United States v. Joseph Charles Milhollan, A/K/A Alec Leroy Foltz

599 F.2d 518, 1979 U.S. App. LEXIS 16294, 4 Fed. R. Serv. 47
CourtCourt of Appeals for the Third Circuit
DecidedMarch 12, 1979
Docket78-1643
StatusPublished
Cited by55 cases

This text of 599 F.2d 518 (United States v. Joseph Charles Milhollan, A/K/A Alec Leroy Foltz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph Charles Milhollan, A/K/A Alec Leroy Foltz, 599 F.2d 518, 1979 U.S. App. LEXIS 16294, 4 Fed. R. Serv. 47 (3d Cir. 1979).

Opinions

OPINION OF THE COURT

SEITZ, Chief Judge.

Joseph C. Milhollan appeals from his conviction on two counts of transporting stolen money orders in interstate commerce in violation of 18 U.S.C. § 2314.

I

On September 22, 1977, a man entered the Security People’s Trust Company in Girard, Pennsylvania, and cashed two money orders drawn on the Travelers Express Company, Inc., in the amount of two hundred dollars each. The man had presented identification in the name of John J. Leehy, Jr., the designated payee of the checks. Travelers later refused payment on the checks, which had been stolen.

The day after the incident in Girard, Mil-hollan aroused suspicions at the Warren National Bank in Warren, Pennsylvania, as he attempted to cash two Travelers’ money orders made out to John J. Leehy, Jr. When a summoned police officer asked to see some identification, Milhollan fled on foot. He was apprehended a short distance from the bank. During the brief scuffle, a brown wig fell from Milhollan’s head. The Warren police later conducted a warrantless search of Milhollan’s automobile and discovered various items introduced at his trial on charges stemming out of the earlier incident in Girard. It is Milhollan’s conviction on those charges that forms the basis of this appeal.

II

Milhollan challenges several aspects of his conviction. He contends: (1) that the district court should have excluded testimony about various identifications made of him by employees of the bank in Girard; (2) that evidence of his activities in Warren should not have been admitted at his trial for the incident in Girard; (3) that evidence discovered in his automobile was inadmissible as the fruits of an illegal search; (4) that he was removed from state custody in violation of the Interstate Agreement on Detainers Act; and (5) that the sentencing judge improperly considered a prior conviction reversed on appeal.

A.

At trial, three employees of the Security People’s Trust Company identified Milhol-lan as the man who had presented the sto[522]*522len checks in Girard. Colleen Cochran, the teller who cashed the two checks, had sought approval from Douglas Nagle, a branch manager. Both Cochran and Nagle had observed the man for several minutes. Debbie Smalley, another teller, had observed the man for about one minute. Na-gle was sufficiently suspicious to have Cochran record the license number of the man’s car.

Within a few weeks of the incident, the Chief of Police in Girard showed Nagle a single black-and-white photograph of Mil-hollan taken upon his arrest in Warren. When the Chief of Police asked Nagle if he knew who it was, Nagle replied that the man looked familiar. Nagle further stated that the picture looked like the man who had passed the stolen checks, but that the man’s hair had been different. The Chief of Police then confirmed that the man in the picture was a suspect. When the Chief of Police showed the picture to Smalley, she too thought it resembled the man sought for cashing the stolen checks. Although testimony conflicts, the Chief of Police apparently did not show the photograph to Cochran.

On October 25, 1977, Agent Kim Kelly of the Federal Bureau of Investigation showed Nagle, Smalley, and Cochran a photographic spread of eight persons, including the picture of Milhollan previously seen by Na-gle and Smalley. Each of the threé witnesses picked Milhollan’s picture from the display; each commented on the difference in his hair.

On March 29, the FBI conducted a line-up for Nagle, Cochran, and Smalley. Milhollan appeared with four other men similar in height, weight, age, hair color, and eye col- or. The incident in Girard aside, the witnesses’ only prior exposure to Milhollan had been the two photographic displays five months earlier. Nagle identified Milhollan as “awfully close” to the man in the bank, again noting the difference in hair style. Cochran selected another participant as having “much resemblance” to the man in the bank. Smalley initially identified no one in the line-up, but then said that she believed Milhollan to be the man who was in the bank.

The district court denied pretrial motions to suppress all identification testimony. At trial all three witnesses identified Milhollan in front of the jury. Cochran testified that she had chosen Milhollan’s picture from the photographic spread shown to her by Agent Kelly. She admitted that she had chosen the wrong man at the line-up, but asserted that she was confused by the hair styles and that Milhollan was her second choice. Na-gle testified that he had identified Milhol-lan on three prior occasions: when he was shown the single photograph, when he was shown the photographic spread, and when he viewed the line-up. Nagle admitted that his selection from the photographic spread may have been influenced by his prior exposure to Milhollan’s picture, but he insisted that his initial identification of the photograph as well as his identifications at the line-up and in court were based on independent recollection. Smalley testified to her identification of Milhollan at the line-up. She too insisted that her identifications of Milhollan at the line-up and at trial were based on independent recollection and not on pictures she had seen.

Milhollan argues" that the photographic identifications were so suggestive as to violate due process. Furthermore, he contends, those photographic incidents tainted the subsequent line-up and in-court identifications. We will consider the latter contention first.

All three witnesses testified to their participation in the line-up. All three also identified Milhollan in court. Such identifications are admissible, even in the face of earlier, tainted procedures, if the prosecution establishes by clear and convincing evidence that the later identifications were based upon independent observations of the defendant at the scene of the crime and not upon the earlier procedures. See, e. g., United States ex rel. Carey v. Johnson, 462 F.2d 592, 593 (3d Cir. 1972). The inquiry in the case of an out-of-court identification is whether the taint created “a very substantial likelihood of misidentifi-[523]*523cation.” See Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). For an in-court identification, we must determine whether the challenged procedures created “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (emphasis added). ’

Under these standards we agree with the district court that the line-up and the in-court identifications were sufficiently independent of the photographic displays to render them admissible regardless of the validity of those displays. All the witnesses had adequate opportunities to observe the man in the bank. When shown the photographs, all commented on the difference in hair style. More than five months elapsed between the second photographic display and the line-up. In the intervening months, the witnesses saw no pictures of Milhollan. Aside from their observations in Girard, none had ever confronted him in person before the line-up.

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Bluebook (online)
599 F.2d 518, 1979 U.S. App. LEXIS 16294, 4 Fed. R. Serv. 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-charles-milhollan-aka-alec-leroy-foltz-ca3-1979.