United States v. Marchand, Jr. Opinion

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UNITED STATES COURT OF APPEALS 

F oe  t h e  S ec o n d  C ir c u it

No. 1288—September Term, 1976.
(Argued June 9, 1977 Decided August 22, 1977.)

Docket No. 77-1131

U n it e d  S t a t e s  o f  A m e r ic a ,

V.

R o b er t  P. M a e c h a n d , J r .,

Appellee,

Appellant.

B e f o r e :
F eib n d la ',  T im b e r s  and MEsiinm,

Circuit Judges.

Appeal from a judgment of the District Court for Ver­
mont, James S. Holden, Chief Judge, convicting appel­
lant, after a jury trial, on one count of an indictment 
charging the possession and distribution of 180 pounds of 
marijuana in violation of 21 U.S.C. 841.

Affirmed.

J e a n n e  B a k e r , Esq., Cambridge, Mass.
A l a n  M. D e e s h o w it z , Esq., Cambridge, Mass. 

(Rosenberg, Baker & Fine, Bsqs., Cam­
bridge, Mass., and Joseph S. Oteri, Esq.; 
Martin G. Weinberg, Esq., and Oteri &

5391



Weinberg, Esqs., Boston, Mass., of Coun­
sel), /or Appellant.

J il l  A. J a c o b so n , Esq., Assistant United States 
Attorney, District of Vermont (George W. 
F. Cook, United States Attorney, District 
of Vermont, of Counsel), for Appellee.

P e ie n d l y , Circuit Judge:
Robert P. Marcliand, Jr. appeals from his conviction, 

after a jury trial before Chief Judge Holden in the Dis­
trict Court for Vermont, on one count of an indictment 
charging the possession and distribution of 180 pounds of 
marijuana in violation of 21 U.S.C. § 841.̂

Apart from a serious question under the Fourth Amend­
ment discussed in Part IV below, the appeal has been 
presented as if this were a case where there is substan­
tial doubt that defendant is the person who committed 
the crime charged in the indictment. Marchand relies on 
an array of cases, somewhat weakened as a result of re­
cent Supreme Court decisions, which had laid down 
stringent requirements to prevent “the awful risks of mis- 
identification” by persons with relatively scant oppor­
tunity to observe the defendant, Brathwaite v. Manson, 527
P.2d 363 (2 Cir. 1975), rev’d, -----  U.S. -----  (1977), 45
U.S.L.W. 4681 (U.S. June 16,1977). But, as the trial judge 
and the jury seem to have been well aware, that is not this 
case at all. The case is rather one of accomplice wit­
nesses, one of whom had knov/n the marijuana supplier 
for years. The jury could well have inferred that any diffi­
culty these witnesses expressed about identification was 
due to unwillingness rather than inability to identify. It

1 The indictment also contained a conspiracy count, but this was dis­
missed before Marchand’s arraignment.

5892



was a similar case of seeming nnwillingness that led us, 
in United States v. De Sisto, 329 F.2cl 929 (2 Cir.), cert, 
denied, 377 U.S. 979 (1964), to rule that previous iden­
tification or grand jury testimony of a trial witness could 
he used not simply for “impeachment” hut as substantive 
evidence—a ruling which Congress has now translated 
into Federal Rule of Evidence 801(d)(1)(A) and (C). 
None of this means that Marchand did not have the right, 
accorded every criminal defendant, to a fair trial in ac­
cordance with governing rules of law. It does mean that 
statements in decisions involving dubious identifications 
by bystanders, law enforcement officers or victims® should 
not be woodenly applied to the wholly different situation 
here and that the case offers ample occasion for recalling 
Judge Learned Hand’s observation in Dyer v. MacDougall, 
201 F.2d 265, 269 (2 Cir. 1952), that a jury is free, on the 
basis of a witness’ demeanor, to “assume the truth of what 
he denies” although a court cannot allow a civil action, 
much less a criminal prosecution, to go to the jury on the 
basis of this alone.

I. A Chronological Summary
Marchand challenges his conviction on the grounds both 

of trial error and of insufficiency of the evidence properly 
admitted.® Before considering’ these challenges it will be 
useful to summarize what admittedly occurred. When we 
include material that was not before the trial jury, we will 
so indicate.

Sometime before June 1971, Victor Roy, Jr. became 
acquainted with a man at bars in Amherst, Mass. When

See discussion at pp. 32-,S3 & n.27 infra.

