Staley, Adams and Rosenn, Circuit Judges. Adams, Circuit Judge (concurring).
Appellant Richard E. Henkel was tried and convicted of having violated 18 U.S.C. § 2113(a) and (d). The two-count indictment charged him with taking $80,104 from a branch office of the Keystone National Bank of Pittsburgh in Duquesne Heights by use of force and violence, to wit, a handgun.
The evidence offered at trial by the Government can be briefly summarized. Bank employees testified that the holdup took place on July 24, 1969, between 8:00 and 9:00 A.M., before the bank had opened. Two armed men wearing ski masks and black gloves, who had gained access to the bank prior to opening, robbed the bank. Five hundred dollars of the stolen money was "bait money", i. e., the serial number of each bill had been recorded for possible subsequent identification. The men used the bank manager's car to escape.
A short time later, two witnesses saw the bank manager's car being parked in an alley located 1.7 miles from the bank. These witnesses, Otto and Coulter, testified that they were in their place of employment which had a large window facing the street. A car was parked directly in front of the window. The witnesses testified that they saw two men run from the bank manager's car to the car parked in front of their window. Both men were wearing black gloves and one carried a black briefcase. Both witnesses clearly saw the man who entered the passenger side of the car which faced their window. They later identified appellant Henkel at a lineup and at the trial as the person who left the bank manager's car and entered the passenger's door of the other car.
On July 26, 1969, two days after the robbery, a man carrying a large black suitcase rented a safety deposit box at the Mars National Bank in Mars, Pennsylvania, about thirty miles from Pittsburgh. Bank personnel subsequently discovered that the name and address used in the application for the deposit box were both fictitious. The matter was reported to the FBI, which directed the bank to take a surveillance camera photo of the man on his next visit. This was done, and the FBI subsequently identified the Mars Bank depositor as Henkel.
Henkel had previously been indicted on July 18, 1969, for burglary of another bank, the Duncan Manor branch of the First State Savings and Loan Association. Certain proceeds of that burglary had not been recovered, including some cash, travelers' checks and savings bonds. FBI agents secured a search warrant on September 8, 1969, issued by a United States Commissioner, to search the Mars deposit box for proceeds of the Duncan Manor burglary. Upon searching the box, FBI agents found $20,000 cash. The agents testified that during their examination of the bills for some indication that any of them were from the Duncan Manor burglary, they discovered that serial numbers on 25 twenty dollar bills matched the bait money list of bills stolen from the Keystone Bank. The agents removed the $20,000 from the box.
The following day Henkel appeared at the Mars bank and was advised by bank personnel that the FBI had confiscated the contents of the deposit box. That same day an arrest warrant was issued for Henkel in connection with the Keystone Bank robbery. Henkel could not be found but was subsequently arrested on December 28, 1969, at a Pittsburgh area motel where he was registered under another assumed name.
At the trial the defense called a surprise witness, one Biagiarelli. This witness testified that it was he who had robbed the Keystone Bank together with one Larry Windsor and that he had given part of the money to Henkel to hold for him. He testified that he told Henkel that the money had been won in a dice game.
Appellant contends, inter alia, that the warrant to search the Mars Bank deposit box was not supported by probable cause, that the agents who searched the box had no right to compare a "bait list" from an unrelated crime to the money in the box, and that appellant's right to counsel and to due process were violated by the FBI agents having shown photographs including one of appellant to witnesses prior to his apprehension. Appellant also argues that the district court erred in allowing a witness to be cross examined with regard to his being under indictment for murder and in allowing certain testimony from another witness. Finally, appellant contends that the district court erred in refusing to charge the jury that appellant could be convicted of a lesser offense, that of receiving stolen goods.
With regard to the warrant secured by the FBI to search the Mars Bank deposit box, appellant contends that the warrant was improperly issued in that it was based on mere suspicion and speculation. He argues that the affidavit by the agent requesting the warrant is not supported by facts that would reveal probable cause for the belief that the Duncan Manor burglary proceeds were in the box.
In his affidavit the FBI agent averred that Henkel was under indictment for the Duncan Manor burglary and that the proceeds of that crime had not been recovered. He further averred that Henkel had been identified by the use of a surveillance photograph as the man who had rented a safety deposit box in the Mars Bank using a fictitious name and address and that Henkel had carried a large black suitcase with him when he rented and subsequently visited the box. In addition, the agent stated that Henkel's home was approximately thirty miles from the Mars Bank and Henkel was not known to frequent the Mars, Pennsylvania, area.
The matter of probable cause to support a search warrant has been recently discussed by this court in United States v. Mosby, 439 F.2d 381 (C.A.3, 1971), and with regard to an arrest warrant in United States ex rel. Gockley v. Myers, 450 F.2d 232 (C.A.3, 1971). Mosby involved a warrant based on a tip from an informant, while Gockley dealt with a situation such as the instant case where an officer's personal knowledge was used to secure the warrant. Neither case can be viewed as controlling. The affidavit deemed defective in Gockley contained nothing more than the affiant's conclusory statement that the defendant had committed a crime. See also, Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). In Mosby, the informant's tip was substantiated by independent police surveillance. The affidavit in the instant case clearly avers facts that could support the independent judgment of the magistrate. The use of a false name and false address to secure a deposit box in a bank far from appellant's known home, coupled with the already established probable cause that appellant in fact had committed the burglary,*fn1 provides adequate ...