902 F. 2d 41 - United States v. McCabe

No. 89-30271.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and ALARCON, Circuit Judges, and DICKRAN M. TEVRIZIAN, Jr., District Judge**

MEMORANDUM***

David Eugene McCabe was convicted after a jury trial of bank robbery in violation of 18 U.S.C. Sec. 2113(a). On appeal he argues the admission of an unnecessarily suggestive eye witness identification violated his right to due process, and the indictment was inadequate because it did not set forth each element of the crime charged.

To determine whether a challenged identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of mistaken identification, we must examine the totality of the surrounding circumstances. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.1985). Because McCabe failed to object below to Ms. Zagel's identification testimony, the district court's decision to admit her testimony is reviewable only for plain error. See United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983).1 Plain errors are those that "seriously affect the fairness, integrity or public reputation of judicial proceedings, thereby requiring reversal to prevent a miscarriage of justice." United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir.1988) (internal quotation omitted).

McCabe complains Zagel was escorted to a hilly, snowy street where she was shown one suspect surrounded by police officers and asked "if that person was who I saw that was in the bank that robbed me." McCabe was then forced to walk about ten or twelve steps in front of Zagel, so that she could compare his gait to the gait she observed in the robber. Finally, McCabe complains Zagel was mistakenly under the impression the robber had been under continuous observation from the time he left the bank until McCabe was arrested.

The "show-up" identification procedure used in this case was properly conducted. Neither the presence of uniformed police officers nor the circumstance McCabe was wearing handcuffs casts doubt on the propriety of the identification. See Bagley, 772 F.2d at 492-93; United States v. Kessler, 692 F.2d 584, 586 (9th Cir.1982). The identification was made promptly after the robbery. The record demonstrates Zagel made an unhurried, deliberate identification based on McCabe's characteristic stance and gait, along with his overall apearance. There is no indication of any verbal encouragement or impermissible consultation preceding the identification.

Because the procedure used in this case was not impermissibly suggestive, McCabe's due process claim fails, and inquiry into the independent reliability factors set forth in Manson v. Brathwaite, 432 U.S. 98, 114-16 (1977), is not required. Bagley, 772 F.2d at 492; United States v. Davenport, 753 F.2d 1460, 1463 & n. 2 (9th Cir.1985). Any circumstance casting doubt on the reliability of the identification, including any misapprehension Zagel may have been under, was properly a matter for cross-examination by defense counsel and evaluation by the jury.

McCabe argues the indictment is fatally deficient because it did not set out the definition of "savings and loan association" contained in 18 U.S.C. Sec. 2113(g).2 The indictment did charge McCabe with robbing the "Family Federal Savings and Loan Association, ... whose deposits were then and there insured by [FSLIC]." An indictment is sufficient if it contains the elements of the offense charged and fairly informs a defendant of the charge against him, and if it enables him to plead an acquittal or conviction in bar of future prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974). Although McCabe did not waive his challenge to the sufficiency of the indictment by failing to raise the challenge below, an indictment challenged for the first time on appeal is liberally construed. United States v. Coleman, 656 F.2d 509, 510 (9th Cir.1981).

Subsection (g) defines the term "savings and loan association," and does not in itself comprise an element of the crime charged. The indictment alleges the deposits of Family Federal Savings and Loan were federally insured, giving McCabe more than sufficient notice of that element of the offense. Id. at 512 (preferable though not required that indictment set forth fact that deposits were insured by FSLIC).

United States v. Trevino, 720 F.2d 395 (5th Cir.1983), on which McCabe relies, is inapposite. "The sufficiency of the notice provided by the indictment is not at issue in this case." Id. at 400. Rather, the court reversed Trevino's conviction because of the government's failure in that case to prove at trial an essential element of the crime charged. By contrast, in the present case, the branch manager's testimony established Family Savings and Loan Association's deposits were federally insured.

AFFIRMED.