USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2350
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM CORGAIN,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this
amended as follows:

Court

issued

on

September

27, 1993,

On page 6, line 11, replace "prison's" with "person's".

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2350
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM CORGAIN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________

____________________
Before
Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

Lawrence P. Murray with whom Henry F. Owens III, by Appointm

___________________
____________________
of the Court, and Owens & Associates were on brief for appellant.
__________________
Sheila W. Sawyer, Assistant United States Attorney, with w
_________________
A. John Pappalardo, United States Attorney, was on brief for
___________________
United States.
____________________
September 27, 1993
____________________

CAMPBELL,
appellant, William
robbery of

Senior
Circuit Judge.
_______________________
Corgain, was tried and

two Boston-area banks

Defendant-

convicted for the

on three occasions

in the

Fall

of 1991.

U.S.C.

He was sentenced to 210 months in prison.

2113(a).

In this appeal

conviction, alleging trial errors.

he seeks reversal

18

of his

We affirm the conviction.

I.
I.
On October 15, 1991,
Corner
male.

in Dorchester,
The

the Bank of Boston in

Massachusetts

robber obtained

was robbed

over $1,000 in

from a teller named Patricia Driscoll.

16,

1991, a lone male

Massachusetts,
named
Bank

$2,750

Jeanette P. Parrell.
of

Boston

in

cash and

lone
checks

Bank in Mattapan,

in cash

On November 22,

Uphams

by a

The next day, October

robbed the Shawmut

and obtained

Uphams

Corner,

from a

teller

1991, the same

Dorchester,

had

previously

been robbed on October

lone male.

The robber obtained $5,200 in cash from Driscoll,

the same teller involved

15 was again

that

robbed by a

in the previous incident.

Corgain

was apprehended, and charged with all three robberies.

II.
II.
Confrontation of Witness
Confrontation of Witness
________________________
Corgain
erroneously
Patricia

complains

limited

his

Driscoll,

the

that

the

attorney's
teller

-3-

who

district

judge

cross-examination
witnessed

the

of
two

Dorchester bank robberies.

At a

identified Corgain

unmasked man who

during

both the

incidents.

as the

October 15,

March 1992 lineup, Driscoll

1991, and

had robbed

November 22,

At Corgain's trial in June

her
1991,

1992, the prosecutor

showed Driscoll a photograph of the persons she had viewed in

the lineup, and she

once more identified Corgain as

the man

who had robbed her on both occasions.

During
questioned
Corgain

cross-examination,

Driscoll extensively on

as

the

person

who

Corgain's
her ability

robbed her

attorney
to identify

twice.

Driscoll

admitted that the robbery had happened "quickly" and that she
had

been

"very

nervous."

Corgain's

attorney

also

successfully drew out some inconsistencies between Driscoll's

original

descriptions

of the

physical

characteristics

bank

of Corgain

described him as five feet eight

thin build, while
medium build.
described

the

robber

and the

she

actual

had originally

or nine inches tall with

Corgain in fact was

six feet tall and

a
of

Driscoll also admitted that she had originally

robber

as "average"

with

no distinguishing

marks.
Then, Corgain's attorney

again showed Driscoll the

photograph of the March 1992 lineup and asked her to describe

the

faces and distinguishing

facial characteristics

participants whom she had not identified as the

___
i.e., everyone
____

other than Corgain.

of the

bank robber,

The government objected

-4-

and

was

tried

sustained by

a couple

describe
lineup

of

Corgain's

narrower questions,

the faces

of

photograph.

government

the court.

two particular
After

objected

and

each of

was

attorney then

asking Driscoll
participants in

these

questions,

sustained.

At

to
the
the

sidebar

conference, the court questioned the relevance of the line of

questioning, saying

that Driscoll's ability to

identify the

robber did not turn

on her ability to verbally

describe the

others

in the

Corgain's
from

lineup

photo.

The

court also

noted

that

attorney had developed considerable other material

which

to

argue

to

the

jury

that

Driscoll's

identification was faulty.

Corgain

now contends

that the

exclusion of

this

line

of questioning

violated his

confront

witnesses against

Olden v.
_____

Kentucky, 488 U.S. 227,

________

defendant's

Sixth

argues that
should

Amendment's

U.S.

right to

Const., Amend.

