Appeal from judgment of conviction, after jury trial before Thomas C. Platt, J., in the United States District Court for the Eastern District of New York, for bank robbery and conspiracy. 18 U.S.C. §§ 2113(a) & (d), and 371.
Moore, Feinberg and Mulligan, Circuit Judges.
After a jury trial in the United States District Court for the Eastern District of New York before Thomas C. Platt, J., appellant Frank Tillman Lewis was convicted of armed bank robbery and conspiracy to commit that crime, 18 U.S.C. §§ 2113(a) and (d), and 371. For these offenses, Lewis received consecutive sentences of 25 years and five years, respectively. Shortly thereafter, the judge found Lewis in contempt for refusing to answer certain questions at the separate trial of his co-defendant Robinson Quinones,*fn1 and sentenced Lewis to six months imprisonment.*fn2 Lewis appeals from both judgments of conviction.
There is no claim that the evidence on the bank robbery conviction was insufficient, and the jury could have found the following: On the morning of January 3, 1977, appellant and an accomplice robbed the Barclay's Bank at 2215 Church Avenue in Brooklyn. The robbers operated in style. They were driven to the vicinity of the bank in a chauffeured white Cadillac limousine, and went in pretending to be customers. In short order, both men drew guns and threatened those inside the bank. Appellant threw a woman customer to the ground and fired two shots from his gun. His accomplice disarmed a bank guard and collected about $11,800 from the cash drawers and the employees. The two men then went around the corner to the waiting limousine.
Twelve days later, the FBI arrested appellant at a New York hotel. After the agents identified themselves, appellant came to the door of his hotel room, shielding himself with a woman. The agents arrested appellant and gave him his Miranda warnings. Thereafter, the agents discovered in the room both the gun that was taken from the bank guard and a gun that had fired a bullet in the bank.
At trial, the case against appellant was overwhelming. The guns were, of course, strong evidence of guilt. In addition, a bank customer (Norma Sharpe) had identified appellant from photographs after the robbery, and she so testified. The driver of the limousine service testified that he drove appellant to and from the vicinity of the bank on January 3. Also, the jury was told of appellant's admission, when arrested, that he was guilty. In short, the jury's verdict was amply justified.
II. The Bank Robbery Conviction
The photographic identification
In his thorough brief and argument, appellant's counsel maintains that the district judge committed a number of errors of law. The most substantial arguments on appeal stem from Norma Sharpe's pre-trial identification of appellant from a display of photographs.*fn3 At trial, Mrs. Sharpe was unable to identify appellant in the courtroom and mistakenly picked out a Deputy United States Marshal instead.*fn4 When Mrs. Sharpe was then shown the photographic display, she testified that she had previously identified one of the bank robbers from the group of pictures, and she then picked out the photograph she had earlier selected. This picture, which was of appellant, was then admitted into evidence. After Mrs. Sharpe's testimony, FBI Agent Leo Farrell testified as to the way in which he had prepared the photographic spread. He also confirmed that Mrs. Sharpe had selected appellant's picture shortly after the bank robbery.
Appellant offers a number of objections to this evidence. Citing Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), he first argues that the display was so impermissibly suggestive as to warrant exclusion. The argument is without merit. Ten photographs were originally shown to Mrs. Sharpe. All were of black males, facing front, wearing eyeglasses. The claim that there was no significant resemblance between them and defendant is simply frivolous. Also, while it is true that a yardstick measuring device appears only in defendant's photograph, the device is inconspicuous and insignificant. In short, the spread was neither suggestive nor unfair. Cf. United States v. Bubar, 567 F.2d 192, slip op. 4519, 4529 (2d Cir. 1977); United States v. Boston, 508 F.2d 1171, 1176-78 (2d Cir. 1974), cert. denied, 421 U.S. 1001, 44 L. Ed. 2d 669, 95 S. Ct. 2401 (1975).
Appellant next argues that the identification testimony should have been excluded as hearsay, and is not permitted by the new Federal Rules of Evidence. Appellant directs our attention to Rule 801(d), which contains ...