Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. Henry Stuart Brown appeals from a judgment entered upon the verdict of a jury convicting him of armed bank robbery in violation of 18 U.S.C., Section 2113(d) and Section 2. Affirmed.
Medina, Feinberg and Mansfield, Circuit Judges.
Henry Stuart Brown appeals from a judgment of conviction of armed bank robbery in violation of 18 U.S.C., Section 2113(d) and Section 2, after a trial to Chief Judge Mishler and a jury. He was sentenced to 20 years in prison, to run consecutively to a term of 25 years that he was serving in the State of Missouri at the time of the trial. The Missouri sentence was imposed on September 29, 1973 on a plea of guilty made on July 24, 1972 to charges on three counts of assault with intent to kill. We find no merit in any of the points made for reversal and we affirm.
The preparations for the robbery followed the usual routine. Four or five of the prospective participants met in various apartments and discussed the matter. Brown said he liked the looks of the Bankers Trust Company on the corner of DeKalb Avenue in Brooklyn, partly because it had only one surveillance camera. Further inspection by the group confirmed Brown's appraisal, especially as they noticed the windows of the bank were so high that persons on the street could not see what was going on inside of the bank. When Brown, Roland, Green and Kearney met on Sunday evening, January 9, 1972, to arrange the details of the operation, Jackson, whose car they had used when casing the bank, was not there. So Green and Roland set out on foot to steal a suitable car. At about 11 P.M. they came across a car rental agency somewhere on Church Avenue in Brooklyn. Pistols in hand they forced the attendants to give them the keys to a small foreign rental car, of unknown make and registration, that was parked across the street. They drove away in this car and parked it about a block from the bank. The next morning, January 10, Brown, Kearney and Green stood together on the sidewalk just across the street from the bank, and, when they saw Roland coming in the stolen car that was to be used as a getaway, they entered the bank and the robbery took place. Each man had a loaded hand gun and, on the way to the bank, a paper shopping bag had been purchased to hold the currency they expected to steal.
According to their plan either Green or Kearney said: "O.K. this is a hold-up, everybody on the floor." As Brown tried to open a locked door adjacent to the teller's area, he left prints from three of the fingers of his left hand. A surveillance camera that Brown had not noticed took the most perfect photographs of the operation that we have ever seen. There are several very clear photographs of Brown with the shopping bag. There is a glove on his right hand but his left hand is bare. Although Kearney and Green, guns in hand, appear to be wearing masks, Brown's face is uncovered, except for a pair of dark glasses, and unlikely as it might seem, the manager and assistant manager of the bank, who conversed briefly with Brown, were unable to identify him. The assistant manager after looking at a spread of photographs for 15 minutes, picked out the wrong one. We were told on the oral argument that Brown's appearance had not changed. At the trial he wore no beard nor had he submitted to any face lifting operation. We have come across similar failures to identify armed bank robbers in the past and the possibility that this may be due to fear cannot be ruled out. In any event, on this record and with these photographs we think the proof of Brown's guilt is overwhelming. Incidentally, after he had climbed over the counter with the help of a chair, he scooped up the money in the drawers of the various tellers and put it in the shopping bag, and he left his loaded revolver on the shelf in the teller's cage. Roland was given immunity and testified for the prosecution. We shall hear more of him.
The armed bank robbery occurred January 10, 1972. Brown received about $3700 the same day as his share of the contents of the shopping bag. The next we hear of him is in Missouri on July 27, 1972 when he pleaded guilty to 3 counts charging him with assault with intent to kill. On June 5, 1972 positive fingerprint identification of Brown was made. The indictment against Brown was filed on November 1, 1973, some seventeen months after the fingerprint identification.
Chief Judge Mishler denied a motion for a hearing to compel the prosecution to explain the reasons for this delay as a preliminary to a possible further motion to dismiss the indictment. The mere lapse of time between the fingerprint identification on June 5, 1972 and the filing of the indictment on November 1, 1973 constitutes no proof that Brown was prejudiced by the delay nor does it in the slightest degree indicate any foul play by the prosecution designed to deprive Brown of a fair trial or to affect his rights in any manner.
There is a surprising amount of discussion in numerous opinions of various Courts of Appeals in the federal judicial system relating to what might some day be proved or even plausibly alleged by a defendant in a criminal case to justify the dismissal of an indictment for prosecutorial misconduct in failing promptly to seek an indictment. That there must be some such showing is the mandate of United States v. Marion, 404 U.S. 307, 325, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). Here the record is completely bare as to prejudice to the appellant and as to prosecutorial misconduct. The motion for a hearing was properly denied. We do not think that what was said in United States v. Ferrara, 458 F.2d 868 (2d Cir.) cert. denied, 408 U.S. 931, 33 L. Ed. 2d 343, 92 S. Ct. 2498 (1972), was intended in any way to change the rule as formulated in Marion.
The Black Liberation Army
From the very beginning of the trial counsel for Brown tried in every possible way to bring the Black Liberation Army terrorist group into the case. One would suppose that it was in the interest of Brown to keep the Black Liberation Army out of the case, but his counsel thought otherwise. The specific issue on appeal involves the refusal of the trial judge, on grounds of irrelevance and possible prejudice, to allow Brown's trial counsel to cross-examine Roland on Brown's connections with the Black ...