Petition — Marchand v. United States

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FILED

‘Supreme Court, U. $

| NOV $0 1977

MICHAEL RODAK

In the JR, CLERK

Supreme Court of the United States.

Ocroser Term, 1977.

No.7 75

ROBERT P. MARCHAND, JR.,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

‘

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

Josern S. OTERI,

Martin G. WEINBERG

Juprrn H. Mizner,

Oren: & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Question presented

Constitutional provision involved

Statement of the case

Reasons why the writ should be granted

The burden of proof standard applied by the

court below is legally incorrect and logically

unsound 6

oOo own wb W&

Conclusion ll

Appendix

Findings of fact and conclusions of law of the

United States District Court for the District

of Vermont la

Order of the United States District Court for the

District of Vermont 20a

Opinion of the United States Court of Appeals

for the Second Circuit 2la

Opinion on petition for rehearing of the United

States Court of Appeals for the Second Circuit 57a

Excerpt from transcript of suppression hearing

testimony 60a

Table of Authorities Cited.

CASES.

United States v. Ceccolini, 542 F. 2d 136 (2d Cir.

1977), cert. granted, 45 U.S.L.W. 3715 (1977) 9n

ii TABLE OF AUTHORITIES CITED.

United States v. Chadwick, 97 S. Ct. 2476 (1977) 7, 10

United States v. Griffin, 502 F. 2d 959 (6th Cir.

1974), cert. den. 419 U.S. 1050 (1974) 9

United States v. Mahone, 537 F. 2d 922 (7th Cir.

1976), cert. den. 429 U.S. 1025 (1976) ln

Wong Sun v. United States, 371 U.S. 471 (1963) 6

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourth Amendment 3, 5,

6, 7, 9, 10, 11

18 U.S.C. § 841 5

28 U.S.C. § 1254(1) 2

a In the

Supreme Court of the United States.

Ocroser Term, 1977.

No.

ROBERT P. MARCHAND, jh.,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petition tor a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

Robert P. Marchand, Jr., petitions for a writ of certiorari to

review the judgments of the United States Court of Appeals for

the Second Circuit entered in this case on August 22, 1977, and

November 1, 1977.

Opinions Below.

The Court of Appeals for the Second Circuit issued two

opinions in this case. The initial opinion of August 22, 1977,

not yet reported, is reproduced in the Appendix at pp.

21a-56a. The opinion of November 1, 1977, not yet reported,

denying Marchand’s petition for rehearing, is reproduced in

the Appendix at pp. 57a-59a. The District Court for the

District of Vermont issued findings of fact and conclusions of

law in denying petitioner’s motion to suppress. A copy of that

opinion is reproduced in the Appendix at pp. la-20a.

Jurisdiction.

The original judgment of the Court of Appeals was entered

on August 22, 1977 (App. 2la). A timely petition for rehear-

ing was denied on November 1, 1977 (App. 57a). The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

Question Presented.

When law enforcement officers effect a warrantless arrest

subsequent to an illegal search and seizure in which they ob-

tain evidence supporting a finding of probable cause to arrest,

must they, to validate the arrest, affirmatively demonstrate

reliance in fact on a totally independent and untainted source

of evidence, or may they rely on the mere existence of an in-

dependent, untainted source of evidence which could

theoretically have led to the arrest?

PaaS

Constitutional Provision Involved.

The Fourth Amendment to the United States Constitution

provides:

Th: right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

Statement of the Case.

On August 24, 1976, federal agents and Florida police,

armed with an arrest warrant for one Robert Higgins (not in-

volved in this case), executed that warrant at Higgins’

Lauderhill, Florida, apartment (App. 60a-6la). Petitioner

emerged from a second bedroom shortly after the officers ef-

fected Higgins’ arrest. None of the officers indicated in any

way that they recognized petitioner at that time (App.

6la, 65a). While the federal agent in charge, Agent

Harris of the DEA, was with Higgins in his bedroom, Detec-

tive Adcock of the Lauderhill police came to him, with Mar-

chand’s driver’s license in hand, and stated that she had seen a

picture of this person before,’ recognized the name and the

picture, and, from prior discussions with a Vermont DEA

agent, believed that Marchand was wanted in that district on

a marijuana conspiracy indictment. After calling Vermont to

'The photograph Adcock had seen was a small photograph marred by

glare and depicting petitioner at a somewhat earlier age (App. 26a).

confirm Marchand’s identity, Harris placed him under arrest,

searched his wallet, and extracted a note which was intro-

duced against him at trial (App. 62a-63a).

Prior to trial, Marchand moved to suppress the note, alleg-

ing that his license had been unlawfully seized from his wallet

while it was lying on the dining room table; that his arrest was

a direct result of this seizure; that since the note had been

seized incident to his arrest both his arrest and the note seized

pursuant to it were fatally tainted by the prior, illegal seizure

of his license.

Agent Harris was the only officer involved in the arrest to

testify at the suppression hearing. He testified in effect that he

did not know the basis of Adcock’s indentification of Mar-

chand; it could have been based on the license, the photograph

she had seen earlier, or some combination of the two.?

The trial court found that Detective Adcock initially iden-

tified Marchand by removing his driver’s license from his

wallet (App. 14a).* However, since the court found that in-

*In responding to counsel’s questions as to the basis for Adcock’s identifica-

tion of Marchand, Harris testified:

I don’t know if she did it completely on the driver's license, or, well,

she stated she had seen a picture of this person before and she recog-

nized the name and the picture and whatever and she knew it was

Robert MARCHAND, the one that [the Verr-uni 2gent] had referred

to earlier.

I would assume from the driver's license that obviously ad given the

driver's license or had been taken, one way cr the othex. I don’t know

which way. And was identical, was identified. That's the normal

procedure to identify the persons any how. (App. 66a-67a.)

*The court also found that Detective Adcock recognized Marchand from

having seen his picture and that she also recognized the name, apparently ob-

tained from the license (App. 6a).

Sr ren on ee

itial seizure to be constitutionally permissible,‘ it found the ar-

rest lawful and declined to suppress the note. Following a

jury trial (in which the note was introduced against him) Mar-

chand was convicted on one count of possession and distribu-

tion of marijuana in violation of 18 U.S.C. § 841.

The United States Court of Appeals for the Second Circuit

also rejected petitioner's Fourth Amendment claim. How-

ever, it did so on a different basis. The Court of Appeals

agreed with petitioner that if the seizure of the note had been

unlawful “a new trial would be required” (App. 35a), and it

further agreed with petitioner’s initial premise that the ar-

resting officer improperly obtained his driver’s license from

the wallet lying on the dining room table, thereby learning

certain information pertinent to petitioner’s identity (App.

37a). However, the Court of Appeals found that the license

had not been the sole predicate for the arrest,® and that

because other information, available to the arresting officer

and not derived from the driver’s license, could have provided

probable cause for the decision to arrest, the arrest was not

unlawful (App. 36a-37a, 42a). Contending that the court had

applied an erroneous standard of burden of proof of taint in a

warrantless arrest situation, petitioner sought rehearing. In

denying rehearing the court reaffirmed its analysis, holding

that the existence of untainted evidence supporting a finding

of probable cause, without any proof that the untainted

evidence had in fact provided the sole basis for the arrest, was

sufficient to overcome any claim of taint (App. 57a-59a).

‘Given this conclusion, the court did not reach the burden-of-proof-of-

taint issue raised in this petition.

’The Court of Appeals found that Adcock’s conclusion that Marchand was

a fugitive from Vermont “was based on previous telephone conversations

with [a Vermont DEA agent], prior observations of a photograph that had

been sent to Miami, and inspection of a driver's license she had extracted

from a wallet lying on the apartment's dining room table” (App. 29a) (em-

phasis added).

Reasons why the Writ Should be Granted.

THE BURDEN OF Proor STANDARD APPLIED BY THE COURT

BELow 1s LEGALLY INCORRECT AND

LocIcALLy UNSOUND.

In affirming the legality of petitioner’s warrantless arrest on

the basis of the existence of untainted evidence which could

have provided probable cause for the decision to arrest, the

Court of Appeals applied a standard of burden of proof of

taint which, by its own acknowledgement, was guided by “no

federal authority squarely on this [point]” (App. 37a-38a).

Petitioner submits that this standard is flawed both legally and

logically and seeks review of the constitutionality of its ap-

plication in this Court.

It cannot be doubted that the Fourth Amendment protec-

tion against unreasonable searches and seizures includes a pro-

hibition against the introduction of evidence tainted by prior

illegal government actions whether that evidence be a direct

or derivative result. As this Court stated in Wong Sun v.

United States, 371 U.S. 471 (1963), where a claim of “taint” is

made, the question is:

whether, granting establishment of the primary illegal-

ity, the evidence to which instant objection is made has

been come at by exploitation of that illegality or instead

by means sufficiently distinguishable to be purged of the

primary taint. 371 U.S. at 488.

Petitioner submits that, as a matter of law and policy, once an

initiai illegality has been shown, a finding of “exploitation,”

and, therefore, the suppression of resulting evidence, is re-

quired unless the government can meet the burden of affir-

matively demonstrating, by at least a preponderance of the

evidence, that it, in fact, relied upon an independent, un-

tainted source to support its subsequent actions — and that the

mere existence of an independent source upon which it

theoretically could have relied is insufficient.

In relaxing the burden of proof by requiring that the

government need show only that it had sufficient untainted in-

formation available so that hypothetically it might have un-

covered the challenged evidence without its illegal actions, the

Court of Appeals has eroded the protections of the Fourth

Amendment. Where constitutional rights of paramount im-

portance are involved, the government has not been, and can-

not be, permitted to justify its actions solely on the tenuous

basis of what might have been. For example, the existence of

probable cause upon which a warrant might have been ob-

tained has never been held, in and of itself, to be sufficient

justification for dispensing with the requirement of a warrant.

See, e.g., United States v. Chadwick, 97 S. Ct. 2476 (1977).

The court’s departure from this standard is legally and logical-

ly unsound.

The Court of Appeals justified its relaxation of the govern-

ment’s burden of proof in this case by analogizing to the situa-

tion where a search has been conducted pursuant to a war-

rant. However, cases dealing with warrants involve factors

substantially different than those found in a case such as this in

which an arrest is made without a warrant — i.e., solely on

the basis of the field officer’s unmonitored judgment. When

an officer acts pursuant to a warrant issued on the basis of a

prior judicial determination that the supporting affidavit

demonstrated probable cause, and it is later claimed that the

evidence must be suppressed because the affidavit contained’

illegally obtained information, factors inherent in the warrant

process enable the government to meet its burden of proof of

reliance in fact without the presentation of additional

evidence as to the thought processes of the officer who

obtained the warrant. In submitting an affidavit prior to the

issuance of the warrant, the officer sets down on paper precise-

ly those bases upon which he is, in fact, relying. If one of

these bases is later found to be illegal, the court can determine

the validity of the officer's actions simply by excising the il-

legally obtained information from the warrant and making a

new judicial determination as to the existence of probable

cause on the basis of the remaining facts alone. If those re-

maining, legally obtained facts are sufficient to constitute

probable cause, then they meet the government’s burden of

proof of actual reliance on an independent source. There is

thus no need for further testimony from the officer; the inclu-

sion of those facts in the initial application for a warrant,

without more, demonstrates his actual reliance.

However, where, as here, an officer initiates an arrest or a

search without the submission of an affidavit for a prior

judicial determination of probable cause, and a claim that the

action is tainted by illegally obtained information is later

raised, the court cannot, as it can in the case of an affidavit-

search warrant case — and as it improperly did here (App.

37a-38a) -— simply disregard that illegally obtained informa-

tion and conclude that since the legally obtained information

“would have been” sufficient to establish probable cause, the

government has met its burden of proving reliance on an in-

dependent source. The fatal flaw in so doing lies in the

absence of any prior documentation of actual reliance on the

legally obtained information by the officer operating in the

field. Without an affidavit setting forth such reliance, the

government must present sufficient evidence at the suppres-

sion hearing to enable the court to make a finding that the of-

ficer did, in fact, rely upon the independent source and not

upon the illegally obtained information. Given these signifi-

cant differences between the warrant situation and that

presented here, the Court of Appeals’ reliance in this case on

language from warrant cases is plainly misplaced.

In its opinion denying rehearing the Court of Appeals at-

tempts to distinguish this case from the “burden of proof laid

down in the usual ‘fruit of the poisonous tree’ case” by limiting

its applicability to situations where the independent source is

obtained subsequent to the primary illegality (App. 58a).°

Here, it asserts, “the sequence was the opposite” (id), since the

independent source — i.e., the previously seen photograph —

arose prior to the illegal seizure of the license from the wallet.

Petitioner submits that the “taint” cases cited by the Court of

Appeals do not turn on whether the primary illegality

occurred prior or subsequent to the acquisition of an alleged

independent source; rather, the taint question hinges on the

actual relationship between the primary illegality and the

evidence sought to be suppressed as tainted. The question is,

and to effectuate the guarantees of the Fourth Amendment

must be, whether or not the primary illegality in fact affected

the challenged search or arrest.

The error in the Court of Appeals’ focus is illustrated by the

conflicting decision of the Court of Appeals for the Sixth Cir-

cuit in United States v. Griffin, 502 F. 2d 959 (6th Cir. 1974),

cert. den. 419 U.S. 1050 (1974). In Griffin, federal agents

with legally obtained probable cause to search the defendant's

apartment, dispatched an agent to procure a search warrant.

*By its citation of cases such as United States v. Ceccolini, 542 F. 2d 136

(2d Cir. 1977), cert. granted, 45 U.S.L.W. 3715 (1977), the Court of Appeals

apparently recognized that the usual burden requires the government to

demonstrate affirmatively reliance in fact on an independent source to

negate a claim of taint.

However, before the warrant was secured, other agents il-

legally entered the apartment and conducted a search. The

evidence obtained during this search was ordered suppressed.

In the absence of a demonstration of reliance in fact, the ex-

istence of an independent untainted source — the warrant —

was insufficient to overcome the direct connection between

the illegal entry and the evidence disclosed, even though the

independent source existed prior to the primary illegality.

Thus, the distinction drawn by the Court of Appeals here is

clearly unsound.

The standard enunciated by the Court of Appeals, by per-

mitting the government to rely on what it hypothetically could

have done to justify otherwise tainted actions, can only lead to

the abrogation of still-vital Fourth Amendment principles only

recently reiterated by this Court — namely, that intrusion on

an individual's liberty and privacy may be justified only on the

basis of a detached, impartial judicial determination that the

facts upon which the law enforcement officer actually relies in

effecting the intrusion are facts which, in and of themselves,

do justify the intrusion. See United States v. Chadwick,

supra.’ Post-hoc speculative rationalizations may be colored,

even if only subconsciously, by the results of a search or arrest.

What might have been, in fact might not have been. Unless

proof of reliance in fact on an independent source — proof

that what might have been, in fact was — is required, the in-

dividual rights and liberties guaranteed by the Fourth Amend-

ment will be severely and unjustifiably undercut.

"It should be noted that the government's failure to meet the requisite

burden of proof of actual reliance on an independent source in this case is

clear. The District Court's decision, read as a whole — and read most

favorably to the government — lends equal support to a conclusion that the

arrest was dependent on the illegal seizure of the license, as to a conclusion

that the arrest was effected on the basis of the prior photograph (App. 6a,

14a). Nor does Agent Harris’ testimony negate the inference of taint. He did

Conclusion.

