MARIA E. STRATTON

Federal Public Defender

CARLTON F. GUNN

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-7730

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

xxxxxxxxxxx,

Defendant.

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NO. CR xxxxxxxxx

NOTICE OF MOTION; MOTION TO PERMIT DEFENDANT TO WAIVE PRESENCE AT TRIAL OR, IN ALTERNATIVE, FOR PRETRIAL OR IN-COURT LINEUP; MEMORANDUM OF POINTS AND AUTHORITIES

Hearing Date: April 8, 1996

Hearing Time: 2:30 p.m.

TO: UNITED STATES ATTORNEY NORA M. MANELLA, AND ASSISTANT UNITED STATES ATTORNEY JULIEN ADAMS:

PLEASE TAKE NOTICE that on April 8, 1996, at 2:30 p.m., or as soon thereafter as counsel may be heard, in the courtroom of the Honorable Edward Rafeedie, United States District Judge, defendant, xxxxxxxxx, will bring on for hearing the following motion:

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MOTION

Defendant, xxxxxxxx, hereby moves this Honorable Court for an order permitting him, immediately after the commencement of trial, to waive his continuing presence at trial or, in the alternative, for a pretrial or in-court lineup. This motion is made pursuant to the Due Process Clause of the Fifth Amendment to the United States Constitution and Rule 43 of the Federal Rules of Criminal Procedure. It is based on the attached memorandum of points and authorities, all files and records in this case, and such further evidence and argument as may be presented at the hearing on the motion.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: August __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

LARRY xxxxxxx is charged in a one-count indictment with possession of stolen mail, in violation of 18 U.S.C. § 1708. Trial is presently set for April 9, 1996, at 9:30 a.m.

On April 1, 1996, the Court granted Mr. xxxxxxx's Motion to Suppress Fruits of Investigative Detention and Motion to Suppress Statements. In granting those motions, the Court suppressed statements made by Mr. xxxxxxx to law enforcement officers after he was arrested and all testimony about field identifications of Mr. xxxxxxx as a man whom witnesses had seen stealing mail prior to the arrest. The Court reserved the question of whether it would permit eyewitnesses to attempt to make in-court identifications of Mr. xxxxxxx, indicating that it would permit such in-court identifications if the government established that they were independent of the field identifications which the Court had ordered suppressed.

If eyewitnesses are unable to make in-court identifications of Mr. xxxxxxx, the defense believes that the government will be unable to establish his guilt. Any in-court identification testimony will therefore be critical to the government's case.

Because of this, Mr. xxxxxxx seeks two avenues of relief. Initially, he seeks to waive his presence at trial after being present at the very commencement of trial. See Exhibit A (signed waiver of presence). He should be permitted to do so because his presence at trial is the product of an illegal arrest.

If the Court does not permit Mr. xxxxxxx to waive his presence at trial, he requests that the Court order a pretrial or in-court lineup in which the eyewitnesses view him only in the company of other individuals with a similar physical appearance. This will avoid the inherent suggestiveness of the more typical in-court identification procedure, during which the defendant simply remains seated at counsel table with his attorney.

II.

ARGUMENT

A. MR. xxxxxxx SHOULD BE ALLOWED TO WAIVE HIS PRESENCE AT TRIAL.

Mr. xxxxxxx's physical presence at the trial will clearly be a product of the illegal arrest. The Court has found that the field identifications and his confession were a fruit of the arrest, and it is only because of those field identifications and his confession that he has been charged and hailed into court. There is no reason to believe he would otherwise have been located and charged; instead, he would be an anonymous citizen wandering the streets of Los Angeles just like a multitude of other citizens.

Under one view of the "fruit of the poisonous tree" doctrine, this would make Mr. xxxxxxx's presence in court and any resulting in-court identifications suppressible fruits of the illegal arrest. See United States v. Crews, 445 U.S. 463, 474-75 (1980). But a majority of the Supreme Court has held to the contrary, reasoning that "[t]he fact that [a defendant] was present at trial and therefore capable of being identified by the victim is merely the inevitable result of the trial being held, which is permissible under Frisbie v. Collins, 342 U.S. 519 (1952)], despite [the defendant's] unlawful arrest." Crews, 445 U.S. at 479 (White, J., concurring in result). The Court held in Frisbie that "the power of the Court to try a person for a crime is not impaired by the fact that he had been brought within the court's jurisdiction" unlawfully. Frisbie, 342 U.S. at 522, quoted in Crews, 445 U.S. at 478 (White, J., concurring in result).

The in-court identifications will not be "the inevitable result of the trial being held" if Mr. xxxxxxx seeks to waive his right to be present at trial. Such a waiver is permissible under Rule 43 of the Federal Rules of Criminal Procedure, at least once trial has commenced. See Crosby v. United States, 506 U.S. 255 (1993).

