Appeal of conviction of armed robbery by a jury in United States District Court for the Southern District of New York, Robert J. Ward, Judge, on grounds that appellant was denied effective assistance of counsel and that the Government suppressed exculpatory evidence. Remanded for supplementation of the record; jurisdiction retained, leaving it open to the trial court to order a new trial if it finds that such is required.
Oakes, Pierce, and Peck,*fn* Circuit Judges.
Anthony Torres appeals his conviction under 18 U.S.C. § 2113(d) for armed robbery, after a jury trial in the United States District Court for the Southern District of New York, Robert J. Ward, Judge. Torres appeals on two bases: (1) that he was denied effective assistance of counsel; (2) that the Government suppressed exculpatory evidence, contrary to the teachings of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The claims are interrelated, and arise from circumstances that are peculiar, if not bizarre. Because we cannot properly adjudicate Torres's claims without facts which do not appear in the record, we remand for certain findings by the trial judge and retain jurisdiction in the case.
A branch of Citibank, located at 4949 Broadway in New York City, was robbed on August 31, 1981, by an armed individual. Anthony Torres was arrested for the robbery on January 29, 1982, after a federal probation officer identified him in surveillance photographs of the robbery. The critical issue at trial was the identification of Torres as the robber. Three eyewitnesses, Delores Bonapart, a teller, George Zeno, another Citibank employee, and Richard Fontaine, a bank customer, selected Torres's picture as that of the robber upon viewing a photo array. Zeno, the only witness to view a lineup, was unable to identify Torres in the lineup, a result perhaps explainable by the fact that Torres had shaved his head sometime earlier. At trial both Bonapart and Zeno identified Torres as the robber.
Torres testified in his own behalf that he did not rob the bank, but that he was in a nearby park at the time of the robbery, and that investigating City police officers took him to the bank where Bonapart, Zeno, and Fontaine did not identify him as the robber. Torres's claims that he was denied the effective assistance of counsel and that the prosecutor suppressed exculpatory evidence relate to this testimony.
The purported Brady material is an FBI report labeled at trial "defendant's exhibit C for identification," a copy of which is appended hereto. This report describes an incident following the robbery, which was recounted to the FBI by a New York City police officer named Spottke. According to the report, Officer Spottke and a partner searched a nearby park shortly after the robbery and picked up a suspicious individual, identified as "Gregory Sanders, Date of Birth April 14, 1957, Black male, 90 Pitts St., Apartment 3E, New York, New York." Although Sanders did not meet the description of the robber, Officer Spottke brought him to the bank and presented him to the witnesses to the robbery. Several of them thought Sanders "looked familiar," but they did not identify him as the robber, and he was released. On this appeal Torres claims, as he did at trial, that he was the individual described in this report, and that he gave Gregory Sanders's name to Officer Spottke as a reference. The report of the incident was not turned over to defense counsel until quite late in the trial, despite three requests by the defense for Brady material.
Torres argues that under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the prosecutor was required to give the FBI report to defense counsel as "exculpatory evidence." It is difficult to evaluate this claim on the record now before us. On its face, the report does not involve Torres at all, but someone named Gregory Sanders. Moreover, it appears from the record that Torres's counsel knew about the incident described in the report, and arguably had ample opportunity to investigate and use such information on his client's behalf. United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed. 2d 1019 (1983). Nevertheless, several rather remarkable things about the report itself and its role at trial convince us that the record in this case must be supplemented before we can fairly decide the issues raised on appeal.
First, it is at least a strange coincidence that the Gregory Sanders mentioned in the report gave the same birth date to Officer Spottke as Torres gave to a consulting psychiatrist who examined him prior to the trial, before Torres ever saw the FBI report. Second, as this court ascertained by looking at page 1284 of the Manhattan 1982-83 telephone directory, a Mrs. Irene Saunders lives at 90 Pitt Street in Manhattan, which, according to the FBI report, is the very address given by the person Officer Spottke picked up in the park. Third, according to the report, Sanders "appeared to be familiar" to several bank personnel and "possibly was a customer at the bank," even though he said that he had never been in the bank before, and told Spottke that he had been unemployed for the last several years.
There are, of course, several possible explanations for these puzzling facts in the FBI report. One possibility, obviously, is that a Gregory Sanders (or Saunders) was picked up and taken to the bank. For some reason Sanders looked familiar, but Torres, not he, was the bank robber. In view of the apparently close resemblance between the bank surveillance photos and Torres as he appeared at trial (though not as he appeared in the photographic identification picture), this explanation is perhaps most probable.
Alternatively, it is possible that although Torres robbed the bank, he was the person whom Officer Spottke picked up and later released. Under this scenario, Torres's testimony that he gave Gregory Sanders's name as a reference in respect to his identity was truthful, but for some reason the FBI report was inaccurate on this point; e.g., Officer Spottke misunderstood that Torres was giving Sanders's name as a reference; the Officer erred in recounting the incident to the FBI; or the FBI agent either did not hear, or record, Spottke's description correctly. On this version of events, the man that Spottke took to the bank looked "familiar" because he had robbed the bank shortly before, even though the eyewitnesses could not then identify him.
Torres, by his testimony, suggests a third possibility: that he was not the bank robber, as shown by the fact that he was not identified when he was taken to the bank immediately after the robbery. On this last alternative, he would, we suppose, argue that the subsequent photographic array resulted in his identification because his face was familiar to the witnesses from the incident with Officer Spottke. On this theory, the bank robber was simply a look-alike.
Neither Sanders nor Spottke testified at trial. Thus, we do not know if there is a Gregory Sanders living at 90 Pitt (or Pitts) Street, if he was in fact picked up by Spottke and taken to the bank, or whether his date of birth is actually the same as Torres's, a happenstance which would be rather extraordinary.*fn1 This missing information could provide clues as to which version of the events described in the FBI report is correct. Moreover, it has significant bearing on the proper disposition of Torres's claims of a Brady violation and denial of effective assistance of counsel. A careful review of events at trial indicates why this is so.
We do not know when defense counsel, John P. Curley, learned of Torres's claim that he was brought to the bank and not identified by bank personnel. We do know, however, that counsel was aware of an Officer Spottke early in the trial. On his cross-examination of the first eyewitness, Delores Bonapart, Curley asked about the law enforcement people who responded shortly after the robbery. Ms. Bonapart recalled that two police officers came about five minutes after the robbery, although she did not see any police car and did not remember the names of the ...