Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. IP 79-7-CR -- William E. Steckler, District Judge.
Before CUMMINGS and CUDAHY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
In appeal No. 82-1025 defendant Brett Kimberlin appeals from conviction and sentence on Counts 1 through 22 of an indictment containing 34 counts. The first 22 counts arose out of eight explosions in Speedway, Indiana from September 1, 1978 through September 6, 1978.
In Counts 1 through 8, each corresponding to one of the explosions, defendant was charged with possession of a firearm (destructive device) not registered to him, in violation of 26 U.S.C. § 5861(d). In Counts 9 through 16, he was charged with manufacture of a firearm in violation of Chapter 53 and § 5861(f) of 26 U.S.C. In three counts (17, 18, and 22), he was charged with maliciously damaging by explosive the property of an entity receiving federal financial assistance, in violation of 18 U.S.C. § 844(f), and in three counts (19, 20, and 21) with so damaging property at a business used in and affecting interstate commerce, in violation of 18 U.S.C. § 844(i). In Count 22, it was also charged that personal injury resulted, augmenting the maximum penalty prescribed by § 844(f).*fn1
The first 22 counts were originally tried in September, 1980, with all other counts. At that first trial, the jury acquitted on Count 25, convicted on Counts 26 through 34, but could not agree on a verdict on Counts 1 through 24. The second trial (in May, 1981) was confined to Counts 23 and 24, and resulted in conviction. The convictions and sentences at these trials were, for the most part, affirmed on appeal. See United States v. Kimberlin, 781 F.2d 1247, 1249 (7th Cir. 1985).*fn2 The third trial, August 17 to October 15, 1981, was a retrial of the first 22 counts. This trial is the subject of Appeal No. 82-1025.
In 1983 motions for new trials as to each group of counts, claimed to be based on newly discovered evidence, were denied. Appeals were taken and consolidated in this court with No. 82-1025. No. 83-2190 relates to Counts 1 through 22, the third trial; No. 83-2191 to Counts 23 and 24, the second trial; and No. 83-2341 to Counts 26 through 34, the first trial.
A. TESTIMONY OF WITNESSES INTERVIEWED UNDER HYPNOSIS
A principal issue arises from the fact that six witnesses had been hypnotized during the investigation of the bombings in the fall of 1978.
A motion to suppress the testimony of these witnesses was heard and denied before trial. There was testimony by the two hypnotists involved, by knowledge experts concerning the dangers of hypnosis, and by special agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) who had been involved in the process. Tape recordings of the hypnotic sessions were placed in evidence, along with transcripts thereof and statements of the witnesses, taken in two instances before the hypnotic session.
Judge Steckler decided to permit the jury to hear the testimony of the hypnotized witnesses, with cautionary instructions. The form of the instruction given each time a hypnotized witness testified, was agreed upon by counsel. It told the jury not to attach greater weight or significance to testimony of other witnesses, and that the jury may judge what effect, if any, the process of hypnosis had upon the witness' memory and ability to recall.
Defense counsel had stated: "We have selected two tapes that we would like for the Court to hear and one is a hypnotic session with Mr. Carr and the other is hypnotic session with Mr. Rogers and we would request these be heard as merely illustrative of what the hypnotic sessions were like." The judge listened to these two tapes.
In colloquy just before argument, Judge Steckler indicated what he described as his "leaning":
While those guidelines [previously referred to as recommended by the Tenth Circuit] did not obtain in the case here at bar I feel there was not such an abuse by suggestive questions in the interrogation of the subjects under hypnosis that their recall would be so contaminated that a jury should be precluded from hearing their post hypnotic trance recall or testimony.
Now, a jury has a right to hear it but they must be cautioned. They certainly have a right to weigh it but with very carefully drawn cautionary instructions.
Later, during argument of counsel, he said:
Now, what I have heard leads me to conclude that there was no abusive suggested interrogation.
There were one or two very minor places and I say very minor where one might claim that the question was suggestive to elicit a particular answer but I analyzed that testimony very carefully and I just cannot bring myself around to believe that the interrogators had a wrongful motive, had a pro-prosecution motive in the manner in which they conducted the interrogation.
At trial, the jury heard testimony similar to that in the pretrial hearing, and the court gave the agreed cautionary instruction at the time of the testimony and repeated it in the instructions at the close of trial.
In 1978, when the investigation took place, and in 1981 when the pre-trial hearing and trial occurred, there was ample precedent for Judge Steckler's view that the jury should hear the testimony and decide questions of weight and credibility in the light of evidence offered as to the dangers inherent in hypnotism and the circumstances of the hypnotic sessions involved.
A leading case was Harding v. State, 5 Md. App. 230, 246 A.2d 302, 306 (1968), cert. denied, 395 U.S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 468 (1969).*fn3 The weight of the evidence was a question for the trier of fact. This view retained vitality after 1981. See, e.g., Pearson v. State, 441 N.E.2d 468, 473 (Ind. 1982); Chapman v. State, 638 P.2d 1280, 1285 (Wyo. 1982); State v. Armstrong, 110 Wis. 2d 555, 575, 329 N.W.2d 386, cert. denied, 461 U.S. 946, 77 L. Ed. 2d 1304, 103 S. Ct. 2125 (1983); State v. Wren, 425 So. 2d 756, 759 (La. 1983).
