Medina, Waterman and Smith, Circuit Judges.
After a trial to Judge Burke and a jury Dewey Ayers was convicted on Counts Three and Four of an indictment charging him with aiding and abetting his co-defendant, Mervin Hadden, Jr., in passing and uttering on May 1, 1968 a counterfeit $20 bill at Lou's Dinerette in the up-state Village of Newark, N.Y., and with possession, together with Hadden and another co-defendant, Michael Kearney, of approximately 80 counterfeit $20 bills all bearing the same serial number as the one passed at Lou's Dinerette. On his appeal from the judgment of conviction Ayers relies principally upon allegedly unconstitutional lineup identifications during the afternoon of May 1 and again the next day. He also asserts a miscellany of alleged errors that we shall briefly discuss later on.
The evidence disclosed that a number of these bogus bills, all bearing Serial Number B83696552B, and drawn from the same plate, were passed on May 1, 1968 at various business establishments in the Village. The first was given to a waitress at Lou's Dinerette about 8 o'clock in the morning, and the last one was handed to a counter girl at Woolworth's shortly before noon. The counter girl at Woolworth's thought the bill looked queer and it shortly reached the possession of the manager of the store. When the manager turned to accost the person who had passed the bill, he had disappeared without waiting for his change, leaving behind a paper bag containing 3 cups full of coffee. This man turned out to be the co-defendant Hadden. In the meantime, the co-defendant Kearney entered the store, stared at the $20 bill in the manager's hand, purchased a greeting card, and left. While the manager was checking the authenticity of the $20 bill at a nearby bank, one of the girls in Woolworth's exclaimed "there goes one of the guys who was in the store" and Mary Jane Dulmage, who had been working in the office, ran out to the curb and got the license number of the car and wrote it down. With her description of the car as blue with a black top, and the N.Y. State license number 2201 MJ the police were informed and a few minutes later State Trooper Walter J. Farrell, after receiving a radio message, picked up the car which was being driven in the direction away from Newark. In it were the 3 defendants charged in the indictment.
An alert Conservation Department employee, John J. Leupp, driving in the same direction, and at a distance of about a mile behind the place where Trooper Farrell had stopped the blue car with the black top, noticed a manila envelope "on the right hand shoulder of the road" and he stopped and picked it up. This was just about the spot where the three men in the blue car with the black top would be likely to have become aware of the fact that a State Trooper was on their trail. The manila envelope contained 80 additional bogus $20 bills all bearing the same Serial Number B83696552B. Leupp knew Farrell, and he noticed that he had stopped a car and was standing with three men beside his Trooper's car "with the red light going." Leupp waved to Farrell and continued on his way to Waterloo where he turned the envelope and its contents over to the police. He gave the time as somewhere between 12 and 1 o'clock P.M. on May 1. Leupp, of course, knew nothing of the reason Farrell had stopped the other car. He thought the bills were genuine and wanted to get a receipt from the police so he could claim the money if the owner did not appear.
The testimony at the trial discloses that during the morning of May 1, 1968 at least four of these identical counterfeit $20 bills were passed to various business establishments in Newark, N.Y. The first was at Lou's Dinerette at about 8 o'clock in the morning. The last was the one passed at Woolworth's at about noon. In the interval of time between these two another $20 bill was handed to the waitress at the Pee Wee Restaurant in payment for the three cups of coffee that were left at Woolworth's, in a Pee Wee Restaurant bag, when Hadden hurriedly departed without waiting for his change. Still another of these identical counterfeit bills was used at Brenner's Jewelry Store to buy a birthday charm costing $3.12 including the tax. This article was later found in the car.
In an effort to be sure they did not have the wrong persons, Police Lieutenant Edwin R. Krueger decided on an immediate lineup for purposes of identification. Because the defendants had to be searched and booked, 4 P.M. was the earliest time that could be arranged. They had not yet been arranged. Krueger went out in the street and picked three men, all white, dressed in more or less business or sport clothes "of the general appearance of the people we were going to have identified." All were relatively young; none was bald. They were seated at a table in the Village Hall, with no two of the defendants side by side or together.
The police did not inform any of the defendants of the lineup in advance nor were they told they had a right to have a lawyer present.
There are various descriptions by a number of the witnesses of the defendants and the stand-ins at the first lineup. None of them had any outstanding physical characteristic. It would be tedious and repetitious to give this testimony in detail. Suffice it to say that we can find no indication of any suggestive or improper procedures of any kind. The defendants wore whatever clothes they desired, and one of them had changed his clothes since the arrest in the afternoon. No directions were given to the defendants or the three stand-ins to say anything or do anything, nor did any of them say or do anything except to stand up and turn around. No photographs were shown to any of the identifying witnesses before the lineup.
Further precautions were taken to maintain the integrity of the lineup by instructing those who were viewing the lineup that they were to remain silent and not talk to one another, that after the viewing was over each individual was to come out of the room separately and, alone with the police officer in charge, tell which person, if any, they recognized as having seen before.
The second lineup, the next morning, May 2, 1968, under the supervision of the Special Agent in charge of the Buffalo office of the Secret Service, was a replica of the first, except that more and different stand-ins were brought in.
The indictment was filed on May 21, 1968. There was a lengthy pre-trial hearing on October 10, 1968, a few days before the trial, on the motion of the defendants to suppress any proof of identification by those who viewed the two lineups and also to suppress the articles found in the car. At the conclusion of this hearing Judge Burke denied the motions and held:
The defendants' rights under the Federal Constitution have not been infringed, either in the manner of their arrest or the search and seizure conducted as an incident and following their arrest, or the seizure of articles taken as a result of the search, or the identification procedure used on May 1, 1968 and May 2, 1968, or in any other manner.
The only identification testimony relating to appellant Dewey Ayers was that of Linda Palladino. Her in-court identification made no reference to the two lineups nor was that subject mentioned during her cross-examination. Her testimony is brief and explicit. At about 8 A.M. after the usual early rush of customers was over two men came into Lou's Dinerette, sat down at the counter "right in front of me," she said. They were the only two customers in the place. They ordered two cups of coffee which they drank and the taller of the two with dark hair, whom she identified as Hadden, handed her a $20 bill. She identified the other man as Dewey Ayers, describing him as "him with the light hair." At the suppression hearing Linda testified that she recognized them at once. She knew none of the men summoned to be stand-ins. While she did not suspect the bill was a counterfeit, it was the only $20 bill taken in that morning and the subject of whether any $20 bills had been received was broached when Clara Finewood, a ...