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Mikus v. United States

decided: November 6, 1970.

JOHN MIKUS, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE



Moore and Smith, Circuit Judges, and Pollack,*fn* District Judge.

Author: Moore

MOORE, Circuit Judge:

John Mikus appeals from his conviction on trial to the jury in the District of Connecticut for armed bank robbery. Six issues are presented for our consideration: (1) whether appellant was deprived of an impartial jury; (2) whether the film of the bank robbery shown to the jury was properly authenticated prior to its introduction into evidence; (3) whether being required to stand up in court for the purposes of identification and comparison by a Government witness violated appellant's privilege against self-incrimination; (4) whether Government questioning of appellant relating to his possession of a gun at a time proximate to the bank robbery was prejudicial error; (5) whether the testimony of an investigator from the Immigration and Naturalization Service regarding the circumstances of his first meeting with appellant constituted prejudicial error; and (6) whether there was sufficient evidence to support appellant's conviction. We find no error and affirm the judgment below.

On January 15, 1968, the Lincoln National Bank's Long Ridge Branch, in Stamford, Connecticut, was robbed of approximately $6,200 by two armed men wearing dark, solid colored ski masks. One of the holdup men had a heavy Slovak accent. At the time of the robbery, there were two employees on duty, Mrs. Alice M. McMahon and Mr. Joseph Matula, both of whom testified at the trial. One of the men stood in front of Mrs. McMahon's teller counter with a gun, while the other vaulted over the counter to get the money from Mr. Matula. The robber with the accent had a brown paper grocery bag with a red "A & P" label on it, into which he instructed Mrs. McMahon to put the money entrusted to her. Removing the "bait money" from her teller drawer, she tripped an alarm device and a movie camera, positioned on a wall near the ceiling of the bank and aimed at the tellers' windows. The developed film showed the two men in dark masks performing the robbery and indicated that one of the men was bent over slightly as he stood at the window of Mrs. McMahon. She testified that the robber looked about 5' 4" while Mr. Matula established the height of both robbers at about 5' 10" -- the height of appellant Mikus. The film further showed one robber carrying a paper grocery bag with what probably was an "A & P" trademark on it. Shortly after the bank robbery, a stolen automobile was found abandoned on a nearby expressway. In the car, police found a dark green ski mask and an "A & P" bag. Six fingerprints identified as those of appellant Mikus were found on the bag, and a thumbprint of his co-defendant (whose trial was severed because he was in a mental institution at the time of trial) was also found in the car. Further down the expressway, on the route between the bank and the abandoned car, a second dark green ski mask was found near the roadway.

The only positive evidence linking Mikus directly with the robbery consisted of the fingerprint evidence, his height and his Slovak accent. Testifying in his own behalf, appellant offered an unsubstantiated and apparently false alibi for his whereabouts on the date and at the time of the crime. He also denied knowing the co-defendant, but a witness testified that he had seen the two co-defendants on a couple of occasions eating, drinking and talking together in his restaurant prior to the robbery.

Appellant first contends that the trial judge's refusal to excuse three veniremen for cause resulted in the deprivation of a fair and impartial jury trial, which constitutes reversible error under the Sixth Amendment. We do not agree. The trial was held during the summer months, and a large number of veniremen, whose summer vacation time had arrived, were excused from duty. The court became concerned that with only 26 prospective jurors remaining, from which a jury had to be obtained, the trial could not proceed as scheduled. It appears to be appellant's theory that had the three been excused for cause, his ten peremptory challenges could have been exercised to cut the venire down to 13 and thus force the Government to waive all but one of its six peremptory challenges or to postpone the trial. However good the strategy may have appeared to appellant's trial counsel, there are no allegations made before this court of specific instances of prejudice to appellant's cause; no juror's name is cited, for example, to indicate that but for the trial judge's rulings, appellant was forced to accept a juror against his interests.*fn1

The three prospective jurors in question were, respectively, the wife of a bank board chairman, a former local police officer who had served for some six years in that capacity thirteen years earlier, and the wife of a state police officer, who, if empaneled, would hear the testimony of other state troopers. In response to court inquiry, each stated that she or he felt able to render a fair and impartial verdict. Appellant's trial counsel, then asked by the court if he had any supplementary questions to ask the veniremen on voir dire, posed none. The gravamen of the appeal on this point, therefore, must be that the mere status, past or present, of the three prospective jurors per se constituted sufficient cause for their being excused from venire duty in appellant's trial. We find this contention to be without merit in this case.