Attention had, however, been directed in academic writings to real dangers that the process of hypnosis may cause a witness to give testimony he believes to represent his true recollection, but in fact does not. In 1968 in response to the Harding decision, the United States Department of Justice instructed United States Attorneys "that before using hypnosis on any witness, the United States Attorney must obtain the written authorization of the Assistant Attorney General of the Criminal Division." FBI employees were instructed to take no part in such interrogation without a specific grant of authority. By 1979, the FBI issued a memorandum not only requiring advance authorization, but stating "you should consider utilizing only a psychiatrist, psychologist, physician, or dentist who is qualified as a hypnotist. . . . It is important that you either audio or video tape the entire session. . . . Video tape, however, is the preferred method of recording these sessions." On December 14, 1979, ATF, after internal discussions over several years, adopted procedural guidelines. The requirements include: a licensed mental health professional as hypnotist, advance headquarters approval, tape or video recording, questions that are not leading, and precaution to avoid suggestive comments.
Hypnosis is defined as "the act of inducing artificially a state of sleep or trance in a subject by means of verbal suggestion by the hypnotist or by the subject's concentration upon some object. It is generally characterized by extreme responsiveness to suggestions from the hypnotist." Black's Law dictionary 668 (5th ed. 1979).
Several dangers are associated with hypnosis. One is hyper-suggestiveness. It makes hypnosis subjects susceptible to suggestion. Diamond, Inherent Problems in the Use of Pretrial Hypnosis as a Prospective Witness, 68 Cal. L. R. 313, 314, 316, 333 (1980) (hereinafter cited as Diamond). Suggestions may deliberately or unwittingly come from the hypnotist or his attitude, demeanor, expectations, tone of voice and body language as well as the context and purpose of the hypnotic sessions. Id. at 333. Th hypnotist cannot avoid implanting suggestions.
Another inherent danger is hyper-compliance. It creates two goals for hypnosis subjects, the desire to succeed in being hypnotized and to please the hypnotist. See e.g., Brave v. State, 426 So. 2d 76, 83 (Fla. App. 1983); People v. Shirley, 31 Cal.3d 18, 181 Cal. Rptr. 243, 723 P.2d 1354, cert. denied, 459 U.S. 860, 74 L. Ed. 2d 114, 103 S. Ct. 133 (1982).
Confabulation is also a problem associated with hypnosis. Confabulation has been defined as "fill[ing] in those aspects which the individual cannot remember in an effort to comply with the suggestions of the hypnotist." Orne, The Use and Misuse of Hypnosis in Court, 27 International Journal of Clinical and Experimental Hypnosis 311, 319 (1979) (hereinafter cited as Orne). Confabulation causes occasional memory distortion, sheer fantasy and willful lies or a mixture of fact and fantasy. Orne at 317-319.
Two more problems arise after the hypnosis session and stem directly from the use of hypnotically enhanced testimony in court. Studies show that jurors tend to perceive hypnosis as an infallible method of discovering the truth, when it is not. Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N. U. L. Rev. 1, 4-5 (1977); Note, The Admissibility of Testimony Influenced by Hypnosis, 67 Va. L. R. 1203, 1208-09, 1222 (1977).
Hypnosis also causes a syndrome called "post hypnotic source amnesia." This syndrome
occurs when something learned under hypnosis is carried into the weakened state but the fact that the memory or thought was learned under hypnosis is forgotten. . . . A subject who has lost the memory of the source of his learned information will assume that the memory is spontaneous to his own experience. Such a belief can be unshakable, last a lifetime, and be immune to all cross-examination. It is especially prone to "freeze" it if is compatible with the subject's prior prejudices, beliefs, or desires.
Diamond, supra, at 336 (footnotes and citations omitted); accord, Orne, supra, at 320, 332.
Judicial responses to the dangers inherent in the use of hypnotism have fallen generally into several categories.
a. In 1982 the Supreme Court of California held "the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward." People v. Shirley, 31 Cal.3d at 66-67, 641 P.2d at 804.
b. Some courts permit testimony only about what the witness remembered prior to hypnosis. Contreras v. State, 718 P.2d 129 (Alaska 1986); Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986).
c. In 1981 the Supreme Court of New Jersey held "that testimony enhanced through hypnosis is admissible in a criminal trial if the trial court finds that the use of hypnosis in the particular case was reasonably likely to result in recall comparable in accuracy to normal human memory." State v. Hurd, 86 N.J. 525, 432 A.2d 86, 95 (1981). The court, however, adopted six threshold requirements before introduction of hypnotically refreshed testimony. These requirements are, briefly:
(1) A psychiatrist or psychologist experienced in the use of hypnosis must conduct the session.
(2) The professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense.
(3) Any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form.
