On Appeal from the United States District Court for the Western District of Pennsylvania, Pittsburgh, D.C. Crim. Action No. 87-128.
Seitz,*fn* Stapleton and Cowen, Circuit Judges.
In this appeal from a criminal conviction, the defendant raises several issues for review, the principal one being whether the government's filing of a petition for writ of mandamus tolls the running of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., until adjudication of the action by the court of appeals. The district court held that the time taken to process the petition is excludable for purposes of the Speedy Trial Act. We will affirm the judgment of the district court on this issue as well as on the other issues raised by the defendant.
On Saturday, May 9, 1987, a lone male entered the Shadyside branch of the post office in Pittsburgh, near closing at approximately noon, and robbed two postal clerks on duty that day. The robber carried a revolver and demanded that clerks Gloria Watkins and Paul Frankovich give him all their cash and stamps. The robber stuffed the money and stamps into a brown paper bag, ordered the clerks to take off their pants and lie down for twenty minutes, and then left by the front door onto a street crowded with pedestrians.
The postal employees reported the robbery to the authorities, and described the robber to a Pittsburgh police officer as "a black male, approximately 5-10 to six foot, 200 pounds, black hair, close cropped . . . he had a cap, the color was blue, the style was [tassel]. He had a blue full length coat and full overalls." App. at 326.
Unknown to either clerk, the postal inspectors had previously installed a hidden video camera in order to observe Gloria Watkins who, because she had a history of shortages of cash and stamps totalling $5,400 for the period of May of 1986 through May of 1987, the authorities suspected of embezzlement. Although the video camera did not take pictures with the clarity of a surveillance camera, it nevertheless captured the entire robbery, which lasted less than two minutes, on film.
After viewing the video, the postal authorities decided to focus their investigation on Gloria Watkins because they believed that certain actions by Watkins and the offender during the robbery suggested that it may have been an "inside job." Moreover, the postal inspector in charge of the case was suspicious because of the robber's demand for stamps as well as cash; it was the first time the inspector had heard of such a request for stamps in his nineteen years of investigating postal robberies. The postal inspector ordered an immediate surveillance on the home of Gloria Watkins, and during that surveillance noticed a black male living at Watkins' house who fit the general description of the robber.
A photograph of this black male was obtained and included in a photospread of eight black, bearded males, which was then shown to two eyewitnesses, postal patron Diana Thompson and postal clerk Frankovich. Ms. Thompson, who had noticed a black male in the post office just before noon and who saw the same man later leaving the post office with a brown paper bag, described the man at trial as wearing "some sort of blue pants, jeans or slacks, a blue, navy blue jacket, a zipper kind of jacket and a blue baseball type of cap." App. at 339-340. She was, however, unable to make a positive identification of the robber from the photospread. When the photospread was shown to postal clerk Frankovich, he picked as the robber the photograph of the man who had been spotted at Watkins' residence; the man in the picture was identified as defendant Harry David Tyler.
On the basis of this evidence, search and arrest warrants were executed at Watkins' house. Although the search yielded no large amounts of money or stamps, the postal inspectors did find a rusty-barrel revolver, a navy blue tassel cap, and a light blue baseball cap with white markings. Shortly after his arrest, Tyler signed a written statement in which he said, "[The] only time I was ever in [the Shadyside] post office was about a year ago when I took Gloria a sandwich for lunch." App. at 439.
The government moved for an order that Tyler participate in a line-up. Tyler then moved for a so-called "blank lineup," one that did not include the accused, to be followed by a regular lineup. The government later withdrew its request for a lineup, but the district court nevertheless granted Tyler the right to conduct the blank as well as the regular lineup, and additionally authorized the subpoenaing of "persons who look like Tyler" to appear in the blank lineup. In an effort to stop the blank lineup, the government filed with the district court, first, a Motion to Reconsider and second, a Motion to Stay the Order, which were each in turn denied. The government then sought a stay from this court which was also denied. Subsequently, on July 7, 1987, the government filed a Petition for Writ of Mandamus with this court; we denied the motion as moot on November 19, 1987, because the blank lineup had proceeded during the pendency of the motion.
