
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                                         -3-            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            ____                                         -4-            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,                                         -6-            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,                                         -9-            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                                         -10-            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.                                           -12-                                          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:                                         -13-                           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).                                         -14-                      Affirmed.                      ________                                                       -15-
