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United States v. Fitzpatrick

decided: December 24, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
DONALD JOSEPH ALAN FITZPATRICK, APPELLANT



Lumbard, Chief Judge, and Waterman and Anderson, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge:

This is an appeal from a judgment of the Eastern District of New York, rendered April 10, 1970, wherein appellant Fitzpatrick was convicted, after trial without a jury, of violating 18 U.S.C. § 2314 by causing falsely made and forged securities to be transported in interstate commerce. He was sentenced pursuant to 18 U.S.C. § 5010(b) for treatment, supervision, training and observation. On this appeal Fitzpatrick challenges his conviction on several grounds. We reverse the conviction for the reason that defense counsel's cross-examination of two of the government's witnesses was unreasonably curtailed and we remand for a new trial.

Fitzpatrick was employed by Travelers Express Company from March 6 to 17, 1967. During this period he was introduced to Irving Weissman, the proprietor of a store doing business with Travelers, as a representative of that company. On May 21, 1967, after he had left Travelers, he returned to Weissman's store under the pretext of still being a representative of Travelers and obtained from Weissman a full money order book containing two hundred orders.

Between May 22 and June 20, 1967, several of the money orders which Weissman had handed over to Fitzpatrick were deposited in the Flatbush Saving Bank in Brooklyn by a "John Harrison." When five of the money orders were returned unpaid, the bank notified the FBI. During the course of the investigation, FBI agents obtained a picture of Fitzpatrick from Travelers and arrested him on July 9, 1967. After the arrest, the agents mixed Fitzpatrick's picture with seventeen other photographs and showed them to several bank employees who picked out Fitzpatrick as the "John Harrison" who had cashed the money orders. On July 24, 1967, Fitzpatrick was released on his own recognizance until trial, about two and one-half years later. He was indicted on May 28, 1968. Several weeks prior to trial, which commenced on January 27, 1970, the witnesses again made a photographic identification of Fitzpatrick.

At the commencement of trial, counsel for Fitzpatrick moved pursuant to Rule 43, F.R.Crim.P., to waive Fitzpatrick's right to be present in the courtroom, but his motion was denied. The main issue at trial was the identification of the defendant; and to prove its case on this issue, the government offered the testimony of four witnesses -- Weissman and the three bank employees, Mildred Toma, Henrietta Campbell, and Edward Hoffman. All four also made in-court identification of Fitzpatrick. At the end of the government's case, Fitzpatrick's counsel moved for acquittal on the grounds that the photographs shown to the witnesses were impermissibly suggestive and that Fitzpatrick's right to a speedy trial had been violated. The motion was denied. Finally, Fitzpatrick testified in his own behalf and denied that he had cashed the money orders in question. Fitzpatrick was convicted by Judge Rayfiel, having waived trial by jury.

Fitzpatrick alleges five reasons why his conviction should be reversed. The first four have no merit and will be discussed later.

Fitzpatrick's fifth contention is that the trial court unreasonably curtailed defense counsel's attempt on cross-examination of two of the three bank employees who identified the defendant, to determine whether those witnesses remembered particular physical characteristics of the defendant. On this issue we agree with Fitzpatrick, and we reverse his conviction and remand for a new trial.

Bank Teller Mildred Toma testified that she had seen John Harrison come into the bank to cash the money orders on three or four occasions and that she had seen him for five or ten minutes each time. She thought Harrison was about twenty-five years old and approximately six-feet tall, and she positively identified Fitzpatrick as Harrison. During cross-examination the following exchange took place:

The Court: Are you sure that is the gentleman?

The Witness: I am sure.

Q. Were there any physical characteristics of Mr. Harrison that you remember?

Mr. O'Sullivan: Objection, your Honor.

The Court: Sustained.

The Witness: I'm sorry?

The Court: Don't answer, please. I sustained the objection to the question.

Q. How did Mr. Harrison comb his hair?

Mr. O'Sullivan: Objection.

The Court: Sustained.

She said she is positive that is the man that she understood to be Mr. Harrison. She is positive about it.

Q. Were there any -- was he wearing glasses at the time you saw ...


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