Indeed, by making insuificieney the first point of his brief, Marchand 
seems to argue that the evidence was insufficient even if all was properly 
admitted. See also Appellant’s Brief at 26 n.28.

5393



testifying before tbe grand Jury, Roy identified tbis person 
as “Big Foot” or “Bob” ; at trial he insisted on the appella­
tion “Big Foot”. In March or April, 1975, Roy met the 
same individual, again in a bar in Brattleboro, Vermont; he 
was with a girl whom Roy identified before the grand jury 
as Ann."* The man gave Roy a telephone number, which 
Roy called occasionally. In May 1975, Roy, accompanied 
by Richard Perkins, met the individual at a Howard John­
son’s restaurant in Springfield, Mass., to discuss the pur­
chase of marijuana. On two occasions within the follow'ing 
three weeks, Roy and Perkins made purchases of marijuana 
from Big Foot at the Springfield Howard Johnson’s.

During the period June 9-Jiily 16, 1975, there were four 
one minute phone calls from Perkins’ number in Waits- 
field, Vt., to the numbers listed in the name of Ann Curtis 
and Robert Marchand in Guilford, which is near Brattle­
boro, Vermont; there was proof that Bob Marchand was 
living with Ann Curtis at the time. On July 17 there was 
a four minute phone call from Perkins’ number to March- 
and’s. The next day, July 18, Perkins and Roy drove to 
Brattleboro, waited for a while at the Howard Johnson’s 
restaurant there, met Big Foot and another male, and then 
drove out into the country, where 180 pounds of marijuana 
wmre transferred from Big Foot’s car to Perkins’. On this 
date there were three phone calls to Ann Curtis’ number 
in Guilford which were billed to Perkins’ number in Waits- 
field. The first, from Perkins’ home phone, lasted three 
minutes. The other two—each lasting not over one minute 
—Avere from Brattleboro, where Perkins and Roy met Big

4 Eoy was quite positive about this when he testified before the grand 
jury in July, 1976. At trial he could not "really . . . recall” whether 
Marchand had a girl with him and said that his grand jury testimony 
was "not completely truthful.” However, he repeated that the girl's 
name "could have been Ann.” See p. 13 infra. The jury was amply 
justified in inferring that it was.

5394



Foot for the marijuana transaction. Perkins and Eoy were 
arrested later in the day when they tried to sell the mari­
juana to an undercover agent.

Eoy refused to make any statement to the arresting 
officer, Agent Handoga of the Drug Enforcement Adminis­
tration (DEA). Within two weeks after the arrest, Perkins 
gave Agent Handoga a description of the seller as “a six 
foot one, 220 pound man with blond hair”, aged between 
25 and 30, and “big features”, defined to include “a big 
nose, big hands, broad shoulders”. About a month later, 
Perkins who had some ability as a portraitist, drew a 
sketch which was designed to be a picture of the marijuana 
supplier.

Agent Handoga testified at the suppression hearing later 
referred to that in August 1975 he had received informa­
tion from an undisclosed source that Marchand was the 
supplier. Accordingly the Government sought an indict­
ment of Marchand.^

In September 1975 Perkins testified before a grand jury. 
He stated that “he found out [Big Foot’s] name was Bob 
Marchand.” Eoy did not appear before this grand jury 
and it was discharged before the investigation was com­
plete, wfithout the filing of an indictment against Marchand.

On April 26, 1976 Perkins was shown fifteen photographs 
by Agent Handoga and was asked to pick two that most 
closely resembled the people he had seen at the time of the 
marijuana transaction. He first picked three and later 
narrowed his choices to two. One was a photo of Marchand. 
Perkins testified at the suppression hearing that he did not 
feel he was being encouraged or pressured to select the

5 Eoy and Perkins had been indicted shortly after their arrest; they 
pleaded guilty in December, 1975. In March, 1976, Perkins received a 
suspended sentence and three years probation; Eoy received a fine of 
$2000, a suspended sentence, and 3 years probation.

