Consolidated appeals from judgments of conviction after jury trials in the District of Connecticut, Jon O. Newman, District Judge, and in the Northern District of New York, Henry F. Werker, District Judge, finding all appellants guilty on one count of conspiring to violate the federal statute against interstate travel in aid of racketeering, 18 U.S.C. §§ 371 and 1952 (1970); finding all appellants guilty on a substantive count of committing arson in violation of the same statute, 18 U.S.C. § 1952 (1970); and finding four appellants guilty of interstate transportation of dynamite in violation of 18 U.S.C. § 844(d) (1970) and of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1970). Affirmed.
Mulligan, Timbers and Van Graafeiland, Circuit Judges.
This case involves the appeals from the criminal convictions following the explosion and fire on March 1, 1975 which destroyed a four story plant of the Sponge Rubber Products Company in Shelton, Connecticut.
Appellants David N. Bubar, Peter Betres, Ronald Betres, Albert Coffey, Anthony A. Just and Dennis Tiche appeal from judgments of conviction entered upon jury verdicts returned in the District of Connecticut between January 19 and February 3, 1976 after a trial which extended over a three month period before Jon O. Newman, District Judge.*fn1 Appellant Michael J. Tiche, as to whom the jury in the first trial was unable to agree, appeals from a judgment of conviction entered upon a jury verdict returned in the Northern District of New York on June 18, 1976 after a retrial before Henry F. Werker, District Judge.*fn2
All appellants were found guilty of conspiring to violate the federal statute against interstate travel in aid of racketeering, 18 U.S.C. §§ 371 and 1952 (1970) (Count One), and on a substantive count of committing arson in violation of the same statute, 18 U.S.C. § 1952 (1970) (Count Two). Appellants Bubar, Peter Betres, Dennis Tiche and Michael J. Tiche also were found guilty of interstate transportation of dynamite in violation of 18 U.S.C. § 844(d) (1970) (Count Three) and of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1970) (Count Four).
Of the numerous claims of error raised on appeal, we find the following to be the principal ones: (1) Peter Betres, Ronald Betres and Coffey claim that certain incourt identifications of them should have been excluded as the products of an impermissibly suggestive photographic identification procedure, and Just raises a similar claim with respect to certain witnesses' testimony regarding out-of-court identifications of his photograph; (2) Bubar, Coffey, Just, Peter Betres and Ronald Betres claim that certain language in the prosecutor's rebuttal summation constituted commentary on their failure to testify; (3) Peter Betres and Dennis Tiche claim that there was no unregistered firearm to support their conviction for violating 26 U.S.C. § 5861(d); (4) Bubar claims that the incompetence of the counsel he selected to represent him in the district court deprived him of his Sixth Amendment right to counsel; and Coffey, Just, Dennis Tiche, Peter Betres and Ronald Betres claim that the trial of their cases should have been severed from that of Bubar because of prejudicial conduct on the part of Bubar's counsel; and (5) Michael J. Tiche claims that his indictment should have been dismissed on the ground that the delay in his retrial occasioned by the change of venue from the District of Connecticut to the Northern District of New York and the substitution of his counsel violated paragraph 7 of the District of Connecticut Plan for Prompt Disposition of Criminal Cases.
In view of the issues raised on appeal,*fn3 we summarize here the essential facts, viewed in the light most favorable to the government, regarding the massive arson which destroyed the plant of the Sponge Rubber Products Company (Sponge Rubber) at Shelton on March 1, 1975. Other more detailed facts necessary to an understanding of our rulings on the legal issues raised will be stated in connection with our discussion of those issues below.
The prime mover behind the scheme was Bubar, a religious figure and psychic who was the confidante and spiritual advisor of Charles O. Moeller, the president and majority shareholder of Sponge Rubber.*fn4 Moeller provided Bubar with a fund of $35,000 which Bubar used to finance the destruction of the Sponge Rubber plant. Bubar's contact with the other appellants was through Peter Betres who coordinated the destruction project and to whom Bubar distributed at least $21,000.
