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CLARK v. UNITED STATES

October 11, 1973

Calvin CLARK, Petitioner,
v.
UNITED STATES of America, Respondent


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 On May 27, 1968, petitioner, Calvin Clark, was charged with violating the narcotic laws, 21 U.S.C. § 174 and 26 U.S.C. § 4704(a), and was found guilty by a jury. His motion for a new trial was denied *fn1" and his conviction was affirmed on appeal. *fn2"

 On November 2, 1970, petitioner filed a "Motion For Order to Show Cause Why Judgment of Conviction Should Not be Vacated" asserting therein that the prosecutor suppressed evidence helpful to the defense, and that Williams, a police officer, knowingly testified falsely at the trial. The moving papers and affidavit attached thereto state that this motion was made pursuant to Rule 33, Fed.R.Crim.P., rather than 28 U.S.C. § 2255. After a full evidentiary hearing, this motion was denied. *fn3" The denial of this motion was affirmed on appeal. *fn4"

 The direct and circumstantial evidence submitted by the government at trial established that about 9:00 p.m. on March 15, 1967, two police officers cruising on Dahlem Street in a patrol car, with a red blinker light on top, first observed a man they identified as the petitioner walking on Railroad Street, a deserted area of the city frequented by litterers. When first observed, the petitioner was carrying a brown paper bag. Deciding to "check him out", the officers proceeded to a place where they turned the car around, drove back, and turned into Railroad Street where they had seen the petitioner. They accosted the petitioner who was running toward the car, but by then he had discarded the bag. It is a reasonable inference that petitioner discarded the bag because he had observed the patrol car in the vicinity. He told the police that the discarded bag had contained a sandwich he had purchased for his wife at the nearby Eat 'n Park restaurant and he had thrown it away. The petitioner and the police searched for the bag but failed to find it. After "patting down" the petitioner the police decided not to arrest him for littering and after a conversation all parties left the area.

 Since the ground was covered with recent snow, the police reasoned that petitioner had misled them and the bag could be found. Accordingly, they returned to the area about 10 minutes later, proceeded to trace petitioner's tracks in the snow and found the bag. In the bag were 347 glassine packets of heroin. Three of the packets bore the petitioner's fingerprints.

 At the trial the police officers, William J. Seifer and John R. Williams, positively identified the petitioner as the man with the bag whom they accosted on March 15th and "patted down", and with whom they searched for the bag and conversed. On cross-examination, it was brought out that Officer Williams examined photographs at the "F.B.I. Photo Lab" and identified the picture of petitioner, *fn5" and both officers were shown one picture by Inspector McDaniels which they identified as petitioner and were subsequently told by the Inspector that the man in the picture was Calvin Clark. *fn6"

 The petitioner was represented at the trial by two attorneys, both experienced as defense advocates and one was a former Assistant United States Attorney. At no time did the defense object to the admissibility of the in-court identification. No motion to suppress was made. No request was made for a Simmons hearing, *fn7" and no motion was made to strike the in-court identification. The motion for a new trial did not attack the in-court identification and it does not appear that any identification error was assigned on appeal. Cf. Pettett v. United States, 434 F.2d 105, 110 (6th Cir. 1970).

 As a matter of trial tactics, the defense, on cross-examination, brought out the pre-trial photographic identification hoping to detract from the weight the jury might otherwise accord the in-court identification. Cf. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968). Accordingly, the jury was instructed that if they found that the two policemen identified the petitioner from photographs shown to them and not from observing the petitioner at the scene, their identification testimony should be disregarded. *fn8"

 At the evidentiary hearing, over six years after the event, each police officer testified that Inspector McDaniels had shown them several photographs separately and each picked one of them as being the man they observed at the scene and were then told his name wa Calvin Clark. *fn9" Moreover, it was brought out by petitioner that when the matter was under investigation, the prosecutor had been told by the narcotic agent assigned to the case, William H. Mattingly, that both officers had identified the petitioner from photographs shown to them at F.B.I. headquarters in Pittsburgh. *fn10" Also, each officer again positively identified petitioner and testified that his in-court identification was from what he observed of petitioner at the scene. *fn11"

 I find as a fact that the incourt identification of petitioner at trial and at the evidentiary hearing was from an independent source. I further find from the totality of circumstances that the out-of-court identification by each police officer of petitioner's photograph was not so unnecessarily suggestive and conducive to irreparable mistaken identification that it denied petitioner due process of law. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

 There was no substantial likelihood of misidentification. The police had need for utilization of photographic identification, and the photographic identification was reliable because these policemen, trained to observe and devoid of emotional factors, unlike some victims of a crime, had viewed the suspected litterer for a substantial period under light from the nearby Eat 'n Park restaurant, the headlights of their car, the snow reflection as they searched for the bag, and the dome light inside their car as the subject conversed with them through the car window. Cf. Neil v. Biggers, 409 U.S. 188, 197, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

 Where a petitioner at trial and on appeal failed to challenge the validity of the identification evidence at least one Court of Appeals has held that he was foreclosed to present the due process question years later by a post-conviction motion for relief under § ...


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