Jesse Eugene Dearinger v. United States

Appellant, convicted in 1963 of bank robbery and assault during a bank robbery ( 18 U.S.C. § 2113 (a) and (d)), appealed to this court and secured a reversal for failure of the District Court to allow him to call witnesses against the advice of his counsel. Dearinger v. United States, 344 F.2d 309 (9th Cir. 1965). Upon retrial he was again found guilty and sentenced, and has again appealed. The case involves robbery of the University Place branch of the National Bank of Washington, near Tacoma, Washington, on November 21, 1962.

Prior to his second trial, appellant moved to suppress all evidence traceable to his having been subjected to a police lineup without benefit of counsel. (At his trial no direct evidence of the lineup was introduced, but he was identified by all witnesses who had picked him out of the lineup.) This court has recently held that lack of counsel at lineup does not constitute a violation of constitutional rights. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. granted, Gilbert v. California, 384 U.S. 985 , 86 S.Ct. 1902 , 16 L.Ed.2d 1003 (1966).

Appellant contends, however, that his lineup was illegal as the product of an illegal arrest, relying…