Peter Betres' base of operations was in Pennsylvania. The project's logistics entailed procuring destructive materials, transporting them from Pennsylvania to Shelton and setting them up in the plant. Dynamite, detonating cords, detonating caps and drums of gasoline were obtained by Dennis Tiche and defendant John Shaw.*fn5 A truck was rented to transport these materials to Connecticut. Albert Coffey signed the rental agreement. The truck was loaded at the place of business of Dennis Tiche in Pennsylvania. It then was driven to Connecticut by defendant Donald Connors.*fn6 It was Peter Betres who introduced Connors to Shaw and Dennis Tiche.
On February 28, 1975, the day before the arson occurred, Shaw, Dennis Tiche and Michael J. Tiche met Peter Betres at LaGuardia Airport. There Peter Betres gave $3,000 to Dennis Tiche. Shaw and both Tiches then left New York for Connecticut. Meanwhile, Coffey, Just and Ronald Betres met in a motel room in Danbury, Connecticut.
At midday on March 1 the two groups - Shaw and the Tiches on the one hand and Coffey, Just and Ronald Betres on the other - met with Bubar at a restaurant near the Sponge Rubber plant. Thereafter Bubar secured the entry into the plant of Shaw and the Tiches, together with the explosives, by telling the plant security personnel that the men were employees of the telephone company. That night Shaw and the Tiches set up the explosives on a time fuse. Early in the evening Bubar secured the entry into the plant of Coffey, Just and Ronald Betres. This latter group of three captured the three plant employees who had remained on the premises after hours. Coffey and Just took the three employees by car to an isolated location.
With the time fuse running, Shaw, the Tiches and Ronald Betres left the plant together in the latter's car. They rendezvoused with Coffey and Just on a road north of Shelton. Coffey and Just there abandoned the employees in the car they had used to remove them from the plant. Coffey and Just joined the others in Ronald Betres' car. The six, after driving by the burning plant, drove together to New York City. From there Coffey, Just and Ronald Betres drove to Pittsburgh. Shaw and the Tiches travelled to Pittsburgh by air.
The cornerstone of the government's case was the testimony of Shaw, including his in-court identification of each appellant. Shaw's testimony was corroborated by financial records, telephone records, airline ticket records, fingerprints taken at the Danbury motel and other circumstantial evidence.
The trial in the District of Connecticut began before Judge Newman on October 6, 1975. The presentation of evidence continued through January 6, 1976. Following arguments of counsel and the court's charge, the jury returned verdicts convicting appellants as stated above during the period from January 19 to February 3.
On February 11 the jury reported that it was unable to reach a verdict as to Michael J. Tiche on any of the counts. Judge Newman accordingly granted his motion for a mistrial and in due course ordered that his case be transferred for retrial to the Northern District of New York. The retrial began in the Northern District on June 7 before Judge Werker and was concluded on June 18 when the jury returned a verdict of guilty against Michael J. Tiche on each of Counts One through Four.
The instant consolidated appeals have been taken by Michael J. Tiche from his conviction in the Northern District of New York and by the other six appellants from their convictions in the District of Connecticut.
II. PHOTOGRAPHIC IDENTIFICATIONS
(A) Peter Betres, Ronald Betres and Coffey
Peter Betres, Ronald Betres and Coffey challenge on due process grounds the in-court identifications of them by Shaw. They claim the identifications were the product of an impermissibly suggestive photographic identification procedure.
On April 10, 1975, after Shaw was taken into custody, federal agents showed him what the government describes as "a stack of between six and fifteen photos, displayed one at a time." Photographs of Peter Betres, Ronald Betres and Coffey were included. Shaw identified all three, although he expressed doubt as to the photographs of Peter Betres and Coffey.