5395



photograph that he did but was not certain that the indi­
vidual depicted was the supplier. Roy, according to his 
testimony at the suppression hearing, was in Colorado 
during this period. On his return to Vermont he was served 
with a subpoena to appear before the grand jury. Imme­
diately before his appearance on July 1, 1976, Roy arrived 
at the office of the United States Attorney in Burlington 
and went to a small interview room accompanied by Agent 
Handoga and Assistant United States Attorney O’Neill. 
Roy informed the agent that he had received the marijuana 
from someone named “Bob” or “Big Foot”. Agent Handoga 
showed Roy a series of 14 photographs. On his first and 
second viewings he selected a photograph of someone he 
thought to be Jim Hathaway of Burlington; he was told 
he was in error. On a third viewing Roy selected a photo­
graph of Marchand but added “this picture looks funny.” 
The agent then produced a larger photograph of Marchand, 
interjecting “Oh, here’s a Bob, what about this one?” Roy 
responded that the larger photograph “looks similar”.* The 
agent then said “Ah, that’s Marchand.”

In the afternoon Roy testified before the grand jury. 
We have already covered much of this testimony. Impor­
tant additions were a statement that he had known the per­
son with whom he and Perkins had communicated in order 
to buy the marijuana as “Bob” and a confirmation that 
he had selected the photograph of the person he believed 
to be Big Foot. After hearing Agent Handoga present 
his own observations and Perkins’ testimony before the 
earlier grand jury, the second grand jury returned an in­
dictment against Marchand on July 22, 1976. An arrest 
warrant issued on the same day.

In the interval between Roy’s appearance and the indict-

6 The first photograph suffers from glare. The second appears to have 
been taken when Marchand was somewhat older.

5396



ment, Timothy S. Hillman, a Massachusetts assistant dis­
trict attorney who was to be called as a defense witness at 
trial for a reason that will later appear, came to Vermont. 
Marchand was a “civil client”. Hillman had had “occasion 
to hear that photographs of [his] . . . client had been shown 
to the Grand Jury” in Vermont.’ After talking with Koy, 
Hillman received “the impression that Victor had spoken 
to some people about an incident involving himself and 
some marijuana and that during the conversation he had 
had [sic] that Bob had been mentioned and the whole thing 
involved some sort of a transaction at the University of 
Massachusetts.”* He had also received information that 
before testifying before the grand jury Eoy had been 
shown pictures of Marchand and possibly of Ann. Hillman 
got “the impression . . . that the whole transaction went 
down at the IT. Mass. Bar but whether or not the transac­
tion went down with Bob or that is what he told him, I
don’t know He communicated all this to Marchand,
who asked what he should do; Hillman gave Marchand 
directions how to get to Roy’s house and “told him to get 
himself a darned good criminal lawyer and to get investi­
gators sent up right away, because I believed that he 
was in trouble.”

7 Hillman also characteri2ed the reason for his trip as follows:
I  had gone to Vermont when I  had received some information to 
talk to Victor Eot whom I bad even known from high school as 
an acquaintance. I  received information and I  vcent to,—up to 
Vermont, to determine exactly what I  had heard and exactly what 
Victor had said to anybody, if he had. While the prosecutor did 
not seek to have this made more definite, Hillman, under cross- 
examination, accepted as a fair characterization that the incident 
was a warning bj: Eoy for him to tell Marchand that Roy liad 
talked to the federal authorities about the crime.

8 The University of Massachusetts is at Amherst, Mass., where Roy 
first met Bob/Big Foot.

5397



Some time after this, Marchand departed for the Miami 
area in Florida.® Apparently the Government knew that 
he had, for it sent a photograph of Marchand to the Dade 
County, Florida, police and Agent Handoga spoke on the 
telephone to Detective Adcock of the Dade County police 
about Marchand.

This led to the final episode. At 7 :30 a.m. on August 24, 
1976, Special Agent Harris of the DEA office in Miami, 
accompanied by DEA Special Agent McGlassius and two 
Dade County detectives, Adcock and Sadler, -went to the 
apartment of Robert Higgins in Lauderhill, Florida, to 
arrest Higgins pursuant to a federal arrest warrant on 
charges of sale and distribution of marijuana and con­
spiracy to import marijuana. The group was joined by 
a uniformed Lauderhill police officer outside the apart­
ment, which had been under surveillance. Higgins an­
swered the door and was placed under arrest. He informed 
the officers that another person was in one of the bedrooms. 
Marchand emerged, wearing only a pair of pants. Agent 
Harris asked one or more of the officers to ascertain his 
identity and make sure he was not armed.̂ ® Marchand 
was allowed to return to his bedroom to don a shirt and 
was told that, although not under arrest, he could not leave 
the apartment but should remain seated in the dining 
room. Meanwhile Agent Harris had gone with Higgins 
to the latter’s bedroom to watch him dress. While Harris 
was there. Detective Adcock advised him that Marchand

9 The record is silent as to any efforts to execute in Vermont the arrest 
warrant issued on July 22. Curiously also the Government made no 
effort, either at trial or before us, to argue that particularly in light of 
Hillman’s advice Marchand’s departure was some evidence of conscious­
ness of guilt, see United States v. Beitner, 149 F.2d 105, 107 (2 Cir. 
1945) ; 2 Wigmore, Evidence  ̂276(4) (3d ed. 1970), and eases from 
other circuits cited in 1975 Supplement at 36.