Several courts have held that a defendant does not have a right to waive his presence over the objection of the government and/or without the consent of the court. See United States v. Durham, 587 F.2d 799, 800 (5th Cir. 1979); United States v. Moore, 466 F.2d 547, 548 (3rd Cir. 1972), cert. denied, 409 U.S. 1111 (1973); United States v. Fitzpatrick, 437 F.2d 19, 27 (2nd Cir. 1970). The Ninth Circuit has left this question open, however. See United States v. Hamilton, 792 F.2d 837, 840 (9th Cir. 1986).

And in none of the cases in which courts have required the defendant to be present has the defendant's presence been a product of a Fourth Amendment violation as it is here.

Where a defendant's presence is the product of a Fourth Amendment violation, he must be allowed to waive his presence. Otherwise, his presence cannot be said to be "the inevitable result of the trial being held," and the reasoning of Crews does not apply. The defendant's presence is more accurately described as a fruit of the illegal arrest than a mere byproduct of the trial being held. Where his presence is the result of an illegal arrest, therefore, a defendant must be allowed to waive his presence, or, alternatively, any attempts at in-court identifications should be barred.

B. IF MR. xxxxxxx IS NOT ALLOWED TO WAIVE HIS PRESENCE, THE COURT SHOULD ORDER A PRETRIAL LINEUP OR REQUIRE THAT MR. xxxxxxx BE SEATED IN COURT AMONG A GROUP OF SIMILAR INDIVIDUALS AT THE TIME OF ANY EYEWITNESS TESTIMONY.

If Mr. xxxxxxx is not allowed to waive his presence, the court should order a pretrial lineup, or an "in-court lineup" where Mr. xxxxxxx is seated among a group of similar individuals at the time of any eyewitness testimony. Such a procedure is the only way to avoid the suggestiveness of the typical in-court identification procedure. A lineup is requested, however, only if the Court makes a preliminary determination that any in-court identification testimony is independent of the prior suppressed identifications. ⁽¹⁾

The suggestiveness of the typical in-court identification procedure has been recognized by the Ninth Circuit.

When the witness is asked if he or she can identify the defendant as the perpetrator of the crime, this is surely equivalent to the "show-up" pretrial situation. Only slightly less suggestive is the procedure whereby the witness is asked if he or she can identify the perpetrator of the crime from among those present in the courtroom when the defendant is sitting at the defense counsel table.

United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). The result of such a procedure is almost preordained:

When asked to point to the robber, an identification witness -- particularly if he has some familiarity with courtroom procedures -- is quite likely to look immediately at the counsel table, where the defendant is conspicuously seated in relative isolation. Thus the usual physical setting of a trial may itself provide a suggestive setting for an eyewitness identification.

United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970), cert. denied, 402 U.S. 912 (1971), quoted in Domina, 784 F.2d at 1368.

To alleviate this concern, a defendant may request an "in-court lineup". See Domina, 784 F.2d at 1368-69; United States v. Givens, 767 F.2d 574, 582 (9th Cir.), cert. denied, 474 U.S. 453 (1985). While the Ninth Circuit has held that such a lineup is not required, it has also stated: "[W]here the question of guilt or innocence hangs entirely on the reliability and accuracy of the in-court identification, the identification procedure should be as lacking in inherent suggestiveness as possible." Domina, 784 F.2d at 1369 (quoting Williams, 436 F.2d at 1168). An "in-court lineup" is one way to accomplish this.

Alternatively, the Court has discretion, though it is not required, to order a pretrial lineup. See United States v. Robertson, 606 F.2d 853, 857 (9th Cir. 1979); United States v. Kennedy, 450 F.2d 1089, 1090 (9th Cir. 1971), cert. denied, 406 U.S. 924 (1972); United States v. MacDonald, 441 F.2d 259 (9th Cir.), cert. denied, 404 U.S. 840 (1971). A pretrial lineup may be easier to arrange logistically, both because of its location and the greater availability of subjects for a lineup. ⁽²⁾

Here, the court should order one or the other of these types of lineups if it does not allow Mr. xxxxxxx to waive his presence at trial. Otherwise, Mr. xxxxxxx will be the metaphorical "sitting duck", and in-court identifications by the eyewitnesses will be a foregone conclusion.

III.

CONCLUSION

Mr. xxxxxxx should be permitted to waive his presence at trial after being present at the very commencement of trial. If the Court denies this request, the Court should at least order a pretrial lineup and/or an in-court lineup so the ability of any eyewitness to recognize Mr. xxxxxxx is truly tested.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: August __, 2000 By______________________________

CARLTON F. GUNN

Deputy Federal Public Defender

C:\wwwfpd\presence.wpd

1. Were a lineup held without Mr. xxxxxxx's request and consent, it would be subject to suppression as a fruit of the illegal arrest, for Mr. xxxxxxx is available to be placed in the lineup only because of that arrest. See United States v. Crews, 445 U.S. at 472 (noting concession that identification resulting from live lineup after defendant was arrested was fruit of prior unlawful detention).

2. In Los Angeles, the Los Angeles County Sheriff's Department will participate with federal authorities who wish to put on live lineup. The sheriff's department will arrange a lineup at the Los Angeles County Jail in which it locates five other individuals similar in appearance to the defendant and then conducts the lineup according to standardized procedures. See Exhibit B.