Appellant was convicted of having violated 18 U.S.C. § 2113(c) after a jury trial, United States District Court for the District of Connecticut, Clarie, J. Alleging that the indictment presented against him should be dismissed and that reversible error occurred during his trial, he seeks reversal of his conviction. Reversed and remanded for a new trial.
Waterman, Friendly and Timbers, Circuit Judges. Friendly, Circuit Judge (Dissenting in part).
Appellant, together with Thomas Strogoff and Robert B. Endler, was indicted in a single indictment containing three counts. In Count One they were charged with larceny, a violation of 18 U.S.C. § 2113(b); in Count Two with possession of stolen property knowing the property to have been stolen, a violation of 18 U.S.C. § 2113(c); and in Count Three with having conspired to commit the substantive crimes charged.
Appellant was the only one of the three who stood trial, and he chose not to take the stand. The conspiracy count was dismissed as to him by the trial judge, the jury acquitted him on Count One, and he was found guilty on only Count Two.
As we hold that reversible error occurred during appellant's trial we reverse the judgment of conviction which was entered on the jury verdict and remand for a new trial.
The Government charged that on May 12, 1972 appellant Harrington participated with his two companions, Thomas Strogoff and Robert B. Endler, in the theft of approximately $103,000 in checks from a delivery vehicle belonging to the Constitution National Bank at Wethersfield, Connecticut.
The thieves made a successful escape and avoided immediate detection. The first "lead" toward a solution of the crime occurred when a desk clerk at a local hotel discovered two of the delivery bags which had been removed from the truck. Subsequent to the discovery of the bags which had been left on one of the building's fire escapes, the same desk clerk, in inspecting the hotel's air shaft, found torn pieces of the stolen checks there and ascertained that they had been discarded from a room which had been occupied during the period prior to and following the theft by the appellant and Endler, who, though indicted with appellant, pleaded guilty to a substituted information.
A search of belongings left in the room yielded a baggage key. This was the key to a public locker which when opened was found to contain a number of the stolen checks. Harrington's fingerprints appeared on two of the checks.
At trial the Government elicited from several witnesses testimony designed to show that Harrington had been in possession of some of the stolen checks following the commission of the crime. One witness testified that at Harrington's request she had cashed one of the checks for him. A salesman at a stereo equipment store stated that Harrington had purchased a tape recorder with a check which was shown to have been one of those stolen. This testimony, however, was contradicted by testimony of Endler, who had been called to the stand by the defense. The prosecution also sought at trial to have a government witness, one Mancini, a restaurant owner, identify Harrington as the man who had vouched for Strogoff and Endler when the witness had cashed checks for them. However, when he was asked to make an in-court identification of Harrington, the restaurant owner was unable to do so. The Government attempted to salvage this identification by having the owner duplicate in court a previous out-of-court identification he had made from "mug shot" photographs. After a controversy between counsel, which occurred in full view of the jury, these photographs were admitted into evidence, although before they were ruled admissible the judge in open court ordered their appearance to be somewhat altered.
Upon appeal appellant offers one argument which he claims requires the dismissal of the indictment and, in the alternative, he presents two further contentions arising out of trial occurrences in connection with the prosecutor's handling of the photographs and the use made of them, which he asserts justify a reversal of his conviction and entitle him to a new trial.
Appellant first urges that the indictment upon which he stood trial should be dismissed because the grand jury proceedings were fatally infected by the testimony of Strogoff. Harrington would have us hold that this testimony must be expunged. If this were done he claims there would be insufficient credible admissible evidence before the grand jury to warrant the presentment of an indictment. Indeed, the only remaining testimony would be that of the investigating FBI agent, Brandon, and much of the agent's testimony was hearsay.
Strogoff was a self-confessed participant in the crime. Before the grand jury he implicated appellant Harrington. In his testimony Strogoff acknowledged that he was "addicted to heroin, all kinds of drugs." There was, however, no exploration, or even mention, of any psychological maladies affecting Strogoff. Following this grand jury appearance Strogoff was subjected to several psychiatric examinations, and was eventually adjudged incompetent to stand trial. Without exploring his mental problems to any unwarranted degree, it is fair to say that he was afflicted with serious mental disease, more particularly paranoid schizophrenia.
