(D.C. Criminal No. 72-76). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Rosenn, Hunter, Circuit Judges, and Bechtle, District Judge.
Appellant, George Cobbs, was charged in a two-count indictment with bank robbery and putting lives in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and 2113(d). The indictment was returned against appellant on March 10, 1972. He was tried and found guilty by a jury on June 26, 1972. This appeal has followed from that conviction. The facts are essentially as follows:
On March 6, 1972, two men robbed the Forest Hills office of the Regent Savings and Loan Association and $1,323 was taken. The victims of the robbery, Mrs. Trude Smith and Mrs. Margaret Morgan, both employees of the bank, were the only eyewitnesses. The two employees testified at trial that one robber entered the bank, conversed with one of them for a short time, then declared that it was a "stickup." The second robber entered the bank carrying a handgun, whereafter the robbery was consummated. During the course of the robbery, the bank's surveillance camera became activated, taking pictures of the unmasked men. These pictures were admitted into evidence.
Appellant Cobbs was arrested at his residence in Braddock, Pennsylvania, on March 27, 1972, for the above described robbery.*fn1 The arrest was based on the positive identification of Cobbs by Mrs. Morgan, an employee of the bank at the time of the robbery. The identification of Cobbs as a suspect in the robbery consisted of Mrs. Morgan's selection of appellant's picture from a certain number of criminal identification photographs shown to her by Special Agent McCarthy of the Federal Bureau of Investigation (FBI). At the time of his arrest, Cobbs was informed of his constitutional rights and signed a waiver of rights form. During the automobile ride from Braddock to the Federal Building in Pittsburgh and after the waiver form had been signed, implicating statements were made by the appellant. Agent McCarthy testified that on the way to Pittsburgh appellant asked how much money had been stolen in the robbery. After being informed by the Agent as to what was stolen, the appellant responded, "You mean he got that, too" and later at the FBI office when told how much was taken the appellant stated, "I only got $150 or $175 out of that."
Further incriminating statements, tantamount to an oral confession, were made by Cobbs when Agent McCarthy visited him in the Allegheny County Jail on March 29, 1972, two days after the arrest.
Appellant's initial contention on appeal is that the photographic lineup was not shown to the Government witness, Mrs. Morgan, until after the indictment had been returned against him and, as such, so infected her testimony that her subsequent in-court identification should not be permitted. The exact time of the photographic lineup is somewhat in dispute. The Government contends that the photographs were shown to the witness on March 8, 1972, two days after the robbery and two days before the return of the indictment on March 10, 1972, as testified to by the FBI Agent who showed the photographs to the witness. Appellant relies on the testimony of Mrs. Morgan to support his argument that the lineup occurred after the indictment had been returned. Mrs. Morgan testified that she could not say exactly when she had been shown the photographs, but it was "about a week after the robbery." Although there is a conflict in the evidence, the exact time of the lineup is inconsequential. That the photos were shown after the indictment had been returned does not per se render the witness' identification testimony inadmissible. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); United States ex rel. Reed v. Anderson, 461 F.2d 739 (3rd Cir. 1972).
Unless evidence of identification is of an independent origin, it will not be received if the circumstances of a pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification at the trial. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1968).
As recited in detail by the trial judge's opinion, there is no evidence on the record in this case that the pretrial identification procedures were so inherently unfair or impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Absent such a showing, evidence of even post-indictment photographic identification will not render in-court identification inadmissible.
Appellant further contends that the custodial interrogation conducted by Agent McCarthy of the FBI, which occurred after counsel had been appointed but without notice to or permission of counsel, violated appellant's right to counsel as guaranteed by the Sixth Amendment and that incriminating statements made by the appellant in the course of the interrogation should be declared inadmissible.
On March 29, 1972, two days after appellant's arrest, Agent McCarthy visited him in the Allegheny County Jail. The Agent read the Miranda warnings and took a written waiver from the appellant. The appellant then proceeded to state orally that he and another man had in fact committed the robbery in question and described to the FBI Agent the details surrounding the event. The trial court determined that the oral confession had been intelligently and voluntarily made and permitted the same testimony to be repeated in the presence of the jury. We agree with the decision of the lower court.
The fact that a defendant has an attorney does not mean that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney. United States v. Springer, 460 F.2d 1344 (7th Cir. 1972). The court in Springer, supra, held that a constitutional right such as the right to counsel may be waived, although there is a higher ...