United States v. Richard Michael Sullivan ( 1972 )

456 F.2d 1273

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Michael SULLIVAN, Defendant-Appellant.

No. 71-2529 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

March 8, 1972.

John Donald Wessel, Boca Raton, Fla. (Court Appointed), Fox, Brannen & Wessel, Boca Raton, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before, THORNBERRY, MORGAN and CLARK, Circuit Judges.

PER CURIAM:

1

Richard Michael Sullivan appeals from a jury verdict of guilty on a two-count indictment charging violations of 18 U.S.C.A. Sec. 2113(a) and (e). We affirm.

2

Sullivan first contends that repeated displays of picture spreads to eyewitnesses of the crime were impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification, contrary to the standards laid down in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), because upon the initial display, some of the witnesses either identified someone else or no one at all. The trouble for this contention is that the record fails to make clear how many of the witnesses who later identified Sullivan actually observed more than one photo spread containing his picture. Rather, the evidence indicates that only one witness out of the many who testified actually viewed successive photo displays containing pictures of Sullivan.

3

The trial judge followed the identification procedure set forth in United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970) and determined that each display standing alone was not impermissibly suggestive. We have viewed the displays and concur with this finding. Nor, in the totality of the circumstances of this case, were the successive displays impermissibly suggestive in their cumulative impact. Cf. United States v. Ballard, 423 F.2d 127 (5th Cir. 1970). Any proof of misidentification or hesitation in identification was properly left to the jury's consideration.

4

Sullivan next argues that a suitcase belonging to a co-defendant, Ansin, was erroneously admitted as evidence against him. Specifically he contends that the trial judge admitted the suitcase without an offer by the Government, and further that the suitcase was not in any way connected with him. He claims that the admission of the suitcase was extremely prejudicial to him since it contained towels with markings of cosmetic face cream, a wig, notes of plans of the robbery, and other items either used in or concerned with the robbery. Although it is true that the Government never made a formal tender of the suitcase, it is evident from the record that the Government intended to introduce the suitcase for it had taken all preliminary steps to establish a foundation for its admission. The trial judge in an effort to keep the proceedings moving, merely interposed his admissibility ruling before the Government formally tendered the suitcase. Of course the judge can't try the case for the Government, but that is not what happened here. We perceive no harmful procedural error in this ruling.

5

Nor do we discern any error as to the relevancy of this evidence. The co-defendant, Ansin, pled guilty and in his testimony implicated himself and Sullivan in the robbery. Ansin positively identified the suitcase and its contents and linked them with the planning and execution of the robbery. The suitcase and its contents corroborated Ansin's testimony and thus were relevant to the issues being tried.

6

The points of error relating to the refusal to submit certain requested instructions and the alleged restriction on cross-examination are without merit.

7

Sullivan's counsel maintains that the trial judge abused his discretion in denying his request for a waiver of the maximum amounts allowable to attorneys under the Criminal Justice Act, 18 U.S.C.A. Sec. 3006A (1969), so as to permit him to recover additional compensation. We decline to reach the merits of this position, nor will we decide whether a trial judge's decision on compensation under this Act is appealable at all. Our only decision is that the correctness of such a ruling cannot be raised on the present appeal. The issues before us concern the fairness of Sullivan's trial. This appeal does not provide a forum for his appointed attorney's personal financial complaints. The judgment is Affirmed.

*

Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 431 F.2d 409, Part I (5th Cir. 1970)