On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 93-00035).
Before: Becker, Mansmann and Scirica, Circuit Judges.
William Harry Brink appeals his conviction for bank robbery. Brink contends the government violated his Sixth Amendment right to counsel by placing him in a cell with a known informant in a deliberate attempt to elicit self-incriminating statements. He also contends the district court erred by allowing him to introduce an eyewitness' prior identification only for impeachment purposes, rather than as substantive evidence. Although Brink has made a colorable Sixth Amendment claim, the record before us is inadequate to resolve it because the district court denied Brink's request for an evidentiary hearing. Therefore, we will vacate the judgment of conviction and sentence and remand for an evidentiary hearing to decide that issue.
On December 16, 1992, a masked gunman robbed the Farmers National Bank in East Brady, Pennsylvania and stole $4,434.00 in cash. Brink was arrested for the crime and charged with bank robbery, 18 U.S.C. § 2113(a) (1988); armed bank robbery, id. § 2113(d); and use of a firearm in a crime of violence, id. § 924(c).
Before trial, Brink was confined to Clarion County prison where he shared a cell with Ronald Scott. After learning Scott was scheduled to testify at his trial, Brink discovered Scott had been an informant for the Pennsylvania State Police and the Federal Bureau of Investigations on five previous occasions. Brink requested a pre-trial evidentiary hearing to determine Scott's involvement with the State Police and the FBI. The court denied Brink's motion. At trial, Scott testified that, while in Clarion County prison, Brink confessed to committing the bank robbery and admitted to manufacturing an alibi.
The principal eyewitnesses at trial were Annette Miller and Marilyn Ann Simpson, two bank tellers on duty at the time of the robbery, who identified Brink as the robber after testifying that they knew him both as a customer and from prior associations. They based their identifications on the visible parts of his face, his mannerisms and his voice. Miller stated that although she got a good look at his eyes, she could not remember what color they were. An FBI agent, however, testified that the day after the robbery, Miller told him the robber had dark eyes.*fn1
The prosecution also introduced photographs taken by bank surveillance cameras,*fn2 testimony that Brink had been seen with stacks of money the night after the robbery, and evidence that $220 was found in the sofa of a house where Brink had been doing construction work during the week of the robbery.*fn3
In defense, Brink offered the testimony of John Olcus, his neighbor, and Natalie Reefer, a mail carrier. Olcus testified that he saw Brink at his house at or near the time of the robbery.*fn4 Reefer, who did not know Brink but was standing with Olcus when a car drove up to Brink's home around the time of the robbery, testified that she saw a red Subaru drive up to Brink's house and that Olcus told her Brink was the driver.
A jury found Brink guilty on all three counts. Brink filed a motion for a new trial, which the court denied. This timely appeal followed. We have jurisdiction under 28 U.S.C. § 1291 (1988).
Over objection, Brink's pre-trial cellmate, Ronald Scott, testified that, while in Clarion County prison, Brink told him that he robbed the Farmers National Bank and how he devised an alibi. Brink contends the government violated his Sixth Amendment right to counsel by placing him in a cell with Scott because, he claims, Scott was a government agent deliberately attempting to elicit incriminating evidence outside the presence of Brink's counsel. We apply plenary review to the district court's application of legal precepts, see Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1370 (3d Cir.), cert. denied, 498 U.S. 899, 112 L. Ed. 2d 211, 111 S. Ct. 253 (1990), and clearly ...