The proper allocation of the burden of proof of taint in cases

involving Fourth Amendment violations is an important and

frequently recurring problem in the administration of criminal

justice. The relaxed standard established in this case con-

stitutes an unwarranted encroachment on the rights and liber-

ties guaranteed by the Fourth Amendment. Accordingly, for

all the foregoing reasons, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

JOSEPH S. OTERI,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

not state that Adcock informed him that she had recognized Marchand solely

or independently on the basis of the photograph she had seen earlier. Rather,

he refers to the photograph only in conjunction with the license. The logical

inference to be drawn from Harris’ testimony is that the arrest was

predicated on a conjunction of the information on the license and the earlier

photograph. Furthermore, the sequence of events supports a finding of

dependence on the license. Adcock did not walk in the door, recognize Mar-

chand from her memory of the photograph (which was marred by glare and

depicted Marchand at an earlier age (App. 26a n. 6)), announce her belief to

Harris and then seek confirmation from the license. It was only after the

seizure of the license that any recognition was announced (App. 6a, 28a-29a,

6la-62a, 66a-67a). Finelly, despite the undeniably central nature of Ad-

cock’s testimony, the government failed to call her as a witness. Her unex-

plained absence can only give rise to an inference that her testimony would

have been unfavorable to the government. See, e.g. United States v.

Mahone, 537 F. 2d 922 (7th Cir. 1976), cert. den. 429 U.S. 1025 (1976).

Given the totality of these factors, petitioner submits that the government

cannot possibly be found to have met its burden of proving reliance in fact on

an independent source — the photograph — and the arrest must be held to

be tainted by the prior unlawful seizure of the license.

Appendix.

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT _.OF VERMONT

UNITED STATES OF AMERICA

CRIMINAL ACTION

” Fite No. 76-51

ROBERT P. MARCHAND, JR.

Findings of Fact and Conclusions of Law.

The defendant, Robert P. Marchand, Jr. is charged with

willfully and knowingly distributing and possessing with

intent to distribute 180 pounds of marihuana, in violation

of 21 U.S.C. § 841. The case is presently before the court

on four defendant’s motions: (1) to dismiss the indictment

against him, (2) to suppress identification testimony, (3) to

suppress evidence obtained at the time of his arrest on

August 24, 1976, and (4) for the inspection of the minutes

of grand jury proceedings.

An evidentiary hearing was conducted concerning the

first three motions. Subsequent to the hearing of these

motions the defendant renewed a prior motion for inspection

of the minutes of all grand jury proceedings which had been

previously denied. The renewed motion asserts that he is

entitled to the minutes of the grand jury proceedings in

order to establish his claim that the Government failed to

present exculpatory information relating to the photographic

identifications of him. He claims that inspection of the

grand jury minutes is necessary in order to substantiate his

his belief that the proceedings were not conducted fairly

and impartially.

Upon consideration of the testimony and arguments pre-

sented at the hearing and the memoranda filed by the

parties, the court makes the following Findings of Fact and

Conclusions of Law.

FINDINGS OF FACT

1. Victor Roy, the first witness at the hearing, was ar-

rested on July 18, 1975. He was subsequently charged in a

federal indictment with distributing and conspiring to distri-

bute marihuana. On the night of Roy’s arrest he was taken

to DEA headquarters in Williston, Vermont, where he was

interviewed by Special Agent Theodore Handoga in the

latter's office.

2. Roy testified that a tape recorder on Agent Handoga’s

desk was operating during the interview. He stated that he

saw Handoga push buttons on the machine and saw the

“wheels” turning. Hewever, he was not certain that a

recording was actually made.

3. Roy conceded that while the tape recorder was ap-

parently operating he said nothing to Agent Handoga about

the crime for which he had been arrested because his lawyer

was not present. He subsequently pleaded guilty, sentence

was suspended and Roy was placed on probation.

4. On July 1, 1976, at approximately 9:00 a.m., Roy

appeared at the United States Attorney’s office in Burlington

in response to a grand jury subpoena. At about 10:00 a.m.

he went to a small interview room, accompanied by Special

Agent Handoga and Jerome F. O’Neill, Assistant United

States Attorney. Roy claimed that he was not informed of

his rights prior to being questioned by Assistant U.S. At-

torney O'Neill and Agent Handoga. It appears that Mr.

O’Neill was present only for brief periods, and then only to

ask Roy questions which he said he would ask before the

grand jury. Roy stated that on this occasion there was a

tape recorder in the interview room, but did not indicate

whether it was operating. The court finds that no recording

was made.

5. During his conversation with Agent Handoga, Roy

informed the Agent that he had received the marihuana

from someone named “Bob” or “Big Foot.”

6. At approximately 10:45 a.m. Agent Handoga showed

Roy a series of 14 photographs (Defendant’s Exhibits C-P)

and asked Roy to pick out the photograph or photographs

of anyone he recognized. Roy was given ample time to re-

view the photographs and he studied each and every one.

He first selected a photograph of someone he thought to be

Jim Hathaway of Burlington, Vermont. He selected this

photograph on his first and second viewings of the photo-

graphs. After each selection he was told that the photo-

graph he recognized was not of Jim Hathaway.

7. Upon viewing the photographs a third time, Roy set

aside Defendant’s Exhibit C, a photograph of the defendant,

stating “this picture looks funny.” With this, Agent Han-

doga produced a larger photograph of the defendant, De-

fendant’s Exhibit A, and added “OK, here’s a Bob, what

about this one?” Roy responded that the larger photo

“looks similar.” According to Roy’s testimony, which was

not disputed, Agent Handoga remarked “Ah, that’s Mar-

chand.” He then called upon Roy to initial both photo-

graphs.

8. After Roy selected Exhibit A, Agent Handoga asked

him to loon for any other photographs of people he recog-

nized. Roy selected the photograph of the only female in

the group and told Agent Handoga that it looked like the

girl who was with “Bob” at one time. Roy made no further

identifications despite what he termed Agent Handoga’s

eagerness that he do so.

9. The court finds that Roy made no positive identifi-

cation of the defendant. His remark that the person pic-

tured in Defendant’s Exhibit A looked similar to the photo

C, which was originally displayed to Roy, came only after

the suggestion of the agent that the larger photo A was a

picture of “a Bob.”

10. Richard Wayne Perkins, the second witness at the

hearing, was arrested on July 18, 1975, for marihuana-

related offenses. He was interviewed by Special Agent

Handoga on two or three occasions between the time of his

arrest and his sentencing on March 29, 1976. On one or

more of those occasions he gave Agent Handoga a descrip-

tion of the man who gave 180 pounds of marihuana to him

and Victor Roy.

11. Perkins met with Agent Handoga, and the latter on

April 26, 1976, showed him Defendant's Exhibits A-P and

asked him to pick out the photographs of two people he felt

most closely resembled the people he saw at the time of the

marihuana transaction. Perkins selected three or four and

at the hearing stated that he had picked Exhibit A (which

was a photograph of the defendant) and Exhibits M and O.

He was then asked to initial the two (Exhibits A and O)

that bore the closest resemblance to people he saw on the

date of the transaction.

12. A few months after his arrest, Perkins gave Handoga

a description of the person who sold him the marihuana.

Since Perkins has artistic ability, he was asked to make a

drawing of the seller. The sketch was received in evidence

(Defendant’s Exhibit Q). Perkins gave the sketch to Han-

doga. Perkins did not see the sketch again until the hearing.

13. Perkins testified that he did not feel he was being

encouraged or pressured by Agent Handoga to select the

individual depicted in Exhibit A as the supplier of the mari-

huana. He conceded that he was not certain that the indi-

vidual depicted was the supplier.

14. Special Agent James H. Harris of the DEA office in

Miami, Florida, and the defendant testified as to the circum-

stances of the defendant’s arrest in the Southern District of

Florida on August 24, 1976. Pursuant to a federal arrest

warrant issued for Robert Higgins on charges of sale and

distribution of marihuana and conspiracy to import mari-

huana, Agent Harris went to Higgin’s apartment in Lauder-

hill, Florida, accompanied by two Dade County Public

Safety Detectives, Adcock and Sadler, and DEA Special

Agent McGlassius. The apartment had been under surveil-

lance. The group was joined by a uniformed Lauderhill

police officer outside the apartment.

15. At approximately 7:30 a.m. the uniformed officer

knocked on the door of the Higgins apartment; Higgins

opened the door. He gave his name as “Hull,” but Detec-

tive Adcock recognized him as the Robert Higgins for whom

the warrant was issued. Agent Harris placed him under

arrest. The arrest was made just inside the door of the

apartment.

16. Agent Harris and the other law enforcement per-

sonnel went further inside the apartment. They did not

have a search warrant for the apartment. Higgins informed

them that another person, later identified as the defendant,

was in one of the bedrooms. As the defendant, who ap-

parently had been asleep, emerged from the bedroom

wearing just a pair of pants, Agent Harris asked one or

more of the officers to find out who he was and to make

sure he was not armed. After this was accomplished, the

defendant was permitted to return to his bedroom to put on

a shirt. The defendant was told that, although he was not

under arrest, he could not leave the apartment. He was

told to remain seated in a chair in the dining room.

17. While Agent Harris was talking to Higgins, Detective

Adcock showed him the defendant’s driver’s license and

stated that she knew Robert Marchand and had reason to

believe that he was a fugitive from the District of Vermont

on a marihuana conspiracy indictment. She had learned

this from a prior telephone conversation with Special Agent

Handoga of Vermont. She also had seen a photoyraph of

the defendant prior to the visit to the apartment.

18. Exactly how Detective Adcock obtained the de-

fendant’s driver’s license was not resolved at the hearing.

Special Agent Harris testified that he assumed she had been

given the license or had taken it when he requested that the

defendant be identified and searched for weapons. The de-

fendant testified that his wallet was on the dining room

table. He was seated near the table until he left the room

to dress. Detective Adcock recognized the defendant from

having seen his photograph. She also recognized the de-

fendant’s name. She apparently obtained his name from

his operator's license. The license was removed from the

defendant's wallet and was presented to Agent Harris by

Detective Adcock for identification. Nothing other than the

driver's license was removed from the defendant’s wallet

until the time of his arrest and the search incident thereto.

19. Agent Harris verified the defendant’s identity by

calling Special Agent Handoga in Vermont. He then ar-

rested the defendant and advised him of his rights. He also

searched the defendant’s person. Special Agent Harris re-

moved the defendant's wallet from his rear pants pocket

and obtained therefrom a small address book (Defendant’s

Exhibit R) and various papers and written notes (Defend-

ant’s Exhibit S).

20. Special Agent Harris searched through the address

book and wallet, looking for contraband or other evidence.

In addition to looking for drug-related evidence between

the nages of the book and among the papers found in the

wallet, Agent Harris looked at some of the writing in the

book and on the papers. When the defendant asked to

make some telephone calls, Special Agent Harris supplied

him the numbers from the address book and the defendant

wrote them down on a separate piece of paper and made

the calls.

21. The defendant was handcuffed and taken away by

the law enforcement personnel. Approximately one week

after the arrest, Special Agent Harris sent the address book

and papers to Special Agent Handoga in a sealed evidence

envelope.

CONCLUSIONS OF LAW

I. Motion to Dismiss Indictment

The defendant’s motion to dismiss the indictment is pre-

mised upon four grounds: first, that the Government abused

the subpoena power of the grand jury in order to interrogate

Victor Roy; second, that the Government failed to preserve

and make available to the defendant tape recordings of

Special Agent Handoga’s interviews with Victor Roy; third,

that the identifications of the defendant by Victor Roy and

Richard Perkins were fatally tainted by overly suggestive

photographic identification procedures; and fourth, that

exculpatory evidence of the suggestive nature of the identifi-

cations of the defendant was not furnished to the grand

jury.

In support of his argument that the Government im-

properly used a grand jury subpoena for the purpose of con-

ducting an interview of Roy, the defendant places heavy

reliance upon Durbin v. United States, 221 F.2d 520 (D.C.

Cir. 1954), where it was held “[i]t was clearly an improper

use of the District Court’s process for the Assistant United

States Attorney to issue a grand jury subpoena for the pur-

pose of conducting his own inquisition.” Id. at 522. The

courts in this and other circuits are in general agreement

with the holding in Durbin. The district court in In re

Stolar, 397 F.Supp. 520, 522 (S.D. N.Y. 1975), relied on

Durbin in holding that “the grand jury process may not be

used by a federal prosecutor solely to conduct his own in-

vestigation.” See United States v. Del Toro, 513 F.2d 656,

664 (2d Cir. 1975) (grand jury may not be used “for the

sole purpose of preparing an already pending indictment for

trial”); United States v. Kleen Laundry & Cleaners, Inc.,

381 F.Supp. 519, 523 (E.D. N.Y. 1974). The Third Circuit

has held that “[t}he court will not enforce a grand jury sub-

poena used only to compel a witness to appear in the United

States Attorney’s office.” In re Grand Jury Proceedings

(Schofield), 486 F.2d 85, 91 (3d Cir. 1973). The defendant

also directs the court’s attention to United States v. Thomas,

320 F.Supp. 527 (D.S.C. 1970), and United States v. Gur-

ney, 393 F.Supp. 683 (M.D. Fla. 1974). In Thomas, the

court held that it was an improper usurpation of judicial

power for the United States Attorney to issue an official-

looking document entitled “Summons” to notify the recipient

to appear for an interview at the United States Attorney's

office. In Gurney the court announced an end to its own

practice of issuing writs of habeas corpus ad testificandum

to bring incarcerated federal prisoners to the United States

Attorney's office for the sole purpose of interviewing pro-

spective government witnesses for pre-trial discovery. 393

F.Supp. at 685.

The cases referred to do not support the defendant’s con-

tention that the Government abused the grand jury’s sub-

poena power in conducting the interview of Victor Roy

prior to his grand jury appearance. In each of the cases

relied upon by the defendant the purpose of the process

issued was to assist the Federal prosecutor in the preparation

of a case. None of the witnesses summoned in those cases

appeared before the grand jury.

The present case presents different circumstances. Here,

Victor Roy actually did appear before the grand jury on

the date for which he was summoned. His interview with

Assistant United States Attorney O’Neill and Special Agent

Handoga was clearly relevant to the matters under investi-

gation by the grand jury. The Assistant United States At-

torney’s questioning of Roy and Special Agent Handoga’s

conducting of the photographic identification do not con-

stitute an abuse of the grand jury’s subpoena power -vithin

the context of the cases relied upon by the defendant.

Victor Roy testified in support of the defendant’s claim

that a tape recording had been made of Special Agent Han-

doga’s interview with Roy on July 18, 1975. As noted pre-

viously, Roy was not certain that a recording had been

made. Even if a recording had been made, it is clear, by

Roy’s own concession, that he said nothing at all about the

marihuana transaction because his lawyer was not present.

The court finds it unnecessary to determine whether a

recording was made, since even if one had been made, it

would have contained nothing relevant to the present case.

In light of the court’s finding that no recording was made

of Roy’s July 1, 1976, interview with Special Agent Han-

doga, and that any recording that might have been made of

the July 18, 1975, interview would be irrelevant to the

10a

present case, the court concludes that the defendant’s claims,

with respect to tape recordings, furnish no basis for dismissal

of the indictment.

The third point raised by the defendant is that the photo-

graphic identification procedures used by Special Agent

Handoga in his interviews with Victor Roy and Richard

Perkins were unnecessarily suggestive and conducive to mis-

taken identification, thus resulting in a denial of due process.

