United States v. Joseph Massaro, 544 F.2d 547, 1st Cir. (1976)

544 F.
2d 547
UNITED STATES of America, Appellee,

v.
Joseph MASSARO, Defendant, Appellant.
No. 76-1108.
United States Court of Appeals,

First Circuit.
Nov. 8, 1976.
Gordon A. Martin, Jr., Boston, Mass., by appointment of the Court, with

whom Susan H. Frey and Martin, Morse & Wylie, Boston, Mass., were on
brief, for defendant, appellant.
Robert B. Collings, Asst. U. S. Atty., Deputy Chief, Crim. Div., Boston,
Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on
brief, for appellee.
Before CLARK, Associate Justice, U. S. Supreme Ct. (Ret.),* McENTEE
and CAMPBELL, Circuit Judges.
Mr. Justice CLARK:
Appellant Joseph Massaro, while serving a prison sentence in New York State,
was indicted along with two accomplices in Newton, Massachusetts on
February 11, 1975. The two-count indictment charged them with (1) federal
bank robbery and (2) assaulting and putting in jeopardy the lives of bank
employees in violation of 18 U.S.C. 2113(a) and (d), respectively.
Approximately eight and one-half months elapsed between the returning of the
indictment and Massaro's arraignment in Massachusetts on October 24, 1975.
During this time span, prosecutions were pending against Massaro on a number
of unrelated matters in the State of New York, all of which predated his
indictment in Massachusetts. During the course of the trial, which began
February 10, 1976, a Government eyewitness described Massaro in some detail,
but was not asked to identify him. Following a consultation with the prosecutor,
she was recalled, testifying that she had seen Massaro before the trial began,
flanked by two other men, and had recognized him as one of the bank robbers.
3
Massaro was convicted by a jury on Count 2 on February 10, 1976. He now

appeals, raising two claims of error; (1) the indictment should have been
dismissed both because the eight and one-half month period between the time
of his indictment and arraignment did not comply with District of
Massachusetts Rule 50(b) of the Plan for Achieving Prompt Disposition of
Criminal Cases,1 and because he was denied a speedy trial as guaranteed by the
Sixth Amendment; and (2) the admission of the eyewitness's testimony over
objection violated standards of federal due process, which violation was
compounded by the conference between the prosecutor and the witness outside
the presence of his counsel, thereby denying him the effective assistance of
counsel under the Sixth Amendment.
We reject these claims for reasons more fully discussed below.
5I. THE DELAY IN ARRAIGNMENT AND TRIAL.

6
Massaro argues that the delay of eight and one-half months between indictment
and arraignment has "no proper basis", serves "no useful purpose", and thus
"should not be tolerated." Standing alone and unexplained, this might be
accurate.2 But, as is often true, Massaro does not tell the whole story.
At the time of his indictment in Massachusetts, Massaro was facing prosecution

in New York on charges pre-dating this case. The New York proceedings
resulted in Massaro's plea of guilty to a charge of Criminal Possession of a
Weapon, 4th degree, on August 5, 1975, concluding on September 16, 1975,
when he was sentenced to one year imprisonment to run concurrently with two
concurrent sentences of 2-4 years he was then serving.
In August, 1975, the Government moved to set Massaro's arraignment for

September 29th, 13 days after his sentencing in New York. Counsel to represent
Massaro was appointed on September 5, 1975, at Massaro's request, but the
first motion papers were not filed until October 28th, four days after the
arraignment.
We now turn to appellant's first contention that the indictment should have
been dismissed for non-compliance with Rule 50(b) of the Plan for Achieving
Prompt Disposition of Criminal Cases. This claim is wholly without merit, as
Rule 50(b) does not apply to a defendant serving a term of imprisonment in
another jurisdiction, but only when the defendant is present in the District of
Massachusetts.3
10
Massaro next contends that the delay in prosecution "stemmed solely from
unexcused negligence of the Government"4 and that such delay denied him of
his right to a speedy trial under the Sixth Amendment. This apparently refers to
the fact that the Government did not prosecute him immediately following his
indictment. While it is true that the Government did delay prosecution until
New York had concluded its proceedings, this can hardly be characterized as
"unexcused negligence" constitutional in dimension. On the contrary, the
grounds for delay are quite persuasive.5
11
By awaiting disposition of the earlier New York cases before proceeding

