United States v. Mark Edwin Cook ( 1980 )

GOODWIN, Circuit Judge:

Mark Cook appeals a judgment following his conviction of violating 18 U.S.C. § 2113(a) and (d) (bank robbery) and of related conspiracy and firearm counts.

On January 23, 1976, four men attempted to rob the Tukwila Branch of the Pacific National Bank. Three of the robbers entered the bank while the fourth remained across the street in an automobile. Tukwila police officers, responding to a silent alarm, arrived at the bank while the robbers were still inside. A gun battle erupted between the robbers inside the bank and the officers outside. The fourth robber fired several shots at the police. He then drove away in the automobile.

The three robbers remaining in the bank surrendered and were taken into custody. They were later identified as Edward Meade, John Sherman, and Bruce Seidell. Shortly after his surrender, Seidell died from wounds. Meade stood trial and was convicted. His conviction was affirmed by this court in an unpublished disposition on August 19, 1977. Sherman, who was wounded, and tried separately, is not involved in this appeal.

On March 10, 1976, Officer Johnson of the King County Police was escorting Sherman to Harborview Medical Center for Sherman’s weekly medical appointment. As Johnson and the prisoner were entering the police van, a black man in a white coat approached Johnson from the rear and said: “I’m taking your prisoner!” The man then shot Johnson and fled with Sherman. Hospital witnesses later identified Mark Cook as Johnson’s assailant. Cook was indicted as the fourth bank robber.

Jack Stockham and Douglas Fluaitte witnessed the gun battle at the Tukwila Bank. Stockham viewed the “get-away” man for two five-second intervals at a distance of some 30 to 40 yards. Fluaitte viewed the same man for “a few seconds” at a distance of 30 to 35 feet and he “got a really fast look” about “a foot away” as the man sped by in his car. A few hours after the attempted robbery, Stockham and Fluaitte gave descriptions of the “get-away man” to the F.B.I. These descriptions in a general way applied to Cook.

About six weeks after the robbery, a Tukwila police officer displayed pictures of six black males, including Cook, to Stock-ham. Stockham selected three of the photos from among the six but was unable to make a positive identification of the person he saw at the time of the attempted robbery. He indicated that Cook’s photograph most closely resembled the man he had seen. Fluaitte was shown the same photos and was unable to make any identification.

On March 15, 1976, a lineup was conducted at the Tacoma police station. Stockham positively identified Cook as the man he had seen at the Tukwila Bank. He also said he recognized Cook as one of the men pictured in the photo spread. Fluaitte also chose Cook from the lineup, but he was uncertain of his identification.

At trial, both witnesses made in-court identifications of Mark Cook as the man they had seen at the bank. They also testified that they had earlier picked Cook out of a lineup. On cross-examination, Fluaitte admitted that he could not be sure, but that Cook strongly resembled the robber he had viewed.

I. Identification

Cook contends, on appeal, that the use of his picture in the early photo spreads was impermissibly suggestive and that the identifications in the lineup and in court were therefore defective. Although neither witness identified Cook as the robber upon first viewing his photo, Cook argues that the allegedly suggestive photo display carried over to the lineup and ultimately infected the in-court identifications. Cook points out that he was the only one in the lineup whose picture had been previously included in those displayed to the witnesses. However, there is nothing unusual about the lineup being conducted after a photo spread, and nothing per se illegal about this lineup.

A mere suggestion that the accused committed the crime does not turn a lineup or a photo spread into a due process violation. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976); United States v. Sambrano, 505 F.2d 284 (9th Cir. 1974). Rather, the suggestion must be so “unnecessary” or “impermissible” as to create a “substantial likelihood of irreparable misidentification” under the “totality of the circumstances”. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In the application of this test, each case must be considered on its own facts. Simmons v. United States, supra; United States v. Williams, 436 F.2d 1166 (9th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). Here, we find no basis for concluding that the lineup and the photo spread were conducive to “irreparable misidentification”.

Fluaitte did not appear to be influenced by the pretrial identification procedures. He was uncertain of his identification at the lineup, and remained uncertain throughout the trial. The probative value of this identification was slight, but like that of other witnesses, was for the jury to consider. United States v. Higginbotham, supra; United States v. Valdivia, 492 F.2d 199 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973).