Questions concerning such identifications normally arise in

the context of motions to suppress before trial, see, e.g.,

United States v. Harrison, 460 F.2d 270 (2d Cir.), cert.

denied, 409 U.S. 862 (1972), or in the context of appeals or

proceedings for post-conviction relief, see, e.g., United

States v. Magnotti, 454 F.2d 1140 (2d Cir. 1972). The

court is not aware of any case setting forth the standard to

be applied where evidence of such identifications is pre-

sented to a grand jury. In the Second Circuit the test of

admissibility at trial is whether the identifications resulted

from “unnecessarily suggestive confrontation.” Brathwaite

v. Manson, 527 F.2d 363, 368 (2d Cir. 1975), cert. granted,

425 U.S. , 44 U.S.L.W. 3624 (May 3, 1976).

It appears that a less rigorous test than that articulated in

Brathwaite should be applied to identification evidence

presented to a grand jury. Cf. United States v. Calandra,

414 U.S. 338, 344-45 (1974). Although such identification

as Roy made was suggestive, the court concludes that its

presentation to the grand jury did not constitute a denial of

due process.

The first question is whether the use of photographs,

rather than some other method of identification, was un-

necessarily suggestive in and of itself. In United States ex.

rel. Pella v. Reid, 527 F.2d 380, 384 (2d Cir. 1975), the

Second Circuit held that there was no impropriety in using

photographic identification even where the suspect was

lla

available for a line-up. Clearly where, as here, the suspect

was not in custody or otherwise available for a line-up, the

use of photograhic identification cannot be considered un-

necessarily suggestive per se.

It is also clear that the lapse of time between the date on

which Richard Perkins allegedly last saw the defendant and

the date of the photographic identification is not in and of

itself decisive. See United States v. Hurt, 476 F.2d 1164

(D.C. Cir. 1973) (lapse of approximately 1 year). Perkins

apparently last saw the defendant approximately nine

months before he was shown the display. In the interim he

had drawn a good likeness of the defendant. In these cir-

cumstances a photographic display conducted after such an

interval is not, of itself, impermissibly suggestive.

In attacking the Perkins identification, the defendant

initially complains that the photographs in the display, with

the exception of the two depicting the defendant, bore little

resemblance to the sketch Perkins had made previously.

The defendant asserts that “[a]lthough the sketch was of a

clean-shaven individual with large features and short light-

colored hair, most of the photographs in the array of ap-

proximately thirteen small and two large photographs de-

picted individuals with facial hai: and/or long hair.” The

court disagrees with the defendant’s characterization. The

sketch is basically an outline drawing and reveals no attempt

at skin or hair coloring. As for the hirsuteness of the indi-

viduals depicted in the photographs, only two photographs,

Exhibits F and L, reveal full-fledged beards and mustaches;

a third, Exhibit E, appears to show a mustache. One other

photograph, Exhibit K, reveals a day or two's growth of

whiskers. The individuals depicted in at least five photo-

graphs, Exhibits B, H, K, N and O, have relatively short

hair. Finally, except for three color photographs, Exhibits

12a

E, G and K, it is virtually impossible to determine the hair

coloring of the subjects depicted in the array.

The defendant also complains that the use of two photo-

graphs of him, including the large photograph, placed

“double emphasis” on him and was unnecessarily suggestive.

This argument is without merit. In United States v. Fa-

lange, 426 F.2d 930 (2d Cir.), cert. denied, 400 U.S. 906

(1970), the defendants complained of a pre-trial photo-

graphic identification in which three of the sixteen photo-

graphs shown to the witness were of the same defendant.

Because the photographs were taken at different times and

at different angles, and because the photographic identifi-

cation was corroborated by other evidence the court found

no constitutional infirmity in the procedure. 426 F.2d at

935.

The fact that the large photograph of the defendant was

one of only two large photographs shown to Perkins, is

similarly without consequence. Characteristics peculiar to

a photograph of an individual, rather than to the indi-

vidual depicted therein, do not render the use of that photo-

graph unnecessarily suggestive. See United States v. Harri-

son, 460 F.2d 270, 271 (2d Cir.), cert. denied, 409 U.S.

862 (1972); United States v. Fernandez, 456 F.2d 638, 641

(2d Cir. 1972); United States v. Magnotti, 454 F.2d 1140,

1141 (2d Cir. 1972). Neither the Supreme Court nor the

Second Circuit has adopted the dissenting view expressed by

Justice Brennan in United States v. Ash, 413 U.S. 300, 333

(1973), that repetition of a particular subject’s photograph,

or a photograph which stands out from the rest for reasons

other than the characteristics of its subject, is highly likely

to render an identification display unnecessarily suggestive.

The court concludes that the photographic identification of

the defendant by RicHard Perkins was not unnecessarily

suggestive.

13a

The final point raised by the defendant on his motion to

dismiss the indictment is that evidence of the suggestive

nature of the Roy and Perkins identifications should have

been presented to the grand jury. He asserts that presenta-

tion of the fact of the identifications without also presenting

the circumstances surrounding the identifications detracted

from the fairness and impartiality of the grand jury pro-

ceedings. Recently the Supreme Court held that

the validity of an indictment is not affected by the

character of the evidence considered. Thus, an indict-

ment valid on its face is not subject to challenge on the

- ground that the grand jury acted on the basis of inade-

quate or incompetent evidence, ... or even on the

basis of information obtained in violation of a -de-

fendant’s Fifth Amendment privilege against self-in-

crimination ....

United States v. Calandra, 414 U.S. 338, 344-45 (1974)

(citations omitted). In the absence of a claim of improper

motivation or other improper conduct on the part of the

Government or the grand jury itself, see, e.g., United States

v. DeMarco, 401 F.Supp. 505, 512-13 (C.D. Cal. 1975),

the defendant’s challenge to the indictment must fail.

II. Motion to Suppress Identification Testimony

As indicated in the above discussion of the defendant’s

motion to dismiss the indictment, the photographic identifi-

cation of the defendant by Richard Perkins was not the

result of “unnecessarily suggestive confrontation.” Brath-

waite v. Manson, 527 F.2d 363, 369 (2d Cir. 1975), cert.

granted, 425 U.S. , 44 U.S.L.W. 3624 (May 3, 1976).

l4a

Accordingly, the motion to suppress Perkin’s identification

must fail. Since Roy’s identification, such as it was, is in-

fected by suggestion, the motion, as to this witness is

granted.

III. Motion to Suppress Evidence Obtained at

Time of Arrest

The defendant contends that the law enforcement per-

sonnel who participated in his arrest on August 24, 1976,

had provable cause to arrest him only after learning his

identity, and that they established his identity as a result of

an illegal search and seizure. The focus of the present in-

quiry is on whether evidence of the defendant’s identity ,was

obtained pursuant to constitutionally valid procedures.

Since the court has found that detective Adcock, or one of

the other officers, initially identified the defendant by re-

moving his driver’s license from his wallet, the particular

question at issue is whether, under the circumstances as

they existed at the time, this procedure constituted a reason-

able search or seizure under the Fourth Amendment to the

United States Constitution.

Clearly, under the teaching of Terry v. Ohio, 392 U.S. 1

(1968), and Adams wv. Williams, 407 U.S. 143 (1972),

Special Agent Harris was justified in directing that a limited

protective search of the defendant be made. Law enforce-

ment officers who enter a dwelling place in order to execute

an arrest warrant are entitled to take reasonable steps to

ensure their safety while they are performing their duty.

Adams v. Williams, supra, at 145-46. The validity of the

search, insofar as it was for the purpose of determining

whether the defendant was armed, is beyond question.

Terry v. Ohio, supra, at 23-24.

l5a

The problem of requesting and obtaining identification is

one which has received less attention from the courts. The

Supreme Court held in Terry that “a police officer may in

appropriate circumstances and in an appropriate manner

approach a person for purposes of investigating possibly

criminal behavior even though there is no probable cause to

make an arrest.” Id. at 22. More recently, in Adams, the

Court noted:

The Fourth Amendment does not require a policeman

who lacks the precise level of information necessary for

probable cause to arrest to simply shrug his shoulders

and allow a crime to occur or a criminal to escape.

On the contrary, Terry recognizes that it may be the

essence of good police work to adopt an intermediate

response.... A brief stop of a suspicious individual,

in order to determine his identity or to maintain the

status quo momentarily while obtaining more informa-

tion, may be most reasonable in light of the facts known

to the officer at the time.

407 U.S. at 145-46.

In the instant case the procedures followed by the law en-

forcement personnel in determining the defendant’s identity

appear to fit within the framework of the type of “inter-

mediate response” suggested by the Supreme Court in

Adams. The officers were properly within the apartment

pursuant to the arrest of Higgins. United States v. Rodri-

guez, 532 F.2d 834, 838 (2d Cir. 1976). Once they en-

countered the defendant in the apartment they were en-

titled to question him and to determine his identity. Id. at

838-39.

l6a

The defendant argues that his presence in the apartment

with Higgins provided insufficient justification for his deten-

tion and questioning. He relies upon Sibron v. New York,

392 U.S. 40 (1968). In Sibron, however, the defendant

was stopped and searched after officers observed him talking

to known narcotics addicts in a restaurant. Heroin was dis-

covered on his person and the officers arrested him. The

Supreme Court held that the herion thus discovered was in-

admissible in subsequent proceedings against Sibron because

there had not been probable cause to arrest him at the

moment the search was undertaken and the search could

not be justified on protective grounds under Terry v. Ohio,

392 U.S. 1 (1968). The Court stated that “[t]he inference

that persons who talk to narcotics addicts are engaged in

the criminal traffic in narcotics is simply not the sort of

reasonable inference required to support an intrusion by the

police upon an individual’s personal security.” 392 U.S.

at 62.

The facts of the present case, however, provide ample

grounds to support the law enforcement officers’ limited

intrusion. Unlike Sibron, the defendant was not merely

talking with known addicts in a public place; he was actu-

ally living with Robert Higgins, a suspected drug dealer, for

whom the officers had an arrest warrant, in an apartment

which was being kept under surveillance as a result of

Higgin’s drug-related activities. The law enforcement offi-

cers who came for the purpose of arresting Higgins were

clearly justified in any suspicions they may have had that

the defendant was more than a mere bystander who had no

connection at all with Higgins’s activities. Under these cir-

cumstances, they were entitled to find out who he was and

to detain him for questioning. United States v. Rodriguez,

532 F.2d 834, 838-39 (2d Cir. 1976); see United States v.

Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied,

l7a

415 U.S. 931 (1974); cf. United States v. Tramunti, 513

F.2d 1087, 1100-04 (2d Cir.), cert. denied, 423 U.S. 832

(1975).

The Government’s procurement of the defendant’s oper-

ator’s license is supportable on the strength of additional

considerations. The total circumstances supplied reasonable

grounds to justify the belief that the unidentified Marchand

might be an accomplice of Higgins and might attempt to

destroy the means of identification and any evidence that

might be contained in the wallet. In these circumstances

the team of officers, who arrested Higgins, properly took

possession of the wallet on the table near where Marchand

had been seated. See United States v. Manarite, 448 F.2d

583, 593 (2d Cir.), cert. denied, 404 U.S. 947 (1971).

Since the defendant apparently refused to cooperate by

giving them his name, the officers were justified in removing

his license from his wallet in order to identify him. This is

the type of limited intrusion sanctioned by the language of

Adams v. Williams, 407 U.S. 143, 145-46 (1972). Indica-

tive of the restraint exercised by the officers in obtaining the

identifying information from the defendant’s wallet is the

fact that nothing other than his license was sought nor re-

moved from his wallet at the time of this initial contact.

The address book and other papers were not discovered and

removed until after the defendant was under arrest. Since

the later, more thorough search of the defendant was pur-

suant to a valid arrest on probable cause, the address book

and other papers were legally obtained within the teaching

of Chimel v. California, 395 U.S. 752 (1969).

Even if Special Agent Harris and the other law enforce-

ment officers had not been justified in removing the de-

fendant’s operator’s license from his wallet in order to iden-

tify him, the resulting identification would nevertheless be

admissible. The defendant himself testified that after

18a

Robert Higgins was arrested at the door of the apartment

he saw Higgins walk through the dining room on his way to

his bedroom. Since the wallet was on the dining room

table, it was subject to valid search and seizure for contra-

band or other evidence in connection with Higgins’s arrest,

under the teaching of Chimel v. California, supra. “ee

United States v. Manarite, supra. Because the arrest of

Higgins would provide ample justification for a search of

the defendant’s wallet, it is immaterial whether the search

could be independently justified with respect to the defend-

ant. See United States v. Griffin, 413 F.Supp. 178 (E.D.

Mich. 1976). The defendant’s motion to suppress must be

denied.

IV. Motion for Inspection of Grand Jury Minutes

The defendant’s motion, pursuant to Fed.R.Crim.P. 6(e),

for inspection of the minutes of the grand jury’s proceedings

is unaccompanied by a memorandum in support as required

by Local Rule 9. The defendant’s assertions of “particula-

rized need” for inspection go to the quality and completeness

of the information presented to the grand jury. As ex-

plained in the court’s discussion of the defendant’s motion

to dismiss the indictment, an indictment which is valid on

its face is not subject to attack on the ground that the grand

jury acted on the basis of “inadequate or incompetent” evi-

dence. See United States v. Calandra, 414 U.S. 338, 344-

45 (1974).

At most, the defendant has alleged that some of the evi-

dence presented to the grand jury may have been “inade-

quate or incompetent”; he has failed to make any showing

of “particularized need.” See Pittsburgh Plate Glass Co. v.

United States, 360 U.S. 395, 400 (1959); United States v.

19a

Weinstein, 511 F.2d 622, 627 (2d Cir.), cert. denied, 422

U.S. 1042 (1975). The defendant’s bare claim of need for

the grand jury minutes does not outweigh the “long-es-

tablished policy that maintains the secrecy of grand jury

proceedings in the federal courts.” United States v. Proctor

¢& Gamble Co. 356 U.S. 677, 681 (1958). Thus, the de-

fendant’s renewed motion must fail.

It is ORDERED:

1. That the motion of the defendant to dismiss the in-

dictment against him is denied;

2. That the motion of the defendant to suppress identi-

fication testimony of Victor Roy is granted; the motion to

suppress the identification testimony of Richard Perkins is

denied;

3. That the motion of the defendant to suppress evi-

dence obtained at the time of his arrest is denied;

4. That the renewed motion of the defendant for in-

spection of the minutes of the grand jury proceedings is

denied; and

5. That the case will be set for trial to commence Mon-

day, December 20, 1976, at 9:30 a.m.

Dated at Rutland, in the District of Vermont, this 30th

day of November, 1976.

JAMES S. HOLDEN,

Chief Judge.

20a

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

UNITED STATES OF AMERICA

0. CRIMINAL ACTION

Fite No. 76-51

ROBERT P. MARCHAND, JR.

Order.

Paragraph 2 (at p. 20) of the Order of the court filed in

this case on November 30, 1976, is amended to provide:

2. That the motion of the defendant to suppress identi-

fication testimony of Victor Roy is granted without pre-

judice to a further offer by the Government to establish at

trial, out of the presence of the jury, that an adequate in-

dependent basis exists to support in-court identification of

the defendant by the witness Roy; the motion to suppress

the identification testimony of Richard Perkins is denied.

It is so ORDERED.

