed.2d 387 (1970). 3

The majority opinion, which engrafts on this universally accepted interpretation of the confrontation clause the requirement that the co-defendants must be presenting a common defense, flies squarely in the face of numerous holdings of this court and misinterprets the Supreme Court’s holding in Nelson v. O’Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971). In Rado v. State of Connecticut, 607 F.2d 572 (2d Cir.1979), cert. denied, 447 U.S. 920 , 100 S.Ct. 3009 , 65 L.Ed.2d 1112 (1980), the defendant was accused of masterminding a robbery and supplying his cohorts with walkie-talkies and a gun. One of the robbers, who previously had pleaded guilty, was called by the prosecution and admitted during cross-examination as a hostile witness that he had implicated Rado at his own plea hearing. Although the witness and Rado were not asserting a common defense, we held that Rado was not deprived of his right of confrontation. Id. at 580. Among the many *598 cases cited in support of that holding was Nelson v. O'Neil. See 607 F.2d at 580 n. 6.

In United States ex rel. Pugach v. Mancusi, 441 F.2d 1073 (2d Cir.), cert. denied, 404 U.S. 849 , 92 S.Ct. 156 , 30 L.Ed.2d 88 (1971), Pugach was alleged to have hired his co-defendant to maim his former girlfriend by hurling lye in her face. Evidence was admitted that the co-defendant, who took the stand, had previously confessed and implicated Pugach. Quoting United States v. Bujese, supra, 434 F.2d at 48 , we held there was no violation of the defendant’s right of confrontation. 441 F.2d at 1075 .

In United States v. DeLaMotte, 434 F.2d 289 (2d Cir.1970), cert. denied, 401 U.S. 921 , 91 S.Ct. 910 , 27 L.Ed.2d 825 (1971), the same ruling was made where the defendants had high-jacked a truck. Id. at 293-94. In United States v. Insana, 423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 841 , 91 S.Ct. 83 , 27 L.Ed.2d 76 (1970), where the defendants were convicted of mail fraud, we rejected appellant’s claim that he had been denied his Sixth Amendment right of confrontation because cross-examination of his impeached co-defendant would have been “ineffective” and “fruitless”. Id. at 1168. In United States ex rel. Smith v. Reincke, 354 F.2d 418 (2d Cir.1965), cert. denied, 384 U.S. 993 , 86 S.Ct. 1896 , 16 L.Ed.2d 1010 (1966), the impeached witness and the defendant murdered a watchman. We said there, “Counsel for petitioner at trial chose not to cross-examine; it cannot be said that he was unable to do so.” Id. at 421. In United States v. Ballentine, supra, 410 F.2d 375 , the defendant who was charged with a narcotics violation called as a witness his co-defendant who had previously pleaded guilty. We rejected defendant’s contention that the prosecutor was precluded from impeaching this witness because the defendant was unable to cross-examine him. Id. at 376 . In United States v. Bujese, supra, 434 F.2d 46 , the co-defendants robbed a bank together.

In none of these cases, were the defendant and the impeached witness asserting a common defense. Moreover, there was no common defense in California v. Green, supra, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 , where the impeached witness was a sixteen-year-old minor who had been arrested for selling marijuana and had named the defendant as his supplier. There, the Court flatly stated that “none of [its] decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial.” Id. at 161, 90 S.Ct. at 1936 .

The question presented in Nelson v. O’Neil was “whether cross-examination can be full and effective where the declarant is present at the trial, takes the witness stand, testifies fully as to his activities during the period described in his alleged out-of-court statement, but denies that he made the statement and claims that its substance is false.” 402 U.S. at 627 , 91 S.Ct. at 1726 . The Ninth Circuit, 422 F.2d 319 , had held that, when the Government sought to impeach a co-defendant who denied having made the statement inculpating the defendant, the defendant was denied effective cross-examination of the witness. Justice Stewart, writing for the Court majority, gave this argument short shrift, stating, “Of course, a witness can be cross-examined concerning a statement not ‘affirmed’ by him .... ” (Emphasis in original.) 402 U.S. at 627 , 91 S.Ct. at 1726 . Justice Stewart continued:

The short of the matter is that, given a joint trial and a common defense, Runnels’ testimony respecting his alleged out-of-court statement was more favorable to the respondent than any that cross-examination by counsel could possibly have produced, had Runnels “affirmed the statement as his.”

