United States v. Corgain

• Court: Court of Appeals for the First Circuit
• Decided: September 30, 1993
• Docket: 92-2350
• Status: Published

Opinion

USCA1 Opinion

S   e   p   t   e   m   b   e   r     3   0   ,     1   9   9   3

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2350

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   WILLIAM CORGAIN,

                                Defendant, Appellant.

                                 ____________________

                                     ERRATA SHEET

The  opinion  of this  Court  issued  on  September  27, 1993,  is
        amended as follows:

            On page 6, line 11, replace "prison's" with "person's".

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2350

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   WILLIAM CORGAIN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Lawrence P.  Murray with whom Henry  F. Owens  III, by Appointment
            ___________________           ____________________
        of the Court, and Owens & Associates were on brief for appellant.
                          __________________
            Sheila  W. Sawyer,  Assistant United  States Attorney,  with  whom
            _________________
        A. John  Pappalardo, United  States  Attorney, was  on  brief for  the
        ___________________
        United States.

____________________

                                  September 27, 1993
                                 ____________________

CAMPBELL,   Senior   Circuit  Judge.     Defendant-
                                  _______________________

            appellant, William  Corgain, was tried and  convicted for the

            robbery of  two Boston-area banks  on three occasions  in the

            Fall  of 1991.  He was sentenced to 210 months in prison.  18

            U.S.C.   2113(a).   In this appeal  he seeks reversal  of his

            conviction, alleging trial errors.  We affirm the conviction.

I.
                                          I.

                      On October 15, 1991,  the Bank of Boston in  Uphams

            Corner  in Dorchester,  Massachusetts  was robbed  by a  lone

            male.  The  robber obtained  over $1,000 in  cash and  checks

            from a teller named Patricia Driscoll.  The next day, October

            16,  1991, a lone male  robbed the Shawmut  Bank in Mattapan,

            Massachusetts,  and obtained  $2,750  in cash  from a  teller

            named  Jeanette P. Parrell.   On November 22,  1991, the same

            Bank  of  Boston  in  Uphams  Corner,  Dorchester,  that  had

            previously  been robbed on October  15 was again  robbed by a

            lone male.  The robber obtained $5,200 in cash from Driscoll,

            the same teller involved  in the previous incident.   Corgain

            was apprehended, and charged with all three robberies.

                                         II.
                                         II.

                              Confrontation of Witness  
                              Confrontation of Witness
                              ________________________

                      Corgain   complains   that   the   district   judge

            erroneously  limited  his  attorney's   cross-examination  of

            Patricia   Driscoll,  the   teller  who  witnessed   the  two

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Dorchester bank robberies.  At a  March 1992 lineup, Driscoll

            identified Corgain  as the  unmasked man who  had robbed  her

            during  both the  October 15,  1991, and  November 22,  1991,

            incidents.   At Corgain's trial in June  1992, the prosecutor

            showed Driscoll a photograph of the persons she had viewed in

            the lineup, and she  once more identified Corgain as  the man

            who had robbed her on both occasions.

                      During   cross-examination,    Corgain's   attorney

            questioned  Driscoll extensively on  her ability  to identify

            Corgain  as  the  person  who  robbed her  twice.    Driscoll

            admitted that the robbery had happened "quickly" and that she

            had   been   "very   nervous."     Corgain's   attorney  also

            successfully drew out some inconsistencies between Driscoll's

            original  descriptions  of the  bank  robber  and the  actual

            physical  characteristics  of Corgain     she  had originally

            described him as five feet eight  or nine inches tall with  a

            thin build, while  Corgain in fact was  six feet tall and  of

            medium build.  Driscoll also admitted that she had originally

            described  the  robber  as "average"  with  no distinguishing

            marks.

                      Then, Corgain's attorney  again showed Driscoll the

            photograph of the March 1992 lineup and asked her to describe

            the  faces and distinguishing  facial characteristics  of the

            participants whom she had not identified as the  bank robber,
                                      ___

            i.e., everyone  other than Corgain.   The government objected
            ____

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and  was  sustained by  the court.   Corgain's  attorney then

            tried  a couple  of  narrower questions,  asking Driscoll  to

            describe  the faces  of  two particular  participants in  the

            lineup  photograph.    After  each of  these  questions,  the

            government  objected  and  was   sustained.    At  a  sidebar

            conference, the court questioned the relevance of the line of

            questioning, saying  that Driscoll's ability to  identify the

            robber did not turn  on her ability to verbally  describe the

            others  in the  lineup  photo.   The  court also  noted  that

            Corgain's  attorney had developed considerable other material

            from   which   to  argue   to   the   jury  that   Driscoll's

            identification was faulty.

