United States v. York 426 F.2d 1191

*1192PER CURIAM:

Appellant was indicted in four counts of robbery1 and seven counts of assault with a dangerous weapon 2 growing out of the holdup of a shoe store staged by three men. At a trial before a jury in the District Court,3 Loren J. Seifert, an employee of the store, was permitted to identify appellant as one of the holdup men.4 The jury disbelieved alibi evidence offered by appellant and found him guilty on all counts. The chief complaint registered on this appeal is that Seifert’s identification at the trial was vitiated by processes previously utilized by the Government to assess the degree of Seifert’s recognition of appellant.5

The prosecuting authorities, after an initial photographic identification by Seifert and appellant’s later arrest, arranged for Seifert to view appellant as he sat in a courtroom of the District of Columbia Court of General Sessions.6 Seifert’s observation and resulting identification occurred without the knowledge of appellant or his counsel.7 Appellant contends that this episode contravened his Sixth Amendment right to counsel at pretrial identification confrontations.8 He questions also, on due process grounds, procedures incidental to efforts by the police to obtain identifications of appellant from groups of photographs shown Seifert.9

Early in the trial, the court ruled that the Government might properly ask Seifert to identify appellant from the witness stand. But it is clear to us, as the Government now concedes, that the viewing in the Court of General Sessions infringed appellant’s right to counsel as defined in our recent Mason opinion.10 So, with Seifert’s in-trial identification thus jeopardized, we need not, even if we could,11 inquire whether that identifica*1193tion was further embarrassed by any impropriety accompanying the photographic displays to which Seifert was exposed. And although the Government did not bring out before the jury any of its pretrial attempts at identification, Seifert’s in-trial identification, which the Government did elicit, can be sustained only by “clear and convincing evidence”12 establishing that it was based on observations untainted by unconstitutional techniques.13

On the latter point, the Government argues that the record demonstrates that Seifert’s in-trial identification proceeded from independent, legally unimpeachable sources. Appellant urges contrarily that the record shows that the identification was irredeemably infected. While we are free to resolve such a controversy when the record is adequate for the purpose,14 we must reject both positions. The record before us is deficient at too many points to enable us to proceed with confidence toward a decision as to whether there was an independent source that would vindicate the identification Seifert made at the trial. Moreover, it is evident that appellant’s claims were not given the careful evidentiary exploration they deserve, perhaps in consequence of the erroneous ruling that pretrial identification activities were rendered unimportant by the Government’s resolve not to refer to them in the testimony.15

We accordingly remand this case to the District Court for a hearing appropriate to investigation and resolution of the problem. If, on the basis of evidence now of record or introduced at the hearing, the Government discharges its burden of establishing an independent source for Seifert’s in-trial identification,16 appellant’s conviction will stand. If, on the other hand, the Government fails in that endeavor, with prejudice from the in-trial identification already apparent,17 appellant will be awarded a new trial.18

So ordered.

ROBB, Circuit Judge

(dissenting):

I would not remand this case, but would affirm on the record before us.

*1194No objection was made at the trial to Seifert’s testimony identifying appellant as the robber. The only objection offered by the appellant’s experienced counsel was definite, precise, and limited to testimony concerning the identification of appellant in the Court of General Sessions. Referring to this identification counsel said “I would object to any testimony by Mr. Seifert that he was brought for this purpose of this identification and did identify the defendant York earlier on that day when his counsel was not present.” (TR. 51) Counsel was satisfied when the Assistant United States Attorney announced that no testimony concerning the identification at the Court of General Sessions would be offered— and none was offered. The limited scope of counsel’s objection is confirmed by the fact that when Seifert was asked to identify the appellant at trial, and did identify him, counsel voiced no objection whatever. (TR. Ill, 112)1 The majority opinion thus holds that the appellant objected to testimony which in fact was received with his consent. I cannot agree to such a transformation of acquiescence into protest.

In any event, I would not hold that Seifert’s observation of the appellant at the Court of General Sessions on February 8, 1968 tainted his identification testimony at the trial on August 20, 1968. The record discloses that the appellant’s preliminary hearing in the Court of General Sessions commenced at about 11:00 A.M. on February 8. The appellant, who had been released on personal recognizance, was seated in the body of the courtroom before the hearing began. According to Seifert, an Assistant United States Attorney took him to the courtroom before the hearing and “He asked me if there was anybody in there that I could identify and then they just turned me loose. I had my immediate superior with me at the time. He brought me down and both of them just put me to the door and turned me loose and said ‘can you see anybody here that you can recognize ? ’ After a few minutes of looking I finally picked out one of them.” The man whom Seifert picked out was the appellant. Seifert testified that no one made any statement to him as to who might be in the courtroom, or suggested whom he might identify. (TR. 26, 27) The record shows that after identifying the appellant in the courtroom Seifert went back to work at his place of business a few blocks from the courthouse, later returned and at 12:10 P.M. the same day appeared as a witness and identified the appellant from the witness stand. The appellant at that time was seated at the end of the trial table with his counsel. Appellant’s counsel, who was also his counsel at the trial, made no objection to this confrontation and identification, which certainly were more *1195suggestive than the previous viewing in the body of the courtroom.2

As I have said, the appellant, free on personal bond, was sitting in the body of the courtroom waiting for his case to be called. Seifert was also properly in court as a witness. If we hold that Seifert’s observation and recognition under the circumstances of this case tainted his later testimony then it would seem that an eyewitness must be quarantined until the instant when he takes the stand at trial; for the impact of Seifert’s observation in the General Sessions courtroom on his testimony at trial would have been the same if Seifert had gone to the courtroom alone, seated himself there and, while waiting for the hearing to begin, had looked around and recognized the appellant.

So far as the identification of the appellant’s photograph by Seifert is concerned, the record discloses that immediately after the robbery Seifert and four of his fellow workers looked at books containing “four or five thousand pictures” without picking out any photograph, (TR. 126) but that later in the day Seifert positively identified the appellant’s picture from a group of some fifteen or twenty photographs. (TR. 130) The circumstances of this identification and of any subsequent viewing of photographs by Seifert were fully and carefully explored in a pretrial hearing before the able District Judge, who ruled that “I can’t find any evidence whatsoever of any suggestive action on the part of the police.” (TR 47) I agree with the District Judge and I think no useful purpose will be served by remanding the case for further consideration of the matter.

Of course we should insist upon fairness in pretrial identification procedures, in conformity with the decisions of the Supreme Court, but in my judgment the majority opinion extends those rulings beyond their intendment and beyond the requirements of fairness.