(4) Before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them.
(5) All contacts between the hypnotist and the subject must be recorded. Videotape is encouraged, but not mandatory.
(6) Only the hypnotist and the subject should be present during any phase of the hypnotic session.
d. Courts in a fourth group decline a per se rule of inadmissibility and mandatory standards for the hypnotic sessions, but, after scrutiny of the circumstances, make a judgment concerning the reliability and impact of the testimony in question. E.g., Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir. 1985), cert. denied, 475 U.S. 1046, 89 L. Ed. 2d 572, 106 S. Ct. 1263 (1986); Armstrong, supra; United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984). In Valdez, the Fifth Circuit applied, at least in part, the test of Rule 403, FED. R. EVID., whether probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the test of Rule 103(a), whether the admission of challenged evidence has affected a substantial right of the party. 722 F.2d at 1203, 1204.
In a factually dissimilar case, this court recently declined to adopt a per se rule of exclusion or to pronounce general standards governing admissibility. United States v. Keplinger, 776 F.2d 678 (7th Cir. 1985).
We remain unpersuaded that a sweeping rule of inadmissibility is appropriate.
With respect to the mandatory requirement of Hurd or similar procedures, it should be noted, in the case before us, (1) that the hypnotic sessions were recorded on tape, and (2) that although the hypnotists were local and state police officers, they were independent of the federal agency investigating the case. With these two qualifications, relating to the second and fifth Hurd standards, the hypnotic sessions in this case did not comply with Hurd.
We recognize that adherence to such standards would be prophylactic against the dangers of the use of hypnosis, and would aid the courts in making determinations concerning the reliability of the testimony of persons who had been under hypnosis. Investigating agencies may be well advised to follow them. We decline, however, to adopt them in this decision as standards which must universally be met before a witness who has been hypnotized can be accepted as competent.
We do not underestimate the danger that persons who have been under hypnosis may be led to testify beyond their genuine memory, yet in the belief that they actually observed what they describe. At least careful scrutiny is required.
We are particularly unprepared to adopt the sweeping and mandatory rules in a case such as this where rules had not been developed at the time of this investigation (and indeed Hurd preceded the trial by only five weeks) and where there is so little probability that any testimony resulting from suggestion or confabulation in the course of hypnosis affected the outcome. Whatever rules may evolve in this circuit on this subject, we shall be guided by examining the circumstances of this case for any likelihood that the effect, if any, of hypnosis on the evidence was unfair to defendant Kimberlin.
In making this analysis, we first examine the evidence excluding the testimony of the six hypnotized witnesses.
There were eight explosions: Nos. 1, 2 and 3 occurred September 1, 1978 at 9:49 PM, 10:05 PM, and 10:35 PM,; No. 4 took place at 1:50 AM, September 2. Thus four occurred during the night of September 1-2. Number 5 occurred at 12:15 AM, September 3; No. 6 at 9:50 PM, September 3; No. 7 at 9:45 PM, September 5; and No. 8 at 8:15 PM, September 6.
Examination of the explosion sites revealed components of the explosive devices. DuPont Tovex 200 high explosive was identified at the sites of Nos. 1, 2, 4, 6, 7 and 8. At No. 3 there was identified a high explosive of the water gel type which could be Tovex. Leg wires from DuPont electrical blasting caps were found at Nos. 1, 3, 4, 5, 6, 7 and 8.
Defendant had been engaged in construction on his land in rural Jackson County, Indiana, and engaged an architect for that work. Certain blasting was decided upon. On May 14, 1975, defendant was present when the architect purchased 86 sticks of Tovex 200 and 50 blasting caps with leg wires. Between 13 and 22 sticks of Tovex were used on defendant's project. Confer, one of defendant's business associates, testified that in July, August, or September, 1975 defendant warned Confer about two cardboard boxes of explosives in the trunk. He said these were some the architect had purchased for him and that the caps were in the cab. There was testimony by persons who worked on defendant's land that they observed no use of explosives on the property after the initial blasting.
There was testimony that monomethylamine nitrate (MMAN) is found in DuPont Tovex and Tovan, and those are the only products containing it. Trace of MMAN were found in swabbings taken from defendant's Mercedes automobile in December, 1978 and from a blue over white Chevrolet Impala searched September 21 and used by defendant from about September 13 to 20. Although it is possible for MMAN to exist in natural materials, there was expert testimony that its concentration would be too low from detection.
Patricia Strait is the sister of Sandra Barton, defendant's friend and one of his alibi witnesses. She lives a short distances from Austin, Texas. On March 10, 1979, Patricia was working in her yard and pulled out from under a tree three DuPont blasting caps and 14 sticks of Tovex 200. There was evidence that defendant had been in the general vicinity during the period from September to December, 1978. Although there had been an attempt to obliterate the date shift code on that Tovex, ATF analysts testified that it was the same as that on the Tovex purchased May 14, 1975.