Id. at 629 , 91 S.Ct. at 1727 .

This was not a holding. It was simply a statement of obvious fact. The Court’s actual holding was:

We conclude that where a co-defendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defend *599 ant has been denied no rights protected by the Sixth and Fourteenth Amendments.

Id. at 629-30 , 91 S.Ct. at 1727-28 .

A fair reading of Nelson v. O’Neil simply does not support the majority’s holding that “the erroneous reference, on cross-examination of Brown, to his statement implicating Bishop prejudiced Bishop, denying him a fair trial when the co-defendants presented no common defense.” See, e.g., Rado v. State of Connecticut, supra, 607 F.2d at 580 n. 6; United States v. Maddox, 492 F.2d 104, 107-08 (5th Cir.), cert. denied, 419 U.S. 851 , 95 S.Ct. 92 , 42 L.Ed.2d 82 (1974).

The majority’s final argument, that the admission of Brown’s out-of-court statement was hearsay as to Bishop, was not made in the trial court or in Bishop’s brief on appeal, and it should not now be used as a basis for reversal. United States v. Marquez, 424 F.2d 236, 239 (2d Cir.), cert. denied, 400 U.S. 828 , 91 S.Ct. 56 , 27 L.Ed.2d 58 (1970). Whether the admission of a statement violates evidentiary rules against hearsay is a “wholly separate question” from the Sixth Amendment right of confrontation. California v. Green, supra, 399 U.S. at 163 n. 15, 90 S.Ct. at 1937 n. 15; 5 Wigmore on Evidence, § 1397 at 184. In any event, the majority’s argument that Brown’s out-of-court statement had incriminated Bishop is clearly wrong. Brown specifically denied that he had inculpated Bishop in his conversation with Shea, and Shea did not mention Bishop’s name when he testified about Brown’s confession.

Judge Neaher very carefully instructed the jury that anything that counsel may have said in questions or in their final summations was not to be substituted for the jury’s recollection of the evidence and that the jury must unhesitatingly reject any statement of fact which either the court or counsel may have made that did not accord with the jury’s recollection. Under the circumstances, I see no basis for the majority’s statement that “the jury heard that Brown had incriminated Bishop”. Reversal on that ground is unwarranted. United States v. Morgan, 562 F.2d 1001, 1003-04 (5th Cir. 1977), cert. denied, 435 U.S. 1050 , 98 S.Ct. 899 , 54 L.Ed.2d 802 (1978).

With all due respect to my distinguished colleagues, I am afraid that their decision has been influenced unduly by a desire to teach the United States Attorney’s Office and the FBI a lesson. Because I believe that the public pays too high a price for a lesson that rewards perjury, makes bad law, and opens the jailhouse doors for felons, convicted and clearly guilty of armed robbery, I dissent. I would affirm the section 2113(d) convictions into which the section 2113(a) convictions merged.

. Brown also testified that he didn’t even know Maxine Williams. The possibility that Maxine Williams, for no apparent reason, would name an innocent Brown as her confederate out of more than seven million residents of New York City and that this same innocent Brown just happened to have left his fingerprints high on the plexiglass fronting the teller’s cage in the robbed bank during a recently staged jumping exhibition, is so remote that the word “incredible” hardly describes it.

. The ellipsis at the end of the quote substitutes for the significant words “since Evans did not take the stand.” 391 U.S. at 128 , 88 S.Ct. at 1624 .

. In reversing Bishop’s conviction, my colleagues assert that Bishop was denied the opportunity for full and effective cross-examination. This assertion is without basis in the facts. Brown’s alleged confession to Agent Shea had absolutely no meaning or probative force if Brown himself was innocent. Bishop had ample opportunity on cross-examination to fully develop Brown’s alleged innocence. Bishop had ample opportunity to attack the Government’s proof that Brown met with him on the night before the robbery, that they walked to the bank together, that they entered the bank together, disarmed the guard, pushed him to the floor, and announced a holdup, and that they met after the robbery to divide the loot. Bishop also had ample opportunity to fully explore the facts surrounding the alleged confession. He could have inquired whether there were promises, threats, intimidation, or coercion, whether Agent Shea had tried to secure a written statement, etc. Instead, Bishop’.s counsel gambled by not asking a single question and has now hit the jackpot.