In support of his contention that the indictment should be dismissed appellant relies on United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), where an indictment had been returned on the basis of the hearsay testimony of a government agent. Although the agent was one of several government officers who were least familiar with the vital events of the matter upon which testimony was being taken, he gave the grand jury the impression that he was relating his personal first-hand observations of the events he was describing. Furthermore, a number of other government agents were available who could have supplied the non-hearsay first-hand evidence. Prior to our decision in Estepa we had issued warnings to prosecutors that the grand jury must be made aware of the hearsay character of the evidence presented to it, so that, if dissatisfied with the initial presentation, it could knowledgeably demand more probative evidence. Estepa was thus not intended to modify broadly the rule recognizing the acceptability of hearsay evidence in grand jury proceedings. See Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Rather, it was intended as manifest warning that it is impermissible to have law enforcement officers who have no first-hand knowledge of the subject the grand jury is investigating testify as if they possessed that knowledge.
Appellant would have us extract from Estepa a requirement that the prosecution has a broad and amorphous duty to apprise the grand jury of the quality of all evidence presented to it. Whatever the scope of such a duty, if indeed a duty exists, there seems to be no substantial ground to challenge the prosecutor's presentation here. Assuming, arguendo, that knowledge of some of Strogoff's mental problems can be imputed to the Government at the time he testified before the grand jury, Strogoff's own testimony that he was addicted to "all kinds of drugs" was sufficient warning to the grand jurors to suggest to them that they seek from further sources evidence concerning Harrington's involvement in the crime. See United States v. Payton, 363 F.2d 996, 999-1000 (2 Cir.) (Friendly, J., dissenting), cert. denied, 385 U.S. 993, 17 L. Ed. 2d 453, 87 S. Ct. 606 (1966).
In any event, the indictment is sustainable without dependence upon the testimony of Strogoff. A substantial portion of agent Brandon's testimony was undoubtedly hearsay,*fn1 yet the testimony was delivered in such a way that the grand jury could not have been deceived into believing that it was hearing a recitation of the agent's first-hand observations. The prosecutor's presentation here is thus totally distinguishable from that in Estepa. Inasmuch as the testimony of agent Brandon, exclusive of any other evidence in the case, was sufficient to support the grand jury's return of an indictment, we reject appellant's claim that the indictment should be dismissed.
The first of appellant's two contentions that he is entitled to a new trial because of trial error is that the introduction into evidence of the altered "mug shots" so prejudiced his right to a fair trial that we must now reverse his conviction. Although the issue appellant raises is not susceptible of a simple solution, we hold that, under the totality of the circumstances here, appellant's right to a fair trial was indeed infringed, and, accordingly, we reverse the conviction and order a new trial.
An examination of the issue proceeds from the recognition of a basic tenet of our criminal law. If, at his trial, a defendant does not take the witness stand in his own defense, or if he has not himself been responsible for causing the jury to be informed about his previous convictions, he is entitled to have the existence of any prior criminal record concealed from the jury. The defendant's right to this protection is so well understood that discussion of it is unnecessary. However, this protection may be lost by unexpected trial occurrences such as occurred here when the prosecution sought to salvage an identification by confronting its witness with appellant's photographs. That the introduction of photographs of a defendant may well be equivalent to the introduction of direct evidence of a prior criminal conviction has been articulated in a number of recent opinions which have recognized that the introduction of certain photographs may result in getting before the jury the fact that the defendant has a prior record, and so has deprived the defendant of his right to a fair trial. Thus, the Seventh Circuit in United States v. Reed, 376 F.2d 226, 228 (7 Cir. 1967), has explained that such evidence
In a similar vein, the Fourth Circuit has stated:
Since Harman did not testify or put his character in issue, of course, any evidence of a previous conviction would have been inadmissible. This case does not come within any exception to this general rule. Particularly in whiskey cases, evidence of previous convictions is highly detrimental to a defendant's chances of acquittal. This is especially true when the defendant does not testify. In this case, as to defendant's failure to testify, the District Judge charged the jury fully and fairly. It is doubtful that anything the judge might have said could have removed the prejudice created by the introduction of these pictures, but in his charge, the District Judge did not mention them at all. It is our conclusion that the introduction of these ...