Dated at Rutland, in the District of Vermont, this 8th

day of December, 1976.

JAMES S. HOLDEN,

Chief Judge.

2la

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

No. 1288—September Term, 1976.

(Argued June 9, 1977 Decided August 22, 1977.)

Docket No. 77-1131

Unitrep Srates or AMERICA,

Appellee,

Rosert P. MarcHanp, Jr.,

Appellant.

Before:

Frirenpity, Timpers and MeskIL1,

Circuit Judges.

= we

— err

Appeal from a judgment of the District Court for Ver-

mont, James S. Holden, Chief Judge, convicting appel-

lant, after a jury trial, on one count of an indictment

charging the possession and distribution of 180 pounds of

marijuana in violation of 21 U.S.C. § 841.

Affirmed.

>»

JEANNE Baker, Esq., Cambridge, Mass.

Avan M. Dersnowrrz, Esq., Cambridge, Mass.

(Rosenberg, Baker & Fine, Esqs., Cam-

bridge, Mass., and Joseph S. Oteri, Esq.;

Martiu G. Weinberg, Esq., and Oteri &

5391

22a

Weinberg, Esys., Boston, Mass., of Coun-

sel), for Appellant.

Jitt A. Jacosson, Esq., Assistant United States

Attorney, District of Vermont (George W.

F. Cook, United States Attorney, District

of Vermont, of Counsel), for Appellee.

Frrenviy, Circuit Judge:

Robert P. Marchand, Jr. appeals from his conviction,

after a jurv trial before Chief Judge Holden in the Dis-

trict Court for Vermont, on one eount of an indictment

charging the possession and distribution of 180 pounds of

marijuana in violation of 21 U.S.C. § 841.'

Apart from a serious question under the Fourth Amend-

ment diseussed in Part ITV below, the appeal has heen

nresented as if this were a ease where there is substan-

tial doubt that defendant is the person who committed

the crime charged in the indictment. Marchand relies on

an array of cases, somewhat weakened as a result of re-

cent Supreme Court dee:sions, whieh had laid down

stringent requirements to prevent “the awful risks of mis-

identification” by persons with relatively seant oppor-

tunity to observe the defendant, Brathwaite v. Manson, 527

F.2d 363 (2 Cir. 1975), rev’d, —— US. (1977), 45

U.S.L.W. 4681 (U.S. June 16, 1977). But, as the trial judge

and the jury seem to have been well aware, that is not this

case at all. The case is rather one of accomplice wit-

nesses, one of whom had known the marijuana supplier

for years. The jury could well have inferred that any diffi-

culty these witnesses expressed about identification was

due to unwillingness rather than inability to identify. It

! The indictment elso contained a eorspiracy count, but this was dis.

missed before Mereband's arraignment.

5392

23a

was a similar case of seeming unwillingness that led us,

in United States v. De Sisto, 329 F.2d 929 (2 Cir.),. cert.

denied, 377 U.S. 979 (1964), to rule that previous iden-

tification or grand jury testimony of a trial witness could

be used rot simply for “impeachment” but as substantive

evidence—a ruling which Congress has now translated

into Federal Rule of Evidence 801(d)(1)(A) and (C).

None of this means that Marchand did not have the right,

accorded every criminal defendant, to a fair trial in ac-

cordance with governing rules of law. It does mean that

statements in decisions involving dubious identifications

by bystanders, law enforcement officers or victims? should

not be woodenly applied to the wholly different situation

here and that the case offers ample occasion for recalling

Judge Learned Hand’s observation in Dyer v. MacDougall,

201 F.2d 265, 269 (2 Cir. 1952), that a jury is free, on the

basis of a witness’ demeanor, to ‘“‘assume the truth of what

he denies” although a court cannot allow a civil action,

much less a criminal prosecution, to go to the jury on the

basis of this alone.

I. A Chronological Summary

Marchand challenges his conviction on the grounds both

of trial error and of insufficiency of the evidence properly

admitted.’ Before considering these challenges it will be

useful to summarize what admittedly occurred. When we

include materia] that was not hefore the trial jury, we will

so indicate.

Sometime before June 1971, Victor Roy, Jr. became

acquainted with a man at bars in Amherst, Mass. When

2 See discussion at pp. 32-33 & n.27 infra.

3 Indeed, by making insufficiency the first point of his brief, Marchand

seems to argue that the evidence was insufficient even if all was properly

admitted. See also Appellant's Brief at 26 n.28.

5393

24a

testifying before the grand jury, Roy identified this person

as “Big Foot” or “Bob”; at trial he insisted on the appella-

tion “Big loot”. In March or April, 1975, Roy met the

same individual, again in a bar in Brattleboro, Vermont; he

was witli a girl whom Roy identified before the grand jury

as Ann.* The man gave Roy a telephone number, which

Roy called occasionally. In May 1975, Roy, accompanied

by Richard Perkins, met the individual at a Howard John-

son’s restaurant in Springfield, Mass., to diseuss the pur-

chase of marijuana. On two occasions within the following

three weeks, Roy and Perkins made purchases of marijuana

from Big Foot at the Springfield Howard Jolmson’s.

During the period June 9-July 16, 1975, there were four

one minute phone calls from Perkins’ number in Waits-

field, Vt., to the manbers listed in the name of Ann Curtis

and Robert Marchand in Guilford, which is near Brattle-

boro, Vermont; there was proof that Bob Marchand was

living with Ann Curtis at the time. On July 17 there was

a four minute phone eall from Perkins’ number to Mareh-

and’s. The next day, July 18, Perkins and Roy drove to

srattieboro, waited for a while at the Toward Jolmnson’s

restaurant there, met Big Foot and another male, and then

drove out into the country, where 180 pounds of marijuana

were transferred from Big Foot’s ear to Perkins’. On this

date there weve three phone calls to Ann Curtis’ number

in Guilford which were billed to Perkins’ number in Waits-

field. The first, from Perkins’ home phone, lasted three

minutes. The other two—each lasting not over one minute

were from Brattleboro, where Perkins and Roy met Big

4 Roy was quite positive about this when he testified before the grand

jvry in July, 1976. At trial he could not “really ... recall’ whether

Marchand had a girl with him and said that his grand jury testimony

was “not completely truthful." However, he repeated that the girl's

name “could have been Ann.” See p. 13 infra. The jury wes amply

justified in inferring that it was.

5394

‘BEST COPY AVAILABLE

Foot for the marijuana transaction. Perkins and Roy were

arrested later in the day when they tried to sell the mari-

juana to an undercover agent.

Roy refused to make any statement to the arresting

officer, Agent Handoga of the Drug Enforcement Adminis-

tration (DEA). Within two weeks after the arrest, Perkins

gave Agent Handoga a description of the seller as “a six

foot one, 220 pound nian with blond hair”, aged between

25 and 30, and “big features”, defined to include “a big

nose, big hands, broad shoulders”, About a month later,

Perkins who had some ability. as a portraitist, drew a

sketch which was designed to be a picture of the marijuana

supplier.

Agent Handoga testified at the suppression hearing !ater

referred to that in August 1975 he had received informa-

tion from an undisclosed source that Marchand was the

supplier. Accordingly the Government sought an indict-

ment of Marchand.’

In September 1975 Perkins testified before a grand jury.

He stated that “he found out [Big Foot’s] name was Bob

Marchand.” Roy did not appear before this grand jury

and it was discharged hefore the investigation was com--

plete, without the filing of an indictment against Marchand.

On April 26, 1976 Perkins was shown fifteen photographs

by Agent Handoga and was asked to pick two that most

closely resembled the people he had seen at the time of the

marijuana transaction. He first picked three and later —

narrowed his choices to two. One was a photo of Marchand.

Perkins testified at the suppression hearing chat he did not

fee] he was being cnucouraged or pressured to select the

5 Roy and Perkins bad been indicted shortly after their arrest; they

pleaded guilty in December, 1975. In March, 1976, Perkins received a

suspended sentence and three years probation; Roy received a tine of

$2000, a suspended sentene, and 3 years probation.

5395

26a

photograph that he did but was not certain that the indi-

vidual depicted was the supplier. Roy, according to his

testimony at the suppres-ion hearing, was in Colorado

during this period. On his return to Vermont he was served

with a subpoena to appear before the grand jury. Imme-

diately before his appearance on July 1, 1976, Roy arrived

at the office of the United States Attorney in Burlington

and went to a small interview room accompanied by Agent

Handoga and Assistant United States Attorney O'Neill.

Roy infermed the agent that he had reeeived the marijuana

from soineone named “Bob” or “Big Foot”. Agent Handoga

showed Roy a series of 14 photographs. On his first and

<econd viewings he selected a photograph of someone he

thought to be Jim Hathaway of Burlington; he was told

he was in error. Qu a third viewing Roy selected a photo-

eraph of Marehand but added “this pieture looks funny.”

The agent then produced a larger photograph of Marchand,

interjecting “Oh. here’s a Bob, what about this one?” Rov

responded that the larger photograph “looks similar”.* The

agent then said “Ah, that’s Marchand.”

In the afternoon Roy testified before the grand jury.

We have already covered much of this testimony. Impor-

tant additions were a statement that he had known the per-

son with whom he and Perkins had communicated in order

to buy the marijuana as “Bob” and a confirmation that

he had selected the photograph of the person he believed

to be Big Foot. After hearing Agent Handoga present

his own observations and Perkins’ testimony before the

earlier grand jury, the second grand jury returned an in-

dictment against Marchand on July 22, 1976. An arrest

warrant issued on the same day.

In the interval between Roy’s appearance and the indict-

6 The first photograph suffers from glare. The second appears to have

been taken when Marchand was somewhat older.

0396

27a

ment, Timothy S. Hillman, a Massachusetts assistant dis-

trict attorney who was to be called as a defense witness at

trial for a reason that will later appear, came to Vermont.

Marchand was a “civil client”. Hillman had had “occasion

to hear that photographs of [his] ... client had been shown

to the Grand Jury” in Vermont.’ After talking with Roy,

Hillman received “the impression that Victor had spoken

to some people about an incident involving himself and

some marijuana and that during the conversation he had

had [sic] that Bob had been mentioned and the whole thing

involved some sort of a transaction at the University of

Massachusetts.”* He had also received information that

before testifying before the grand jury Roy had been

shown pictures of Marchand and possibly of Ann. Hillman

got “the impression . . . that the whole transaction went

down at the U. Mass. Bar but whether or not the transac-

tion went down with Bob or that is what he told him, I

don’t know ....” He communicated all this to Marchand,

who asked what he should do; Hillman gave Marchand

directions how to get to Roy’s house and “told him to get

himself a darned good criminal lawyer and to get investi-

gators sent up right away, because I believed that he

was in trouble.”

7 Hillman also characterized the reason for his trip as follows:

I had gone to Vermont when I had received some information to

talk to Victor Roy whom I had even known from high school as

an acquaintance. I received information and I went to,—up to

Vermont, to determine exactly what I had heard and exactly what

Victor had said to anybody, if he had. While the prosecutor did

not seek to have this made more definite, Hillman, under cross-

examination, accepted as a fair characterization that the incident

was a warning by Roy for him to tell Marchand that Roy had

talked to the federal authorities about the crime.

8 The University of Massachusetts is at Amherst, Mass., where Roy

first met Rob/Big Foot.

5397

28a

Some time after this, Marchand departed for the Miami

area in Florida.’ Apparently the Government knew that

he had, for it sent a photograph of Marchand to the Dade

County, Florida, police and Agent Handoga spoke on the

telephone to Detective Adcock of the Dade County police

about Marchand.

This led to the final episode. At 7:30 a.m. on August 24,

1976, Special Agent Harris of the DEA office in Miami,

accompanied by DEA Special Agent McGlassius and two

Dade County detectives, Adcock and Sadler, went to the

apartment of Robert Higgins in Lauderhill, Florida, to

arrest Higgins pursuant to a federal arrest warrant on

charges of sale and distribution of marijuana and con-

spiracy to import marijuana. The group was joined by

a uniformed Lauderhill police officer outside the apart-

ment, which had been under surveillance. Higgins an-

swered the door and was placed under arrest. He informed

the officers that another person was in one of the bedrooms.

Marchand emerged, wearing only a pair of pants. Agent

Harris asked one or more of the officers to ascertain his

identity and make sure he was not armed.’® Marchand

was allowed to return to his bedroom to don a shirt and

was told that, although not under arrest, he could not leave

the apartment but should remain seated in the dining

room. Meanwhile Agent Harris had gone with Higgins

to the latter’s bedroom to watch him dress. While Harris

was there, Detective Adcock advised him that Marchand

9 The record is silent as to any efforts to execute in Vermont the arrest

warrant issued on July 22. Curiously also the Government made po

effort, either at trial or before us, to argue that particularly in light of

Hillman’s advice Marchand’s departure was some evidence of conscious-

ness of guilt, see United States v. Heitner, 149 F.2d 105, 107 (2 Cir.

1945); 2 Wigmore, Evidence 6 276(4) (3d ed. 1970), and cases from

other cireuits cited in 1975 Supplement at 36.

10 The record docs not reves! how there directions were carried out.

5398

was a fugitive from the District of Vermont. This con-

clusion was based on previous telephone conversations

with Agent Handoga, prior observations of a photograph

that had been sent to Miami, and inspection of a driver's

license she had extracted from a wal'et lying on the apart-

ment’s dining room table. Agent Harris further verified

Marchand’s identity by calling Agent Handoga !n Vermont

and then made the arrest. In the course of the arrest,

Harris searched Marchand and removed a small address

book and various papers and written notes from a rear

pants pocket. One of the notes related to Marchand’s

conversation with Hillman; we reproduce this in the

margin.”

II. The Suppression Motion

Marchand moved to suppress the photographie identi-

fication by Perkins and Roy and the note seized at the time

of his arrest. Chief Judge Holden conducted a hearing and

made findings of fact, on which we have relied in the previ-

ous section, and conclusions of !aw.

The court denied the motion to suppress Perkins’ photo-

graphic identification, overruling objections that the array

included hearded individuals, some with lone hair, whereas

the person outlined in Perkins’ sketch was clean-shaven

with short hair, that the array included two photogranhs

of Marchand, and that Marchand’s was one of only two

large photographs in the array.

11 —T Birp

—pictures of Ann & Bob

—met me at U Mass Bar

approx

Warren-

2d house after P.O.

Mars Hotel

Victor Roy testified at trial that his home in Warren, Vermont, was

two houses down from the post office.

5399

30a

With respect to Roy’s identification, the judge found that

Roy had made no positive identification of Marchand and

also that his identification, “such as it was” was “infected

by suggestion.” Accordingly he granted the motion to sup-

press the evidence.

The judge also denied the motion to suppress the note

seized on Marchand’s arrest. Since we agree with his con-

clusion but not with his reasons, it is unnecessary to set oui

the latter.

II. The Trial

Perkins and Rov both testified to the marijuana trans-

action substantially ae set ferth in Part I of this opinion.

Since there is no dispute that the transaction occurred,

there is no need to repeat this.