10 The record does not reveal how these directions were carried out.

5398



was a fugitive from the District of Vermont. This con­
clusion was based on previous telephone conversations 
with Agent Handoga, prior observations of a photograph 
that had been sent to Miami, and inspection of a driver’s 
license she had extracted from a wal’et lying on the apart­
ment’s dining room table. Agent Harris further verified 
Marchand’s identity by calling Agent Handoga in Vermont 
and then made the arrest. In the course of the arrest, 
Harris searched Marchand and removed a small address 
book and various papers and written notes from a rear 
pants pocket. One of the notes related to Marchand’s 
conversation with Hillman; we reproduce this in the 
margin.^^

II. TJie Suppression Motion
Marchand moved to suppress the photographic identi­

fication by Perkins and Eoy and the note seized at the time 
of his arrest. Chief Judge Holden conducted a hearing and 
made findings of fact, on which we have relied in the previ­
ous section, and conclusions of law.

The court denied the motion to suppress Perkins’ photo­
graphic identification, overruling objections that the array 
included bearded individuals, some with long hair, whereas 
the person outlined in Perkins’ sketch was clean-shaven 
with short hair, that the array included two photographs 
of Marchand, and that Marchand’s was one of only two 
large photographs in the array.

11 —T B ird
—pictures of Ann & Bob 
—met me at TJ Mass Bar 

approx

Warren-
2d bouse after P.O.

Mars Hotel
Victor Boy testified at trial that his home in Warren, Vermont, was 

two houses down from the post office.

5399



With respect to Eoy’s identification, the judge found that 
Roy had made no positive identification of Marchand and 
also that his identification, “such as it was” was “infected 
by suggestion.” Accordingly he granted the motion to sup­
press the evidence.

The judge also denied the motion to suppress the note 
seized on Marehand’s arrest. Since we agree with his con­
clusion but not with his reasons, it is unnecessary to set out 
the latter.

III. The Trial
Perkins and Roy both testified to the marijuana trans­

action substantially as set forth in Part I of this opinion. 
Since there is no dispute that the transaction occurred, 
there is no need to repeat this.

Perkins testified to having given Agent Handoga the 
description of “Big Foot” set forth in Part I and supple­
mented this with a consistent description of the supplier as 
looking “very large. Very healthy. Very short hair, like a 
football player would look after he had been working out 
. . . [and dressed in] shorts or casual pants and T shirt” 
and tanned and unbearded.^** Over objection the Govern­
ment introduced the sketch Perkins had drawn. Although 
testifying that he had been “trying to draw a picture of the 
person who gave [him] the marijuana,” cross-examination 
elicited a statement that he had testified at the suppression 
hearing “when I was drawing it I didn’t really feel that it 
was anything,” and further

In my mind, I, when I was sketching it I  just sat there 
for the longest time and didn’t really know what to 
draw and that was just a—I just remember he was a

12 Apparently Marchand had a beard at the time of trial and also wore 
glasses, as to which Perkins had no recollection. Timothy Hillman 
testified that Marchand had at times worn a beard and at other times 
had not over the past few years.

5400



great big, blond-haired guy and he just had big fea­
tures. And I just drew a big, blond-haired, you know, 
male features.

He also acknowledged his earlier statement that he “didn’t 
have a terribly good memory of [Big Foot] at the time he 
made the sketch” and said that when he was drawing it he 
“just [sat] there with a blank and just like I  just drew it” 
and that when he finished it he was not satisfied that it was 
a fair and accurate picture of Big- Foot. The jury was not 
bound, as counsel seems to believe, to credit Perkins’ dis­
claimer as against the excellence of his sketch; indeed it 
could have drawn quite a different inference. Comparison 
of the sketch with the photograph later selected by Perkins 
makes it almost impossible to suppose that Perkins had 
never seen the subject of the photograph.

