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Court
issued
on
September
27, 1993,
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
CAMPBELL,
appellant, William
robbery of
Senior
Circuit Judge.
_______________________
Corgain, was tried and
Defendant-
on three occasions
in the
Fall
of 1991.
U.S.C.
2113(a).
In this appeal
he seeks reversal
18
of his
I.
I.
On October 15, 1991,
Corner
male.
in Dorchester,
The
Massachusetts
robber obtained
was robbed
over $1,000 in
Massachusetts,
named
Bank
$2,750
Jeanette P. Parrell.
of
Boston
in
cash and
lone
checks
Bank in Mattapan,
in cash
On November 22,
Uphams
by a
and obtained
Uphams
Corner,
from a
teller
Dorchester,
had
previously
lone male.
15 was again
that
robbed by a
Corgain
complains
limited
his
Driscoll,
the
that
the
attorney's
teller
-3-
who
district
judge
cross-examination
witnessed
the
of
two
At a
identified Corgain
during
both the
incidents.
as the
October 15,
1991, and
had robbed
November 22,
her
1991,
the man
cross-examination,
Driscoll extensively on
as
the
person
who
Corgain's
her ability
robbed her
attorney
to identify
twice.
Driscoll
admitted that the robbery had happened "quickly" and that she
had
been
"very
nervous."
Corgain's
attorney
also
descriptions
of the
physical
characteristics
bank
of Corgain
the
robber
and the
she
actual
had originally
a
of
as "average"
with
no distinguishing
marks.
Then, Corgain's attorney
facial characteristics
of the
bank robber,
-4-
and
was
tried
sustained by
a couple
describe
lineup
of
Corgain's
narrower questions,
the faces
of
photograph.
government
the court.
two particular
After
objected
and
each of
was
attorney then
asking Driscoll
participants in
these
questions,
sustained.
At
to
the
the
sidebar
identify the
describe the
others
in the
Corgain's
from
lineup
photo.
The
court also
noted
that
which
to
argue
to
the
jury
that
Driscoll's
now contends
that the
exclusion of
this
line
of questioning
violated his
confront
witnesses against
Olden v.
_____
defendant's
Sixth
argues that
should
Amendment's
U.S.
right to
Const., Amend.
government
confrontation
witnesses
clause).
been
allowed
the other
because
persons at
Driscoll's
hence
Corgain.
He
the lineup
ability
would have
VI;
have
describe
him.
cross-examination
implicates
Sixth Amendment
on
the
See
___
reliability
Delaware v.
________
of
her
Van Arsdall,
___________
to
cast
others,
identification
475 U.S.
of
673, 680
defendant
-5-
they could
do
not
find
reversible
error.
The
Sixth
_____________
1986)
(1931)),
adverse
to
______
does not
allow unlimited
witness.
cross-examination of
an
on concerns about,
that is
. . . only
. . .
marginally relevant."
interrogation
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
those individuals in
relevance
to the
primary issue
raised by
her
worked.
discretion
by curtailing
the
argues that
Driscoll's answer
would have
the others
and identify
-6-
Corgain.
It
is unclear,
however,
these
how
material or
useful Driscoll's
Driscoll
whether
reliably
the
recognized
others had
thoughts along
The key
Corgain
as
certain
the
robber, not
facial characteristics
or
jury had
If
participants
Corgain
to
to
much alike
of the
lineup photo
wished
looked so
identification
more
the
robber
before
convey
as to
that
it as
an
all
the
render Driscoll's
problematic, defense
leave to reformulate
counsel
his questions so
as
jury
resemblance
from
and
photo
difficulty
attorney
was instead
describe
reasonably
the
question the
use to
of the
verbal descriptions
both
If
the
the
Corgain's
Driscoll's ability
verbally,
relevance
itself
recognition.
merely testing
person's appearance
recognizing someone,
reason
of
exhibit
to
judge could
exercise.
upon subtle
When
factors
time of a crime.