The Supreme Court has stated that

"to hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, (1961).

The question of juror impartiality presents a mixed question of law and fact, Reynolds v. United States, 98 U.S. 145, 156, 25 L. Ed. 244 (1878), and the test therefore is "whether the nature and strength of the opinion formed are such as in law necessarily * * * raise the presumption of partiality." Id. Moreover,

"the affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside." Reynolds v. United States, supra, quoted in Irvin v. Dowd, supra.

On appeal, the findings of the trial court with respect to juror impartiality will be set aside only where the prejudice to a defendant is shown to be "manifest." Reynolds v. United States, supra ; Irvin v. Dowd, supra, 366 U.S. at 723-724, 81 S. Ct. 1639 and cases cited therein. After independently evaluating the individual voir dire testimony of the three veniremen in the light of the above standards, Irvin v. Dowd, supra, at 723, 81 S. Ct. 1639, we conclude that there is nothing in the record to indicate that any of the three were manifestly partial.

We are referred by appellant's counsel to Jackson v. United States, 129 U.S.App.D.C. 392, 395 F.2d 615, 617-618 (1968) and to United States ex rel. De Vita v. McCorkle, 248 F.2d 1 (3d Cir.), cert. denied, 355 U.S. 873, 78 S. Ct. 121, 2 L. Ed. 2d 77 (1957). Without approving the two decisions of the District of Columbia and Third Circuits, respectively, we find them clearly distinguishable from the instant case, where none of the jurors had had a strikingly "unique similarity between his experience [as a member of a fatal love triangle or as a robbery victim, respectively] and this case," and where none had failed to respond truthfully to questions regarding their ability to serve as impartial jurors. As to the wife of the bank board chairman, in particular, we are cited to Sims v. United States, 132 U.S.App.D.C. 111, 405 F.2d 1381 (1968) (per curiam), where the District of Columbia Circuit, in a footnote, held that on retrial of the three defendants charged with the felony murder of a taxicab driver during an attempted robbery, "jurors should be excused for cause if they are, or are related to, taxicab drivers (emphasis added)," 405 F.2d at 1384 n. 5, citing Jackson and McCorkle, supra. Even assuming, arguendo, the correctness of the two last-mentioned decisions, the basis for the Sims holding goes so far beyond the special facts of the two cases cited as precedent therefor that we are constrained to reject Sims out of hand as persuasive authority in this case. To do otherwise would be to overrule sound decisions by courts of this Circuit. See, e.g., United States v. Johnson, 401 F.2d 746, 747 (2d Cir. 1968) (per curiam) (challenge for cause to be within the trial court's discretion where prospective juror was an employee in trust department of a bank different from that robbed in that case).

The mere fact of membership on a police force is not presumptively a disqualification for service on a jury in a criminal trial. United States v. Wood, 299 U.S. 123, 140 n. 9, 57 S. Ct. 177, 81 L. Ed. 78 (1936); Cavness v. United States, 187 F.2d 719, 723 (9th Cir.), cert. denied, 341 U.S. 951, 71 S. Ct. 1019, 95 L. Ed. 1374 (1951); Marshall v. United States, 355 F.2d 999, 1009 (9th Cir.), cert. denied, 385 U.S. 815, 87 S. Ct. 34, 17 L. Ed. 2d 54 (1966). A fortiori, the former police officer who had ceased his public law enforcement work in 1956 was more than sufficiently insulated against an attack of presumptive prejudice, as was the wife of the state trooper. Cf. United States ex rel. Cooper v. Reincke, 219 F. Supp. 733, 741 (D.Conn.1963), aff'd, 333 F.2d 608 (2d Cir.), cert. denied, ...


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