Stockham, who was unable to make a positive identification from the photo spread, recognized Cook immediately in the lineup. As with all photographic identification procedures, there is a possibility that the prior photo array tainted this later identification. See Simmons v. United States, supra. However, in this case, the suggestion, if any, was not so great as to create a substantial likelihood of misidentification.

Stockham was a retired police officer who returned for a second look at the gunman so that he would be able to identify him. Only a few hours after the gun battle Stockham gave a description of the gunman to the F.B.I. It is not disputed that this description reasonably fit Cook. When asked about the lineup, Stockham testified that he recognized Cook when the prisoners walked through the door “to get lined up.” Stockham also stated that, although he recognized Cook as one of the men portrayed in the photo spread, his identification was based upon his observations at' the bank. See United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974).

Based upon the totality of the circumstances, we cannot say that the pretrial identifications in this case were impermissibly suggestive. The photo spread and the lineup did not create a “substantial likelihood of irreparable misidentification”. Simmons v. United States, supra. The trial court did not err in admitting the testimony of Fluaitte and Stockham.

II. Access to Witness

Cook next argues that he was denied pretria¹ access to two government witnesses in violation of his Sixth Amendment rights in preparing his defense. These witnesses, Autrey Sturgis and Suzanne LeBray, were enrolled in the Federal Witness Protection Program¹ and were held virtually incommunicado until the trial.

On March 9, 1976, Sturgis, a “friend” of Cook, received a federal grand jury subpoena. Three days later he met with John Henry Browne, an attorney. At the trial Browne testified that Sturgis had told Browne at that meeting that Cook was not involved in the attempt to rob the Tukwila Bank.

On March 16, 1976, Sturgis testified before the grand jury and immediately thereafter enrolled in the Federal Witness Protection Program. His whereabouts were not made known to the defense, and he was not interviewed.

At trial, Sturgis appeared and testified that Cook had told him that he had been involved in the attempted robbery and that at one time Cook had invited Sturgis to participate in it. In support of this testimony, Sturgis recited numerous details about the robbery, details which he claimed to have learned from Cook, but which Cook says Sturgis invented.

Suzanne LeBray was a former roommate of Sturgis. On Match 10, 1976, she was taken into protective custody as an informant. On March 11, warrants were issued authorizing Cook’s arrest and a search of his apartment. These warrants were issued on the basis of LeBray’s statement that Cook had told her about his involvement in the bank robbery. On March 12, LeBray enrolled in the Federal Witness Protection Program and was also harbored by government agents until the trial. She was not made available by the government for a pretrial interview by defense counsel.

Cook’s counsel sought access to Sturgis and LeBray to determine if they would be willing to speak with him. The government attorney refused to disclose their whereabouts or to allow access to them.

On April 8, Cook moved to dismiss the indictment, citing, inter alia, that the prosecution had interfered with defense attempts to interview government witnesses.

On April 23, the government answered nonresponsively by stating: “No government attorney has at any time specifically forbidden any witness to speak with Cook’s counsel.” The court did not rule on the motion to dismiss at that time.

On May 5, Cook filed another motion, this time for a court order allowing him to interview Sturgis and LeBray. This motion was never ruled upon.

On May 26, the court entered an order denying the April 8 motion to dismiss the indictment. The court said, concerning the witness-access issue: “The government’s response also satisfactorily rebuts any claim that counsel for the defense has been improperly prevented from interviewing witnesses.” The court, however, did not mention Cook’s pending motion of May 5, and Cook’s then counsel failed to mention it. The case went to trial without a further effort to interview witnesses.

Cook is understandably disturbed by his counsel’s inability or failure to interview Sturgis before trial. The testimony of Sturgis was damaging to his defense, especially in light of the earlier exculpatory statement Sturgis allegedly had made to attorney Browne.

As a general rule, a witness belongs neither to the government nor to the defense. Both sides have the right to interview witnesses before trial. Callahan v. United States, 371 F.2d 668 (9th Cir. 1967); United States v. Long, 449 F.2d 288 (8th Cir. 1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972). Exceptions to this rule are justifiable only under the “clearest and most compelling circumstances”. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

Where there is no overriding interest in security,² the government has no right to interfere with defense access to witnesses. Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969).

