Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 73 -- Rudolph T. Randa, Judge.
Before BAUER, MANION, and KANNE, Circuit Judges.
Michael Daniels' first trial for bank robbery and the use of a firearm in connection with a crime of violence ended with a hung jury. He was not that lucky the next time around; the second jury convicted him on both counts. Daniels now contests several aspects of his prosecution. Finding no grounds on which to reverse his conviction, we affirm.
Daniels robbed the Great Midwest Bank in Bayside, Wisconsin, on January 29, 1994. He demanded and received money from two tellers, Mary Grace Maglio and Allison Schumer, at different windows. After issuing several expletive-laced threats, Daniels herded all the tellers into a corner at gunpoint and escaped. This is the robbery for which Daniels was convicted.
Much of this case, however, concerns the investigation of an armed robbery of the Kilbourn State Bank in Milwaukee, Wisconsin, on March 7, 1994. Three bank employees and two customers witnessed that robbery. On March 18, 1994, Milwaukee police showed an array of five color photographs to the bank employees. Two selected a photograph of Daniels, but could not be sure that the man in the photograph was the robber without seeing him in person; the third employee could not identify the robber in any of the pictures. On March 22, 1994, Milwaukee police showed the same photo array to the bank customers, Carol and William Zautke. Carol selected a photograph of Daniels, but could not be sure that he was the robber without seeing him in person; William pointed out a photograph of a different person as most resembling the robber.
On March 23, 1994, at 4:40 p.m., Milwaukee police arrested Daniels for the Kilbourn State Bank robbery, without a warrant, based on the eyewitnesses' identifications from the photographic arrays and on a statement from a confidential informant that Daniels had committed two unsolved bank robberies. The next evening at 7:45 p.m., Daniels participated in a line-up with four other black males, all wearing knit caps, that was viewed by the witnesses to the Kilbourn State Bank robbery. William Zautke stated that he recognized Daniels as the robber by his size, build, and the wearing of a knit cap. He also stated that he was positive that Daniels committed the crime because the two men were about ten feet from one another as Daniels fled the bank. None of the other four witnesses could positively identify any member of the lineup as the robber.
On March 25, 1994, at around 9:00 a.m., Milwaukee County Court Commissioner Draper found probable cause to believe that Daniels committed the Kilbourn State Bank robbery based upon a Milwaukee County "Uniform Arrest-Detention Report" dated March 23, 1994, containing the sworn statement of Officer Gil Ewer. Ewer averred that two unnamed witnesses identified Daniels from a photo array that included Daniels' picture. He further stated that another unnamed witness "positively" identified Daniels from a photo array.
On March 26, 1994, FBI Special Agent Matthew Gibson showed photographs of the March 24, 1994, line-up to Mary Grace Maglio regarding the Great Midwest Bank robbery. Maglio identified Daniels as the possible robber, but could not be sure without seeing him in person. On March 28, 1994, Daniels participated in a second line-up with four other black males. Both Maglio and Schumer positively identified Daniels as the robber of the Great Midwest Bank.
For the sake of clarity, we note that Daniels was originally arrested for the Kilbourn State Bank robbery. At the first line-up in which Daniels participated, none of the three witnesses who picked Daniels' photograph out of a photo array could positively identify him as the robber. William Zautke, however, positively identified Daniels. As that investigation progressed, the police began to suspect Daniels of the Great Midwest Bank robbery. This suspicion was crystallized when the two tellers from the Great Midwest Bank positively identified Daniels in another lineup. He was ultimately convicted of the latter crime.
Daniels' claims stem from the circumstances surrounding his arrest, his initial detention, the line-ups in which he participated, and evidentiary rulings in his second trial. First, he claims that he failed to receive a timely judicial determination of probable cause to support his arrest, commonly referred to as a Gerstein hearing. "A jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement . . . ." County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Because Daniels received his hearing within forty hours of arrest, we presume he received a timely hearing. Daniels can refute this presumption and demonstrate that he did not receive a timely hearing if he "can prove that his . . . probable cause determination was delayed unreasonably." Id. Daniels argues that because the police conducted another line-up while Daniels was in their custody, they were collecting evidence to justify his arrest and therefore delayed his Gerstein hearing unreasonably. He misapprehends the circumstances of his detention and the applicable precedent.
The line-up of March 24, 1994, was not conducted to justify Daniels' arrest; it was done to collect more evidence against Daniels. Ewer's affidavit stated that probable cause to arrest Daniels was based on the identification of two unnamed witnesses of a photo array containing Daniels' picture and the "positive" identification of another unnamed witness. The result of that line-up did not appear in Ewer's affidavit to justify probable cause because it was conducted after Ewer's affidavit was taken on March 23. Daniels' argument seems to interpret Riverside to preclude law enforcement from bolstering its case against a defendant while he awaits his Gerstein hearing; that is a ludicrous position. Gerstein and its progeny simply prohibit law enforcement from detaining a defendant to gather evidence to justify his arrest, which is a wholly different matter. Probable cause to arrest Daniels already existed and that is what Ewer's affidavit reported. We therefore reject Daniels' contention that he did not receive a prompt Gerstein hearing.
Daniels' next complaint is somewhat novel. He claims his constitutional rights were violated when Commissioner Draper considered only the contents of Ewer's affidavit without being apprised of the line-up developments of the previous evening. That is, Daniels argues that Draper should have been told that none of the three witnesses named in Ewer's affidavit could pick Daniels out of a ...