The blank line-up produced the following results, which were testified to at trial. Frankovich admitted that he selected someone other than the defendant from the blank lineup and that he indicated he was 90% certain that the person was the robber. Frankovich further testified that he chose Tyler from the second lineup and that he indicated he was 100% certain that the defendant was the robber. Diana Thompson picked a man out of the first blank line-up and stated that she was forty percent sure that this was the man who she saw in the post office. She then selected a second man from the line-up which contained Tyler, other than Tyler, and stated that she was eighty percent certain that this was the man who she saw on the day of the robbery.
On January 4, 1988, the day of trial, Tyler moved for dismissal of the indictment claiming that a violation of the Speedy Trial Act had occurred. The district court denied the motion, reasoning that the time from the government's filing of a petition for a writ of mandamus (i.e., July 7, 1987) to the date when the district court received this court's order denying the motion (i.e., November 23, 1987), was excludable for purposes of the Speedy Trial Act; as such, the court found that a maximum of 67 non-excludable days had elapsed prior to trial, and thus that no Speedy Trial Act violation occurred.
At trial, the government's theory of the case was that Gloria Watkins' was an embezzler and that in order to cover-up this embezzlement, she induced her boyfriend, Harry Tyler, to commit the robbery. As support for its theory, the government introduced an expert who testified that a fingerprint found on a zip code directory at the post office matched the fingerprint of the defendant Tyler; the zip code directory was located in the lobby of the post office where the robber was standing prior to the hold-up. More important, the government established that the directory had only recently been changed approximately seventeen days before the robbery occurred, thus placing Tyler at the post office during that period in direct conflict with his earlier statement to police that he had not been inside the building in over a year. The government also relied on the testimony of postal clerk Frankovich; Frankovich identified Tyler in the courtroom as the person who had robbed him, although on cross examination he admitted that he had selected another person from the blank lineup.
Tyler presented a defense of mistaken identity. A photographic expert, who was a retired F.B.I. agent, testified that the man in the videotape was "most probably not" the defendant. App. at 494-495. A professor of psychology testified that there were "significant questions about the reliability" of Frankovitch's identification of the defendant, app. at 547, due to such factors as the stress and short duration of the incident, the documented difficulties in cross-racial identification, and the suggestiveness of the initial photographic lineup.
A postal employee testified that a black male wearing a navy blue cap, who was not the defendant Tyler, had tried to force his way into the Shadyside Post Office at closing time on Saturday one week prior to the robbery. Moreover, an investigator hired by Tyler testified that several robberies had been committed in the Shadyside community recently in a manner like the post office robbery, by a man who was similar in appearance to the defendant, but who was not the defendant.
Several of Tyler's family members and friends testified that he had been with them at or around the time of the robbery, although on cross examination and through the testimony of the postal inspector, the government elicited that earlier statements by these individuals had been different; at trial the witnesses essentially testified that Tyler had been at his mother's house at approximately 12:10, and then later met friends for drinks at approximately 12:30-1:00, whereas in initial questioning they indicated that Tyler had not arrived to his mother's house until after 1:00.
Finally, another postal employee testified, in contrast to Tyler's earlier statement to the police, that Tyler had been in the post office several times in the last year, although the government again elicited on cross examination that these visits may not have been since the new zip code directories were placed in the building.
On January 12, 1988, the jury found Tyler guilty on three counts of the indictment charging him with offenses related to the postal robbery, and on July 13, 1988, the district court denied Tyler's motion for a new trial. This appeal followed. The defendant asserts three errors at the trial level, specifically, that the Speedy Trial Act was violated, that the district court improperly admitted a key piece of evidence, and that the district court erroneously denied the defense's motion for mistrial based on prosecutorial misconduct. The first issue presents a question of law which is subject to plenary review; the second ...