against Massaro, the Government merely adhered to the salutary practice of
permitting earlier state prosecutions to be completed before instituting federal
ones. This practice is not only sensible, but desirable in that it promotes statefederal comity which is the sine qua non of a successful crime reduction
program.
12
Even were there negligence (which we do not find), such a ground has less
weight in balancing the equities than would an intentional delay. Barker v.
Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also this
Circuit's holding in United States v. DeLeo, 422 F.2d 487, 495 (1970), cert.
denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970), and the Second
Circuit case of United States v. Schwartz, 464 F.2d 499, 504-5 (1972), cert.
denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972).
13
Additionally, Massaro has failed to show any actual prejudice occasioned by

the delay. Perhaps he experienced normal emotional stress, but having been
indicted in three cases in New York and having pled guilty in one, we doubt if
even this is true. This Circuit has held claims such as these are but "bald
assertions," having no evidence in their support "to describe precisely its nature
and ramifications." United States v. Morse, 491 F.2d 149, 157 (1974).
14
Massaro's final claim, that he lost the opportunity to have his federal sentence
run concurrently with his state ones, is likewise barren of merit. United States
v. Cabral, 475 F.2d 715, 719-20 (1st Cir. 1973).
II. THE DUE PROCESS AND COUNSEL CLAIMS.

15
16
1. Massaro's due process claim is predicated on the admission of testimony,

over objection, of one Janet McKanney, an eyewitness to the bank robbery. In
her initial testimony, Ms. McKanney gave a detailed description of Massaro. At

the conclusion of her testimony, The United States Attorney asked that she not
be excused, and inquired of her, during a recess, if she recognized anyone. Ms.
McKanney explained that while outside the courtroom waiting for the trial to
begin she saw the defendant walking down the hall with two other men, and
immediately recognized him. The United States Attorney informed defense
counsel of this incident, further advising him that no F.B.I. agents or United
States Attorneys were present at the time Ms. McKanney saw Massaro.
17
Over objection, the District Court allowed Ms. McKanney to testify that she
recognized the defendant in the corridor, and that he was the person she had
seen in the bank. She testified further that this was the first time she had seen
him since the robbery, that the identification was strictly her own, and that she
had not been influenced by anyone in any manner in making the identification.
18
We have studied the record on this due process claim, and we find that the
event was a pure happenstance without suggestive circumstances. The two men
with Massaro were United States Marshals, but all three men wore street
clothes. It is true that the Marshals each wore jackets while Massaro did not;
but they had on no badges, there were no handcuffs and Massaro was not held
by the arms, i. e., there was no evidence of custody. Indeed, Ms. McKanney
probably would have come to the same conclusion when she saw Massaro in
the courtroom, and such an identification would have been admissible unless,
under the totality of the circumstances, the procedure was so suggestive as to
violate that fairness required by due process of law. This Circuit has held that a
chance meeting in a courthouse parking lot presented no due process problem.
Allen v. Moore, 453 F.2d 970 (1972), cert. denied, 406 U.S. 969, 92 S.Ct.
2422, 32 L.Ed.2d 668 (1972). As Judge Aldrich concluded:
19
"Spontaneous
identifications under such conditions might be said to emphasize the
witness' reliability, rather than the reverse." At 974.
20
At least five other Circuits have reached the same conclusion. 6 We also note
the District Court's finding that Ms. McKanney had "a spontaneous and
genuine reaction when she saw the defendant." This negates the likelihood of
misidentification, particularly as this finding is not attacked here as
insupportable in the record.
21
It is true that no lineup was held because there was no indication that Ms.
McKanney could make an in-person identification. There was no request for
sequestration of witnesses. In fact, the Government was basing its case on the
fingerprints of Massaro on the rear door of the bank where the robbers exited
after the robbery. It is apparent that Ms. McKanney's description of Massaro in

