Jesse James Gilbert v. United States

Jesse James Gilbert appeals from his conviction of the armed robbery of four banks in violation of 18 U.S.C.A. § 2113 (a) and (d).

I

Appellant contends that objects taken from his person at the time of his arrest were erroneously admitted in evidence because the arrest was made without probable cause.

Two warrants for appellant’s arrest for bank robbery were outstanding. The validity of these warrants is not questioned. Rather, appellant contends that *927 at the moment of arrest the officers lacked probable cause to believe the person they arrested was appellant.

At the hearing on appellant’s motion to suppress, the FBI agent who made the arrest testified as follows. On the night of February 26, 1964, he and three other agents were sent by their superior officer to the corner of Frankford and Levick streets in Philadelphia, Pennsylvania. They had been told that appellant might be in that vicinity. They had read a full description of appellant, and had examined his photograph. They had been told that appellant had been identified while purchasing a hair piece and would probably be wearing it, and that he would probably be wearing dark-rimmed glasses. They had known of the…

(dissenting).

The following was originally prepared as the concluding portion of the opinion of the court. It was not agreed to by the other members of the panel for reasons stated in the opinion of Judge Duniway. It therefore states a dissenting view.

II.B. The Lineup

All but three of the fourteen witnesses who identified appellant in the courtroom testified on cross-examination that they had also identified him at a pretrial lineup. Appellant sought to suppress their courtroom identification on the ground that the lineup violated appellant’s Fifth Amendment right against compulsory self-incrimination and his Sixth Amendment right to counsel.

The circumstances surrounding the lineup, so far as they appear in this record, are as follows. The lineup was held on March 26,1964, subsequent to the return of both indictments, and after appellant had retained counsel. Appellant objected to participating and demanded the aid of his counsel. Appellant’s protests were ignored and he was required to participate in his counsel’s absence.

Approximately thirteen men, including appellant, appeared on stage. The prisoners were identified by number. They were required to approach the center…

I concur in Parts I and IIA of Judge Browning’s foregoing opinion, and in Parts IIB, III and IV of Judge Duniway’s opinion, and I dissent to Judge Browning’s dissenting opinion as to Parts IIB, III and IV.

366 F.2d 923 Jesse James GILBERT, Appellant, v. UNITED STATES of America, Appellee. No. 19940. United States Court of Appeals Ninth Circuit. September 16, 1966. Rehearing Denied October 24, 1966. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED James F. Kirkham, San Francisco, Cal., for appellant. Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Kevin O'Connell, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before BARNES, BROWNING, and DUNIWAY, Circuit Judges. BROWNING, Circuit Judge: 1 Jesse James Gilbert appeals from his conviction of the armed robbery of four banks in violation of 18 U.S.C.A. § 2113 (a) and (d). 2 * Appellant contends that objects taken from his person at the time of his arrest were erroneously admitted in evidence because the arrest was made without probable cause. 3 Two warrants for appellant's arrest for bank robbery were outstanding. The validity of these warrants is not questioned. Rather, appellant contends that at the moment of arrest the officers lacked probable cause to believe the person they arrested was appellant. 4 At the hearing on…