The opinion of the court was delivered by: NEALON
In his brief and at oral argument, defendant asserted the following grounds in support of his motion: (1) the evidence was insufficient as a matter of law to sustain the conviction and his motion for judgment of acquittal at the close of all the evidence should have been granted; (2) that he was denied counsel at a bail reduction hearing before United States Magistrate Sebastian Natale in violation of his constitutional rights under the 6th Amendment and Rule 44(a) of the Federal Rules of Criminal Procedure; (3) that the Court erred in allowing into evidence items taken from 581 Gunpowder Road, White Marsh, Maryland, as a result of an illegal search and seizure; (4) that the Court erred in allowing into evidence a slip of paper containing the entry " $ 6,566.00" and allegedly bearing defendant's fingerprints, which was not included in the written inventory filed with the Magistrate pursuant to Rule 41(d) of the Federal Rules of Criminal Procedure; and (5) that the Court erred in allowing in-court identifications of the defendant which were the result of an impermissibly suggestive pretrial photographic display.
INSUFFICIENCY OF EVIDENCE
Addressing first the motion for judgment of acquittal, the jury verdict must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. United States v. Pratt, 429 F.2d 690 (3rd Cir. 1970); United States v. Giuliano, 263 F.2d 582 (3rd Cir. 1959). Viewed in that light, the following facts appear.
On December 2, 1975, defendant was the owner of a 1976 Chevrolet pickup truck, maroon and white, with two CB antennas, a white camper top, 5-point magnesium wheel covers, South Carolina license tags (white numbers and letters on a red background) with a dealer sticker entitled "Jerry's" on the tailgate. On that day, at approximately 9:15 A.M., John Richards, a Chevrolet dealer in the small town of New Freedom, Pennsylvania, observed a Chevrolet pickup truck with similar characteristics, including the name "Jerry's" on the tailgate, drive by his place of business and it attracted his attention because he knew "it was a truck that I hadn't sold." There were two occupants in the truck and Richards identified the passenger as the defendant, having looked at him for 5 to 10 seconds. He saw the truck, with defendant as an occupant, cruising the area at different intervals until shortly before noon. The Commonwealth National Bank in New Freedom is located "a couple of small short city blocks" from his place of business. At approximately 10:30 A.M., a small truck with a topper on it pulled alongside the car in which Mrs. Patricia Myers was seated and inquired whether there was a police barracks in town. Mrs. Myers identified the passenger as the defendant. Two municipal employees in a truck were passing by at that time and noticed the pickup truck in front of the Myers home. Both employees identified a photograph of defendant's truck as the same vehicle they saw that day. Sometime in the morning, a white male entered the bank and requested a $5.00 blank money order
from Susan Kurtz, a teller. She believed he was acting strangely, i.e., leaning over her counter and looking all around when she left her post to type up the money order. Her suspicions aroused, she went to the front window after he left and saw him enter the driver's side
of a red and maroon truck with a camper on top which she identified as similar to the defendant's truck. At approximately noon, Mrs. Ann Meshey, who resides 1.7 miles from the bank, observed defendant's truck, occupied only by the driver, pull away from a parking lot across from her home, stop a short distance away, and wait for a car to emerge from the same parking lot and then follow this car down the highway. She described the car as a light blue or light green sedan perhaps 3 or 4 years old.
At 1:13 P.M. two armed white males wearing ski masks and latex gloves and displaying handguns rushed into the bank, trained the weapons on the two tellers and two bank customers, and ordered the tellers to place money from their cash drawers into a brown shopping bag. One of the robbers was 5 inch 6 feet tall, about the same height as the man who purchased the $5.00 money order. The other man was described as approximately 5 inch 10 feet or 5 inch 11 feet tall
with a brown ski cap with a white circle around it pulled over his face, and wearing a gray hooded sweatshirt and latex gloves. The taller man held one of the customers with a gun in her back after announcing "this is a holdup, don't anybody move." The tellers placed $16,027.00 in the bag including $1,500 "bait money".
As the robbers ran out of the bank, the two customers rushed to the window and observed the men get into a light green Ford Galaxy automobile, Pennsylvania license No. N 75036. See footnote 4. This car was later found abandoned.1 to.2 of a mile from the bank. The following day, December 3, 1975, at noon, defendant went to the Woodshade Apartments, Baltimore, Maryland, from which he had recently been evicted and his furniture confiscated for nonpayment of rent, and told the manager that he had several hundred dollars "to pay all of his back rent, get his furniture out of hock, and have a month's rent in advance on a new apartment."