231 (1988) (circumscribing

of

government

confrontation

witnesses

clause).

been

allowed

the other

because

persons at

Driscoll's

hence

Corgain.

He

the lineup

ability

would have

light on her ability to distinguish Corgain from the

and

VI;

the proposed cross-examination was relevant, and

have

describe

him.

cross-examination

implicates

Sixth Amendment

on

the

See
___

reliability

Delaware v.
________

(1986) (confrontation clause

of

her

Van Arsdall,
___________

to
cast

others,

identification
475 U.S.

rights violated when

of

673, 680
defendant

-5-

prevented from exposing jury

to facts from which

they could

appropriately draw inferences about witness's reliability).

We

do

not

find

reversible

error.

The

Sixth

Amendment right to confront adverse witnesses, fundamental as

it is, United States v. Twomey, 806 F.2d 1136, 1140 (1st Cir.

_____________
1986)

(citing Alford v. United States,

______
_____________

(1931)),
adverse
to

______

does not

allow unlimited

witness.

cross-examination of

an

"[T]rial judges retain wide latitude . . .

impose reasonable limits

on concerns about,
that is

282 U.S. 687, 691-92

on such cross-examination based

among other things,

. . . only

. . .

marginally relevant."

interrogation

Brown
_____

v. Powell,
______

975 F.2d 1, 3-4 (1st Cir. 1992) (citing Van Arsdall, 475 U.S.
___________
at 679).
The

judge

here

could

reasonably

Driscoll's ability verbally to describe

the lineup photo
of marginal

conclude

that

those individuals in

whom she did not identify as the robber was

___

relevance

to the

primary issue

raised by

her

testimony, namely, her ability to identify Corgain as the man

who
v.
not

robbed the bank at which she

Malik, 928 F.2d
_____
abuse

worked.

17, 20 (1st Cir.

discretion

by curtailing

See United States

___ _____________

1991) (trial judge did

cross-examination

the

relevance of which was not clear).

Corgain

argues that

Driscoll's answer

would have

revealed what particular facial characteristics caused her to

exclude

the others

and identify

-6-

Corgain.

It

is unclear,

however,
these

how

material or

useful Driscoll's

lines would have been.

Driscoll
whether

reliably
the

recognized

others had

thoughts along

The key

question was whether

Corgain

as

certain

the

robber, not

facial characteristics

or

whether Driscoll could extemporaneously describe them.

The
exhibit.

jury had
If

participants

Corgain

to

to

much alike

of the

could have sought

lineup photo

wished

looked so

identification

more

the

robber

before

convey
as to

that

it as

an

all

the

render Driscoll's

problematic, defense

leave to reformulate

counsel

his questions so

as

obviously to elicit that point, or else waited to argue

the

jury

resemblance

from
and

photo

difficulty

attorney

was instead

describe

reasonably

the

question the

use to

of the

people often rely

verbal descriptions

both

If

the

the

Corgain's

Driscoll's ability

verbally,

relevance

not easily reducible to words.

itself

recognition.

merely testing

person's appearance

recognizing someone,

reason

of

exhibit

to

judge could

exercise.

upon subtle

When
factors

Lineups are employed for this

by themselves being of limited

identify the person seen at the

time of a crime.

In

any event, the court's ruling did not prevent defense counsel

from making any argument he wished

asserted

difficulty

of

to the jury based upon an

distinguishing

between

the people

portrayed in the photo exhibit of the lineup.

-7-

We have read the full cross-examination of Driscoll

and are

unable to say that defense counsel was denied a fair

and adequate opportunity to

the

proposed

questions

cross-examine her.

did

not

leave

the

Exclusion of
jury

without

"sufficient information concerning formative events to make a

`discriminating

appraisal' of

bias."

