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UNITED STATES v. FURTNEY

November 9, 1972

UNITED STATES of America
v.
Albert Clement FURTNEY, III


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 On June 18, 1969, the defendant, Furtney, was charged in a two-count indictment with (1) passing and uttering a counterfeit $20 bill to and upon the Staircase Bar in Pittsburgh, and (2) with possessing and concealing a counterfeit $20 bill with intent to defraud. Title 18 U.S.C. § 472.

 The case was tried by the Honorable John W. Delehant *fn1" and a jury. The defendant was convicted of Count 1 on November 25, 1969. Upon appeal, 3 Cir., 454 F.2d 1, the case was remanded for a Wade hearing. *fn2" See: United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

 On November 20, 1969, the trial judge held a suppression hearing prior to the selection of the jury. At this hearing the $20 bill involved in Count 2 was suppressed. The prosecution was thus deprived of important evidence of the defendant's guilty intent with respect to the $20 bill previously passed to the bartender as charged in Count 1. Because of the adverse ruling, Count 2 was dismissed by the prosecution.

 After the case was called, but prior to the selection of the jury, two prospective government identification witnesses, John Tomsic and his wife, Katherine, were conducted by the assistant United States attorney assigned to prosecute the case, along with Robert Foster, the secret service agent in charge of the investigation, from the sixth floor of the Courthouse where the United States attorneys' offices are located to Judge Delehant's courtroom on the ninth floor. In the corridor outside the courtroom about three women, in addition to Mrs. Tomsic, and about 10 men, including the defendant, were standing around. None of the men wore police uniforms. Mr. Tomsic identified the defendant to the assistant and the agent as the man who had passed a counterfeit $20 bill to him on January 6, 1969. Mrs. Tomsic did not recognize the defendant.

 At the trial, Mr. Tomsic testified that the defendant was the man who had entered his store in Wickliff, Ohio, and passed a counterfeit $20 bill on January 6, 1969. A Mr. Cartwright also presented testimony tending to prove the defendant's guilty intent.

 After hearing the evidence on the pretrial confrontation in the corridor outside the courtroom, we find the following facts:

 The authorities in charge of the prosecution did not intentionally arrange this pretrial confrontation between the Tomsics and the defendant in the corridor outside Judge Delehant's courtroom; they did nothing to focus the attention of Mr. and Mrs. Tomsic on the defendant as the person to be identified; they did not anticipate that the Tomsics would encounter the defendant in the corridor. We find that Mr. Tomsic's identification of the defendant in the corridor was entirely spontaneous. Therefore, it is our opinion that defendant's Sixth Amendment rights were not violated. The chance encounter between Tomsic and the defendant was not an illegal lineup in violation of the Wade rule; it was not a critical confrontation intentionally arranged by the prosecuting authorities.

 Further, upon due consideration of the totality of the circumstances surrounding this chance observation, we find it was not so unnecessarily suggestive and conducive to irreparable mistaken identification that it infringed upon defendant's right to due process. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); see: United States of America ex rel. Riffert v. Rundle, 464 F.2d 1348 (3d Cir. 1972); United States v. Hardy, 448 F.2d 423 (3d Cir. 1971).

 Should the reviewing authorities disagree with our finding that the encounter was not a critical confrontation, we find the following additional facts from the evidence adduced at the hearing:

 On January 6, 1969, a man who Mr. Tomsic identified at trial as the defendant entered the Tomsic store in the daytime; that Tomsic had never seen him before; that this man exclaimed in a loud voice, "hello there", looked around, purchased a pack of cigarettes, and handed Tomsic a $20 bill after which Tomsic gave him the change. Tomsic observed this customer for about three to four minutes in adequate light. Shortly after this customer left the store, an employee of a drug store next door arrived and inquired if Tomsic had just taken a $20 bill. Upon receiving an affirmative answer, he informed Tomsic that it was counterfeit. Tomsic promptly reported the matter to the police. There was a strong likelihood that this occurrence would have impressed the appearance of the culprit upon Mr. Tomsic's memory. The next day the Tomsics were interviewed by special secret service agent Fred Backstrum *fn3" and they described the culprit, inter alia, as a "man in his early 20's, dark complexion, well built." *fn4"

 Thus, in any event, we find as a fact that Mr. Tomsic had an independent source for his in-court identification of the defendant as the culprit at the trial and at the remanded hearing ...


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