The government’s action in this case borders upon intentional misconduct. The representation to the trial court that the government had not interfered with the right of access was disingenuous, at best. It is true that the government did not specifically forbid its witnesses to speak with defense counsel, a practice condemned in Gregory v. United States, supra. It is also true that the government did not place its witnesses beyond the reach of a defense subpoena, a practice condemned in United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971). However, the government effectively hid two witnesses from defense counsel and, by stalling, frustrated pretrial investigation. The government is not helped by asserting now that the witnesses were harbored under a voluntary program. The nature of the program was never an issue. The Assistant United States Attorney was not candid with the court. It remains to be determined whether this prosecutorial misconduct created reversible error on the part of the court.³

Defense counsel had moved the court to dismiss the indictment because of the alleged denial of access to witnesses. That motion was properly denied. Less drastic remedies were available but were not invoked. Defendant included in a general pretrial motion a request for “the right to meet and talk with” two government witnesses. This right, which required no motion for its recognition, was apparently not uppermost in counsel’s mind, and, for all the record shows, the motion was abandoned. No effort appears to have been made to take the deposition of Sturgis under Fed.R. Crim.P. 15 and 17, although counsel made a lengthy list of other demands under Rules 16 and 17.

The case is not a capital case, and therefore does not come within the provision of 18 U.S.C. § 3432, which requires the government to furnish a defendant a list of witnesses. If the government had no duty to identify its witnesses in advance of this noncapital trial, it would seem a fortiori that it had no constitutional duty to deliver a government witness informally to the defendant for interviews in the absence of a subpoena or court order for the taking of a deposition under proper safeguards. In United States v. Thompson, 493 F.2d 305, at 309 (9th Cir. 1974), we pointed out that “the seclusion” of a possible government witness did not require reversal.

A week before the trial, the government released summaries of the expected testimony of all government witnesses. Three days before the trial, Cook received all Jencks Act material (18 U.S.C. § 3500), including the grand jury testimony of Sturgis and LeBray. The government fully complied with the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

During the trial, Cook’s counsel could have requested a recess for the purpose of interviewing Sturgis, either before or after his direct testimony. See United States v. Keine, 436 F.2d 850, 855 (10th Cir.), cert. denied, 402 U.S. 930, 91 S.Ct. 1531, 28 L.Ed.2d 864 (1971). Counsel did not ask for a recess, and he did cross-examine Sturgis at length. See United States v. Long, supra.

Defense counsel had an opportunity to interview LeBray after the government decided not to call her as a witness. The problems subsequently encountered by the defendant when he called LeBray as a defense witness were not related to any lack of a pretrial interview.

In light of the whole record, we cannot say that Cook was unfairly handicapped by the lack of pretrial access to Sturgis and LeBray. Accordingly, the cat-and-mouse behavior of the prosecutor, while it reflects no credit upon the government, did not result in reversible error.

III. Confrontation

Cook next argues that the trial court denied him the opportunity to challenge the credibility of Sturgis before the jury. The court excluded reference to a 1959 assault conviction with which the defense sought to impeach Sturgis. Cook argues that under Fed.R.Evid. 609 all prior convictions of government witnesses must be admitted for impeachment purposes. Although this argument has some superficial appeal, this circuit has held that the 10-year time limitation of Rule 609(b) applies to government as well as to defense witnesses. United States v. Carpio, 547 F.2d 490 (9th Cir. 1976). See also United States v. Dixon, 547 F.2d 1079 (9th Cir. 1976). The trial court did not err in excluding evidence of this conviction.

Cook also complains that the trial court unduly restricted his cross-examination of Sturgis by excluding evidence of Sturgis’ prior drug use. This claim is not well founded. The trial court allowed considerable latitude in the cross-examination of Sturgis. The jury became well aware that Sturgis was a regular user of heroin. Other character defects were explored at length. The court did not abuse its discretion in regulating the scope of cross-examination. United States v. Marshall, 526 F.2d 1349 (9th Cir. 1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976); United States v. Carrion, 463 F.2d 704 (9th Cir. 1972); United States v. Haili, 443 F.2d 1295 (9th Cir. 1971).

Next, Cook challenges the trial court’s refusal to give his requested instruction concerning the special scrutiny the jury should give to the testimony of an addict-informer. The trial court did give a special instruction on informers as well as several general credibility instructions. Cook’s sole basis for complaint is that the court failed to give his special “addict” instruction. There was no abuse of discretion.