806 F.2d at 1140.

to

Twomey,
______

elicit

ability

to

considerable
identify

[the]

witness's motives

Defense counsel was able

information challenging

Corgain,

and

including

the

Driscoll's
facts

that

(1) Driscoll viewed the robber for less than three minutes at
each incident;

(2)

Driscoll

during the first robbery

and

(3) there

were

some

described

her

own

condition

as "very upset, almost hysterical;"

inconsistencies

in the

described the robber after each of the two incidents.

way

she

We

conclude

discretion in

that

excluding

United States v. Concemi,

_____________
_______
(trial judge need not
and

every

matter

complete picture
omitted).

court did

these particular

not

abuse

questions.

957 F.2d 942, 947 (1st

on

veracity

already been

Cf. Brown, 975

__ _____

if

developed.'")

F.2d at 3-4

testimony that witness

sentence by
received some

See
___

Cir. 1992)

reasonably
(citation

(confrontation right

not violated by court's decision to bar defense counsel

eliciting

its

permit "`unending excursions into each

touching
has

the

from

had avoided potential life

testifying, where jury could

leniency in exchange for

infer that witness

testimony, and where

-8-

defense counsel had challenged witness's credibility on other

grounds).
III.
III.
Abandonment of Judicial Impartiality
Abandonment of Judicial Impartiality
____________________________________

Corgain contends that the district judge prejudiced

Corgain

by

Jeanette

exhibiting

partiality

P. Parrell was working

for

the

as a teller

prosecution.
at the Shawmut

Bank in Mattapan, Massachusetts during the robbery on October

16, 1991.
robber's
direct

Like Driscoll,

Parrell was able

to observe

face and physique at the time of the crime.

the

During

examination, the prosecutor asked Parrell to identify

the perpetrator of

the crime.

Before

permitting Parrell to

answer, the judge conferred at sidebar with both counsel

instructed

the

prosecutor

to

first
_____

ask

the

witness

and
to

"describe to the jury the person you saw" during the robbery,
and then
____

to ask

the witness to

identify the robber

in the

courtroom.
Corgain
the

judge

reliability
Corgain,
prosecutor
observation

contends that, by interceding in this way,

deliberately
of
this

Parrell's

prosecutor

identification.

prejudiced

to explore
and

helped the

defendant

more

fully the

description,

bolster the
According

by

prompting

witness's powers

thereby

undermining

effectiveness of cross-examination

concerning the

descriptive

abandoning

abilities.

By

-9-

so

to
the
of
the

witness's

impartiality,

defendant contends, the judge

See, e.g., United States
___ ____ _____________
Cir.

1985) (criminal

loses

its color

deprived him of a

v. Wilensky, 757 F.2d 594,

________

trial unfair

of neutrality and

"where the
tends to

emphasize the prosecution's case"). We see

the judge's

conduct.

fair trial.

The

598 (3d

judge's role
accentuate and

no impropriety in

court apparently

sought to

make

more logical the sequence in which information was presented,

so

that

jurors would

appropriate exercise
trial.

not be

confused.

of the judge's powers

Doing

so

was an

to supervise the

See, e.g., United States v. Iredia, 866 F.2d 114, 119

___ ____ _____________
______

(5th Cir.)

(most of trial judge's

about how to improve

exercising firm

suggestions to prosecutor

his presentation were in the

control over the trial, and

nature of

did not deprive

defendants of fair trial), cert. denied, 492 U.S. 921 (1989).

____________
Judges

have the right and

indeed the duty

to exercise fair

control over the conduct of a trial.

IV.
IV.
Refusal to Suppress Identification
Refusal to Suppress Identification
__________________________________
After

the defendant

was

arrested,

number

of

witnesses from different robberies identified him as the bank

robber

in a

March 1992

lineup.

jointly participated from

Several of

behind a one-way

robber were present, they were

the witnesses

mirror.

If

the

instructed to identify him by

writing his placement in the lineup on a secret ballot.

They

were also told not to consult with the other witnesses in the

-10-

viewing room, nor to look at what other witnesses had written

on their ballots.
At a pretrial hearing, the defendant unsuccessfully
moved to
ground

that the

viewing
the

suppress the results of this

presence of

more than

one witness

in the

room at the same time had undermined the fairness of

procedure.

United States

v. Bagley, 772

_____________
(9th

identification on the

Cir. 1985)

identification
procedure is

("A

to keep witnesses

."), cert. denied,

____________

______

joint confrontation

procedure .