Perkins testified to havine civen Agent Handoga the

description of “Big Foot” set forth in Part I and supple-

mented this with a consistent description of the supplier as

looking “very large. Very healthy. Very short hair, like a

foothall player would look after he had been working out

. fand dressed in] shorts or casual pants and T shirt”

and tanned and unhearded.'* Over objection the Govern-

ment introduced the sketch Perkins had drawn. Although

testifving that he had heen “trving to draw a picture of the

person who gave [him] the marijuana.” cross-examination

elicited a statement that he had testified at the suppression

hearing “when I was drawing it I didn’t really feel that it

was anything,” and further

In my mind, I, when I was sketching it T just sat there

for the longest time and didn’t really know what to

draw and that was just a—I just remember he was a

12 Apparently Marchand had a beard at the time of trial and also wore

giesses, es to which Perkins had no recollection. Timothy Hillman

testified that Marchand had at times worn a beard and at other times

had not over the past few vears.

5400

3la

great big, blond-haired guy anc he just had big fea-

tures. And I just drew a hig, blond-haired, you know,

male features.

He also acknowledged his earlier statement that he “didn’t

have a terribly good memory of | Big Foot] at the time he

made the sketch” and said that when he was drawing it he

“just [sat] there with a blank and just like I just drew it”

and that when he finished it he was not satisfied that it was

a fair and accurate picture of Big Foot. The jury was not

bound, as counsel seems to believe, to credit Perkins’ dis-

ciaimer as against the excellence of his sketch; indeed it

could have drawn quite a different inference. Comparison

of the sketch with the photograph later selected by Perkins

makes it almost impossible to suppose that Perkins had

never seen the subject of the photograph.”

When asked to make an in-court identification, Perkins

was unable to do this, perhaps for the reasons indicated in

fn. 12, perhaps for others. He testified that two by-stand-

ers and Marchand who stood before him “resemble Bob,

Big Foot in some way”; he thought there was “a good

possibility” that if Big Foot were standing in front of him,

he would be able to make an identification. The jury may

have been more impressed by his slip of the tongue shortly

tl.ereafter when he was being cross-examined in regard to

the sketch (App. p. 333) :

Q. Now at the time you made it, you didn’t have a very

clear vision in your mind of what this Big Foot

looked like, did vou?

13 We refer specifically to the fix of the eyes, a protrusion of the lower

nostrils, the set of the ears, and what looks like a smal! dimple on the

chin. The chance that Perkins could have dreamed up a face having all

these resembiances to the photograph that was later to he exhibited to

him, and no significant differences, is almost infinitesimal.

5401

32a

A. I never really did, except now when ke was stand-

ing in front of me and it was aiways a fairly nerv-

ous type of arrangement. (Emphasis supplied.)

We do not see how this can mean anything else than that

the man “standing in front of” Perkins, namely, the defen-

dant Marchand, was Big Foot.

Perkins admitted making the photographie identification

but defense counsel brought out that the pictures were

selected as being “closest” to his recollection and that he

had made no positive identification. The court refused to

give an instruction precluding the jury from relying on

Perkins’ photographie identification as substantive evi-

denee of Marchand’s guilt.

The prosecutor also asked Perkins if he could remember

Big Foot’s phone number. When he could not, she gave

Perkins the toll records for his phone for June and July

1975 to refresh his recollection. Perkins chose the number

subsequently proved to be that of Ann Curtis and Bob

Marchand, stating, “this could be it,” though he added on

cross-cxamination that he could not be certain this was Big

Foot’s number.**

The prosecutor called Roy in an effort to secure an in-

court identification.’® Roy didn’t see Big Foot in the court-

4 After introduction of the telephone toll records evidencing the calls

referred to in Part I of this opinion, the defense cross-examined Roy to

bring ovt that he sometimes called Marchand from Perkins’ number but

allegedly as a prospective purchaser, not seller, of marijuana and that

he had called Big Foot on July 18 but could not recall his number.

Perkins testified that t'e July 18 transaction was set up by a call he

bad received from Big Foot rataer than “made to him.” The jury, of

corse, was not required to credit any of these explanations. The tele.

phone calls were stipulated and the jury was free to draw a strony

ineulpatory inference from them.

15 The judge ruled that an in-court identification would not he tainted

by the attempted photographic identif-ation. The ruling was clearly

correct on the facts here. The judge's . :itial basis for excluding evidence

5402

33a

room although “there’s probably a number of people here

that might look vaguely like him.” On cross-examination

Roy picked out four people, including Marchand, all of

whom “looked like this Big Foot” but added that Marchand

“is not him.” The prosecutor referred to Roy’s grand jury

testimony where he had named Marchand as the supplier.

Instead of reading this, she proceeded, without objection,

as follows:

Q. And where you telling the truth to the Grand Jury

that day?

A. Well, as I said before, I was misleading the Grand

Jury to believe, influences,—

Q. Ixn’t it a fact, Mr. Roy, that you led the Grand

Jury to think that you could identify Robert Mar-

CHAND as the person who supplied you with the

marijuana?

A. I guess that is what it came down to.

Q. And is that true, Mr. Roy?

A. Is it true that I misled the Grand Jury to believe

that—

Q. Is it true that that is what you did, yes.

A. I would say, yes.

of Roy's examination of the photograph was that he had not in fact

made positive identification; it was only later that the ground of sug

gestiveness was added. We think the former conclusion is belied ly

Roy's acknowledgement before the grand jury that he had selected the

photograph of the person he believed to be the “Bob” from whom he

had purchased marijuana. We also doubt the validity of the latter

conclusion. Without any suggestiveness, Roy had selected a photograph

of “Bob,” although saying it looked “funny.” We see no impermissible

suggestiveness in the agent's then supplying a better photograph of the

same person, despite the agent’s comment when producing the picture,

“OK, here's a Bob, what about this one?’ Roy had already narrowed

the universe to “Bobs” and had picked out a photograph of Bob Mar

ehand.

9403

34a

After acknowledging that the defendant was a friend, Roy

was further questioned along the same lines:

A. And yet you led a Grand Jury to believe that this

person—this friend of yours, was the one who

supplied you with marijuana, is that right?

A. Yes, that’s what it came out to be.

The prosecutor also questioned Roy about who had ac-

companied Big Foot when Roy resumed acquaintance with

him at a Brattleboro bar. Roy first answered “a girl... .

I really don’t know [her name] but it could have been

ANN.” When pressed about his somewhat more positive

testimony before the grand jury, he couldn’t recall whether

Big Foot was with a girl, and admitted that he had mis-

led the grand jury. More questioning added to the confu-

sion: Roy had indeed seen Marchand with Ann and knew

that they were friends and probably were living in the

same house. This led to the following exchange:

(). Do you recall that you testified in the grand jury

that you saw Bob or Big Foot your supplier, with

Ann?

A. That is the way the grand jury testimony reads.

(. And is that the same Ann you know as a friend

or companion of Mr. Marchand?

e e * ® *

A. The Ann th’.t I was referring to in there was.

Tt was the same one?

A. (Nodding)

On cross-examination, Roy stated if there was a girl with

Big Foot, he had never seen her with Marchand.

Agent Handoga testified with respect to Perkins’ photo-

graphie identification. He said that Perkins had been

5404

35a

asked to identify the two persons who had sold the mari-

juana, not the two photos that looked “most like” them.

The Government concluded its case with the testimony

of Agent Harris as to the note seized from Marchand at

the time of his arrest. The defense case was limited to

the testimony of Hillman seeking to explain this.

We shall defer to Part 1V of this opinion a description

of the prosecutor’s summation and the charge and of de-

fendant’s points about them.

After returning to the courtroom with a request to

hear Roy’s testimony, the jury brought in a verdict of

guilty.

IV. The refusal to suppress the note

seized on Marchand’s arrest

We shall deal first with Marchand’s claim that seizure

from his person at the time of his arrest of the note re-

lating to Hillman’s meeting with Roy violated his rights

under the Fourth Amendment since this issue is sep-

arable and, if defendant were right, a new trial would be

required.’® If Marchand’s arrest was legal, the search of

his pants was likewise so. As said in United States v.

Robinson, 414 U.S. 218, 235 (1973):

A custodial arrest of a suspect based on probable

cause is a reasonable intrusion under the Fourth

Amendment; that intrusion being lawful, a search

incident to the arrest requires no additional justifi-

cation. It is the fact of the !awful arrest which estab-

lishes the authority to search, and we hold that in the

case of a lawful custodial arrest a full search of the

16 Apart from the effect of the note itself in linking Marchand with

Roy, it had the practical consequence of compelling the defense to

produce Hillman, whose evidence could well have had some adverse

effect.

5405

36a

person is not only an exception to the warrant re-

quirement of the Fourth Amendment, but is also a

“reasonable” search under that Amendment.

However, counsel stoutly contends that the arrest was

illegal since it was based on the driver’s license which

Detective Adcock had obtained in the course of an un-

unlawful search of the wallet that Marchand had left on

Higgins’ dining room table.

If the arrest stemmed solely from the discovery of Mar-

chand’s name on the driver’s license, we would be con-

strained to agree, particularly in light of the decision in

United States v. Chadwick, —— U.S. —— (1977), 45

U.S.L.W. 4797 (U.S. June 21, 1977), rendered after this

ease was argued. But it did not. The trial court found

that “Deteetive Adcock recognized the defendant from hav-

ing seen his photograph” and that “She also recognized

the defendant’s name” which she apparently had obtained

from the driver’s license."’

A preliminary point should be cleared up before we

proceed further. In a letter submitted after the argu-

ment, defense counsel raised the claim that the photo-

craph to which the trial judge referred was on the driver’s

license. The finding is not worded that way and the testi-

mony of Agent Harris was that Detective Adcock “stated

she had seen a picture of this person before. .. .” (em-

17 In a quite garbled response to defense counsel's assertion that Agent

Harris did not know how Detective Adock identified Marchand, the Agent

said, “I would assume from the driver's license that obviously had given

the driver's license, or had heen taken, one way or the other. I don’t

know which way. And was identical, was identified. That's the normal

procedure to identify the persons any how.” We do not think this con-

fused passage undermines the trial court’s finding that Detective Adcock

identified Marchand on the basis of his picture ae well, since Harris

testified that she stated she recognized Marchand from the picture, and

especially since there was evidence that she had seen a picture and had

talke? ~ "th Agent Handoga about the case.

5406

37a

phasis supplied).’* Further, there was no evidence that

there was a picture on Marchand’s driver’s license. How-

ever, there was evidence, already mentioned, that a photo-

graph had been sent to Detective Adcock, “a specially

trained, assigned and experienced officer,” Manson vy.

Brathwaite, supra, —— U.S. at ——, 45 U.S.L.W. at 4686,

and the judge permissibly found that she had seen this

before the visit to Higgins’ apartment.

We have no doubt that the photograph constituted prob-

able cause for arrest without the reinforcement afforded

by the discovery of Marchand’s name. Here there was no

need for the arresting officers to determine whether there

was probable cause to believe that a crime had been com-

mitted and that a particular individual had committed it;

that role had been performed by the indictment, Sciortino

v. Zampano, 385 F.2d 132 (2 Cir. 1967), cert. denied, 390

U.S. 906 (1968). All that was required was probable cause

to believe that the defendant was the subject of the Ver-

mont indictment. Recognition of a photograph sent by the

law enforcement officers from Vermont, supplemented by

the discovery of the defendant living in the home of a

Florida marijuana dealer, afforded suc. cause.

We thus face the question whether an arrest that would

have been legal if effected on these bases alone became

illegal because Detective Adcock improperly extracted

Marchand’s driver’s license from the wallet lying on the

dining room table, thereby learning his name and gaining

added assurance.’® While we have found no federal au-

18 Use of hearsay is not banned on motions to suppress. Federal Rule

of Evidence 1101(d)(1); United States v. Matlock, 415 U.S. 164,

172-76 (1974). Doubtless in recognition of this, there was no objection

to Agent Harris’ testifying to what Detective Adcock had said.

19 It 18 plain that lack of this added assurance would not have prevented

discovery of the note. The police clearly had ample basis for detaining

Marchand for questioning under Terry v. Ohio, 392 U.S. 1 (1968);

5407

38a

thority squarely on this, we see no significant distinction

between the question here presented and that arising where

both legally and illegally obtained evidence have been

offered to obtain a search warrant.”® The validity of the

warrant was upheld under such circumstances in the lead-

ing ease of James v. United States, 418 F.2d 1150 (D.C.

Cir. 1969). There an officer responded to a report that

several men were engaged in mechanical work on a car

parked in a public street. When the officer arrived on the

scene, he saw the men at work on one of two cars in the

street and a third car in a garage, though a man in the

garage shut the door quickly on perceiving the officer.

When the officer returned four days later, the garage door

was open. The new ear he had seen there was almost

completely stripped. The officer entered the garage and

copied down the rear license plate number. A check re-

if he refused to give his name, or gave a false one, either could have

led to his arrest and an incidental search of his pants. Alternatively,

the police could have detained Marchand while they obtained a warrant

and thereby learned Marchand's name, with the same consequences.

See United States v. Falley, 489 F.2d 33, 41 (2 Cir. 1973) (where

broker and importation documents would have been discovered anyway,

illegally obtained evidence that shortened or facilitated the investigation

“did not supply fruit sufficiently poisonous to be fatal’); United States

v. Cole, 463 F.2d 163 (2 Cir.), cert. denied, 409 U.S. 942 cert. denicd,

$09 U.S,942 (1972) (“Conduct is not the legal cause of an event if the

event would have oceurred without it.”). But see United States v.

Ceccolini, 542 F.2d 136, 140-41 (2 Cir. 1976), cert. granted, 45 U.S.L.W.

5715 (1977) (prosecution did not show by a preponderance of the

evidence that witness’ testimony would inevitably have been secured

absent the illegal search).

20 The Supreme Court of Florida bas recently held that “an officer

possessing legally obtained information sufficient to constitute probable

cause for an arrest is not barred from making an arrest solely because

he also has information which was unlawfully obtained.” Sheff v. State,

329 So.2d 270, 273 (Fla. Sup. Ct. 1976). This holding, which relies on

the federal cases we discuss below, is precisely on point with the case

at bar. We agree with the quoted legal proposition, although the court's

conclusion that the original taint did not infect the subsequent obser-

vation may be open to debate.

5408

39a

vealed that the vehicle was stolen, and a search warrant

for the garage was obtained. Judge Leventhal found that

the action of the man in closing the garage door quickly

upon the officer’s first visit, and the officer’s subsequent

observation of a new car completely stripped—valid under

the plain view doctrine—provided probable cause for a

search of the garage irrespective of the further informa-

tion gathered during the officer’s illegal entry. The court

then stated:

When an affidavit in support of a search warrant con-

tains information which is in part unlawfully obtained,

the validity of a warrant and search depends on

whether the untainted information, considered by it-

self, establishes probable cause for the warrant t

issue. Wong Sun v. United States, in announcing the

“fruit of the poisonous tree” doctrine, limited the ex-

elusionary rule to evidence which the police could not

trace to some “independent” and lawful source. While

the Supreme Court has not specifically had occasion

to consider whether this doctrine is applicable to a

search warrant that issues on the basis of an affidavit

setting forth information both lawfully and unlawfully

obtained, other circuits have applied the “independent

source” test. If the lawfully obtained information

amounts to probable cause and would have justified

issuance of the warrant, apart from the tainted in-

formation, the evidence seized pursuant to the warrant

is admitted. 418 F.2d at 1151-52 (footnotes omitted).

This circuit had an early encounter with the problem in

Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2 Cir.), cert.

denied, 317 U.S. 674 (1942). There, certain auto parts al-

leged to have been stolen from Ford Motor Co. had been

ordered returned as illegally seized, see Weinberg v. United

5409

40a

States, 126 F.2d 1004 (2 Cir. 1942). Before they were re-

turned, FBI agents gave Ford a detailed list of the prop-

erty seized. Ford replevined the property, which was seized

by a New York deputy sheriff and stored in a warehouse.