When asked to make an in-court identification, Perkins 
was unable to do this, perhaps for the reasons indicated in 
fn. 12, perhaps for others. He testified that two by-stand- 
ers and Marchand who stood before him “resemble Bob, 
Big Foot in some way” ; he thought there was “a good 
possibility” that if Big Foot were standing in front of him, 
he would be able to make an identification. The jury may 
have been more impressed by his slip of the tongue shortly 
thereafter when he was being cross-examined in regard to 
the sketch (App. p. 333);

Q. Now at the time you made it, you didn’t have a vei-y 
clear vision in your mind of what this Big Foot 
looked like, did you?

13 We refer specifically to tlie fix of the eyes, a protrusion of the lovrer 
nostrils, the set of the ears, and what looks like a small dimple on the 
chin. The chance that Perkins could have dreamed up a face having all 
these resemblances to the photograph that was later to be exhibited to 
him, and no significant differences, is almost infinitesimal.

5401



A. I never really did, except now when he was stand­
ing in front of me and it was always a fairly nerv­
ous type of arrangement. (Emphasis supplied.)

We do not see how this can mean anything else than that 
the man “standing in front of” Perkins, namely, the defen­
dant Marchand, was Big Foot.

Perkins admitted making the photographic identification 
but defense counsel brought out that the pictures were 
selected as being “closest” to his recollection and that he 
had made no positive identification. The court refused to 
give an instruction precluding the jury from relying on 
Perkins’ photographic identification as substantive evi­
dence of Marchand’s guilt.

The prosecutor also asked Perkins if he could remember 
Big Foot’s phone number. When he could not, she gave 
Perkins the toll records for his phone for June and July 
1975 to refresh his recollection. Perkins chose the number 
subsequently proved to be that of Ann Curtis and Bob 
Marchand, stating, “this could be it,” though he added on 
cross-examination that he could not be certain this was Big 
Foot’s number.^^

The prosecutor called Eoy in an effort to secure an in­
court identification.^ Eoy didn’t see Big Foot in the court-

14 After introdnction of the telephone toll records evidencing the calls 
referred to in Part I  of this opinion, the defense cross-examined Eoy to 
bring out that he sometimes called Marchand from Perkins’ number bnt 
allegedly as a prospective purchaser, not seller, of marijuana and that 
he had called Big Foot on July 18 but could not recall his number. 
Perkins testified that the July 18 transaction was set up by a call he 
bad received from Big Foot rather than "made to him.” The jury, of 
course, was not required to credit any of these explanations. The tele­
phone calls were stipulated and the jury was free to draw a strong 
inculpatory inference from them.

15 The judge ruled that an in-court identification would not be tainted 
by the attempted photographic identification. The ruling was clearly 
correct on the facts here. The judge’s initial basis for excluding evidence

5402



room although “there’s probably a number of people here 
that might look vaguely like him.” On cross-examination 
Eoy picked out four people, including Marchand, all of 
whom “looked like this Big Foot” but added that Marchand 
“is not him.” The prosecutor referred to Eoy’s grand jury 
testimony where he had named Marchand as the supplier. 
Instead of reading this, she proceeded, without objection, 
as follows:

Q.

A.

Q.

A.

Q.
A.

Q.
A.

And where you telling the truth to the Grand Jury 
that day?
Well, as I said before, I  was misleading the Grand 
Jury to believe, influences,—
Isn’t it a fact, Mr. Eoy, that you led the Grand 
Jury to think that you could identify Eobert M ar­
c h a n d  as the person who supplied you with the 
marijuana!
I guess that is what it came down to.
And is that true, Mr. Eoy!
Is it true that I misled the Grand Jury to believe 
that—
Is it true that that is what you did, yes.
I would say, yes.

of Roy’s examination of the photograph was that he had not in fact 
made positive identification; it was only later that the ground of sug­
gestiveness was added. We think the former conclusion is belied by 
Eoy’s acknowledgement before the grand jury that he had selected the 
photograph of the person he believed to be the "Bob” from whom he 
had purchased marijuana. We also doubt the validity of the latter 
conclusion. Without any suggestiveness, Eoy had selected a photograph 
of "Bob,” although saying it looked "funny.” We see no impermissible 
suggestiveness in the agent’s then supplying a better photograph of the 
same person, despite the agent's comment when producing the picture, 
"OK, here’s a Bob, what about this one?” Eoy had already narrowed 
the universe to "Bobs” and had picked out a photograph of Bob Mar­
chand.

