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.
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.
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
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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.
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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
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defense counsel had challenged witness's credibility on other
grounds).
III.
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.
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.
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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.
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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