Examination of the explosion sites also revealed a Mark Time timer of Nos. 6 and 8, and timer parts consistent with 60 minute Mark Time or Micronta timers at Nos. 1, 2, 3, 4, 5 and 7. The Mark Time and Micronta timers are made by the same company and apparently differ only in name. Graham Electronics, a distributor of Mark Time timers, had three stores in Marion County where Speedway (as well as Indianapolis) is located. Records showed sales of 16 timers from May 3, 1978 through September 9, 1978. They showed a sale of six on August 23, which a customer had ordered August 21; three on September 2, and five on September 5.
Four Mark Time timers, altered so as to start an electric device rather than turn one off, were found in the trunk of the Impala on September 21, 1978, and two timers were found by Patricia Strait in her yard March 10, 1979.
Lead shot was found at site Nos. 5, 6 and 7. Two 25-pound bags of lead shot and three boxes of .445 caliber lead balls were found in the Impala September 21.
Batteries were found, as follows: A "battery" at No. 1; "Ray-O-Vac battery" No. 3; "Sportsman battery" No. 4; "battery" No. 5; "Ray-O-Vac 6 volt battery" No. 6; "Ray-O-Vac battery" No. 7; "Ray-O-Vac Sportsman battery" No. 8. A 6-volt Mallory battery was found in the trunk of the Impala September 21.
Lynn Coleman identified defendant as the man he saw get out of a Mercedes and place a paper sack in a trash can at the site of explosion No. 1. He said this occurred after 9:00 PM, September 1, 1978. Coleman later heard an explosion. Coleman had not contacted government agents concerning this observation until February, 1981, more than two years after the event, and four months after the first trial. He said he had parked in front of a store; a Mercedes pulled by on his left; went up a few car lengths; made a U turn; passed him in the opposite direction; and stopped about 100 feet back of Coleman. Through his rear view mirror he saw the man he identified as defendant get out, reach for a sack, take it over to the trash container, put it in, and leave.
We do not know what weight the jury gave the Coleman testimony. If it were disregarded, however, the other evidence thus far related adds up to strong, albeit circumstantial, support for the guilty verdict.
We now turn to the testimony of the six who had been subjected to hypnosis.
Tracy Carr is a sales clerk at a sports shop in the Indianapolis area. On September 26, 1978, several weeks before hypnosis, he signed a statement in the presence of ATF agents. The pertinent part follows:
My name is Tracy Carr; I am 21 years of age and reside at the above address. I am currently working for the Broad Ripple Sports Shop, 1015 E. Westfield Blvd., as a sales clerk and I have worked in this capacity for the past seven months. On or about August 10, 1978, to the best of my memory, I was working at the sport shop and did sell approximately twelve boxes of .445 caliber lead balls to one certain customer. These lead balls were packages in white rectangular cardboard boxes that were sealed by tape and bore the caliber size on the side of the box.
This transaction took place about 11:00 AM. The customer entered the store alone. He was about 5'5" or 5'6" tall and wore blue jeans and a light blue t-shirt with graffiti. This person had sparse hair on his cheeks as if he was starting to grow a beard. The hair on his chin was longer and appeared to be a goatee.
Mr. Palmer showed me a series of seven photographs bearing the picture of men with beards. I reviewed these pictures and chose #6 as being the person who I might've sold the lead balls to. I was then shown a black and white mug shot that I recognized as being the same person who was shown in picture #6, without the beard. After viewing the mug shot photo, I am satisfied that this person is the same customer to whom I sold the lead balls.
This transaction did strike me as being unusual at the time I made the sale due to the large quantity of lead balls he bought. On the day of this transaction the customer came in alone and went directly to the gun cabinet area. He asked me if I had any lead balls. I showed him a bag of .451 caliber and also the boxes of .445 caliber. He said the .451 caliber balls would not work.
He asked how many boxes of .445 I had. I counted the full inventory and gave him the number. He inquired if I had more and after checking the supply room I told him no. He then indicated that he wanted all that I had and asked for a box to carry them from the store. I did give him a box and finalized the transaction when he paid me in cash. The total price was over $20.00.
Carr was the subject of hypnosis on October 21, 1978. Brooke Appleby, a detective with the Indiana State Police, was the hypnotist. He was familiar with Carr's September 26 statement and testified that he "didn't consider the session with Mr. Carr productive at all, there was nothing, no new information gained whatsoever." The transcript of the hypnotic identification of defendant's photograph preceded the hypnotic session.
At trial, Carr identified defendant as the person who bought the lead balls on August 10, 1978 and identified three boxes as part of that sale. These boxes had been found in the search of the trunk of the Impala September 21, and one of the boxes bore a tag with the price and the name of the sports shop on it. We are convinced that the experience of hypnosis did not impair the liability of Carr's testimony, and have no hesitancy in counting it as part of the strong circumstantial case made by the evidence already referred to.
Andrew Jones is a mechanic employed by an Indianapolis car dealer. As a result of a contact he initiated (after seeing publicity concerning defendant as a suspect) an ATF agent interviewed him September 29, 1978. Jones declined to give a written statement, citing fear for his family, but indicating he might call in the future. The agent's report of that date narrates the following information given by Jones:
On or about September 5, 1978, while so employed he had occasion to repair a vacuum line and perform normal maintenance on a 1976 Ivory colored Mercedes . . . owned by Brett Coleman Kimberlin.