5403



After acknowledging that the defendant was a friend, Eoy 
was further questioned along the same lines:

A. And yet you led a Girand Jury to believe that this 
person—this friend of yours, was the one who 
supplied you with marijuana, is that right?

A. Yes, that’s what it came out to be.

The prosecutor also questioned Roy about who had ac­
companied Big Foot when Roy resumed acquaintance with 
him at a Brattleboro bar. Roy first answered “a girl. . . . 
I really don’t know [her name] but it could have been 
ANN.” When pressed about his somewhat more positive 
testimony before the grand jury, he couldn’t recall whether 
Big Foot was with a girl, and admitted that he had mis­
led the grand jury. More questioning added to the confu­
sion : Roy had indeed seen Marchand with Ann and knew 
that they were friends and probably were living in the 
same house. This led to the following exchange:

Q. Do you recall that you testified in the grand jury 
that you saw Bob or Big Foot your supplier, with 
Ann?

A. That is the way the grand jury testimony reads.
Q. And is that the same Ann you know as a friend 

or companion of Mr. Marchand?

A. The Ann that I was referring to in there was.
Q. It was the same one?
A. (Nodding)

On cross-examination, Roy stated if there was a girl with 
Big Foot, he had never seen her with Marchand.

Agent Handoga testified with respect to Perkins’ photo­
graphic identification. He said that Perkins had been

5404



asked to identify tlie two persons wlio had sold the mari­
juana, not the two photos that looked “most like” them.

The Government concluded its case with the testimony 
of Agent Harris as to the note seized from Marchand at 
the time of his arrest. The defense case was limited to 
the testimiony of Hillman seeking to explain this.

We shall defer to Part IV of this opinion a description 
of the prosecutor’s summation and the charge and of de­
fendant’s points about them.

After returning to the courtroom with a request to 
hear Eoy’s testimony, the jury brought in a verdict of 
guilty.

IV. The refusal to suppress the note 
seized on Marchand’s arrest

We shall deal first with Marchand’s claim that seizure 
from his person at the time of his arrest of the note re­
lating to Hillman’s meeting with Roy violated his rights 
under the Fourth Amendment since this issue is sep- 

- arable and, if defendant were right, a new trial would be 
required.^® If Marchand’s arrest was legal, the search of 
his pants was likewise so. As said in United States v. 
Robinson, 414 U.S. 218, 235 (1973):

A custodial arrest of a suspect based on probable 
cause is a reasonable intrusion under the Fourth 
Amendment; that intrusion being lawful, a search 
incident to the arrest requires no additional justifi­
cation. It is the fact of the lawful arrest which estab­
lishes the authority to search, and we hold that in the 
case of a lawful custodial arrest a full search of the

16 Apart from the effect of the note itself in linking Marchand with 
Eoy, it had the practical consequence of compelling the defense to 
produce Hillman, whose evidence could well have had some adverse 
effect.

5405



person is not only an exception to the warrant re­
quirement of the Fourth Amendment, but is also a 
“reasonable” search under that Amendment.

However, counsel stoutly contends that the arrest was 
illegal since it was based on the driver’s license which 
Detective Adcock had obtained in the course of an un- 
unlawful search of the wallet that Marehand had left on 
Higgins’ dining room table.

If the arrest stemmed solely from the discovery of Mar- 
chand’s name on the driver’s license, we would be con­
strained to agree, particularly in light of the decision in
United States v. Chadwick, -----  U.S. ----- - (1977), 45
U.S.L.W. 4797 (U.S. June 21, 1977), rendered after this 
case was argued. But it did not. The trial court found 
that “Detective Adcock recognized the defendant from hav­
ing seen his photograph” and that “She also recognized 
the defendant’s name” which she apparently had obtained 
from the driver’s license.^^

A preliminary point should be cleared up before we 
proceed further. In a letter submitted after the argu­
ment, defense counsel raised the claim that the photo­
graph to which the trial judge referred was on the driver’s 
license. The finding is not worded that way and the testi­
mony of Agent Harris was that Detective Adcock “stated 
she had seen a picture of this person before. . . .” (em-

17 In a quite garbled response to defense counsel’s assertion that Agent 
Harris did not know how Detective Adock identified Marehand, the Agent 
said, "I would assume from the driver’s license that obviously had given 
the driver’s license, or had been taken, one way or the other. I  don’t 
know which way. And was identical, was identified. That’s the norma! 
procedure to identify the persons any bow.” We do not think this con­
fused passage undermines the trial court’s finding that Detective Adcock 
identified Marehand on the basis of his picture as well, since Harris 
testified that she stated she recognised Marehand from the picture, and 
especially since there wag evidence that she had seen a picture and had 
talVc.r Agent Handoga about the ease.