                      Corgain  now contends  that the  exclusion of  this

            line  of questioning  violated his  Sixth Amendment  right to

            confront  witnesses against  him.   U.S.  Const., Amend.  VI;

            Olden v.  Kentucky, 488 U.S. 227,  231 (1988) (circumscribing
            _____     ________

            defendant's   cross-examination   of   government   witnesses

            implicates  Sixth  Amendment's  confrontation  clause).    He

            argues that  the proposed cross-examination was relevant, and

            should  have  been  allowed  because  Driscoll's  ability  to

            describe  the other  persons at  the lineup  would have  cast

            light on her ability to distinguish Corgain from the  others,

            and  hence  on  the  reliability  of  her  identification  of

            Corgain.   See  Delaware v.  Van Arsdall,  475 U.S.  673, 680
                       ___  ________     ___________

            (1986) (confrontation clause  rights violated when  defendant

-5-

prevented from exposing jury  to facts from which  they could

            appropriately draw inferences about witness's reliability). 

                      We  do  not  find  reversible  error.    The  Sixth

            Amendment right to confront adverse witnesses, fundamental as

            it is, United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir.
                   _____________    ______

            1986)  (citing Alford v. United States,  282 U.S. 687, 691-92
                           ______    _____________

            (1931)),  does not  allow unlimited  cross-examination of  an

            adverse  witness.  "[T]rial judges retain wide latitude . . .

            to  impose reasonable limits  on such cross-examination based

            on concerns about,  among other things,  . . .  interrogation

            that is  . . . only  marginally relevant."  Brown  v. Powell,
                                                        _____     ______

            975 F.2d 1, 3-4 (1st Cir. 1992) (citing Van Arsdall, 475 U.S.
                                                    ___________

            at 679).

                      The  judge  here  could  reasonably  conclude  that

            Driscoll's ability verbally to describe  those individuals in

            the lineup photo  whom she did not identify as the robber was
                                           ___

            of marginal  relevance  to the  primary issue  raised by  her

            testimony, namely, her ability to identify Corgain as the man

            who  robbed the bank at which she  worked.  See United States
                                                        ___ _____________

            v.  Malik, 928 F.2d  17, 20 (1st Cir.  1991) (trial judge did
                _____

            not  abuse  discretion  by curtailing  cross-examination  the

            relevance of which was not clear).

                      Corgain  argues that  Driscoll's answer  would have

            revealed what particular facial characteristics caused her to

            exclude  the others  and identify  Corgain.   It  is unclear,

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however,  how  material or  useful Driscoll's  thoughts along

            these  lines would have been.   The key  question was whether

            Driscoll  reliably  recognized  Corgain  as  the  robber, not

            whether  the  others had  certain  facial characteristics  or

            whether Driscoll could extemporaneously describe them.

                      The  jury had  the  lineup photo  before  it as  an

            exhibit.     If  Corgain  wished   to  convey  that  all  the

            participants  looked so  much alike  as to  render Driscoll's

            identification  of the  robber  problematic, defense  counsel

            could have sought  leave to reformulate  his questions so  as

            more  obviously to elicit that point, or else waited to argue

            to  the  jury   from  the  photo  exhibit   itself  both  the

            resemblance  and  difficulty  of  recognition.  If  Corgain's

            attorney  was instead  merely testing  Driscoll's ability  to

            describe  a  person's appearance  verbally,  the  judge could

            reasonably  question the  relevance  of the  exercise.   When

            recognizing someone,  people often rely  upon subtle  factors

            not easily reducible to words.  Lineups are employed for this

            reason    verbal descriptions  by themselves being of limited

            use to  identify the person seen at the  time of a crime.  In

            any event, the court's ruling did not prevent defense counsel

            from making any argument he wished  to the jury based upon an

            asserted  difficulty  of  distinguishing  between  the people

            portrayed in the photo exhibit of the lineup.

-7-

We have read the full cross-examination of Driscoll

            and are  unable to say that defense counsel was denied a fair

            and adequate opportunity to  cross-examine her.  Exclusion of

            the  proposed  questions  did  not  leave  the  jury  without

            "sufficient information concerning formative events to make a

            `discriminating  appraisal' of  [the]  witness's motives  and

            bias."  Twomey,  806 F.2d at 1140.   Defense counsel was able
                    ______

            to  elicit  considerable  information challenging  Driscoll's

            ability  to  identify  Corgain,  including  the   facts  that

            (1) Driscoll viewed the robber for less than three minutes at

            each incident;  (2)  Driscoll  described  her  own  condition

            during the first robbery  as "very upset, almost hysterical;"

            and  (3) there  were  some  inconsistencies  in the  way  she

            described the robber after each of the two incidents.