Normally the threshold question is whether the identification procedure was impermissibly suggestive. The procedure here combined characteristics of the photographic "spread" which may pass constitutional muster if properly done, cf. Boyd v. Henderson, 555 F.2d 56, 59-60 (2 Cir. 1977), slip op. 3519, 3524-26 (May 16, 1977), and characteristics of the singly presented photograph which, absent exigent circumstances, see Simmons v. United States, 390 U.S. 377, 384-85, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), amounts to an impermissibly suggestive photographic identification procedure. E.g., Brathwaite v. Manson, 527 F.2d 363, 367 (2 Cir. 1975), rev'd on other grounds, sub nom. Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, 45 U.S.L.W. 4681 (1977); United States ex rel. John v. Casscles, 489 F.2d 20, 24 (2 Cir. 1973), cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S. Ct. 1976 (1974). If the procedure is found to have been unnecessarily suggestive, the issue becomes whether the identification possesses sufficient aspects of reliability. Manson v. Brathwaite, 432 U.S. at 109-17.
While the indicia of suggestiveness appear to point in both directions in this case, we find it unnecessary to reach the question whether the procedure was impermissibly suggestive since Shaw did not testify on the basis of the photographic identifications themselves. United States v. Yanishefsky, 500 F.2d 1327 (2 Cir. 1974); United States v. Mims, 481 F.2d 636 (2 Cir. 1973) (per curiam). In Brathwaite v. Manson, supra, 527 F.2d at 367 & n. 6, we reaffirmed our rule that an in-court identification is permissible if it stems "from the original observation of the defendant rather than the tainted identification". See also Manson v. Brathwaite, supra, 432 U.S. at 110 n. 10, 45 U.S.L.W. at 4684 n. 10. We therefore turn to an inquiry whether Shaw's in-court identifications were supported by an independent basis in memory.
Shaw had excellent opportunities to observe Ronald Betres and Coffey. He met both among the group of six in addition to himself at the restaurant at midday on March 1. Thereafter he rode to New York in the same automobile with Ronald Betres and Coffey, among others. The group stopped at a turnpike service area on the way to New York. There Shaw had an opportunity to view Coffey in the lighted parking lot. He observed Ronald Betres in the parking lot and inside the building. Once in New York, Shaw joined Ronald Betres, Coffey and the others in a tavern for parting drinks.
Shaw's opportunities to view Peter Betres were more fleeting. They first met and spoke to one another at close range for one minute out of doors on a dark night. Their only other meeting, also brief, occurred in a well-lit area at LaGuardia Airport. Shaw paid close attention on both occasions. At LaGuardia it was Shaw rather than Tiche who first recognized the approaching Betres. Shaw later described in detail the clothes Betres wore on both occasions. In light of this corroboration and on the authority of our decisions in analogous situations, Mysholowsky v. New York, 535 F.2d 194 (2 Cir. 1976); United States v. Mims, supra, we hold that Shaw's opportunities to observe Peter Betres were sufficient to have enabled him to form and retain an independent impression.
Appellants, relying on the factors for determining reliability set out in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), argue that Shaw's identifications were unreliable despite his opportunities to observe. They point out that six weeks elapsed between the crime and the photographic identifications; that Shaw expressed uncertainty about his identifications; and that Shaw made an incorrect estimate of Ronald Betres' height. Appellants also stress that the United States Attorney, in response to a question by Shaw, told him before he testified that the men he would be identifying would be in court and that he previously had identified them in photographs. Shaw thereafter was on the witness stand for a day and a half before the United States Attorney asked him to make the identifications.
Although these facts arguably might be said to support the claim that Shaw relied on mental impressions from the photographs in making the identifications, we hold that they are insufficient to rebut the inference of an independent basis for his identifications. Despite what is described as the United States Attorney's apparent orchestration of Shaw's testimony, it amounted to little more than what became self-evident once Shaw took the stand. Since the entire matter was fully developed on cross-examination of Shaw by appellants' counsel, the latter had ample opportunity to make use of it in attacking Shaw's credibility and in challenging the weight of the identification evidence. Significantly, Shaw was sufficiently certain of his identifications to withstand extensive ...