5406



phasis supplied).^* Further, there was no evidence that 
there was a picture on Marchand’s driver’s license. How­
ever, there was evidence, already mentioned, that a photo­
graph had been sent to Detective Adcock, “a specially 
trained, assigned and experienced officer,” Manson v.
Brathwaite, supra,-----U.S. a t ------ , 45 U.S.L.W. at 4686,
and the judge permissibly found that she had seen this 
before the visit to Higgins’ apartment.

We have no doubt that the photograph constituted prob­
able cause for arrest without the reinforcement afforded 
by the discovery of Marchand’s name. Here there was no 
need for the arresting officers to determine whether there 
was probable cause to believe that a crime had been com­
mitted and that a particular individual had committed i t ; 
that role had been performed by the indictment, Sciortino 
V. Zampano, 385 F.2d 132 (2 Cir. 1967), cert, denied, 390 
U.S. 906 (1968). All that was required was probable cause 
to believe that the defendant was the subject of the Ver­
mont indictment. Recognition of a photograph sent by the 
law enforcement officers from Vermont, supplemented by 
the discovery of the defendant living in the home of a 
Florida marijuana dealer, afforded such cause.

We thus face the question Avhether an arrest that would 
have been legal if effected on these bases alone became 
illegal because Detective Adcock improperly extracted 
Marchand’s driver’s license from the wallet lying on the 
dining room table, thereby learning his name and gaining 
added assurance.” While we have found no federal au-

]8 Use of hearsay is not hanned on motions to suppress. Federal Eiile 
of Evidence 1101(d)(1); United States v. MatlocTc, 415 U.S. 164, 
172-76 (1974). Doubtless in recognition of this, there was no object'on 
to Agent Harris’ testifying to what Detective Adcock had said.

19 I t  is plain that lack of this added assurance would not have prevented 
discovery of the note. The police clearly had ample basis for detaining 
Marchand for questioning under Terry v. OMo, 392 U.S. 1 (1968);

5407



thority squarely on this, we see no significant distinction 
between the question here presented and that arising where 
both legally and illegally obtained evidence have been 
offered to obtain a search warrant.®" The validity of the 
warrant was upheld under such circumstances in the lead­
ing case of James v. United States, 418 F.2d 1150 (D.C. 
Cir. 1969). There an officer responded to a report that 
several men were engaged in mechanical work on a car 
parked in a public street. When the officer arrived on the 
scene, he saw the men at work on one of two cars in the 
street and a third car in a garage, though a man in the 
garage shut the door quickly on perceiving the officer. 
When the officer returned four days later, the garage door 
was open. The new car he had seen there was almost 
completely stripped. The officer entered the garage and 
copied down the rear license plate number. A check re-

if be refused to give bis name, or gave a false one, either could have 
led to his arrest and an incidental search of his pants. Alternatively, 
the police could have detained Marohand while they obtained a warrant 
and thereby learned Marchand’s name, with the same consequences. 
See United States v. Falley, 489 P.2d 33, 41 (2 Cir. 1973) (where 
broker and importation documents would have been discovered anyway, 
illegally obtained evidence that shortened or facilitated the investigation 
"did not supply fruit sufficiently poisonous to be fatal”) ; United States 
v. Cole, 463 F.2d 163 (2 Cir.), cert, denied, 409 U.S. 942 cert, denied, 
409 U.S. 942 (1972) ("Conduct is not the legal cause of an event if the 
event would have occurred without it.”). But see United States v. 
Ceccolini, 542 P.2d 136, 140-41 (2 Cir. 1976), cert, granted, 45 U.S.L.W. 
3715 (1977) (prosecution did not show by a preponderance of the 
evidence that witness’ testimony would inevitably have been secured 
absent the illegal search).

