DITTER, District Judge.
This case comes before the Court on a motion for judgment of acquittal or for a new trial. First, the defendant, John Clark, asserts that the denial of counsel of his choice at a lineup resulted in tainted identifications, and secondly, that his reprosecution after an earlier mistrial placed him in double jeopardy. These issues arose from the defendant's arrest and conviction for participating with at least five other men in a robbery of a branch office of the Southeastern National Bank at Exton, Pennsylvania, in February, 1971.
The events of the lineup in question were fully explored at a hearing held June 18, 1971, on a motion to suppress identification testimony.
Lt. Bernard Margolis, a Philadelphia police officer who conducted the lineup, stated it was first scheduled for March 4, 1971.
However, at the request of Nino V. Tinari, Esquire, defendant's attorney, the lineup was postponed for one week. Counsel was to attend or have someone from his office appear. The day before the new date, Mr. Tinari's office was reminded of it by a telephone call from Lt. Margolis. On March 11, the date set for the lineup, at about 5:05 P.M., Lt. Margolis talked to Mr. Tinari concerning the stand-up for that evening. Mr. Tinari was surprised that Clark had not made bail and requested time to verify the incarceration of his client. Having received no return call by about 5:30 P.M., Lt. Margolis telephoned Mr. Tinari, who then promised that he would be present for the 9:00 P.M. lineup. However, when Mr. Tinari had not appeared by 8:30 P.M., Lt. Margolis attempted to call him again. There was no response to the telephone calls to the attorney's office and the lieutenant was unable to obtain a home number. A Philadelphia assistant district attorney also tried to reach Mr. Tinari, but without success. Finally, at 11:00 P.M., the lineup here being questioned was held. Mr. Tinari had still not appeared, and did not appear thereafter.
In view of Mr. Tinari's unexplained absence, two members of the Public Defender's Office agreed to represent Clark. At their request, changes were made in the relative positions of the eight men in the lineup. However, once these changes were made, the Defenders made no objection to the police concerning the lineup and neither was called as a witness at the suppression hearing. The defendant, who had to be forcibly brought to the room, did object to participating in a lineup in the absence of his chosen attorney.
When the array was finalized, it was photographed in color and the witnesses were admitted. After viewing the lineup each witness was escorted to a separate room and individually interviewed. Three persons from the bank all identified
Clark as the robber who wore the "police uniform" during the holdup. At the lineup, all the men wore the same type of prison garb and none were asked to try on a "police uniform" or anything else. Like Clark, all the participants in the array were young Negro males. There was no great disparity in their appearances
and nothing to suggest that Clark was the man to be chosen. However, they were not all of the same weight, height, complexion, or facial characteristics.
Another important fact must be kept in mind. There were at least six men involved in this holdup, five of whom entered the bank. The identification witnesses were not told which of the men they were to try to identify. Having presided over the trial of three of the other alleged robbers, I know that they differed from Clark and from each other in size, complexion, facial characteristics, and dress. One was referred to as a priest by reason of his garb, another as the man with a Fu Man Chu moustache, a third as having worn a gray coat and Clark as the man in the policeman's uniform. Thus, the witnesses were not looking for a single individual from among those whom they saw at the lineup, but were looking for five men, or any one of them. They all chose Clark and they all remembered him as having been the one who was wearing the police uniform. Any minor variations in physical characteristics did not prejudice Clark, but presented the witnesses with the possibility of selecting one of the other men and overlooking Clark.
At first glance, it might appear that Clark has a valid objection to the lineup procedure since it was a critical stage of the prosecution and one at which an accused is entitled to have his counsel present: United States v. Wade, 388 U.S. 218, 236-237, 87 S. Ct. 1926, 1937-1938, 18 L. Ed. 2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). However, Wade contemplates that there may be circumstances when substitute counsel will be required so that the course of justice will not be obstructed. In United States v. Randolph, 143 U.S. App. D.C. 314, 443 F.2d 729 (1970), it was held that substitute counsel satisfied the requirements of Wade, while in United States v. Kirby, 138 U.S. App. D.C. 340, 427 F.2d 610 (1970), it is pointed out that substitute counsel may aid the defense by resolving the difficult problem of a defense attorney's appearance as a witness.
In the instant case, the police did all that they could to assure the presence of counsel. The lineup was postponed once at Mr. Tinari's request and he was then called to remind him of the new date. Even when it was impossible to contact Mr. Tinari, the lineup was delayed until 11:00 P.M. to afford him the opportunity to be there.
No explanation was given to the police for his failure to attend, and none was given at the suppression hearing. Under the circumstances, one cannot help but speculate that it was a deliberate attempt to prevent the holding of the lineup. In any event, I conclude that counsel's absence was one which was contemplated by Wade and that substitute counsel which was provided adequately protected Clark's rights. It should be noted that there is no contention that substitute counsel was derelict or argued that Mr. Tinari could have done any more than the Public Defenders did do. The failure of the defense to call the Public Defenders at the suppression hearing indicates the testimony of Lt. Margolis may be accepted without question. A review of the facts as he related them, the lineup pictures, and the individual identification photographs of each participant in the lineup shows there was scrupulous fairness in all the procedures and that Clark's rights were protected by substitute counsel. For these reasons, it was not error to admit the testimony concerning the lineup identification and that of the in-court identification.
In support of the motion for judgment of acquittal, Clark contends that his right not to be placed in jeopardy twice was infringed.
Prior to trial, the government had agreed that a de facto Jencks Act procedure would be followed, that is, the prosecutor would furnish to the defense a copy of any written statement made by a witness so that it could be used for purposes of cross-examination. (N.T. June 18, 1971, p. 107; N.T. June 23, 1971, pp. 17-19.) The first two days of the trial had proceeded on this basis. The problem arose when the prosecution discovered at the conclusion of the session on the second day that it had not supplied to defense counsel certain lineup identification sheets prepared by government witnesses. These sheets contained information given by those who attended the lineup to indicate pertinent physical details. Although defense counsel, Mr. Tinari, knew that these statement forms probably existed because of his prior lineup experience (N.T. Feb. 28, 1972, p. 10), there was no indication that he was trying to create the grounds for a mistrial by not having specifically asked for them (N.T. June 23, 1971, p. 5). It was agreed that the mistake on the part of the attorney for the government was inadvertent.
The applicable portions of the Jencks Act, 18 U.S.C. § 3500, provide:
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement . . . of the witness . . . which relates to the subject matter as to which the witness has testified. . . .