UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 24, 1972.
UNITED STATES OF AMERICA, APPELLEE,
RICHARD MAGNOTTI, DEFENDANT-APPELLANT
Smith, Feinberg and Mulligan, Circuit Judges.
Author: Per Curiam
Defendant Richard Magnotti appeals from two separate convictions for bank robbery, 18 U.S.C. § 2113(a), (b) and (d), after trials in the United States District Court for the District of Connecticut, and from the denial of his motion for a new trial as to the second conviction. On all three appeals, we affirm.*fn1
In the first trial, the jury found defendant guilty of robbing a bank in Orange, Connecticut on February 11, 1970. Defendant claims that the charge of the trial judge (Robert C. Zampano, J.) provided inadequate guidance both on the question of defendant's mental capacity at the time of the crime, a central issue in the case, and on the problem of evaluating the testimony of expert witnesses who were called by both parties to testify on that issue. We have reviewed the charge and find nothing that would constitute plain error, the standard we must apply since there was no objection to the charge. Defendant also argues that the evidence was insufficient to establish guilt beyond a reasonable doubt. The claim is plainly without merit.
Defendant's second and third appeals concern his conviction after a jury trial before James L. Oakes, J.,*fn2 for robbing a bank in Hamden, Connecticut on March 9, 1970. Appellant principally objects to the procedures followed by government agents when two eyewitnesses independently identified him from a photograph as one of the participants in the robbery. Briefly stated, the main issue presented is whether exhibiting to eyewitnesses seven "mug shots" of other persons along with a full-view photograph of the defendant is impermissibly suggestive and thus a denial of due process of law. See Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). We think not. The difference between Magnotti's photograph and the other mug shots would hardly suggest to an identifying witness that Magnotti was more likely to be the culprit; nor did the photograph single out any distinguishing personal characteristics of defendant not possessed by the men in the other photographs. Compare United States v. Abbate, 451 F.2d 990 (2d Cir. 1971). We are also unpersuaded by defendant's remaining arguments that this conviction should be reversed.
The third appeal concerns the order of Judge Oakes denying defendant's motion for a new trial based on newly discovered evidence allegedly suppressed by the Government. Judge Oakes thoroughly analyzed defendant's motion under the standards enunciated by this court in United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). We see no reason to disturb his conclusions.