United States v. James Patrick Pressley

426 F.2d 895, 1970 U.S. App. LEXIS 8917

Opinion

PER CURIAM:

Appellant was convicted of violating 18 U.S.C.A., § 2113(d), armed robbery of a bank, the deposits of which are insured by the Federal Deposit Insurance Corporation. The trial was to a jury on a plea of not guilty.

The error assigned as the alleged inadmissibility of testimony by several witnesses regarding a prior line-up and of the in-court identification testimony of a bank employee. The employee identified appellant as‘being the robber of the bank. The robbery took place some two years before the trial and before an out-of-court line-up where the same bank employee identified appellant.

It is urged that the in-court identification was tainted by the line-up and that the line-up was conducted in an illegal manner. Appellant was represented by counsel at the line-up. See United States v. Wade, 1967, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149, on the right to counsel at a line-up. The line-up, considered in the totality of the circumstances surrounding it, did not violate due process. Stovall v. Denno, 1967, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 1969, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.

The evidence in question was admitted after a full hearing on a motion to suppress. The ruling that it was admissible, perforce, rested on a determination that appellant’s right to counsel was not violated and that the line-up did not violate due process concepts.

Affirmed.