Van Dusen, James Rosen, Circuit Judges, and Becker, District Judge.
JAMES ROSEN, Circuit Judge.
The Pittsburgh National Bank was the target of bank robberies on both July 15, 1968 and October 4, 1968. Ivie Higgins was indicted under 18 U.S.C. § 2113(a) and § 2113(d) for the October 4 robbery and he entered a guilty plea. He does not attack this guilty plea. Higgins was also indicted for the July 15 bank robbery, for which he was convicted on December 18, 1970. He now appeals this conviction.
About 11 a. m., on July 15, a masked robber wearing a hat and sunglasses entered the Pittsburgh National Bank.*fn1 The armed robber forced several of the tellers to put money in a bag he was carrying. He then located Philip Lawrence, the bank manager, and with his gun pointed at Lawrence, forced Lawrence to give him the key to the bank vault. The robber emptied the vault*fn2 and then told all the bank employees to lay down on the floor as he left. Mr. Lawrence did not comply with the robber's order, but just kneeled. Consequently, after the robber left, Lawrence managed to get to the door quickly enough to see the robber get into a 1965 or 1966 green Chevrolet and drive off. Mr. Lawrence was able to copy down the first three numbers of the license plate of the get-away car.
At the time that the robber left the bank, John DeFazio was seated in his car across the street from the bank. DeFazio, who was about thirty or forty feet from the robber, focused his attention on the robber because he thought it unusual to see a masked man wearing a hat and sunglasses and carrying a bag. During the minute to a minute and a half DeFazio had to observe the robber, he had "mostly a profile view," but also saw him "directly in front" for a few seconds.
DeFazio watched the robber remove his mask and enter an automobile. He then followed the vehicle long enough to obtain the license number. The plate was subsequently linked to a green 1966 Chevrolet which had been stolen the morning of the robbery. Mr. Lawrence later identified this Chevrolet as the get-away car.
About one hour after the bank robbery, DeFazio gave the Federal Bureau of Investigation a description of the robber. According to his statement, the robber was 5 feet 8 inches tall, 185 pounds and very stocky. He was a light complected Negro, with the makings of a beard and a mustache. After giving his statement DeFazio was shown twelve or thirteen mug shots selected by the police or the F.B.I. on the basis of DeFazio's description. He did not make an identification of the robber.
In October or November, DeFazio was asked by the F.B.I. to look at some photographs of additional suspects.*fn3 He was shown seven mug shots. All were of the same type, showing one frontal view and one profile view. They were also the same size. All of the suspects were similarly dressed and none appeared more than once among the photos. DeFazio selected Higgins' mug shot, telling the F.B.I. agent, "I could swear that this is him [the robber]." Higgins' appearance in the mug shots matched DeFazio's earlier description of the robber.
DeFazio was then shown a photograph of a six man lineup which occurred on October 4. All of the suspects appearing in this photograph were attired in street clothes. There is no claim that the lineup photo, itself, directed DeFazio's attention at Higgins. DeFazio once more chose Higgins. After the identification, the F.B.I. agent told DeFazio, "we think this is the man, too."
At the time DeFazio identified Higgins from the mug shots and the lineup photograph, Higgins was being held in police custody for the October 4th robbery of the Pittsburgh National Bank. Higgins' lawyer was not present when DeFazio made his identifications, although Higgins was represented at the live October 4th lineup.
On November 20, Higgins participated in a live five man lineup at which represented by his lawyer,*fn4 DeFazio again identified Higgins as the robber. On Higgins' application the trial judge held a suppression hearing at which DeFazio testified that he had not been influenced by his prior identifications of the appellant. The application was denied. Appellant then moved for reconsideration of his motion, claiming that (1) the photographic identification by DeFazio outside the presence of counsel and after Higgins was in custody violated Higgins' right to counsel; and that (2) the F.B.I. agent's statement was unduly suggestive, violating Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). The judge rejected both claims and denied the motion.
At the trial, DeFazio made an in-court identification of Higgins. To supplement this, the government introduced into evidence a photograph of the October 4th lineup. DeFazio had previously selected Higgins from this photograph. The government also introduced photographs of the November 20 lineup at which DeFazio had seen Higgins in person and had identified him. The seven mug shots from which DeFazio had initially selected Higgins came into evidence as defendant's exhibits during cross-examination of DeFazio.*fn5
At the instruction stage of the trial, Higgins requested the judge to give certain specific charges as to the suggestive impact of DeFazio's exposure to the F.B.I. agent's statement and to the lineup and mug shot photographs. The judge rejected the charges ...