The Assistant U.S. Attorney thereupon visited the ware-

house, examined the parts, and subsequently obtained a

search warrant, which was executed before Parts Mfg. Co.

could retake the goods. It moved that the FBI special

agent be required to return the goods because the search

was based on information obtained as a result of the illegal

first search. Judge Clark found that the Government had

sufficient information, independent of any that was ob-

tained illegally, to validate the search warrant. He stated

further, “.\ctual examination of the properiy in the ware-

house ... simply confirmed what affiants already had rea-

sonable cause to believe would be found.” 7d. at 843. Such

confirmation did not dictate return of the evidence.

We diseussed the taint problem more recently in United

States v. Capra, 501 F.2d 267 (2 Cir. 1974), cert. denied,

#20 U.S. 990 (1975), in the context of a warrantless search.

There, the district court upheld such a search of the de-

fendant’s car on the grounds that one of the federal agents

new of defendant’s prior use of his car for narcotics

transactions and therefore had probable cause to believe

that the car was carrying contrahand. We noted that even

if this agent’s knowledge of defendant’s uses of his car

was derived from an illegal wiretap sixteen months before,

another agent present at the search had knowledge of de-

fendant’s activities a: a narcotics delivervman that had

been legally obtained from an informant, and held that

such knowledge was sufficient to sustain a finding of prob-

able cause. Td. at 280 n.12.

Other circuits have held squarely that the presence of

illegal evidence in affidavits presented for a search warrant

5410

4la

does not prevent a finding of probable cause sustainable

on other grounds. See United Slates v. Sterling, 369 F.2d

799, 802 (3 Cir. 1966) (“{T]he law is quite clear that the

inclusion of illegally obtained evidence does not vitiate a

search warrant which is otherwise validly issued upon

probable cause reflected in the affidavit and based on proper

sources.”); United States v. Tarrant, 460 F.2d 701, 703-04

(5 Cir. 1972) (where legally obtained information estab-

lished probable cause, the court need not consider attacks

on the legality or sufficiency of other allegations in the

affidavits) ; United States v. Koonce, 485 F.2d 374, 379 (8

Cir. 1973) (where affidavit by one officer cited statements

of two informants that defendant possessed a stolen boat

and indicated the location of the boat from defendant’s

grand jury testimony, the court need not reach questions

raised by search conducted by another officer); Chin Kay

v. United States, 311 F.2d 317, 321-22 (9 Cir. 1962) (un-

necessary to consider attacks on two paragraphs of affi-

davit since others sufficient to establish probable cause) ;

Tlowell v. Cupp, 427 F.2d 36, 38 (9 Cir. 1970) (officer’s

finding stolen property in defendant’s front seat provided

probable cause for warrant to search trunk, not invalidated

by previous illegal search of trunk which informed officers

of the contents). Insofar as contrary dicta of the Sixth

Circuit in United States v. Langley, 466 F.2d 27, 35 (1972),

and United States v. Nelson, 459 F.2d 884, 889 (1972), may

not he distinguishable as Mr. Justice Powell has thought

them to be, see Giordano v. United States, 416 U.S. 505,

556 n.6 (dissenting opinion), we continue to adhere to the

majority view.”

21 It cannot be successfully argued that Giordano impliedly disapproved

the line of cases diseussed above or dictates a contrary result in this case.

There, the majority rejected the argument that because an origina!

pen register order was made prior to an illegal wiretap, **~ *~-- -vten-

5411

42a

It is true, of course, that if the sole guiding beacon in a

Fourth Amendment case were the maximization of deter-

rence, all evidence obtained by illegal means in any signi-

ficant part would have to be suppressed, even though there

was a sufficient lawful basis for securing it. But the Su-

preme Court’s decisions on other points of Fourth Amend-

ment law demonstrate that it is not disposed to tilt the

balance that far. Alderman v. United States, 394 U.S. 165

(1969); United States v. Calandra, 414 U.S. 338 (1974);

Stone v. Powell, 428 U.S. 465 (1976). On the basis of the

attitude embodied in such decisions, the precedents here

reviewed, and our own belief that a violation of the Fourth

Amendment should not require exclusion of evidence that

was obtainable without it, we uphold the denial of the mo-

tion to suppress the note found on Marchand in a search

incident to what we consider to have been a lawful arrest.

sions subsequent to the illegal tap could be sustained by the same

showing of probable cause as the original order. The Court stated:

The application for the October 22 extension attached the logs of

telephone conversations menitored under the October 16 order and

asserted that these logs revealed the “continued ase of the tele-

phone . . . for conversations regarding illegal trafficking in nar-

coties.” App. 55. In these circumstances, it appears to us that the

iNegally monitored conversations should be considered a critical

element in extending the pen register authority. We have been

furnished with nothing to indicate that the pen register of No-

vember 6 should be accorded any different treatment.

We think the Court clearly meant that the extension order could not

have been granted absent the illegal evidence.

Reference should perhaps be made to cases in this circuit where a

tax “saturation investigation” was launched partly from legal and

partly from illegal leads. Any implication from language in United

States v. Schipani, 414 F.2d 1262, 1266 (2 Cir. 1969), cert. denied, 397

U.S. 922 (1970), that an indictment stemming from such an investiga-

tion should be dismissed—and we donbt whether such an implication

was ever justified—has been dissipated by United States v. Friedland,

441 F.2d 855 (2 Cir.). cert. denied, 404 U.S. 867, 914 (1971), and

United States v. Cole. 463 F.2d 163, 172 (2 Cir.), cert. denied, 409

U.S. 942 (1972).

5412

43a

V. Alleged Trial Errors

(1) Alleged errors concerning Perkins’ pre-trial photo-

graphic identification and sketch.

Appellant mounts a number of attacks relating to Perk-

ins’ photographic identification.

His first claim is that the array was impermissibly sug-

gestive because “the neutral effect of multiple numbers

was totally undercut by the fact that Marchand’s picture

was the only one which recurred and that of the two large

photographs his was the only one of a light-haired man.”

(Brief, p. 52). The defense also criticizes the nine months

delay in presenting the array, and the use of a photograph

display rather than a lineup. We are not persuaded by any

of these points. The small photograph of Marchand was

somewhat marred by glare; also the larger photograph

seems to depict him at a later age. Sve fn. 6 supra. Indeed,

the photographs were sufficiently different to cause Perkins

to select only one. Under such circumstances, over-repre-

sentation of a defendant in the array does not make the

procedure impermissibly suggestive, let alone give rise to

“a very substantial likelihood of irreparable misidentifica-

tion.” Simmons v. United States, 350 U.S. 377, 384 (1968).

In Simmons, the Court allowed in-court identifications

based on a showing of at least six photos, primarily group

photographs, with the defendant appearing several times.

See United States v. alange, 426 F.2d 939, 935 (2 Cir.),

cert. denied, 400 U.S. S06 (1970) (inclusion of three photo-

graphs of defendant, iaken years apart and at different

angles, in an array oi 16 pictures was not a denial of due

process); United States v. Cunningham, 423 F.2d 1269,

1271-73 (4 Cir. 1970) (admission of testimony concerning

photographic identifications was not impermissibly sug-

gestive although seven of 14 photographs were of appel-

5413

- 44a

lants, and the only color photographs were of appellants

and a codefendant).

The differences of hair and skin color noted by March-

aud were not of great significance since all but three of the

pictures were on black and white film. Nor did the differ-

ences in size of the pictures cause impermissible sugges-

tiveness. As we have recently said:

The due process clause does not require law enforce-

ment officers to scour about for a selection of photo-

graphs so similar in their subject matter and composi-

tion as to make subconscious influences on witnesses

an objective impossibility.

United States v. Bubar, F.2d ——, (2 Cir. 1977),

slip op. 4519, 4529. See United States v. Magnotti, 454

F.2d 1140 (2 Cir. 1972) (full-view photograph of defendant

in array with seven mug shots did not give rise to imper-

missible suggestion); United States v. Harrison, 460 F.2d

270 (2 Cir.), cert. denied, 409 U.S. 862 (1972) (that defen-

dant was the only clean-shaven individual in photo array

was not such an unnecessarily striking difference as to

make him “stand out prominently from the others”). Al-

though the delay was regrettable, it is not decisive, see

United States v. Hurt, 476 F.2d 1164, 1168 (D.C. Cir. 1973)

(delay of one vear); moreover, Avent Handoga testified

that he had no photographs of Marchand until late 1975

or early 1976. While it is preferable for law enforcement

officers to use a line-up rather than photographie identifi-

cation when the suspect is available, this is not a reqnire-

ment. United States v. Boston, 508 F.2d 1171, 1176-77 (2

(ir. 1974), cert. denied, 421 U.S. 1001 (1975).

Beyond all this, under Manson v. Brathwaite, svpra.

U.S. (1977), 45 U.S.L.W. 4681, decided after this

case was argued, even impermissible suggestiveness is not

5414

45a

a per se bar to the receipt of a photographic identification ;

the admissibility of this must be determined on the basis of

the totality of the circumstances. Here the first three of

the factors noted in Manson—the opportunity to view, the

degree of attention, and the accuracy of the description

weigh in favor of admissibility. Although the two other

factors which were relied on in Manson, “the witness’ level

of certainty” and “the time between the crime and the

[photographic] confrontation,” do not weigh in favor of

admissibility, neither are they significant counterweights

under the circumstances here presented. The judge was

not bound to credit Perkins’ expression of uncertainty™

and there is the unusual fact of the remarkable resemblance

between Perkins’ sketch, made only a month after the

crime, and the photograph later selected by him. There is,

further, Perkins’ slip of the tongue, which we noted earlier,

indicating that Perkins in fact knew Bob Marchand was

Big Foot. Moreover, Perkins was under far less pressure

to make a photographic identification than the identifying

narcotics agent in Manson, supra, see —— US. at , 45

U.S.L.W. at 4690 (Marshall, J., dissenting); he testified

that he felt none.

The defense further contends that evidence of Perkins’

pre-trial photographic identification and of the making of

the sketch was not within Federal Rule of Evidence 801(d)

(1) (C) which says that “A statement is not hearsay if

. . . the declarant testifies at the trial or hearing and is

subject to cross-examination and the statement is... (C)

one of identification of a person made after perceiving

him” since that rule allegedly is limited to corporeal identi-

fications. This argument rests on reading the final words

“after perceiving him” as referring to the perception at

22 The trial court did not find, as defendant argues, that Perkins’ photo-

graphic identification was uncertain. The court merely reported Perkins’

“concession” on that point.

5415

46a

the time of the identificatiou rather than at the time of the

crime and then confining “him” to the defendant’s person

rather than to representations of it. This is too confining.

The purpose of the rule was to permit the introdnetion of

identifications made by a witness when memory was fresher

and there had been less opportunity for influence to be ex-

erted upon him.** We thus agree that “Rule 801(d) (1) (C)

should . . . be interpreted as allowing evidence of prior

identification by the witness of a photograph of the person

whom he had initially perceived,” 4 Weinstein & Berger,

Commentary on Rules of Evidence for the United States

Courts and Magistrates 801-107 to 108 (1976), and also to

descriptions and sketches.

The defendant further contends that the purpose of the

Rule to allow introduction of more probative evidence

than in-court identifications dictates exclusion of the un-

certain and unreliable identifications by Perkins. We have

already expressed our views with regard to the certainty

of the photographie selection. The objection that the

-ketch should not have been admitted because of Perkins’

later disclaimer of it merits little discussion in view of

what we have already said about the remarkable corre-

spondence between it and the photograph and about Per-

kins’ telling slip of the tongue. But ever if we felt other-

wise with respect to these factual matters, we would not

heid that the Rule requires exclusion of this evidence.

Protection against identifications of questionable certainty

i» altorded by the requirement that the declarant be avail-

ab! for ecross-examination; questions of the probative

value of the testimony are thus for the jury. See S. Rep.

No. 94-199, 94 Cong., 1 Sess. (1975), reprinted in 4 Wein-

23 As noted at the outset of this opinion, it was fairly inferable that the

latter was one plausible explanation of the loss of recollection by the

‘deutifying witness Fine in United States v. De Sisto, supra, 229 F.°d

at 932-34.

5416

Se Ree ee enc

47a

stein & Berger, supra at 801-4. See also id. at 801-4.6.

While the trial judge doubtless has discretion under Rules

102 and 403 to exclude an identification which he con-

siders to have been too flimsy to warrant the jury’s con-

sideration, appellate courts should be wary of reversing

where the judge has decided that the identification was

sufficiently certaii. to be appropriate for submission.

Appellant argues that even if the evidence was admis-

sible as substantive evidence under Rule 801(d)(1)(C),

it should have been excluded as unreliable on the authority

of United States v. Jenkins, 496 F.2d 57, 68-70 (2 Cir.),

cert. denied, 420 U.S. 925 (1975). But that decision, in a

ease arising before the effective date of the Federal Rules

of Evidence, concerned the different problem when proof

of a prior identification (in that case a non-identification of

Jenkins and an identification of another) is sought to be

proved through a person other than the declarant. See the

discussion in 4 Weinstein & Berger, supra, 801-108 to 110.

While in Jenkins we sustained a refusal to allow the third

party to testify, we did allow the declarant to testify to

his recollection—or more aptly, his lack of recollection—of

the photographic identification.

Appellant also objects to the court’s having instructed

the jury that it could “consider” Perkins’ photographic

identification and sketch without having given the instrue-

tion requested by the defendant as to the dangers inherent

in eyewitness identification. In United States v. Fernandez,

456 F.2d 638, 643-44 (2 Cir. 1972), we said:

While a defendant is not entitled to a reading of all

that was said about the dangers of misidentification

in United States v. Wade, supra, 388 U.S. at 228-236,

87 S.Ct. at 1926, and Simmons vy. United States, supra,

390 U.S. at 383-384, 88 S.Ct. at 967, we would think it

reasonable that a properly drafted instruction, draw-

5417

48a

ing particularly on Mr. Justice Harlan’s language in

Simmons, shou.d be given if requested. Whether

failure to do so would be reversible error would

depend on the circumstances.

The reversal in that case rested on other grounds, De-

fendant has cited no decision holding that the giving of

such a charge is mandatory, and a number have refused

to do so. United States v. Evans, 484 F.2d 1178, 1187-88

(2 Cir. 1973); United States v. Gentile, 530 F.2d 461, 469

(2 Cir.), cert. denied, 426 U.S. 936 (1976); United States

v. Barber, 442 F.2d 517, 525-26 (3 Cir.), cert. denied, 404

U.S. 958 (1971) (noting “formidable precedential author-

ity” that cautionary instruction is not required). This

would be an exceedingly inappropriate case for seeking to

make new law on this subject. The identifications were only

a part of the case that Marchand was the supplier, a less

important part than counsel would have us believe, and

the cireumstances were such that a cautionary instruction

might have led the jury away from the truth rather than

toward it.

(2) Alleged errors concerning Roy’s grand jury testi-

mony.