While working in the trunk area Jones noticed 2 white boxes, approx. 3" x 4" x 2" containing ".445 cal Mini Balls." The white boxes had the above info which appeared to have been printed with blue or red ink and a hand stamp. Jones could not remember the store of manufacturers name.
In the back seat of this car while working on the door Jones observed a green and wood-tone sportsman 6 volt lantern battery.
The report also states that Jones selected defendant's photograph as the owner of the car, and, indeed, there appears to be no dispute that it was defendant's Mercedes which Jones repaired.
In a hearing in the absence of the jury, Mrs. Jones related conversations with her husband. The evening after he had worked on defendant's car, he told her of working on it and finding "articles in the trunk that he found rather strange." The evening they saw a picture of defendant on TV, relating to his arrest, she testified that, "He told me that he had seen lead shot, a box of tools, a pamphlet discussing the use of explosives and some batteries in the trunk of Mr. Kimberlin's car. . . ." Both conversations preceded the hypnotic session.
Jones was the subject of hypnosis November 1, 1978. The transcript of the session shows his references to details not indicated in the report of the September 29 interview, or the conversation with his wife. Examples were: the dimensions of the battery, and that it was new, a Ray-O-Vac and had a $3.29 price tag on it; the name DuPont and some of the subject matter of the document on explosives; his spilling the lead balls and then picking them up; price tags on the boxes, with sixes and nines, and printing. He also described other contents which bear no apparent relevance to this case. Judge Steckler found "that the manner and method of conducting the hypnotic interview was not suggestive of the answers give by the witness." We have reviewed the transcript, and the finding was not clearly erroneous.
Jones' testimony at trial was similar to his responses under hypnosis. In addition, he testified that a DuPont pamphlet in evidence as the kind of safety instructions which would have accompanied Tovex sold in 1975 was similar to the pamphlet he found under the spare tire in the Mercedes, and that the boxes of lead shot found in the trunk of the Impala on September 21 were similar to or the same type as the ones in the trunk of the Mercedes September 5.
Although it is at least possible that the additional details remembered under hypnosis were the product of suggestion or confabulation, and the reliability of that part of his testimony open to question, the facts he told the agent and his wife before hypnosis clearly were not such product. Those facts were significant additions to the circumstantial case against defendant.
3. The Graham Electronics Employees
The other four witnesses who were subjected to hypnosis were employees at stores of Graham Electronics. Business records showed that Bruce Quillin took an order for six Mark Time timers from a Charles Martin on August 21, 1978; Peter Laux delivered the timers when Martin came in August 23; David Rogers sold three to a "Thomas" September 2; and Daniel Huffman sold five September 5. They were interviewed early in the investigation of the bombings, September 9 and 10. Each was placed under hypnosis September 11. Each gave a description of the customer in the transaction in which each case was involved. The descriptions were not identical, but generally similar. Quillin, Laux, and Rogers recalled a light, or new beard. Quillin recalled his customer asking whether the timer could be converted to complete rather than break a circuit, and Quillin showed him how this could be done. The witnesses made efforts to complete a sketch of the individual, but these are not in the record.
As of September 11, the agents had no suspect. The descriptions given by the Graham clerks caused some officer, apparently of the local police, to suggest defendant as a possible suspect. The agents later obtained a photograph of defendant, using a telephoto lens. This picture of defendant, wearing a beard, was placed with pictures of six other men, each with a beard. The seven photographs were spread out before each Graham employee individually. Quillin, Laux and Rogers picked defendant's picture as having some degree of resemblance to the customer.
Unfortunately no written statement was taken from any of the four before hypnosis. Hence there is no pre-hypnotic record of their recollections to compare with later statements. Each signed a statement in early November, reciting that it was "Made September 9 [10 in one instance] and 19, 1978," suggesting that the contents may not have differed very much. It does not appear that defendant was under suspicion at the time of the hypnotic sessions. The tentative photographic identification occurred more than a week after hypnosis. It seems clear that these hypnotic interviews were genuine attempts to locate a purchaser of these timers and that the agents were not in a position to guide these four toward a description of a suspect.
At trial, Quillin picked defendant's picture out of the group as resembling the customer. Laux did the same initially. Called back on rebuttal at his request, he testified that two photographs in evidence, taken of defendant when arrested September 20, 1978, are "the man who came in the store." Rogers picked defendant's picture out of the group as resembling the customer and said he did not see anybody in the courtroom that resembles the customer. None of the four made a positive in court identification of defendant.
Details of the conversations to which they testified as well as the similarities in description suggested that the customer observed by each was the same individual. Their testimony presumably was given weight, but it was by no means critical to conviction.