                      We  conclude  that  the  court did  not  abuse  its

            discretion in  excluding  these particular  questions.    See
                                                                      ___

            United States v. Concemi,  957 F.2d 942, 947 (1st  Cir. 1992)
            _____________    _______

            (trial judge need not  permit "`unending excursions into each

            and  every  matter  touching  on  veracity  if  a  reasonably

            complete picture  has  already been  developed.'")  (citation

            omitted).   Cf. Brown, 975  F.2d at 3-4  (confrontation right
                        __  _____

            not violated by court's decision to bar defense counsel  from

            eliciting  testimony that witness  had avoided potential life

            sentence by  testifying, where jury could  infer that witness

            received some  leniency in exchange for  testimony, and where

-8-

defense counsel had challenged witness's credibility on other

            grounds).  

                                        III. 
                                        III. 

                         Abandonment of Judicial Impartiality
                         Abandonment of Judicial Impartiality
                         ____________________________________

                      Corgain contends that the district judge prejudiced

            Corgain  by   exhibiting  partiality  for   the  prosecution.

            Jeanette  P. Parrell was working  as a teller  at the Shawmut

            Bank in Mattapan, Massachusetts during the robbery on October

            16, 1991.   Like Driscoll,  Parrell was able  to observe  the

            robber's  face and physique at the time of the crime.  During

            direct  examination, the prosecutor asked Parrell to identify

            the perpetrator of  the crime.  Before  permitting Parrell to

            answer, the judge conferred at sidebar with both counsel  and

            instructed  the  prosecutor  to  first  ask  the  witness  to
                                             _____

            "describe to the jury the person you saw" during the robbery,

            and then  to ask  the witness to  identify the robber  in the
                ____

            courtroom.  

                      Corgain  contends that, by interceding in this way,

            the  judge  deliberately  helped the  prosecutor  bolster the

            reliability  of  Parrell's  identification.     According  to

            Corgain,   this  prejudiced   defendant   by  prompting   the

            prosecutor  to explore  more  fully the  witness's powers  of

            observation   and   description,   thereby  undermining   the

            effectiveness of cross-examination  concerning the  witness's

            descriptive   abilities.    By  so  abandoning  impartiality,

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defendant contends, the judge  deprived him of a  fair trial.

            See, e.g., United States  v. Wilensky, 757 F.2d 594,  598 (3d
            ___  ____  _____________     ________

            Cir.  1985) (criminal  trial unfair  "where the  judge's role

            loses  its color  of neutrality and  tends to  accentuate and

            emphasize the prosecution's case"). We see  no impropriety in

            the judge's  conduct.  The  court apparently  sought to  make

            more logical the sequence in which information was presented,

            so  that  jurors would  not be  confused.   Doing  so  was an

            appropriate exercise  of the judge's powers  to supervise the

            trial.  See, e.g., United States v. Iredia, 866 F.2d 114, 119
                    ___  ____  _____________    ______

            (5th Cir.)  (most of trial judge's  suggestions to prosecutor

            about how to improve  his presentation were in the  nature of

            exercising firm  control over the trial, and  did not deprive

            defendants of fair trial), cert. denied, 492 U.S. 921 (1989).
                                       ____________

            Judges  have the right and  indeed the duty  to exercise fair

            control over the conduct of a trial.   

                                         IV.
                                         IV.

                          Refusal to Suppress Identification
                          Refusal to Suppress Identification
                          __________________________________

                      After  the defendant  was  arrested,  a  number  of

            witnesses from different robberies identified him as the bank

            robber  in a  March 1992  lineup.   Several of  the witnesses

            jointly participated from  behind a one-way  mirror.  If  the

            robber were present, they were  instructed to identify him by

            writing his placement in the lineup on a secret ballot.  They

            were also told not to consult with the other witnesses in the

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viewing room, nor to look at what other witnesses had written

            on their ballots. 

                      At a pretrial hearing, the defendant unsuccessfully

            moved to  suppress the results of this  identification on the

            ground  that the  presence of  more than  one witness  in the

            viewing  room at the same time had undermined the fairness of

            the  procedure.  United States  v. Bagley, 772  F.2d 482, 494
                                                       
                             _____________     ______

            (9th  Cir. 1985)  ("A  joint confrontation  is a  disapproved

            identification  procedure .  .  .  .    Clearly,  the  better

            procedure is  to keep witnesses  apart when they  view . .  .

