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    Ciro Michael Caruso v. United States, 406 F.2d 558, 2d Cir. (1969)

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    Ciro Caruso was convicted of armed bank robbery and appealed his conviction, which was affirmed. He subsequently filed multiple collateral attacks on his conviction and sentence, which were all denied. In his latest motion under 28 U.S.C. § 2255, Caruso claimed his conviction was based on an unduly suggestive eyewitness identification in violation of due process. The court denied the motion, finding that the identification, which occurred shortly after the crime when Caruso was apprehended and asked to wear an article of clothing matching the robber's, was not so suggestive as to violate due process or likely to result in misidentification. The court affirmed the denial of the motion and of Caruso's request for a trial transcript.

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    Ciro Michael Caruso v. United States, 406 F.2d 558, 2d Cir. (1969)

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    Ciro Caruso was convicted of armed bank robbery and appealed his conviction, which was affirmed. He subsequently filed multiple collateral attacks on his conviction and sentence, which were all denied. In his latest motion under 28 U.S.C. § 2255, Caruso claimed his conviction was based on an unduly suggestive eyewitness identification in violation of due process. The court denied the motion, finding that the identification, which occurred shortly after the crime when Caruso was apprehended and asked to wear an article of clothing matching the robber's, was not so suggestive as to violate due process or likely to result in misidentification. The court affirmed the denial of the motion and of Caruso's request for a trial transcript.

    Original Description:

    Filed: 1969-01-02 Precedential Status: Precedential Citations: 406 F.2d 558 Docket: 32942

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    Ciro Caruso was convicted of armed bank robbery and appealed his conviction, which was affirmed. He subsequently filed multiple collateral attacks on his conviction and sentence, which were all denied. In his latest motion under 28 U.S.C. § 2255, Caruso claimed his conviction was based on an unduly suggestive eyewitness identification in violation of due process. The court denied the motion, finding that the identification, which occurred shortly after the crime when Caruso was apprehended and asked to wear an article of clothing matching the robber's, was not so suggestive as to violate due process or likely to result in misidentification. The court affirmed the denial of the motion and of Caruso's request for a trial transcript.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    47 views3 pages

    Ciro Michael Caruso v. United States, 406 F.2d 558, 2d Cir. (1969)

    Uploaded by

    Scribd Government Docs
    Ciro Caruso was convicted of armed bank robbery and appealed his conviction, which was affirmed. He subsequently filed multiple collateral attacks on his conviction and sentence, which were all denied. In his latest motion under 28 U.S.C. § 2255, Caruso claimed his conviction was based on an unduly suggestive eyewitness identification in violation of due process. The court denied the motion, finding that the identification, which occurred shortly after the crime when Caruso was apprehended and asked to wear an article of clothing matching the robber's, was not so suggestive as to violate due process or likely to result in misidentification. The court affirmed the denial of the motion and of Caruso's request for a trial transcript.

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    of 3

    406 F.

    2d 558

    Ciro Michael CARUSO, Appellant,


    v.
    UNITED STATES of America, Appellee.
    No. 258.
    Docket 32942.

    United States Court of Appeals Second Circuit.


    Submitted December 19, 1968.
    Decided January 2, 1969.

    Thomas E. Baynes, Jr., Legal Assistance for Inmates, Emory University


    School of Law, Atlanta, Ga., for appellant.
    Richard P. Crane, Jr., Asst. U. S. Atty., Jon O. Newman, U. S. Atty., New
    Haven, Conn., for appellee.
    Before KAUFMAN and ANDERSON, Circuit Judges, and MacMAHON,
    District Judge.*
    PER CURIAM:

    Ciro M. Caruso was convicted of armed robbery of a national bank in violation


    of 18 U.S.C. 2113(a) and (b). This court affirmed the conviction. United
    States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U. S. 862, 87
    S.Ct. 116, 17 L.Ed.2d 88 (1966).

    After making several collateral attacks upon his conviction and sentence, all of
    which were unsuccessful,1 Caruso on May 24, 1968, filed a new motion to
    vacate his sentence under 28 U.S.C. 2255. Judge Zampano denied the
    application without a hearing, and Caruso appeals.

    The substance of Caruso's instant claim is that his conviction rested on an


    identification by witnesses under circumstances so inherently unfair as to have
    deprived him of due process. The undisputed facts concerning the identification
    disclose that on the morning of April 13, 1965, three armed men robbed a

    branch of the Connecticut National Bank in Fairfield, Connecticut. After


    continuous pursuit by a bank employee and then a policeman, Caruso was
    apprehended within fifteen minutes. The policeman immediately brought him
    back to the bank for identification, and in the presence of the bank employees
    he was required to put on a ski type hood which one of the robbers had dropped
    as he fled the bank. Thus garbed, Caruso was identified by the bank employees
    as one of the three who had committed the robbery.
    4

    The test to be applied in determining the constitutional propriety of Caruso's


    identification is whether "the confrontation conducted in this case was so
    unnecessarily suggestive and conducive to irreparable mistaken identification
    that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).2 We do not believe that the
    confrontation in this case was either so suggestive or so conducive to mistaken
    identification as to amount to a denial of due process. The confrontation took
    place after a continuous pursuit and within a period of approximately 15
    minutes after the robbery had occurred. Wise v. United States, 127 U.S.
    App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069,
    19 L.Ed.2d 1164 (1968). Moreover, requiring a suspect to wear an article of
    clothing does not violate due process, Holt v. United States, 218 U.S. 245, 31
    S.Ct. 2, 54 L.Ed. 1021 (1910); United States v. Ball, 381 F.2d 702 (6th Cir.
    1967), cert. denied, 390 U.S. 962, 88 S.Ct. 1066, 19 L.Ed.2d 1161 (1968), any
    more than does requiring him to submit to a blood test, to write or speak for
    identification or to submit to fingerprinting. Schmerber v. California, 384 U.S.
    757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nor do we believe that in this case
    requiring Caruso to wear the ski hood was likely to evoke a mistaken
    identification of him as one of the robbers. It appears from Caruso's own brief
    on direct appeal that at the time of his apprehension and confrontation with the
    witnesses to the robbery he was wearing quite distinctive clothing described by
    the arresting officer as "green work pants splattered with some white substance,
    and a checkered brown reddish type in color [shirt] sticking out of the bottom
    of this zipper-type jacket." And when these items of clothing were introduced
    in evidence at trial, five bank employees who witnessed the crime all identified
    them as having been worn by one of the robbers.

    Caruso also appeals the denial by the district court of his request to have the
    transcript of his trial furnished at government expense. We do not believe the
    denial was reversible error. On his direct appeal, after requesting that he be
    furnished with a transcript of the trial, Caruso's counsel stipulated that only
    selected excerpts of the record would have to be transcribed. Even more,
    Caruso did not here move for a transcript until after Judge Zampano had denied
    the motion to vacate his sentence, and thus, we do not believe he was

    prejudiced by the lack of the transcript on this appeal.


    6

    Affirmed.

    Notes:
    *

    Of the Southern District of New York, sitting by designation

    The District Court for the District of Connecticut denied Caruso's motion for
    reduction of sentence on December 6, 1966 and his motion to vacate sentence
    under 28 U.S.C. 2255, on November 22, 1967

    Since the identification in question took place prior to the opinions in United
    States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and
    Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967),
    those decisions are inapplicable to this case. Stovall v. Denno, supra

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