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United States v. Conway

decided: August 19, 1969.


Hastie, Chief Judge, and McLaughlin and Van Dusen, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

Appellants, Conway and Lebosky (hereinafter referred to as defendants), challenge judgments of conviction entered on both counts of a two-count indictment charging them and one other, Davidoff, with violations of 18 U.S.C. ยง 2113(a) and (d).*fn1

On August 18, 1967, the Carteret Bank and Trust Company, a member of the Federal Reserve System, the deposits of which were insured by the F.D.I.C. and which is located in Carteret, New Jersey, was robbed by two armed men. While one stood guard by the entrance, the other circled behind the tellers' windows and ordered that a paper bag be filled with money. The robbers left with a total of $26,877.82. The next day, defendants Conway and Lebosky were arrested. They had been implicated by Davidoff, who was already in custody and had admitted driving the get away car.

Defendants were jointly tried in March of 1968. Davidoff testified against them as a witness for the Government. After their conviction, defendants were both sentenced to 15 years on each count of the two-count indictment, the sentences to run concurrently. On this appeal defendants attack their convictions on a variety of grounds.

I. Denial of a Preliminary Hearing

Defendants urge that they were unlawfully deprived of a preliminary hearing. After being arrested on August 19, 1967, they were indicted on September 14 and pleaded not guilty at their arraignment on October 6. No preliminary hearing was ever held, though defendants, both before and after indictment, made efforts to secure one.*fn2 In this Circuit it has been held that the purpose of a preliminary hearing is to afford an arrested person a prompt determination as to whether there is probable cause to hold him for grand jury action. Rivera v. Government of Virgin Islands, 375 F.2d 988 (3rd Cir. 1967). This purpose is served, and the hearing rendered unnecessary, by the return of an indictment. Rivera, supra ; see Jaben v. United States, 381 U.S. 214, 220, 85 S. Ct. 1365, 14 L. Ed. 2d 345, rehearing denied, 382 U.S. 873, 86 S. Ct. 19, 15 L. Ed. 2d 114 (1965). Nor, we think, is it controlling that a pre-indictment request for such a hearing was made here. See United States v. Universita, 192 F. Supp. 154 (S.D.N.Y.1961). United States ex rel. Wheeler v. Flood, 269 F. Supp. 194 (E.D.N.Y.1967), which granted a preindictment petition to compel a preliminary hearing, does not support defendants' position. In Wheeler, the United States Attorney had begun presenting evidence to the Grand Jury the day before the return date of an order, obtained by petitioners, directing the Government to show cause why a preliminary hearing should not be held. The court there held that "it was unreasonable in this case to delay a preliminary hearing for incarcerated accuseds beyond the time the United States was prepared to present the matter to the Grand Jury." 269 F. Supp. at 198. We find no record indication in the instant case that the Government was prepared to, or did, present evidence to a Grand Jury at the time defendants' request was served upon the United States Commissioner.

Defendants, however, citing several District of Columbia Circuit decisions,*fn3 urge us to adopt a discovery function for the preliminary hearing. They argue that reversible error is present where "it is subsequently determined at the time of trial that [a defendant] * * * was unfairly exposed to or surprised by the introduction of evidence that he could have successfully rebutted if he had a pre-trial hearing * * *." To the extent that the cases relied on by defendants establish the preliminary hearing as an independent vehicle for discovery in all federal criminal prosecutions, we decline to follow them.*fn4 In any event, the "evidence" by which defendants claim they were unfairly surprised -- that there was an additional witness to the robbery and that not all the money found on Conway at his arrest came from the Carteret Bank -- was not introduced at trial, nor would it have been pertinent to the issue of probable cause for defendants' arrest for this robbery, which would have been the subject of any preliminary hearing. Compare United States v. Cowan, 396 F.2d 83, 88 (2nd Cir. 1968).

II. Denial of a Bill of Particulars

Defendants complain of the denial of Conway's*fn5 October 16 motion for a bill of particulars under Rule 7(f), as amended in 1966, of the Federal Rules of Criminal Procedure. They correctly point out that the amendment was intended to liberalize the court's attitude towards bills of particulars. See Notes of Advisory Committee on Rules, Rule 7 (f) of Federal Rules of Criminal Procedure, as amended July 1, 1966. However, the Committee, as well as the federal courts, have made clear that amended Rule 7(f) leaves undisturbed the discretionary nature of the granting of a bill of particulars. See, e.g., Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968); Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. den. 387 U.S. 947, 87 S. Ct. 2083, 18 L. Ed. 2d 1335 (1967). We find no abuse of such discretion in the District Court's denial here. Conway's motion requested inter alia, the names of all employees of the bank and of all eye witnesses to the robbery, as well as a detailed description of the stolen money which had been recovered. However, it is not the function of a bill of particulars to disclose the names of Government witnesses in a case such as this. See United States v. Stahl, 393 F.2d 101 (7th Cir.), cert. den. 393 U.S. 879, 89 S. Ct. 181, 21 L. Ed. 2d 152 (1968); United States v. Margeson, 261 F. Supp. 628 (E.D.Pa.1966). Nor should it function to disclose evidentiary material. See Hemphill v. United States, 392 F.2d 45 (8th Cir.), cert. den. 393 U.S. 877, 89 S. Ct. 176, 21 L. Ed. 2d 149 (1968); United States v. Jaskiewicz, 278 F. Supp. 525 (E.D.Pa.1968). The proper means for obtaining a description of the money would have been a motion for discovery under Rule 16 of the Federal Rules of Criminal Procedure.

III. The Pre-Trial Identifications

In a two-pronged argument, defendants contend that under the doctrine of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), they were entitled to counsel when their pictures were identified by witnesses to the robbery, and also that such identifications were so unnecessarily suggestive as to violate due process. Several days after the crime, when defendants had been taken into custody, witnesses were shown photographs by F.B.I agents and identified pictures of Conway and Lebosky as depicting the two robbers. No indictment had been returned at that time. At trial the Government elicited in-court identifications from these witnesses, who were cross-examined by defendants' counsel concerning the photographic identification procedures.*fn6

We hold that Wade and Gilbert do not apply in these circumstances, since these pre-indictment photographic identifications were not a "critical stage" of the prosecution where the presence of counsel could meaningfully have preserved defendants' rights to a fair trial. See United States v. Bennett, 409 F.2d 888, 899-900 (2nd Cir. 1969); United States v. Marson, 408 F.2d 644, 649-650 (4th Cir. 1968) (dictum); McGee v. United States, 402 F.2d 434 (10th Cir. 1968), cert. den. 394 U.S. 908, 89 S. Ct. 1020, 22 L. Ed. 2d 220 (1969); United States v. Clark, 289 F. Supp. 610, 620-621 (E.D.Pa.1968).*fn7 There was no form of confrontation here nor, indeed, was any communication from defendants compelled or their presence even required. See Wade v. United States, supra, 388 U.S. at 227, 87 S. Ct. 1926; McGee v. United States, supra. Compare Gilbert v. California, supra, 388 U.S. at 266-267, 87 S. Ct. 1951; Schmerber v. California, 384 U.S. 757, 763-764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The fact that defendants were in custody at the time of the identifications we do not regard as controlling on this record. See United States v. Bennett, supra ; United States v. Marson, supra.*fn8 The photographs were shown to the witnesses about ...

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