            ."), cert. denied,  475 U.S. 1023 (1986).   Corgain complains
                 ____________

            that it was error not to suppress the identification here.

                      However,  the fact  that more  than one  witness is

            present during  a lineup does not  necessarily invalidate the

            procedure.  See United  States v. Lespier, 558 F.2d  624, 631
                        ___ ______________    _______

            (1st   Cir.  1977)  (lineup   in  which  communication  among

            witnesses was  possible was not  unnecessarily suggestive  or

            conducive  to  irreparable  misidentification).    Everything

            depends  on the  particular  circumstances.   Here there  was

            evidence the witnesses did  not collaborate with one another.

            Cf.  Monteiro v. Picard, 443 F.2d 311, 312-13 (1st Cir. 1971)
            ___  ________    ______

            (witnesses'  identifications tainted where they heard another

            witness  make her lineup  identification before  making their

            own).  Each witness testified that he or she did not speak to

            the   other  witnesses  during  the  identification  process.

-11-

Identification was by secret ballot.   The court was entitled

            to conclude,  as  it apparently  did,  that no  witness  when

            making a choice  knew what choice another had made.   On this

            record, there  was no error in the  district court's decision

            to deny the suppression motion.  

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V.
                                          V.

                            Jury Instruction on Inferences
                            Jury Instruction on Inferences
                            ______________________________

                      In his final charge to the jury, the district judge

            instructed   that  the   government  "must  prove   beyond  a

            reasonable doubt that  the defendant took the  money from the

            bank knowingly and  willfully . . . ."   He further told them

            that  they  could  infer   the  requisite  intent  "from  the

            surrounding circumstances of  the case,  including the  words

            and actions of the defendant."  The   defendant   argues   on

            appeal that this instruction  was deficient because the judge

            failed to  explain that  the  surrounding circumstances  from

            which  intent   could  be  inferred  themselves   had  to  be

            established beyond a reasonable  doubt.  As a result  of this

            deficiency, defendant contends, the  jury might have been led

            to believe that  it could  find the requisite  intent on  the

            basis of facts that  had not been proved beyond  a reasonable

            doubt,  thereby diluting  the  government's burden  of  proof

            below the minimum required by constitutional due process.  In
                                                                       __

            re  Winship,  397 U.S.  358, 364  (1970) (due  process clause
            ___________

            "protects the  accused against  conviction except  upon proof

            beyond  a  reasonable  doubt   of  every  fact  necessary  to

            constitute the crime with which he is charged").

                      We find  no merit in  this contention.   To explain

            the government's fundamental burden  under In re Winship, the
                                                       _____________

            court properly stated:

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First,  the  defendant  is  presumed
                      innocent until proven guilty. . . .
                           Second,  the burden  of proof  is on
                      the Government.   The Government  brought
                      the  case.   It must  now prove  the case
                      beyond a reasonable doubt. . . .
                           Again, I emphasize  that the  burden
                      of  proof  is  on  the  Government.    It
                                                             __
                      extends to  every  element of  the  crime
                      _________________________________________
                      charged. . . . (Emphasis added.)
                      _______

            Against  this  essential  backdrop,  the  instruction  as  to

            inferring intent "from  the surrounding circumstances  of the

            case, including the words and actions of the defendant",  was

            appropriate.  To have gone further in the direction appellant

            now  urges could  have misled  the jury,  as it would  not be

            correct  that each  subsidiary fact  and inference  forming a

            part of the mosaic  making up the jury's ultimate  finding of

            guilt beyond  a reasonable  doubt need itself  be established

            beyond a reasonable  doubt.   See United  States v.  Viafara-
                                          ___ ______________     ________

            Rodriguez,  729 F.2d 912, 913 (2d Cir. 1984) (burden of proof
            _________

            beyond a reasonable doubt does not operate on each subsidiary

            fact  on which the prosecution relies to persuade jury that a

            particular element  has  been established  beyond  reasonable

            doubt).  See 9 Wigmore, Evidence   2497 & n.8 (Chadbourn rev.
                     ___

            1981  & Supp. 1991) (burden need not be applied to subsidiary

            facts  but to  whole  issue).   See  also Dirring  v.  United
                                            _________ _______      ______

            States,  328  F.2d  512, 515  (1st  Cir.  1964)  (question is
            ______

            whether total evidence,  including reasonable inferences,  is

            sufficient  to warrant a jury to conclude defendant is guilty

            beyond reasonable doubt).

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Affirmed.
                      ________

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