her initial testimony so impressed the prosecutor that he decided to further
pursue this avenue at the next recess.
22
Finally, the trial judge instructed the jury that "if you are not satisfied upon all
of the evidence taken together that Ms. McKanney has made an accurate
identification, then you would be obliged to find the defendant not guilty."
Indeed, his further instruction stated: "If it were not for the identification
testimony of Ms. McKanney, that testimony she gave on her second time on the
stand, there would not be evidence sufficient to warrant a finding of guilty."
Massaro had the opportunity on cross-examination to point up the
circumstances surrounding the identification and the likelihood of
misidentification. Apparently the jury believed Ms. McKanney, and the judge,
on denying a motion for acquittal, again observed that the McKanney
identification was spontaneous and credible.
23
2. Massaro bases his contention that he was entitled to have counsel present at
Ms. McKanney's conversation with the prosecutor during the recess period on
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967),
and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The
point was not raised at trial and is urged here for the first time.
24
It is standard practice for witnesses to be interviewed privately before, during,

and after their appearance on the stand. Unfortunately, there was no indication
prior to Ms. McKanney's testimony that she would be able to identify Massaro.
Under the circumstances, the better practice here might well have been for
opposing counsel to be present at the recess interview. However, we fail to see
any harm resulting from the defense counsel's absence. The defense had full
opportunity to cross-examine Ms. McKanney; there was nothing suggestive
either intentional or unintentional in the pure happenstance of her seeing and
identifying Massaro; there is no claim of an arranged confrontation as in Wade
or any suggestion by the prosecutor as in United States v. Roth, 430 F.2d 1137
(2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 633
(1971), on which Massaro relies. The identification had an entirely independent
basis in nowise connected with the prosecution. Ms. McKanney was both
positive and firm in her identification, and the presence of defense counsel
would have made no difference. Indeed, the fact that no objection was made at
the time indicates that there is no substance to the claim.
25
The judgment therefore is affirmed.
*
1
Sitting by designation
Rule 50(b) essentially provides that a defendant is to be arraigned within 30
days of being indicted
However, in this connection, we note that this Circuit has rejected a per se
approach to this problem, United States v. Daley, 454 F.2d 505, 509 (1972),
where it was held that a 13-month delay "did not violate the defendant's sixth
amendment right to a speedy trial in the absence of serious prejudice or
improper government conduct," neither of which we find here
Section 2(d) of the Plan provides: "Where a defendant is apprehended outside

of this district, the time set out above shall begin to run when the Court is
notified that the defendant is returned to the district."
Section 9, Responsibility of Trial Counsel, places the duty on the U. S.
Attorney "(1) to undertake to obtain the presence of the prisoner for plea and
trial; or (2) where unable to do so to cause a detainer to be filed with the official
having custody of the prisoner and request him to advise the prisoner of his
rights under the Federal Rules of Criminal Procedure and this Plan."
There was an unfortunate lack of communication between federal prosecutors

in Massachusetts and state prosecutors in New York as to Massaro's exact
status, but as we pointed out above, state proceedings in New York were not
concluded until September 16, 1975, and that termination date is the primary
factor here
We note at this point that there is no claim of intentional delay on the part of
the Government, but only the claim of negligence
See United States v. Matlock, 491 F.2d 504 (6th Cir. 1974), cert. denied, 419
U.S. 864, 95 S.Ct. 119, 42 L.Ed.2d 100 (1974); United States v. Davis, 487
F.2d 112 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d
878 (1974); United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972); United
States v. Conner, 149 U.S.App.D.C. 192, 462 F.2d 296 (1972); United States v.
Davis, 407 F.2d 846 (4th Cir. 1969)

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544 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Gordon A. Martin, Jr., Boston, Mass., by appointment of the Court, with

Massaro was convicted by a jury on Count 2 on February 10, 1976. He now

We reject these claims for reasons more fully discussed below.

5I. THE DELAY IN ARRAIGNMENT AND TRIAL.

At the time of his indictment in Massachusetts, Massaro was facing prosecution

In August, 1975, the Government moved to set Massaro's arraignment for

By awaiting disposition of the earlier New York cases before proceeding

Additionally, Massaro has failed to show any actual prejudice occasioned by

II. THE DUE PROCESS AND COUNSEL CLAIMS.

1. Massaro's due process claim is predicated on the admission of testimony,

her initial testimony, Ms. McKanney gave a detailed description of Massaro. At

after the robbery. It is apparent that Ms. McKanney's description of Massaro in

It is standard practice for witnesses to be interviewed privately before, during,

The judgment therefore is affirmed.

Section 2(d) of the Plan provides: "Where a defendant is apprehended outside

There was an unfortunate lack of communication between federal prosecutors

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