Waterman and Hays, Circuit Judges, Bartels, District Judge.*fn*
Nelson M. Garcia appeals from an order of the District Court, dated June 19, 1968, denying his application for a writ of habeas corpus. He was convicted with a co-defendant, Rudolfo Milan, in the Supreme Court, Kings County, of robbery, assault and grand larceny and on January 14, 1964, he was sentenced to a term of 10 to 20 years in a State prison on the robbery conviction, which judgment was unanimously affirmed by both the Appellate Division and the New York Court of Appeals.
Appellant alleges a number of violations of his constitutional rights, the most significant of which is an allegedly improper pretrial identification which he states tainted his in-court identification.
On May 28, 1963, at 12:35 P.M., George Diaz and Gerardo Quintano, employees of the Argus Chemical Corporation, proceeded to the Chemical Bank on Court Street, Brooklyn, to pick up in Quintano's car the company's weekly payroll of approximately $16,000. Quintano remained in the car while Diaz went for the payroll. As Diaz re-entered the car two men, one armed with a gun (identified in court by both Diaz and Quintano as Milan) and the other with a knife (identified in court by both Diaz and Quintano as Garcia) forced their way into Quintano's car. Garcia moved behind the wheel and held a knife at Quintano's left side, and Milan jumped into the back of the car and held a gun to Diaz's head crying "Hold-up, man." While Garcia drove down Court Street, they passed a police car. Milan cocked the gun and warned Diaz and Quintano: "Look straight ahead. If you move, I'll kill you." After proceeding to the entrance ramp of the Brooklyn-Queens Expressway both men ordered Diaz and Quintano out of the car and drove away with the payroll.
During this trip Quintano was sitting next to Garcia and testified that he "saw Garcia all of the time from the beginning." Shortly after the holdup Diaz and Quintano were shown photographs at the police headquarters and several weeks later they were taken to a Cuban party in Manhattan for the purpose of identifying suspects. On neither occasion were they able to make an identification.
In the first week of July, 1963, the police received a telephone tip from an informer to the effect that two men, one named Garcia, were arguing in a Brooklyn candy store (luncheonette) over the split of a $16,000 stickup. There is nothing in the record indicating that Diaz and Quintano were told the substance of the tip or that they were given any lead by the police. Both Diaz and Quintano were then escorted to the luncheonette in Brooklyn by two police officers. While the police waited outside, Diaz and Quintano entered the luncheonette. Inside were Milan, Garcia and two other persons. Both Diaz and Quintano testified that they recognized Garcia in the luncheonette and that Garcia threatened Quintano with death if he informed the police. Diaz testified that he immediately recognized the appellant Garcia, who remarked to Quintano:
"Quintano, I know where you live."
"You have three children. Your father I know as well -- your partner -- I know where he lives as well. He has one child. If you go to the police and tell them, I have a family, and I have friends. They are going to kill you."
During cross-examination the Court asked Diaz:
Q. "Which one did you recognize?
Q. You recognized Mr. ...