In
any event, the court's ruling did not prevent defense counsel
difficulty
of
distinguishing
between
the people
-7-
proposed
questions
cross-examine her.
did
not
leave
the
Exclusion of
jury
without
appraisal' of
bias."
to
Twomey,
______
elicit
ability
to
considerable
identify
[the]
witness's motives
information challenging
Corgain,
and
including
the
Driscoll's
facts
that
(1) Driscoll viewed the robber for less than three minutes at
each incident;
(2)
Driscoll
(3) there
were
some
described
her
own
condition
in the
way
she
We
conclude
discretion in
that
excluding
every
matter
complete picture
omitted).
court did
these particular
not
abuse
questions.
on
veracity
already been
if
developed.'")
F.2d at 3-4
sentence by
received some
See
___
Cir. 1992)
reasonably
(citation
(confrontation right
its
touching
has
the
from
-8-
by
Jeanette
exhibiting
partiality
for
the
as a teller
prosecution.
at the Shawmut
Like Driscoll,
to observe
the
During
the perpetrator of
the crime.
Before
permitting Parrell to
the
prosecutor
to
first
_____
ask
the
witness
and
to
"describe to the jury the person you saw" during the robbery,
and then
____
to ask
the witness to
in the
courtroom.
Corgain
the
judge
reliability
Corgain,
prosecutor
observation
deliberately
of
this
Parrell's
prosecutor
identification.
prejudiced
to explore
and
helped the
defendant
more
fully the
description,
bolster the
According
by
prompting
witness's powers
thereby
undermining
effectiveness of cross-examination
concerning the
descriptive
abandoning
abilities.
By
-9-
so
to
the
of
the
witness's
impartiality,
1985) (criminal
loses
its color
deprived him of a
trial unfair
of neutrality and
"where the
tends to
conduct.
fair trial.
The
598 (3d
judge's role
accentuate and
no impropriety in
court apparently
sought to
make
that
jurors would
appropriate exercise
trial.
not be
confused.
Doing
so
was an
to supervise the
(5th Cir.)
suggestions to prosecutor
nature of
to exercise fair
the defendant
was
arrested,
number
of
robber
in a
March 1992
lineup.
Several of
behind a one-way
the witnesses
mirror.
If
the
They
were also told not to consult with the other witnesses in the
-10-
that the
viewing
the
more than
one witness
in the
procedure.
United States
v. Bagley, 772
_____________
(9th
identification on the
Cir. 1985)
identification
procedure is
("A
to keep witnesses
______
joint confrontation
procedure .
is a
Clearly,
disapproved
the
better
view . .
Corgain complains
the fact
that more
1977)
(lineup
in
witnesses was
conducive
irreparable
to
on the
witness
the
which
624, 631
communication
among
unnecessarily suggestive
circumstances.
or
Everything
Here there
was
(witnesses'
own).
misidentification).
particular
witness is
Cir.
depends
than one
identification before
making their
witnesses
during
the
identification
process.
-11-
to conclude,
that no
as
making a choice
it apparently
did,
witness
when
On this
record, there
-12-
V.
V.
Jury Instruction on Inferences
Jury Instruction on Inferences
______________________________
In his final charge to the jury, the district judge
instructed
that
the
they
could
government
"must
prove
willfully . . . ."
infer
the
surrounding circumstances of
the case,
The
requisite
beyond
intent
"from
including the
defendant
the
words
argues
on
failed to
surrounding circumstances
which
explain that
intent
could
the
be
inferred
doubt.
it could
themselves
had
As a result
the
to
of this
intent on
the
a reasonable
government's burden
of
proof
397 U.S.
358, 364
accused against
reasonable
doubt
(1970) (due
every
fact
In
__
process clause
conviction except
of
be
thereby diluting
from
upon proof
necessary
to
no merit in
this contention.
To explain
-13-
this
essential
backdrop,
the
instruction
as
of the
was
urges could
correct
to
that each
have misled
the jury,
subsidiary fact
as it would
and inference
not be
forming a
a reasonable
beyond a reasonable
Rodriguez,
_________
doubt.
finding of
be established
Viafara________
particular element
doubt).
1981
has
been established
beyond
reasonable
facts
States,
______
but to
328
whole
F.2d
issue).
512, 515
Cir.
1964)
v.
United
______
(question is
is
Affirmed.
________
-15-