Defendant complains in regard to the Government’s sum-

mation and the charge with respect to Roy’s grand jury

testimony. The complaints about the summation relate to

statements that Roy “gave sworn testimony under oath to

a Grand Jury that identified Bob Marchand as ‘Big Foot’

or Bob, the supplier” “he told the Grand Jury that this

friend committed a felony; that this friend gave him 180

pounds of marijuana”; and he “told... the Grand Jury

that Bob Marchand was ‘Big Foot’.”. While Roy did not

tell the grand jury in so many words that Boh Marchand

was Bob or Big Foot, he did testify that the supplier was

0418

;

49a

the Bob, also known as Big Foot (or vice versa), who was

the same man he had known from Amherst, Mass., days,

whom he remet in a Brattleboro bar with a girl named Ann

and who had given him telephone numbers to call to pur-

chase marijuana. Roy did in fact testify at trial, without ob-

jection, that he led the grand jury to think he could identify

Marchand as the person who supplied him with the mari-

juana and that “this friend” was the man who supplied

him with marijuana, which was indeed a felony. The mo-

tion for a mistrial was based not on any minor inaccuracies

in the prosecutor’s statements concerning the grand jury

testimony hut on the basis that the testimony could not be

used as substantive evidence under Rule 801(d)(1)(A), a

point which we reject below.

The charge was as follows:

Now if you find that the witness Roy on that .occa-

sion before the Grand Jury, did identify the defendant

Marcranp along with his girl companion Ann Curtis

as the same person as “Big Foot” whom he had pre-

viously seen with Ann Curtis, you may consider his

testimony to the Grand Jury as substantive evidence

of the facts as he represented them to be in his testi-

mony to the Grand Jury and this is so, although the

witness Roy has stated he misled the Grand Jury and

was not entirely truthful to that body.

It is for you the Jury to determine in the light of

all the evidence in the case bearing on the question

which testimony of Roy is true. His testimony at the

trial, or his testimony before the Grand Jury in July

of 1976.

The objection to this was:

Mr. Weinberg: Our first objection, Your Honor,

would be, . . the first objection, Your Honor, would be

5419

50a

to your allowing the Jury to use Mr. Roy’s Grand

Jury testimony substantively.

We would object both because there was no evidence

of an I.D. of Marcuanp in the Grand Jury that came

out through the evidence.

Secondly, there were io statements within Rule 801.

Third, because there couldn’t have been any intro-

duced because of the taint issue coming from the, vour

exclusion of the pre-trial photographie identification.

Moreover, I think Your Honor inadvertently invited

the Jury to guess which is truthful by asking them to

make that kind of decision.

I ask Your Honor to instruct the Jurv thev can’t

surmise, conjecture, or guess when Roy told the truth

because there wasn’t enongh evidence to hase that kind

of judgment on.

The criticisms now made relate to the judge’s character-

ization of Roy’s grand jury testimony. These are that the

only grand jury statements introduced before the trial jury

referred simply to Ann and not to Ann Curtis and that

nowhere in the grand jury testimony so introduced did Roy

identify Marchand as Big Foot.

The Ann Curtis matter need not detain us. As previously

stated, the Government had introduced portions of Rovy’s

grand jury testimony in which he had referred to “Ann”

as Big Foot’s female associate. Roy adinitted that the Ann

he referred to before the grand jury was the same Ann

who was Marchand’s fianeée. The judge could reasonably

conclude that Roy’s subsequent testimony that he never

in fact had seen the girl who was with Big Foot with Bob

Marchand did not contradict his statement that the Ann

he meant when he purportedly misled the grand jury was

Marchand’s finaneée. Further, if counsel had thought the

reference to “Curtis” to be significant, it was his duty to

0420

5la

bring this error to the attention of the judge who would

doubtless have corrected it, United States v. Kahaner, 317

F.2d 459, 478-79 (2 Cir.), cert. denied, 375 U.S. 836 (1963).

Counsel could well have thought that doing so would only

highlight the point.

With respect to the statement in regard to Marchand,

we repeat what we have said about the summation. Grand

jury testimony which was read to the jury did have the

effect of identifying Marchand as Big Foot, as Roy seemed

to recognize in his trial testimony. The judge could well

have understood the objection to be that since the trial jury

had not heard, and under his suppression ruling should

not have heard, evidence of Roy’s grand jury photographic

identification, no use of Roy’s grand jury testimony as

substantive evidence was permissible. This simply was

not so. Even if Roy’s grand jury statements which were

read to the trial jury were not admissible under Rule 801

(d)(1)(C), they were receivable under Rule 801(d)(1)(A).

The flaw underlying much of appellant’s argument is the

inarticulate premise that identity can be proved only by

corporeal or photographie identification after the crime.

Manifestly this is not true, as in the case where the person

originally observed as the perpetrator has significantly

altered his appearance. In such a case and many others,

ef. United States v. Barbati, 284 F. Supp. 409, 411

(E.D.N.Y. 1968), identity can be established by other evi-

dence showing how the perpetrator had been known be-

fore the crime and then linking the defendant with him;

if a witness has testified to such facts before a grand jury

and forgets or denies them at trial, his grand jury testi-

mony or any fair representation of it falls squarely within

Rule 801(d)(1)(A).

In view of this discussion, little need be said in regard

to appellant’s further contention that the Government’s

eliciting from Roy that he had misled the grand jury was a

5421

52a

backhanded way of bringing before it the evidence of the

photographic identification in violation of the judge’s

order and Marchand’s d e process rights. The jury heard

nothing about Roy’s pl »tographie identification, and the

judge evidently did not consider his order to have been

violated. The former point suffices to dispose of the con-

stitutional claim as well.**

In a footnote to his reply brief Marchand seems to

suggest that it was error to allow the Government to ask

the questions about misleading the grand jury at all, since

Rule 801(d)(1)(A) affords the only way to get inconsistent

grand jury testimony of a witness before the trier of the

facts. This misconceives the limited function of the Rule,

namely, to withdraw the hearsay bar from material coming

within it. The Rule does not prohibit the use of other

material for impeachment, see Rule 613. All that the judge

allowed to be considered “as substantice evidence” were

portions of the grand jury testimony that were read to the

trial jury.

IV. Sufficiency of the evidence.

Although, as indicated, fn. 3 supra, counsel for appellant

argued sufficiency cf the evidence as their initial point and

28 We have serious doubt whether the judge was correct in granting

suppression on the ground of impermissible suggestiveness, not only in

light of the Supreme Court's recent decision in Manson v. Brathwaite,

supra, but even apart from it. Roy had made his first photographie

identification, such as it was, without impermissible suggestion; the

supplying of a better and later photograph of “a Bob’ was to see

whether this would strengthen recognition already made. The problem

lay rather in whether there had in fact been an identification. Mar-

chand’s correct constitutional claim on the “backhanded” argument

would thus be rather that he had no opportunity to show the trial jury

how slender Roy's photographic identification bad been, an opportunity

of rather small value in light of Roy's admission to the grand jury that

he had identified his supplier. However, since the jury never heard that

there was a photographic identification, the issue does not arise.

9422

53a

included a great deal of discussion of rules of evidence in

that argument, we have felt it necessary to deal first with

their claims that much of the evidence was improperly

received. Having held these to be without merit, we find

the question of sufficiency relatively easy.

We start with the solid core of facts as to which there

is no real dispute. Bob or Big Foot was the same man

all along. He was Roy’s friend at Amherst, Mass.; the

renewed acquaintance at Brattleboro; the man with whom

discussions about marijuana began at Springfield; the man

who had a female associate identified before the grand

jury as Ann; the man who engaged in two previous

narcotics sales to Roy and Perkins; the man who gave Roy

telephone numbers which Roy could call to purchase

narcotics; and the man who sold the 180 pounds of

marijuana on July 18. There were no Bob on the one hand

and Big Foot on the other; the two were one and the same.

Rey, Perkins or both made frequent calls just before the

July 18 transaction to telephones listed in the names of

Robert Marchand and Ann Curtis. Roy had meant to

implicate Marchand before the grand jury, thought he had

done so, and got word to Hillman.** Hillman informed

Marchand, who made careful note, including Roy’s address,

see fn. 11, supra, and shortly departed for Florida. This

would justify a reasonable juror in being convinced beyond

a reasonable doubt that Robert Marchand was Bob-Big

Foot even if there were nothing more.

But there was. Perkins’ photographic identification was

before the jury. To be sure, Perkins testified that he was

asked to select the photograph that “most closely resem-

bled” Bob or Big Foot, and the judge so found despite

Agent Handoga’s testimony that Perkins was asked to and

25 Since this evidence was brought out by the defense, it cannot and

does not object on the ground of hearsay.

0423

54a

did make a positive identification ;** and appellant relies in

this connection on such photographic identification cases

as United States v. Keller, 512 F.2d 182, 184 (3 Cir. 1975)

(“a conviction cannot stan? when it rests solely on aii

identification as uncertain as this one”), and United States

v. Johnson, 427 F.2d 957, 961 (5 Cir. 1970) (where “sole

witness is unsure and there are no other connecting or

corroborating circumstances” the jury cannot find guilt

beyond a reasonable doubt). But these cases dealt with

identification by victims who had only scanty opportunity

for observation and where there were no corroborating

circumstances.** There were also Perkins’ description and,

26 The jury could reasonably have believed that the emphasis on the

“closely resembles" selection was supplied by defense counsel and not

by Perkins, and that Perkins picked out the man he thought was Mar-

chand, not someone who resembled him. Perkins testified that he was

aware that the task at hand in the photographie identification was to

“find the two people I had seen on July 1975." In cross-examination

concering the photographic identification, defense counsel handed Perkins

a photograph and the following exchange occurred:

Q. What is it?

A. It was a photograph I picked to be the other person that had

been with Big Foot.

Q. The person who most resembled the person who had Leen with

Big Foot in July of 19759

Q. Correct. (Emphasis supplied).

Belief by the jury that Perkins selected the man he thought to be Big

Foot thus would not be inconsistent with the trial court's finding on the

suppression motion that he was asked to make a “closely resembles”

selection.

27 Defendant a'so cites a number of cases in which in-court testimony

that the defendant resembled the perpetrator of the crime was held

insufficient to sustain a conviction, but these are easily distinguishable.

In Hendriz ¥. United Statcs, 327 F.2d 971, 974 (5 Cir. 1964), the only

evidence connecting the defendant with the cashing of forged checks

was “testimony of a resemblance and the fact that the person sought

to be identified was accompanying the persons who are more clearly

tied in with the offense charged.” In Alexander v. United States, 354

F.2d 59, 63-64 (5 Cir. 1965), the only positive identification of the

defendant put him at the scene of the bank theft the day before it

occurred. The only other admissible evidence was testimony of bank

5424

Aa ta A tom a -

ns wth 04d Bot He

Oe ee ee eee ee

55a

most important, his sketch. As we have previously stated,

the resemblances between this and the photograph which

Perkins later identified are too strong for anyone to believe

that Perkins could have drawn the sketch if he had never

seen the subject. And Perkins was clear that he had seen

the man he was drawing only in coraection with the three

narcotics transactions, never anywhere else. Despite what

the jury could reasonably have deemed a charade about

his inability to make a courtroom identification, there was

Perkins’ inadvertent admission on cross-examination by

defense counsel about the sketch that the man standing

before him in the courtroom was indeed the man he had

tried to draw. Also quite probative was Perkins’ selection,

tentative though it was, from the scores of phone numbers

listed in the toll records, of Marchand’s number as the one

at which Big Foot could be reached. Finally, there were

the various changes of testimony by Roy and Perkins; far

from the judge and the jury being bound to swallow the

version most favorable to Marchand, they were free to

believe, on the basis of self-contradiction and demeanor,

that these witnesses were lying** when they weakened

their earlier statements and that the former identifications

and the grand jury testimony read into the record were

the truth. Indeed Roy’s brash demeanor comes through

even on a cold record. Whatever merit the learned discus-

sions by counsel might have on other facts, they have none

here. As in Achilles v. New England Tree Expert Co.,

employees that the defendant looked like someone who had been on the

premises on the day wher the theft occurred. Jd. at 61. In both United

States v. Musquiz, 445 F.2d 963, 965-66 (5 Cir. 1971), and lnited

States v. Luck, 447 F.2d 1333 (6 Cir. 1971), the only admissible evidence

connecting the defendant with the crime was uncertain identification

testimony.

28 On one occasion when Roy explained his changed testimony on the

basis that he was now testifying under a grant of immunity, the court

warned him that the grant did not include perjury or false statements.

5425

56a

396 F.2d 72 (2 Cir. 1966) (Medina, J.), the verdict was a

tribute to Vermont common sense.

We have carefully considered defendant’s other claims

of error but, except for the ones rejected in the margin,”

find them unworthy of discussion.

The judgment of conviction is affirmed.

29 Defendant's argument that the indictment should have been dismissed

under United States v. Estepa, 471 F.2d 1132, 1137 (2 Cir. 1972), is

meritless. We there held that dismissal would be required when there

is a high probability that the grand jury would not have indicted if

presented with first-hand testimony rather than hearsay, or where the

prosecution misleads the grand jury as to the “shoddy merchandise they

are getting.” The complaints here are that instead of calling Verkins

before the grand jury the prosecutor had Agent Handoga read Perkins’

testimony before the first grand jury which included the statement that

he bad “foun. out [Big Foot’s] name was Bob Marchand” but not what

Perkins later claimed to he the rather weak photegraphic identification,

and added Handoga’s own observations with respect to Perkins and

Roy's identifications. Perkins’ testimony befoze the first grand jury was

clearly hearsay with respect to the second grand jury under the cir-

eumstances, and we shall assume arquendo that the agent’s also was,

cf. 4 Weinstein and Berger, supra, at 801-137 to 140. Assuming that

Estepa has survived United States v. Calandra, 414 U.S. 338, 344-45

(1974), as we seemingly did in United States v. Bertolotti, 529 F.2d 149,

159 (2 Cir. 1974), we do not find either branch of the test to have

been met. There was no deception of the grand jury; United States v.

Harrington, 490 F.2d 487, 489-90 (2 Cir. 1973); United Stotes v. Olsen,

453 F.2d 612, 615 (2 Cir.), cert. denied sub nom. Leach v. United States.

406 U.S. 927 (1972), and there is not the slightest doubt that the grand

jury would have indicted if Perkins had been called, as he should have

been if available.

We likewise reject defendant's argument that the indictment should

have been dismissed because it was based in part on Roy's photographic

identification which was later ruled to he inadmissible at trial hecause

of impermissible sugzgestiveness. Apart from our doubt as to the cor-

rectness of that ruling, see fos. 15, 24 supra, the Government, in present-

ing a case to the grand jury. canvot be expected, suave perhaps in the

most egregious cases of which this was not one. to anticinate later

unfavorable suppression decisions. See United States v. Calandra, supra.

414 U.S. at 344-45.

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teers ULeRK

No. 1288--September Term, 1976.

(Petition for rehearing Opinion denying petition for re-

filed September 14,1977 hearing filed November 1, 1977.)

Docket No. 77-1131

asstetiltedits aceiliaiienai anatase

Unirep States or AMERICA,

Appellee,

Rosert P. Marcuann, Jr..

Appelleat.

Beforc:

Friexpity, Timsers and Meskr.u1,

Circuit Judges.

Per Curiam:

On Petition of Appellant for Rehearing

Appellant Marchand has filed a petition for rvhearing,

accompanied by a suggestion for rehearing en banc. This

is limited to the portion of this court’s opinion (Part IV,

pp. 5405-12) affirming the district court’s refusal to sup-

press the note seized on Marchand’s arrest in Florida. We

deny the petition.