Acting on information received, Special Agents of the F.B.I. obtained a search warrant for the premises at 581 Gunpowder Road, White Marsh, Maryland, the temporary residence of Judy Osborne, allegedly defendant's paramour, and conducted a search at 5:09 P.M., December 3, 1975. Above a dropped ceiling panel in the hallway, they found $6,386.00, including $500 bait money, wrapped in a white sheet of paper containing the notation "$6,566.00" and enclosed with a rubberband, all of which had been placed in a brown ski cap with a white circle around it and the end of the cap was tied shut. In addition, among items on the living room floor which Mr. Wiley Hall, a resident, described as belonging to defendant, they found a grocery bag marked "EZ" shopping center and a sack containing a gray hooded sweatshirt
with a pair of latex gloves. Mr. Ralph Brown, a fingerprint specialist for the F.B.I., identified defendant's fingerprints and palm prints on the white sheet of paper which was wrapped around the money and also on the shopping bag. Photographs taken by the Bank's surveillance camera showed the designation "EZ" on the bag in which the robbers placed the money. The photographs also revealed that the taller robber wore a dark ski cap with a white circle around it over his face and also wore a light hooded sweatshirt and latex gloves.
Defendant surrendered to federal authorities in Baltimore, Maryland, on December 4, 1975, and was brought before an United States Magistrate where, after being advised of the charges against him and his right to counsel defendant informed the Magistrate that he had private counsel, E. Thomas Maxwell, of the Baltimore bar. At this time, a Mr. Freedman, identified as Law Clerk to E. Thomas Maxwell, appeared on defendant's behalf. Bail was fixed at $300,000 and a preliminary examination scheduled for December 12, 1975. At the December 12th hearing, Mr. Maxwell appeared and represented defendant. At the conclusion of this hearing, the Magistrate determined that probable cause existed and he ordered defendant removed to this district. Bail was continued at $300,000. On December 17, 1975, defendant was brought before U.S. Magistrate Sebastian D. Natale in this district pursuant to his request for a reduction of bail. After considering defendant's request, the Magistrate reduced the bail to $200,000 and the defendant was committed to custody when he was unable to satisfy this bail requirement.
Defendant contends that he requested counsel at the bail reduction hearing but his request was denied. He now argues that he is entitled to a new trial as a result of the denial of this request because, if the request had been granted and counsel appointed, then counsel would have had more time to prepare the case and defendant would have been able to assist earlier in his defense. The record discloses that defendant was indicted on January 14, 1976, counsel was appointed on January 15th and the arraignment was held January 20th, at which time a trial date was fixed for February 23, 1976, more than five weeks after counsel's appointment.
It must be pointed out initially that defendant had counsel at his Preliminary Examination in Baltimore on December 12th, at which the Magistrate found that there was probable cause to believe that an offense had been committed by the defendant and ordered him removed to this district.
The hearing held before Magistrate Natale in this district was the result of defendant's request for reduction of bail. A bail reduction hearing is not a "critical stage" of the proceedings where the defense on the merits would be impaired without the assistance of counsel. Gerstein v. Pugh, 420 U.S. 103, 122, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); United States ex rel. Reed v. Anderson, 461 F.2d 739, 742 (3rd Cir. 1972). In Gerstein v. Pugh, supra, the Supreme Court held that the probable cause determination required by the Fourth Amendment is not a "critical stage" in the prosecution that would require appointed counsel. The court noted further that the Fourth Amendment probable cause determination is addressed only to pretrial custody. Id. at 123. A bail reduction hearing would similarly be addressed merely to pretrial custody and not to a pretrial procedure that would impair defense on the merits if the accused is required to proceed without counsel. Id. at 122. In any event, an illegal detention does not void a subsequent conviction. Id. at 119; Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1952). Furthermore, even if the constitutional right to counsel were violated, there must be a showing of prejudice to justify the quashing of an indictment. United States v. Hendrickson, 417 F.2d 225 (3rd Cir. 1969); McGill v. United States, 121 U.S. App. D.C. 179, 348 F.2d 791 (1965). While Fed. R. Crim. P. Rule 44(a), 18 U.S.C.A. provides that a defendant unable to obtain counsel is entitled to have counsel at every stage of the proceedings from his initial appearance before the Magistrate, the failure to provide counsel would not mandate a dismissal of the charges without a showing of prejudice. See Williams v. United States, 129 U.S. App. D.C. 332, 394 F.2d 957 (1968). To meet this burden, defendant argues that if counsel had been appointed at the bail reduction hearing (December 17, 1975), such counsel would have had 4 additional weeks to prepare for trial inasmuch as counsel was not appointed until January 14, 1976. Defense counsel did not particularize any prejudice of any nature either in his brief or at oral argument. Counsel had approximately 5-1/2 weeks to prepare his case and the Court complied promptly with all of his pretrial requests. Defendant also had the benefit of both private counsel from at least December 4, 1975, some 2-1/2 months prior to trial, and appointed counsel from January 14, 1976. There is clearly no showing of prejudice.
Even if the harmless error requirement of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) were to be applied to a bail reduction hearing following the preliminary hearing at which bail was fixed and where defendant was represented by counsel, I would still conclude that any constitutional error in this case was harmless beyond a reasonable doubt. See Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970).
SEARCH OF PREMISES AT 581 GUNPOWDER ROAD
The thrust of defendant's argument here is that the affidavit submitted in support of the application for a search warrant to the premises at 581 Gunpowder Road, White Marsh, Maryland, was inadequate.
The affidavit, executed by ...