Appeal from a judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, convicting appellant after a jury verdict finding him guilty of bank robbery, bank larceny, and armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (b) & (d).
Feinberg, Mansfield and Gurfein, Circuit Judges.
MANSFIELD, Circuit Judge:
After a five-day trial in the Southern District of New York before Judge Kevin T. Duffy, a jury on May 23, 1975, found defendant Raul Estremera guilty on all counts of an indictment charging him and three others with bank robbery (Count 1), bank larceny (Count 2), and armed bank robbery (Count 3), in violation of 18 U.S.C. § 2113(a), (b) & (d). Upon this appeal from the resulting conviction and 17-year sentence, Estremera claims several reversible errors. We affirm.
The evidence, viewed in the light most favorable to the government, discloses a bank-robbery scenario duplicating what has in recent years become all too common in New York City and vicinity. On February 9, 1973, four armed men, Oscar Lee Washington, Victor Cumberbatch, Pedro Mario Monges, and a person later identified as the defendant Raul Estremera, entered a Bronx branch of the First National City Bank. Surprising the bank guard and other personnel, the men ordered all those in the bank to lie on the floor while the bank manager, James Bolla, led Monges and Washington to the cash drawers, from which the two looted $25,321.75. Cumberbatch meanwhile beat the assistant bank manager, Albert Randall, with his submachine gun and proceeded to rob him of his valuables. Similarly Estremera removed a wallet from the bank guard, Rodolfo Romero, who was then lying face down on the floor, and then relieved Romero of his watch, at which point Romero turned and looked directly at Estremera's face, now just inches away. Most of this was recorded on bank surveillance cameras, which were activated within a short time after the robbery began. Approximately 44 photographs of the robbery in progress were later introduced at trial.
The robbers departed in two automobiles, driving to a spot some six blocks from the bank, where they entered a red Ford van and another vehicle. Leroy Irvin, a resident of the street, observed the change in cars and noted the license number of the van, which belonged to Alberto Estremera, appellant's brother.
On February 15, police officials in Brooklyn located the Ford van and arrested Washington as he entered the vehicle. Later during the afternoon, the police arrested Alberto Estremera at a Brooklyn address where they also uncovered weapons and contraband currency. Appellant, aware of these two arrests, asked two friends, Frank Negron and Wayne Barrett, for assistance in avoiding capture, seeking a place to stay, money, and a pair of clear eyeglasses. His friends provided Estremera with an apartment and placed an order for the desired spectacles. On the same date, agents of the Federal Bureau of Investigation exhibited to Rodolfo Romero a spread of six photographs, including that of defendant but not including a picture of his brother Alberto, who looked somewhat like appellant. The bank guard immediately identified appellant as one of the bank robbers. The agents also presented the same series of photographs to Kenneth Jackson, the head teller at the bank, who was in the building's basement during the robbery. From a vantage point near the basement stairs Jackson had been able to observe the person later identified by him as Estremera from a distance of less than 15 feet. Both selected defendant's picture from the photographic array.
The February 15, 1973, arrest of Alberto Estremera had been accompanied by a search of his apartment. Upon challenge to its legality, the government agreed not to employ the fruits of the search and concomitant seizures. On February 26, 1973, the government consented to the dismissal of its case against Alberto,*fn1 who had been briefly represented in connection with a bail application by Jesse Berman, Esq., the same attorney who was later to appear on behalf of Raul in this case. On March 3, 1973, the government filed its first indictment against appellant and Washington. A superseding indictment adding Monges and Cumberbatch as defendants followed on April 12, 1973.*fn2 Appellant failed to appear for arraignment on either occasion and bench warrants were issued. The government was unaware of his whereabouts until January 30, 1974, when Canadian authorities advised FBI Agent Edward McShane, stationed in Plattsburgh, New York, that defendant had recently been arrested for auto theft in Canada. This message was relayed to the New York authorities responsible for the bank robbery investigation.
McShane, who maintained liaison with Canadian immigration officials, contacted Robert Quintal of that country's Department of Manpower and Immigration concerning Estremera and learned that deportation proceedings would be initiated since, in addition to his having been charged with theft of an automobile in violation of Canadian law, Estremera had an American criminal record consisting of a conviction for malicious mischief and had entered Canada from the United States under a false name. On April 1, 1974, the Canadian Immigration Court of Appeals, over defendant's objection, ordered his deportation. He appealed to the Federal Court of Appeals in Canada, which on October 30, 1974, dismissed the deportation proceedings, ruling that since Estremera's sole conviction in the United States was for a misdemeanor he was not deportable as an undesirable alien. On the very next day, the United States Attorney for the Southern District of New York requested that Canadian authorities detain appellant pending extradition. On November 15, 1974, a Canadian Federal Court Judge issued an order for his extradition which became effective on January 3, 1975, following exhaustion of Estremera's appeals.
Returned to the United States on January 6, 1975, appellant was brought to New York City and arraigned. At the trial, which followed in May 1975, the government rested its case principally upon the bank surveillance photographs, the identification of appellant by James Bolla, the bank manager, and Rodolfo Romero, the bank guard, both of whom testified, and testimony by Frank Negron regarding appellant's post-robbery request for help in avoiding capture. The court excluded as irrelevant testimony of one Ruben Matias that shortly prior to the robbery appellant had transported guns and ammunition from California to New York where they were unloaded with the help of Washington and Cumberbatch and that appellant had shortly thereafter alluded to "planning to do another job in New York."
Appellant did not take the stand. However, the defense sought to cast doubt upon the identification of appellant by offering evidence to the effect that the robber probably was appellant's look-alike brother, Alberto. Appellant's attorney, Jesse Berman, Esq., who had also been Alberto's attorney when he previously had been arrested for the robbery, undertook shortly before trial to discredit the identifications of appellant as the robber by inducing Alberto to dress in an outfit similar to that worn by the robber in the bank's surveillance photos (including coveralls, construction helmet and gloves), and to pose for several photographs in Berman's office, photographs that depicted Alberto in substantially the same postures and attitudes as those of the person appearing in the bank photos. On March 14, 1975, Berman showed to Kenneth Jackson, the bank teller, a photographic array consisting solely of photos of Alberto. Not surprisingly, in view of the similarity in appearance of the brothers and the passage of some two years since the robbery, Jackson identified Alberto as the robber and endorsed the back of the pictures accordingly. At trial, however, when asked to select among a series of photographs that included one of Alberto and the February 15, 1973, array used by the FBI, which contained appellant's likeness, Jackson selected defendant as the individual most closely resembling the robber.
At trial Bolla, the bank manager, a government witness, identified appellant and testified that a few weeks earlier he had selected appellant's photograph as that of one of the robbers from a photographic spread shown to him by appellant's attorney, Berman. Berman took the witness stand at trial and testified that on March 14, 1975, he had shown Bolla a photographic spread containing Alberto's picture, but not appellant's, and that Bolla identified Alberto as the robber. However, Bolla was not asked to initial or endorse the photograph of Alberto, as had Jackson. A similar defense attempt to discredit Rodolfo Romero's prior identification was unsuccessful as he failed to select Alberto as the robber.
Both prior to and during trial, defendant made a variety of motions which form the bases of this appeal. We will consider additional factual matters underlying ...