Appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, after a jury trial, for violation of 18 U.S.C. § 371, and 18 U.S.C. §§ 2113(a), (d) and 2. Affirmed.
Before Feinberg, Mulligan and Gurfein, Circuit Judges.
Earl Williams was convicted by a jury after a trial before the Hon. Henry Bramwell, United States District Judge, Eastern District of New York, of conspiracy to commit bank robbery and attempted bank robbery, in violation of 18 U.S.C. § 371, and 18 U.S.C. §§ 2113(a), (d) and 2. Appellant received a twenty year sentence on the two merged bank robbery counts of the indictment.*fn1 Sentencing on the conspiracy count was suspended, and the defendant was placed on probation for a period of five years. The trial court indicated that the probationary term is consecutive to the twenty year sentence, and that all sentences are consecutive to the four and one half year sentence appellant is presently serving in Lexington, Kentucky on an unrelated conviction.
The principal witness for the Government in this case was Sister Patricia Sweeney, a nun affiliated with the Sisters of St. Joseph who served as an area coordinator for the four Catholic schools of Bedford Stuyvesant. On the morning of October 6, 1975, "somewhere between 9:30 and 10:45," Sister Sweeney went to a branch of the Manufacturers Hanover Trust Company, located at 971 Bedford Avenue in Brooklyn, to cash a check. She parked her car on DeKalb Avenue opposite the bank and directly behind a blue Buick with a black vinyl top which was occupied by three black men and bore a North Carolina license plate. Sister Sweeney observed the three men leave the car, two of them wearing straw hats, and the other man wearing "black, basically." Sister Sweeney watched one of the men (later identified as Williams) wearing a light colored wide-brim hat walk over to the old bank across the street from Manufacturers Hanover and place a paper bag with a bottle in it close to the wall of the old building.*fn2 Sister Sweeney then observed the three men "staring up at the bank . . . and then they walked across DeKalb Avenue and passed in front of the bank and then I lost view of them." At that point, Sister Sweeney decided to move her car and circled the area three times looking for a place to park her car. Once she had parked the car, Sister Sweeney crossed the street, "looked into the bank to see if everything was calm," and then went in and cashed her check. As she was leaving, Sister Sweeney testified that the same three men who had arrived in the blue car were coming into the bank. The men, who were not wearing masks at that time, "passed right by" her. Soon after, Sister Sweeney heard shots ring out and observed one of the three men wearing a straw hat run "along the side of the bank going east." Sister Sweeney then left the area, but returned about an hour and a half later and pointed out to FBI Agent Jerry Loar the bottle wrapped in a brown bag which was still lying where one of the men had placed it against the building across the street from the bank. Agent Loar sent this evidence to Washington where it was processed and three latent prints were retrieved. Williams' fingerprint matched the latent print developed on the paper bag.
At trial, James Rubens, Branch Manager of the bank, testified that three men wearing stocking masks and hats entered the bank on October 6, 1975 and announced, "This is a holdup, freeze." All tellers in the bank hid under the counter, while Rubens was left standing in the tellers' area. Rubens observed one of the men wearing a black coat fire a shot at him. Rubens then dove under the counter and pulled the alarm. From there, he observed one of the holdup men wearing a white hat and standing by one of the teller's windows. Moments later, Rubens heard another shot. After a few more minutes, the three holdup men left the bank without obtaining any money.
At trial, Rubens and Sister Sweeney were shown bank surveillance photos depicting a man in a wide-brim light colored straw hat, and another man wearing a tight knitted hat and black coat and carrying a shotgun. Rubens identified the individuals as the holdup men. Sister Sweeney testified that the persons portrayed in the surveillance photos were the same men she had seen leaving the blue car. She also identified the man in the surveillance photos wearing the light colored straw hat as the individual who had placed the bottle and bag near the old bank. Sister Sweeney further identified Williams in court as one of the three men she had seen on the morning of October 6, 1975.*fn3
On cross-examination, Sister Sweeney recalled that on February 1, 1978, FBI agents had showed her two bank surveillance photos similar to those used on direct examination, and that although she could not positively identify the faces as those of the men she had seen on the morning of the attempted robbery (the facial features in the photos were obscured by stocking masks), she was certain that the apparel of the persons portrayed in the photos was the same as that of the men she had seen. Sister Sweeney also testified that on September 6, 1977, FBI agents showed her an array of six photographs and that she had been unable to identify any of the men depicted in those photographs as one of the persons she had seen on the day of the attempted robbery because she "thought the skin was too light on some of those." The Government stipulated that a photograph of Williams had been included in the photo spread shown to Sister Sweeney.
One of the central issues on this appeal is whether Sister Sweeney should have been permitted to make an in-court identification of Williams as the man she had seen with the bag and bottle on the morning of the attempted robbery. Defense counsel had argued at trial that such an identification would be "tainted" by the fact that Sister Sweeney had viewed the defendant in the courtroom shortly before she was scheduled to testify on June 27, 1978, the second day of trial. At a hearing on the issue, Sister Sweeney related that since she was to be the Government's first witness on the second day of trial, she followed the Assistant United States Attorneys into the courtroom that morning, after inquiring of someone in the hallway as to what she should do:
I had been standing out in the hall and I don't even remember, I guess I was nervous. Someone said it was alright to sit in the back seat there, and that was all I did.
The record is clear and defense counsel himself conceded that the confrontation between Sister Sweeney and Williams was not arranged by the Government.*fn4 Defense counsel noticed that Sister Sweeney had been sitting in the back of the courtroom for approximately ten minutes while Williams was seated next to him at the counsel table. Counsel asked the prosecutor whether she intended to elicit an in-court identification from Sister Sweeney. The prosecutor replied that she did not since Sister Sweeney had failed to identify Williams from a photo spread. At that point, the prosecutor approached Sister Sweeney, asked her to leave the courtroom, and indicated to her that she might "be called to recollect the physical description of the person who got out of the car with the bottle and the bag." Defense counsel also questioned Sister Sweeney at that time as to whether she could identify the man whom she had seen sitting next to him at the counsel table. Sister Sweeney answered that Williams was one of the three men she had seen on the morning of the attempted robbery.
At the conclusion of the hearing, the court found that Sister Sweeney's accidental courtroom confrontation with Williams was not unduly suggestive, and that defense counsel, in questioning the witness immediately after the confrontation, was responsible for any suggestiveness that resulted from the incident. The court further concluded that Sister Sweeney had independently identified Williams as the man she had seen even before defense counsel questioned her concerning the confrontation.
After identifying Williams from the witness stand as the man she had seen on the morning of the attempted robbery, Sister Sweeney testified on cross-examination that she had observed Williams in the courtroom seated next to his attorney and that she had surmised that he was the accused. However, Sister Sweeney consistently maintained even on cross-examination that she was 90% Certain that Williams was the man she had seen both inside and outside the bank on the day of the attempted robbery.
With respect to the identification testimony, the court below carefully instructed the jury that it must be "convinced that the witness had the capacity and an adequate opportunity to observe the ...