F.2d 482, 494

is a

Clearly,

apart when they

475 U.S. 1023 (1986).

disapproved
the

better

view . .

Corgain complains

that it was error not to suppress the identification here.

However,
present during
procedure.
(1st

the fact

that more

a lineup does not

1977)

(lineup

in

witnesses was

possible was not

conducive

irreparable

to
on the

witness

the

which

624, 631

communication

among

unnecessarily suggestive

circumstances.

or

Everything

Here there

was

not collaborate with one another.

Monteiro v. Picard, 443 F.2d 311, 312-13 (1st Cir. 1971)

________
______

(witnesses'

own).

necessarily invalidate the

misidentification).

particular

evidence the witnesses did

Cf.
___

witness is

See United States v. Lespier, 558 F.2d

___ ______________
_______

Cir.

depends

than one

identifications tainted where they heard another

make her lineup

identification before

making their

Each witness testified that he or she did not speak to

other

witnesses

during

the

identification

process.

-11-

Identification was by secret ballot.

The court was entitled

to conclude,

that no

as

making a choice

it apparently

did,

witness

knew what choice another had made.

when

On this

record, there

was no error in the

to deny the suppression motion.

-12-

district court's decision

V.
V.
Jury Instruction on Inferences
Jury Instruction on Inferences
______________________________
In his final charge to the jury, the district judge
instructed

that

the

reasonable doubt that

bank knowingly and
that

they

could

government

"must

prove

the defendant took the

willfully . . . ."
infer

the

surrounding circumstances of

the case,
The

money from the

He further told them

requisite

and actions of the defendant."

beyond

intent

"from

including the

defendant

the
words

argues

on

appeal that this instruction

was deficient because the judge

failed to

surrounding circumstances

which

explain that

intent

could

the
be

inferred

established beyond a reasonable

doubt.

deficiency, defendant contends, the

to believe that

it could

basis of facts that

doubt,

themselves

had

As a result

find the requisite

the

to

of this

intent on

the

a reasonable

government's burden

of

proof

below the minimum required by constitutional due process.

re Winship,
___________
"protects the
beyond

397 U.S.

358, 364

accused against

reasonable

doubt

(1970) (due

every

fact

In
__

process clause

conviction except
of

be

jury might have been led

had not been proved beyond

thereby diluting

from

upon proof

necessary

to

constitute the crime with which he is charged").

We find

no merit in

this contention.

the government's fundamental burden

To explain

under In re Winship, the

_____________

court properly stated:

-13-

First, the defendant is presumed

innocent until proven guilty. . . .
Second, the burden of proof is on
the Government.
The Government brought
the case.
It must now prove the case
beyond a reasonable doubt. . . .
Again, I emphasize that the burden
of proof is on the Government.
It
__
extends to every element of the crime
_________________________________________
charged. . . . (Emphasis added.)
_______
Against

this

essential

inferring intent "from

backdrop,

the

instruction

the surrounding circumstances

as

of the

case, including the words and actions of the defendant",

appropriate.
now

was

To have gone further in the direction appellant

urges could

correct

to

that each

have misled

the jury,

subsidiary fact

as it would

and inference

not be

forming a

part of the mosaic

guilt beyond

a reasonable

beyond a reasonable
Rodriguez,
_________

making up the jury's ultimate

doubt need itself

doubt.

finding of

be established

See United States v.

___ ______________

Viafara________

729 F.2d 912, 913 (2d Cir. 1984) (burden of proof

beyond a reasonable doubt does not operate on each subsidiary

fact

on which the prosecution relies to persuade jury that a

particular element
doubt).
1981

has

been established

See 9 Wigmore, Evidence

___

beyond

reasonable

2497 & n.8 (Chadbourn rev.

& Supp. 1991) (burden need not be applied to subsidiary

facts
States,
______

but to
328

whole
F.2d

issue).
512, 515

whether total evidence,

sufficient

See also Dirring

_________ _______
(1st

Cir.

1964)

v.

United
______

(question is

including reasonable inferences,

is

to warrant a jury to conclude defendant is guilty

beyond reasonable doubt).

-14-

Affirmed.
________

-15-