Friendly, Chief Judge, and Lumbard and Oakes, Circuit Judges.
Appellants, Famulari and Mattei, appeal from judgments of conviction entered on February 9, 1971 in the Eastern District of New York after a jury trial before Judge Weinstein. Famulari was found guilty of bank robbery, assault by use of a dangerous weapon during the commission of a bank robbery, and conspiracy to rob a bank, in violation of 18 U.S.C. §§ 2113(a) and (d), 2, and 371. He was sentenced to a prison term of eight years on each of the first two offenses and five years on the third, with the sentences to run concurrently. Mattei was convicted of bank robbery and conspiracy to rob, in violation of 18 U.S.C. §§ 2113(a), 2, and 371, and was sentenced to concurrent prison terms of ten and five years respectively. We affirm the convictions.
On April 23, 1970, a national bank in Queens County was robbed of $44,960.72 by three men wearing navy-blue ski masks and dark overcoats and carrying pistols in their gloved hands. One of the men also carried a red, white, and blue shopping bag proclaiming the mayoral candidacy of Mario Procaccino, and he filled the bag with the money. Although the robbery lasted no more than three or four minutes, the discomfiture of the ski masks caused two of the men to begin removing them before they had left the bank. One of them, Anthony Molese, happened to be in perfect range of the bank's surveillance camera as he removed his mask, and an unusually clear photograph was obtained. While the cameras did not capture the other robber removing his mask, the Assistant Manager of the bank, Gregory Lamont, got a look at his profile for about ten or fifteen seconds as he departed the bank.
On May 2, 1970, Molese was arrested by the F.B.I., and the Procaccino campaign bag was recovered along with some $10,000 in cash. After being confronted with the photograph, Molese decided to confess and to cooperate in the apprehension of his accomplices. In return for his cooperation, the charges against him arising out of the instant bank robbery and another bank robbery were dropped when he pleaded guilty to a third bank robbery and was sentenced to seven and one-half years imprisonment. Molese told the F.B.I. -- and later testified at trial -- that his accomplices in the instant robbery were Anthony Famulari, who carried the bag, and Peter Siciaranno, and that Charles Mattei had driven them to the bank in his girl friend's car. Molese stated that after the robbery, the trio went to Siciaranno's apartment and divided the money among themselves and Mattei; each of the actual participants got about $12,600 and Mattei received $6,100 for his efforts.
Several weeks after the robbery, the police showed Assistant Manager Lamont twenty to thirty photographs. Out of that array, Lamont picked a photograph of Famulari and stated that it was similar to the robber whom he saw removing the mask in all respects save that the robber had long pointed sideburns which were not indicated in the photograph. Because of that discrepancy, Lamont could not make a positive identification. At this time, Lamont was not aware that Famulari had been inculpated by an accomplice. While testifying before the grand jury, Lamont again stated that Famulari's photograph looked similar to the robber, but he could not make a definite identification.
Prior to his scheduled appearance as a witness at the trial, Lamont was shown the photograph of Famulari which he had picked out. He again stated that he could not be certain, although the photograph was similar; he told the Assistant United States Attorney that "If I saw him, if I could identify him, I would say so." Then, on his way into the courtroom to testify, Lamont looked through the window of the courtroom door and saw Famulari at the defense table. He said that Famulari's profile at that moment was identical to the profile of the robber at the bank, and that he would never forget that face.
At the conclusion of a subsequent voir dire, Judge Weinstein ruled, over defendants' objection, that an in-court identification by Lamont would be allowed since it did not appear that the viewing through the courtroom door had been arranged by the government, but was merely a happenstance.*fn1 Lamont then made a positive identification at trial that Famulari was one of the robbers. Two days later, after the cross-examination of Lamont was concluded, Judge Weinstein advised counsel as follows:
"Now, with respect to this identification, I have been giving it a good deal of thought overnight. I think the record as it now stands is susceptible of a finding that the witness Lamont's seeing the defendant through the door was not a mere happenstance which can't be avoided in some trial -- we can't control everything -- but that it was deliberately designed to find out whether he could identify the defendant.
"That being so, I think under [United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1966)] it would constitute an impermissible show up, because the conditions were clearly such that it would induce a person to find, even if he had a doubt. That would lead me to exclude the in -court identification should I make that finding. I don't say I make it yet."
In fact, Judge Weinstein never made a finding that the identification through the courtroom door was deliberately staged. Although he did subsequently instruct the jury to disregard the in -court identification,*fn2 he stated in chambers that he was doubtful that exclusion of that identification was required under Wade, but that he was excluding it "out of caution."*fn3
In addition to his in-court identification of Famulari, Lamont also testified at trial as to his selection of Famulari's photograph out of the group. Over defense counsel's objection, Judge Weinstein permitted that testimony to be introduced. Molese also testified at the trial as to the parts that Famulari and Mattei had played in the robbery. Siciaranno was not tried with them. Neither appellant testified in his own behalf.
Famulari's main argument on this appeal is that Lamont's in-court identification of him should have been excluded as based on a prior identification deliberately staged by the government at which counsel was not present. According to Famulari, that prior identification -- through the courtroom door -- constituted an impermissible show-up under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1966), which requires the presence of counsel at pre-trial identification proceedings, and thus made the in-court identification inadmissible. In support of this contention, Famulari cites United States v. Roth, 430 F.2d 1137, 1140-1141 (2 Cir. 1970), cert. denied 400 U.S. 1021, 91 S. Ct. 583, 27 L. Ed. 2d 633 (1971), where we found that the Wade requirement was violated where the witness, at the suggestion of the prosecutor, walked through the courtroom during a recess to see whether he could identify the defendant. Famulari claims that Judge Weinstein's instruction to the jury to disregard the in-court identification here could not possibly have cured the prejudice already done, and that the judge should therefore have declared a mistrial.
We reject this argument. At the outset, it is not at all clear that the identification through the courtroom door was a confrontation "arranged by the Government," as is necessary for the Wade requirement to apply. United States v. Roth, supra, at 1140. Judge Weinstein made no such finding, and in fact, Lamont testified on cross-examination that, as he waited, he voluntarily ...