This circuit has not yet required special “addict” instructions, although other circuits have spoken approvingly of them. United States v. Wright, 542 F.2d 975 (7th Cir. 1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977); United States v. Lee, 165 U.S.App.2d 50, 506 F.2d 111 (1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975); United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974); Virgin Islands v. Hendricks, 476 F.2d 776 (3d Cir. 1973); United States v. Collins, 472 F.2d 1017 (5th Cir. 1972), cert. denied, 411 U.S. 983, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973); United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972); United States v. Griffin, 382 F.2d 823 (6th Cir. 1967). However, we conclude that the district court did not err in failing to give the requested instruction in this case. Sturgis’s addiction to heroin was disputed, and the issue was peripheral. Sturgis, while admitting that he was a heroin user, specifically denied being an addict. The jury had ample opportunity to evaluate him as a witness. See United States v. Gregorio, supra.

We have examined the remainder of Cook’s contentions involving the rebuttal testimony of Sturgis, and have found no error. Sturgis was an unsavory character, but the jury had the right to believe his testimony.

One issue presented in this appeal remains for decision by the court en banc. Subject to the decision of the court en banc on that segregated issue, the court is of the opinion that the other issues presented to this panel, discussed above, provide no basis for reversal. The judgment of this court and the mandate thereon will be stayed pending the decision of the court en banc, which follows.

Before BROWNING, ELY, HUFSTED-LER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG and TANG, Circuit Judges.

1 . The Federal Witness Protection Program is a program designed to protect government witnesses who may be endangered by their testimony. The program is authorized by Title V of Public Law 91 — 452, which provides in pertinent part:

“Sec. 501. The Attorney General of the United States is authorized to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses in legal proceedings against any person alleged to have participated in an organized criminal activity.”

“Sec. 502. The Attorney General of the United States is authorized to rent, purchase, modify, or remodel protected housing facilities and to otherwise offer to provide for the health, safety, and welfare of witnesses and persons intended to be called as Government witnesses, and the families of witnesses and persons intended to be called as Government witnesses in legal proceedings instituted against any person alleged to have participated in an organized criminal activity whenever, in his judgment, testimony from, or a willingness to testify by, such a witness would place his life or person, or the life or person of a member of his family or household, in jeopardy. Any person availing himself of an offer by the Attorney General to use such facilities may continue to use such facilities for as long as the Attorney General determines the jeopardy to his life or person continues. * * * ” Emphasis supplied. 1970 U.S.Code, Cong. & Admin.News, pp. 1073, 1086, 1087.

Program appropriations are authorized by 28 U.S.C. § 524.

2 . At oral argument, the government asserted that it had valid security reasons for hiding these witnesses, referring to the violent propensities of the perpetrators of these crimes. However, this ground was never presented to the trial court. Rather, the government there denied that it had interfered with defense access to these witnesses. Moreover, we have never held that security considerations pre-elude all defendant pretrial access to government witnesses. Our cases indicate that security concerns only justify a limitation upon the time and place of access. See United States v. Murray, 492 F.2d 178, 194 (9th Cir. 1973) (security considerations justified withholding defense access to government -witness until one day prior to trial).

3 . The defendant cites no case conferring a constitutional right to pretrial interviews with government witnesses. Time and place restrictions have been approved in certain situations. See note 2, supra. In an effort to convert the witness-access issue into constitutional error, the defendant points to his pretrial omnibus discovery motion. It requested:

“1. Order the government to give defendant all discovery clearly required under the wording of Rules 16 and 17 on or before May 7, 1976, and to hold a hearing to determine what other discovery is required from the government.

“2. Order discovery on the grounds already enumerated and on the grounds that the government is estopped from refusing to disclose this information in that it has given members of television and the newspapers access to the very same requested information.

“3. To grant defendant’s counsel the right to meet and talk with Suzanne Weisfield Aik-ers and Autrey ‘Skat’ Sturgis, in order to determine if each is willing to talk with defense counsel voluntarily.

“4. Order an investigation by the Civil Rights Division of the Justice Department to determine if any items were seized or photographed by a federal or state law enforcement agency, by means of an illegal breaking and entering into Mark Cook’s apartment at 910 E. Minor, Seattle, Washington.

“5. Grant a Motion in Limine excluding all prior convictions which occurred in 1958 and 1967.”