Bearing in mind the strength of the proof other than the testimony of these six hypnotized witnesses, the lack of any effect of hypnosis on Carr and the importance of his testimony, doubt that the recall of the Graham employees was significantly enhanced by hypnosis, the significant testimony given by Jones consistent with his pre-hypnosis statements, as well as the probability that the jury verdict would have been the same if Jones' testimony had been limited to his pre-hypnosis recall, and that of the Graham employees had been omitted, we are satisfied that the admission of the testimony of these six witnesses affected no substantial right of defendant. FED. R. EVID. 103(a).*fn4
B. PROBLEMS OF EXTENSIVE PUBLICITY
Citing extensive media coverage of the 1978 bombings and defendant's trials and other troubles in the years between the bombings and this third trial, defendant challenges the judge's denial of a change of venue, substantial continuance, and sequestration of the jury.
Judge Steckler permitted counsel to conduct very thorough voir dire. It was clear that most prospective jurors were aware of defendant Kimberlin to some extent. Fifty-one (51) prospective jurors were examined. All but a few had heard of him. Twelve (12) were excused for cause. Twelve (12) jurors and four alternates were ultimately selected. Ten (10) had heard his name. Twelve (12) recalled something about the Speedway explosions, almost three years earlier. Several were aware of accusations against defendant in that connection. None recalled details. None indicated any opinion which would impair the juror's ability to decide the case on the evidence, starting out with the presumption of innocence.
In our opinion, the record and the voir dire do not reveal the kind of 'wave of public passion' that would have made a fair trial unlikely. Patton v. Yount, 467 U.S. 1025, 1032-33, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984). See also United States v. Kampiles, 609 F.2d 1233, 1239 (7th Cir. 1979), cert. denied, 446 U.S. 954, 100 S. Ct. 2923, 64 L. Ed. 2d 812 (1980).
Before the first (1980) trial, a motion for change of venue had been denied. Conviction resulted on Counts 26-34, relating to unauthorized possession and use of an official insignia and impersonation of a federal officer or employee. In an unpublished order, this court affirmed, holding the denial of a change of venue was not error. United States v. Kimberlin, No. 80-2634, December 21, 1981, listed at 673 F.2d 1335.
At the second trial, beginning May 18, 1981, the court refused defendant's request for sequestration of the jury. Defendant was convicted of two counts of receipt of an explosive by a convicted felon. This court affirmed, again by unpublished order, holding the refusal to sequester was not an abuse of discretion. United States v. Kimberlin, No. 81-1993, October 20, 1982, listed at 692 F.2d 760.
Although in this third trial, beginning August 17, 1981, the judge again declined to sequester the jury, he carefully instructed the jury at every recess concerning their duty not to read newspaper accounts regarding the trial, not to listen to radio broadcasts or telecasts, and not to permit persons to talk about the case, and to exclude from consideration any information which might happen to come from sources outside the trial. Defendant has not claimed any actual prejudice arising from failure to sequester. United States v. Kampiles, 609 F.2d at 1241. We find no error or abuse of discretion.
C. CLAIMED FAILURE TO PARTICULARIZE SIMILAR COUNTS
Counts 1 through 8 charged knowing possession of a firearm not registered to defendant. The language of each count was identical except for the date, which was September 1, 1978 in Counts 1, 2 and 3; September 2 in Count 4; September 3 in Counts 5 and 6; September 5 in Count 7; and September 6 in Count 8.
Counts 9 through 16 formed a similar series, charging knowing manufacture.
There is no claim that any one of these counts, taken alone, failed to charge an offense. The argument is that because there is no differentiation of any firearm from another, and no particularization of any offense except by date as to some, every count is somehow defective.
A sufficient answer is that this proposition was not raised prior to trial as required by Rule 12(b)(2), FED. R. CRIM. P., and was thus waived, Rule 12(f).
D. CLAIMED DENIAL OF SPEEDY TRIAL
Defendant alleges that he was not brought to trial within the time limits prescribed in the Speedy Trial Act, and seeks dismissal pursuant to 18 U.S.C. § 3162(a)(2). Although the government asserts that the Speedy Trial Act excludes adequate segments of the delays which occurred, we need not perform the analysis. The indictment was returned February 28, 1979, and under § 3163(c), § 3162 does not apply to indictments filed before July 1, 1980. There is no claim of an earlier implementation of § 3162 in the Southern District of Indiana under 18 U.S.C. § 3174(c).
Defendant also asserts a violation of his constitutional right to a speedy trial, measured under Barker v. Wingo, 407 U.S. 514, 515, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). That decision calls for "a difficult and sensitive balancing process." Id. at 533. Four factors were identified, though not an exhaustive list: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530 (footnote omitted).
Defendant was indicted February 28, 1979. Although he had been arrested September 20, 1978, the arrest was based on the official insignia charges, and not the bombing charges. The official insignia charges were soon dismissed without prejudice. Similar charges were included in the February indictment. Defendant was brought to trial on the bombing counts involved in this appeal (along with the other counts) September 22, 1980, less than nineteen months after indictment. The jury could not agree on the bombing counts. Retrial began August 17, 1981, little more than ten months after the close of the first trial.