The basis for our upholding the denial of the suppres-

sion motion was that the officers in Florida had probable

cause to arrest Marchand which derived from a clearly

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untainted source, primarily the photograph of Marchand

previously sent them from Vermont, quite apart from the

additional cause furnished by the unlawful extraction

of a driver’s license from Marchand’s wallet... Not seri-

ously disputing that untainted probable cause existed,

Marchand argues that the Government had the burden of

showing that the arrest would have been made if the il-

legally obtained evidence had not existed and that it did

not meet this,

The argument would transpose to the situation here

presented a principle with respect to burden of proof laid

down in the usual “fruit of the poisonous tree” case, e.g.,

Wong Sun v. United States, 371 U.S. 471 (1963); United

States v. Cole, 463 2d 163, 171-74 (2 Cir.), cert. denied,

409 U.S, 942 (1972); United States v. Falley, 489 F.2d 33,

40-41 (2 Cir. 1973); and United States v. Ceecolini, 542

I’.2d 136, 140-41 (2 Cir, 1977), cert. granted, 45 US.LW.

ov 15, USS. (1977), where the prosecution, having

first obtained tainted evidence, must demonstrate that ev-

lence thereafter developed cid not stem from the evidence

illegally obtained, Here the sequence was the opposite.

When lawfully obtaimed evidence is sufficient to justify an

arrest aml an incidental seizure, a defendant suffers no

violation of constitutional rights merely because an officer

might not have made the arrest but for the additional proof

furnished by evidence which he later obtained illegally.

The Fourth Amendment protects against an arrest withont

probable cause derived from evidence legally obtained; it

does not confer a further protection against the possibility

that a particular officer might not have vone what he law-

fully could. Cf. United States v. Capra, 501 F.2d 267, 280

—_———

! Although Marchand now avers that Massachusetts and New Mampshire

drivers’ lbeenses contained in his wallet at the time of his arrest contained

photographs of him, he tendered no evidence of this at the suppression

hearing.

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n.12 (2 Cir. 1974), cert. denied, 420 U.S. 990 (1975). The

Government thus had no such urden as defendant would

place upon it. In the search warrant cases cited in our

opinion, the courts did not require the Government to show

that the warrant would in fact have issued, or even would

have been sought, on the basis of the legally obtained ev-

idence alone; it was enough, in Judge Leventhal’s words,

“fijf the lawfully obtained information amounts to prob-

able cause and would have justified issuance of the war-

rant, apart from the tainted information ... ,” James v.

United States, 418 F.2d 1150, 1152 (1).C. Cir. 1969) (em-

phasis supplied). See also United States v. Koonce, 485

F.2d 374, 379 (8 Cir. 1973) (if the affidavit of one offieer,

by itself, “would be enough lo support a magistrate’s find-

ing of probable cause,” the illegal search by another officer

need not be considered (emphasis supplied)). We see no

basis for the challenge by appel!ant’s eonnsel to the analogy

of these eases. The flaw is rather in invoking as an analogy

eases where, but for the illegality, the untainted evidenee

justifying an arrest might not have been obtained at all?

The petition for rehearing by the panel is denied,

Our “but sec” citation to United States v. Ceccolini, supra, 412 F.2d

136, see slip opinion at 5408 1.19, does not, as counsel arcuves, indicnte

any view on our port that our decision was inconsistent with Ceccolin,

It quite clearly indicates only that the evidence in Ceccolint dwtated a

diferent conclusion whether the Government bad met its burden of shaw

ing that it would have di-covered the untainted evidence without the

tainted evidence than im tho cases previously cited.

“>

bois

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Excerpt from Transcript of Suppression Hearing Testimony.

[79] THe Court: Go ahead.

Miss Jacosson: Thank you, Your Honor. We would

call Special Agent James H. Harris.

James H. Harris, having been called as a witness by the

Government, was duly sworn by the Clerk and testified

on his oath as follows:

Direct Examination by Miss Jacobson:

Q. Agent HARRIS how are you employed? A. I ama

Special Agent with the Drug Enforcement Administration in

MraMI, FLoripa.

Q. And how long have you worked for the D.E.A.?

4. Eight years.

Q. All right, were you on duty on August 24th, 1976?

A. Yes, I was.

Q. All right, would you tell us what your hours of duty

were that day, if you remember? A. Started at approxi-

mately 5:00 o'clock in the morning at the Dape County

Public Safety Department in Miami Beacn, FLoripa.

Q. Did you have occasion that day to execute a Federal

arrest warrant? A. Yes, I did in LaupERDALE, FLoripa.

Q. All right, can you tell us when that warrant was

issued if you know? A. I believe it was issued the day

before, but I'm not exactly positive.

Q. All right, do you know if that warrant was issued

resulting from an indictment that was returned by a Grand

Jury? [80] A. Yes, it was a warrant as a result of an

indictment.

Q. Do you know in whose name that warrant was

issued? A. Robert Hiccins.

Q. All right and would you tell us what happened at

the time that you executed the warrant? A. We went toa

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Mr. Hiccins apartment in LAUDERDALE, FLorIpA, MysELF,

Two Dape County Public Safety detectives and another

Special Agent from the Drug Enforcement Administration.

We were joined by a LauperpALe Police Department

officer, myself, Detective Apcock and a LAUDERDALE Police

warrant officer went to the front door, Agent McGlassius

(Phonetic) and SatLer, Detective SATLER, went to the rear

door of the apartment. The LaupeRpALE Police Orricer, —

THe Court: How do you spell that? Lauderale.

A. L-A-U-D-E-R-H-I-L-L.

THe Court: LavuperHitt? A. Lauderhill.

THe Court: Go ahead. A. The officer knocked on the

door. This was a uniformed officer, knocked on the door

and Mr. Hiccins opened the door. The officer asked him if

he was Mr. Hiccins. He stated no and said he was Mr.

Hut, I believe was the name, H-U-L-L. Detective

Apcock identified to me Mr. Hutt as being Mr. Hiccins,

the one that we had the arrest warrant for and I placed

Mr. Hiccins under arrest.

Q. And what happened at that point, did you enter the

[81] apartment? A. Yes, I arrested him just inside the

door of the apartment.

Q. All right and did you enter the apartment with the

other law enforcement people with you? A. Yes.

Q. And was there anyone else present in that apart-

ment? A. I was advised by Mr. Hiccins that there was

another person in the bedroom and I saw personally later

identified, RoseErtT MARCHAND coming from the bedroom on

the, I believe it would be the southeast side of the apart-

ment.

Q. And did you have any conversation with Mr.

MARCHAND at that time? A. No, I asked one of the

officers to find out who he was and to make sure that he

was not armed.

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Q. And one of the officers went over to Mr. MARCHAND

to find that out? A. Yes.

Q. All right, were you notified at any time while you

were in the apartment of Mr. MarcHanp’s_ identity?

A. Yes, I was in Mr. Hiccins’ bedroom, it’s a two-bedroom

apartment and Mr. Hiccins’ bedroom was on the southwest

side of the apartment and we were in there talking to Mr.

Hiccins. Detective Apcock came over and stated that she

knew Rospert Marcuanp and she showed me I believe it

was a driver's license and she stated that Mr. MARCHAND

was known to her and that she had reason [82] to believe

he was a fugitive from the District Court of Vermont on a

marijuana conspiracy indictment and that she had learned

this from conversation with the Special Agent HaNpoca of

the Burlington District Office of D.E.A.

Q. And what did you do after Detective Apcock

informed you of that? A. I placed a call to Special Agent

Hanpoca in Burlington and advised him that we had

personally identified Roperr MARCHAND from the date of

birth and other identifying information and was advised

that there was a warrant in fact issued for MARCHAND and

that I believe he, Agent HaNpoca also gave me the criminal

indictment number and the date the indictment was filed

and other information regarding his identity.

Q. Do you recall what that information was? A. I

believe he just verified the date of birth and his height and

weight and eye color and things like that and also he gave

me the indictment number, the criminal indictment was

76-51 or something like that. I don’t recali the exact

number.

Q. And after he spoke with Agent Hanpoca, what did

you do? A. I went back in the other room and it would

be like the dining room, near the kitchen where Mr. Mar-

CHAND was presently standing and advised him that he was

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under arrest for violation of Federal narcotic laws and there

was a warrant issued for him in Vermont. I advised him

[83] of his rights and I then searched him.

Q. And when you searched him, did you remove any-

thing from his custody? A. Yes, I took a small telephone

address book and various papers from his wallet.

Q. And were aii these objects taken from Mr. Man-

CHAND’s person? A. Yes.

Q. After you seized these objects, did you maintain

them in your own custody? A. Yes.

Q. For how long? A. I believe it’s possibly up to a

week. I had, I sealed them in an evidence envelope and

after conference with Agent Hanpoca I mailed them

registered mail to Agent HANboca.

Q. Thank you, Agent Harris, I have no further

questions.

Cross Examination by Mr. Weinberg:

Q. This arrest warrant that was Mr. Hiccins, what was

that for sir? A. Conspiracy to import marijuana and sale

and distribution of marijuana.

Q. How did you know Hiccrns was inside the apart-

ment? A. Knocked on the door and he opened the door.

Q. You went to that apartment for a specific reason,

did you not? A. Yes, to arrest Mr. Hicc1ns.

Q. The apartment was not registered in Mr. Hiccins’

name is it? [84] A. It was registered in an alias as Mr.

HULL.

Q. The name was under Mr. Hutt? A. I believe

that’s correct.

Q. Had you ever seen Hiccins in the apartment before?

A. I had never been in the apartment before.

Q. Had you even seen him go into the apartment

complex before? A. No.

Q. Did you receive any specific information that he

would be present at the apartment that day? A. Only

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from the detectives, State Department of the Safety Depart-

ment who had told me that they had conducted previous

surveillance and investigation in the vicinity of the apart-

ment and believed that he would be present early in the

morning.

Q. Did they give you any specific details regarding

whether or not they conducted a surveillance that evening?

A. No.

Q. Had you ever heard Mr. Hiccins go by the name of

Hutt before? A. I had never — up to that morning, I

never heard of Mr. HiccIns.

Q. Did your cooperating agents ever tell you the basis

for their knowing that Mr. Hiccins and Mr. Hu. were the

same? A. It was Detective Apcock, I believe, that I had

the conversation with and I believe they determined from

the investigation how, what means they used, I don’t know.

Q. You don’t know whether or not they interviewed the

landlord or anything like that, do you? [85] A. No, I do

know when he opened the door, he identified himself as

Mr. Hutt and we did have a picture of him and we knew

he was HiccIns.

Q. What time did you arrive? A. We were there

approximately I guess, around 7:00 a.m. and we waited for

about a half hour, for the LAupERHILL uniformed police to

arrive.

Q. You went inside the apartment complex and into the

hall outside Mr. Hu w’s apartment at 7:30 a.m., approxi-

mately? A. About 7:30, that’s approximate.

Q. You knocked on the door? A. The police officer

did.

Q. Did he say anything? A. He advised him that he

was of the Lauderhill police department and that he would

like to talk to Mr. Higgins.

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Q. Was this while the door was closed, or open?

A. The door was closed.

Q. Before the door opened, he advised that he was a

Lauderhill police officer? A. Yes, sir, I believe Mr.

Higgins, I think it was Mr. Higgins, said, “who is it?”

And he also announced himself again and Mr. Higgins then

opened the door and asked him what’s the problem and we

arrested him.

Q. You arrested Mr. Higgins right at the threshold of

the door, is that correct? A. Yes, just as we walked in.

Q. And did Mr. Higgins invite you in after that? [86]

A. Yes.

Q. He invited you into the apartment? A. Well we

had a little problem, the fact that he was wearing nothing

but a towel at the time and he didn’t really want to be

taken down town in that condition.

Q. Did he go into his bedroom? A. Yes, he did.

Q. Which is the bedroom separate from that in which

you noticed the second individual, is that correct? A. Yes,

it’s separate.

Q. When you saw the second individual you didn’t

know who he was, did you? A. I had no idea.

Q. Never seen him before in your life? A. No.

Q. Nor had Detective Apxins, is that correct? A. De-

tective Ancock, I believe, had seen a photograph of Mr.

MARCHAND somewhere in the past. I don’t know when,

and —

Q. It’s fair to say you were the arresting officer, sir, is

that correct? A. In what sense?

Q. You made the decision to arrest Mr. MARCHAND?

A. Yes, I did.

Q. That decision was after you spoke to Special Agent

HANDOGA in VERMONT, is that correct? A. After I deter-

mined he was wanted, yes, sir.

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[87] Q. Right and you determined that after the phone

call to Special Agent Hanpoca? A. And from a conver-

sation with Detective Apcock.

Q. But it wasn’t until after you spoke with Special

Agent Hanpoca that you arrested RopertT MARCHAND for

being a fugitive from an indictment? A. I undertook

upon myself to talk to one of our agents in VERMONT to

determine the fact that there was a warrant issued.

Q. And then you arrested Mr. MarcHaNp? A. Cor-

rect.

Q. Not beforehand? A. Correct.

Q. Did you and Mr. Marchand have any discussions

prior to your placing him under arrest? A. I don’t believe

I ever talked to him.

Q. You were with Mr. Hiccins, were you not? A. I

was with Mr. Hiccins.

Q. In, and Mr. Hiccins was in the bedroom getting

dressed? A. Yes, he was getting dressed in there, yes.

Q. And Mr. Marcuanp you had first seen in another

bedroom, is that right? A. He was coming out of the

bedroom and there was, I believe a hallway bathroom and

the hall goes out into the kitchen.

Q. Now, while you were with Mr. Hiccins, Detective

Apcock, is that the right name? A. Yes.

[88] Q. Came to you with the wallet? A. I believe

she had a, just a driver’s license.

Q. Driver's license? And that was Robert Marchand’s

driver's license? A. Yes.

Q. And that’s how she identified the individual who

was with Mr. Hiccins in the apartment that morning, is

that correct? A. I don’t know if she did it completely on

the driver's license or, well, she stated she had seen a

picture of this person before and she recognized the name

and the picture and whatever and she knew it was Robert

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MARCHAND, the one that Agent Hanpoca had referred to

earlier.

Q. You were not present at the conversation, were you,

between the, if there was any, between Detective Apcock

and Mr. MarcHanp? A. I wasn’t present when she was

talking to him.

Q. Do you don’t know how Mr. MarcHANDd was

identified by Detective Apcocx, do you? A. I would

assume from the driver’s license that obviously had given

the driver’s license, or had been taken, one way or the

other. I don’t know which way. And was identical, was

identified. That’s the normal procedure to identify the

persons any how.

Q. Then she came into you because you were the chief

agent on the spot, you were the D.E.A. agent, is that right?

A. That’s correct.

[89] Q. And she gave you the information at her

command and you verified it by calling up Special Agent

HanpoGa, is that right? A. That’s basically correct.

Q. And then you arrested him, Mr. MarcHanp?

A. Correct.

Q. Before you arrested MARCHAND, strike that. There

was no search warrant for the apartment, was there?

A. No.

Q. Mr. MARCHAND never made any statements to you

after his arrest, did he? A. The only statements he made,

well, he asked me what it was about and I told him. I

didn’t know what it was about, other than it was an indict-

ment in the District Court of Vermont. I didn’t know any-

thing about it. He asked me what was going to happer

and I told him he was going to be taken down and he said,

“fine” or whatever. He wanted to call a lawyer. He's

allowed, he made numerous phone calls from Mr. Hiccins’

phone, after talking with Mr. Hiccins about using the

phone to, I believe, the lawyer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.