Defendant would have us treat the length of delay, for Barker purposes, as the almost 30 months from indictment to the retrial. It seems more sensible, however, to deal separately with the nineteen month lapse before the first trial, and ten month lapse from the first trial to the retrial.
The Barker Court observed that
until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. [Footnote omitted.] To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
This court has found presumptive prejudice in a nineteen month delay (attempted bank robbery), United States v. DeTienne, 468 F.2d 151, 156 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S. Ct. 974 35 L. Ed. 2d 274 (1973), and in a one year delay (assaulting a postal employee), United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976). Although those cases are distinguishable because they were far simpler than this one, we shall assume the nineteen month delay before the first trial and the ten month delay before the retrial are presumptively prejudicial, and weigh the other factors.
On the day of the indictment, defendant was before a federal court in Texas seeking a reduction in bond. He had been indicted for conspiracy to possess and for importation and possession with intent to distribute four thousand pounds of marijuana. The prosecution in Texas was disposed of June 11, 1980, when he was sentenced on a plea of guilty, to one count, and returned to Indiana June 16. For about three months of the time before disposition in Texas, defendant was in custody at Springfield, Missouri for study, including inquiry into his competency to stand trial.
There seems to be little question that the delay from June 16 to September 22, when trial began, was reasonably necessary for disposition of pre-trial motions.
Although fourteen months of the nineteen month lapse before trial in Indiana would appear to be caused by the disposition in Texas, defendant correctly points out that during much of the time the presiding judge in Texas thought that trial in Indiana should go first. To that end, defendant was transferred to Indiana September 5, 1979, arraigned on September 7, and a trial date set. He was, however, ordered back to Texas October 30, 1979 and remained there except for the time at Springfield. There seems to have been some inconsistency among the views of the two district judges and two United States Attorneys as to which prosecution should take precedence, but ultimately the one in Texas was resolved first.
Doubtless because defendant made no motion to dismiss for want of speedy trial, the record contains no real explanation why the Texas prosecution went first. We gather that defendant considered the case in Texas as much stronger and that he would have had a better chance of acquittal in Indiana if tried earlier. We are unaware of a constitutional principle whereby one who is accused in two districts has a right to have the weaker case tried first.
3. Defendant's Assertion of His Right
Defendant did not formally demand a speedy trial and made no motion to dismiss on that ground. Had he filed a motion, it would have given him the opportunity to place in the record any evidence to support the assertions in his brief that he "doggedly demanded to be tried in Indiana," or to support his suggestions that the prosecutors and marshals were improperly motivated.
Defendant remained incarcerated in Texas because he was unable to post bond set in Indiana. He asserts prejudice in the discomforts and inconvenience of incarceration, and impairment of ability to contact his Indiana attorneys. He does not claim the loss of a witness or similar specific prejudice during the period before the first trial.
5. Factors Concerning the Delay of Retrial
A substantial portion of the ten month lapse between the first trial and retrial resulted from continuances requested by defendant. The second trial (Counts 23 and 24) ran from May 18 to June 3, 1981. Defendant did not seek an earlier retrial of Counts 1 through 22.
He argues that he was prejudiced by the death of a witness, his brother, Scott Kimberlin. He asserts that Scott would have corroborated the testimony of defendant and of another witness that Scott Kimberlin had possession of the Tovex after May 1975. Scott was available for the first trial, but defendant says he did not call him because at the first trial the government produced no evidence that defendant retained possession of the Tovex after May, 1975. If the unavailability of Scott had any adverse effect on defendant's case, it cannot fairly be ascribed to the delay in the retrial. Scott was killed only one week after the first trial.
Defendant also claims he was prejudiced by what he describes as the "loss" of the diary of Tina Duerden.
Tina Duerden was an apparently disinterested witness who was employed at a restaurant where defendant and two other witnesses testified they had eaten the evening of September 2, 1978. They testified concerning an incident in which defendant had comforted the young employee, who accidentally broke some dishes, and had given her a substantial tip. At trial it turned out that Tina was in Denmark, and after a telephone conversation, counsel stipulated that if present she would testify that she recalled a similar incident. She could not remember the date, but did "believe I wrote about the incident in a journal." Tina's mother testified that she found "both" journals, but could not find the entry referred to. Obviously it is questionable whether there was any "loss" of a diary, and further, defendant may well have been at the restaurant the evening of September 2 and also have been at the site of explosion No. 5 within the hour before 12:15 AM, September 3, the time it went off.
In summary, we conclude, balancing the factors described, that neither the delay occurring before the first trial, not the delay between trials, was a denial of defendant's Sixth Amendment speedy trial rights.
Defendant also argues that the forty-five month delay in indictment for the receipt of explosives on May 14, 1975 violated the Fifth Amendment Due Process Clause. Counts 23 and 24, however, are not before us in Appeal No. 82-1025.
E. CLAIM OF SUGGESTIVE PHOTOGRAPHIC IDENTIFICATION
As already stated, Carr identified defendant in court as the customer who purchased lead shot. Of the four Graham employees, Quillin and Laux testified that defendant resembled the customer who ordered and picked up timers. Rogers testified that defendant's picture resembled his customer. It was proved that in 1978, Carr, Quillin, Laux, and Rogers had selected defendant's picture out of a group of seven. Huffman made no identification of any sort.
Defendant argues that the district court erred in denying his motion to suppress this evidence because the pre-trial identification procedure had been impermissibly suggestive.
The procedure was substantially identical for each witness. The agents spread out the seven photographs before each witness, individually. They asked if the witness could identify the customer.
The witness had referred to a beard, terming it light, new, beginning, or sparse. They had observed their customer at various dates, from August 10 to September 2. The picture of defendant, taken after September 11, and before September 19, showed a beard, and the agents obtained pictures of six other young white men, with beards.
Defendant's picture had been taken with a telephoto lens, and enlarged. Although there was testimony that it appeared grainier than the others, our own examination shows little difference, except that an object in the background of the picture is not clear. Any difference does not appear to us to convey the suggestion that defendant's photograph must be of the person believed by the agents to be the customer. Cf. United States v. Bubar, 567 F.2d 192, 198 (2nd Cir.), cert. denied, 434 U.S. 872, 54 L. Ed. 2d 151, 98 S. Ct. 217 (1977).
The lower portion of the pictures had been covered with tape. An agent explained that "[t]he tape was applied to these photographs to cover up the dress of each individual in the photograph and, more specifically, to cover up the fact that the T-shirt worn by Mr. Kimberlin has a design on it." Witnesses Rogers and Carr had referred to a design on the T-shirt worn by the customer.
Although very little of the individual's clothing appeared on any picture, defendant's showed enough to indicate his shirt was a T-shirt. The other shirts appeared to have some type of attached collar. Witnesses Rogers, Quillin, and Carr had said the customer had worn a blue jean shirt or jacket.
The situation is readily distinguishable from United States v. Baykowski, 583 F.2d 1046 (8th Cir. 1978), where it was found suggestive for the police to show the victim photographs of six people, one of whom was wearing a sweater like the one reported stolen from the victim's home.
We do not find the procedure so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), adapting the standard expressed in Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).
After witness Carr had selected defendant's photograph as resembling his customer, the agents showed one picture of defendant. It had been taken earlier, when defendant had no beard. The single picture was shown in other instances, as well. In each case, the witness expressed a more definite opinion after seeing the unbearded photograph, although only Carr indicated certainty. We do not consider that this showing of a single picture of the individual initially selected tainted the process, particularly since the bearded picture first shown had been taken a substantial period after each witness had observed his customer with a new beard. Carr, for example, had seen his customer August 10, and had said, "This person had sparse hair on his cheeks as if he was starting to grow a beard. The hair on his chin was longer and appeared to be a goatee."
F. CLAIMED INVALIDITY OF SEARCH WARRANTS
Defendant challenges the validity of two search warrants authorizing search of the Impala. He had made pre-trial motions to suppress. He was arrested by an FBI agent the afternoon of September 20 for impersonating a federal officer and misuse of the seal of the President. On the morning of the 21st, FBI Agent Lucas obtained the first warrant. The magistrate found probable cause to believe that official badges, identification cards, and other insignia of the design prescribed by the Department of Defense and facsimilies of the Seal of the President, possessed and used in violation of 18 U.S.C. § 701 and § 713, were being concealed in an Impala. During the day the ATF agents who knew that defendant was a suspect in the bombings and the FBI agents involved in his arrest on the insignia charges became aware of each other's interest. ATF agents were present when the search was made. ATF Agent Donovan observed timers, lead shot, and a six-volt battery, among other things, in the trunk of the Impala. He then obtained the second warrant to search the car, and the search was made the evening of the 21st.
The challenge to the second warrant, obtained on the basis of observations during the first search, depends wholly on the alleged invalidity of the first warrant.
a. Defendant argues that Agent Lucas' affidavit for the first warrant did not demonstrate probable cause.
b. The affidavit was carefully detailed. Personal observations and information from named officers and others were described. Complete repetition here is unnecessary. Lucas had been called to a printing establishment. He observed defendant wearing clothing with badges and insignia. The insignia was identical to that of the Security Police of the Defense Department. Defendant had in hand a facsimile of the Presidential Seal and other documents, one or more of which he attempted to chew up. He had been at the establishment the day before to have copies of the documents printed. He had been wearing the same clothing. At the printer's instructions, he had returned to give final approval of the layout. Army investigators were also present. They had just previously observed defendant drive the Impala into the parking lot and enter the establishment. The Impala had remained there since defendant's arrest.
Concededly, Agent Lucas did not claim that anyone had observed badges, identification cards, insignia, or facsimilies within the Impala. The documents he had seen in defendant's possession had been in the print shop since the day before. Under the circumstances, however, it seems reasonable to believe that similar badges and documents and related items had been left inside the automobile. We think the magistrate could reasonably find probable cause.
"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949), ...