20 The Supreme Court of Florida has recently held that "an officer 
possessing legally obtained information sufficient to constitute probable 
cause for an arrest is not barred from making an arrest solely because 
he also has information which was unlawfully obtained.” S h e f v. State, 
329 So.2d 270, 273 (Fla. Sup. Gt. 1976). This holding, which relies on 
the federal eases we discuss below, is precisely on point with the case 
at bar. We agree with the quoted legal proposition, although the court’s 
conclusion that the original taint did not infect the subsequent obser­
vation may be open to debate.

5408



vealed that the vehicle was stolen, and a search warrant 
for the garage was obtained. Judge Leventhal found that 
the action of the man in closing the garage door quickly 
upon the officer’s first visit, and the officer’s subsequent 
observation of a new car completely stripped—valid under 
the plain view doctrine—provided probable cause for a 
search of the garage irrespective of the further informa­
tion gathered during the officer’s illegal entry. The court 
then stated:

When an affidavit in support of a search warrant con­
tains information which is in part unlawfully obtained, 
the validity of a warrant and search depends on 
whether the untainted information, considered by it­
self, establishes probable cause for the warrant to 
issue. Wong Sun v. United States, in announcing the 
“fruit of the poisonous tree” doctrine, limited the ex­
clusionary rule to evidence which the police could not 
trace to some “independent” and lawful source. While 
the Supreme Court has not specifically had occasion 
to consider whether this doctrine is applicable to a 
search warrant that issues on the basis of an affidavit 
setting forth information both lawfully and unlawfully 
obtained, other circuits have applied the “independent 
source” test. If the lawfully obtained information 
amounts to probable cause and would have justified 
issuance of the warrant, apart from the tainted in­
formation, the evidence seized pursuant to the warrant 
is admitted. 418 P.2d at 1151-52 (footnotes omitted).

This circuit had an early encounter with the problem in 
Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2 Cir.), cert: 
denied, 317 U.S. 674 (1942). There, certain auto parts al­
leged to have been stolen from Ford Motor Co. had been 
ordered returned as illegally seized, see Weinberg v. United

5409



States, 126 F.2d 1004 (2 Cir. 1942). Before they were re­
turned, FBI agents gave Ford a detailed list of tlie prop­
erty seized. Ford replevined the property, which was seized 
by a New York deputy sheriff and stored in a warehouse. 
The Assistant U.S. Attorney thereupon visited the ware­
house, examined the parts, and subsequently obtained a 
search warrant, which was executed before Parts Mfg. Co. 
could retake the goods. It moved that the FBI special 
agent be required to return the goods because the search 
was based on information obtained as a result of the illegal 
first search. Judge Clark found that the Government had 
sufficient information, independent of any that was ob­
tained illegally, to validate the search warrant. He stated 
further, “Actual examination of the property in the ware­
house . . . simply confirmed what affiants already had rea­
sonable cause to believe would be found.” Id. at 843. Such 
confirmation did not dictate return of the evidence.

We discussed the taint problem more recently in United 
States V. Capra, 501 F.2d 267 (2 Cir. 1974), cert, denied, 
420 IJ.S. 990 (1975), in the context of a warrantless search. 
There, the district court upheld such a search of the de­
fendant’s car on the grounds that one of the federal agents 
knew of defendant’s prior use of his car for narcotics 
transactions and therefore had probable cause to believe 
that the car was carrying contraband. We noted that even 
if this agent’s knowledge of defendant’s uses of his car 
was derived from an illegal wiretap sixteen months before, 
another agent present at the search had knowledge of de­
fendant’s activities as a narcotics deliveryman that had 
been legally obtained from an informant, and held that 
such knowledge was sufficient to sustain a finding of prob­
able cause. Id. at 280 n.l2.

Other circuits have held squarely that the presence of 
illegal evidence in affidavits presented for a search warrant

5410



does not prevent a finding of probable cause sustainable 
on other grounds. See United States v. Sterling, 369 F.2d 
799, 802 (3 Gir. 1966) (“[Tjlie law is quite clear that the 
inclusion of illegally obtained evidence does not vitiate a 
search warrant which is otherwise validly issued upon 
probable cause reflected in the affidavit and based on proper 
sources.”) ; United States v. Tarrant, 460 F.2d 701, 703-04 
(5 Cir. 1972) (where legally obtained information estab­
lished probable cause, the court need not consider attacks 
on the legality or sufficiency of other allegations in the 
affidavits); United States v. Koonce, 485 F.2d 374, 379 (8 
Cir. 1973) (where affidavit by one officer cited statements 
of two informants that defendant possessed a stolen boat 
and indicated the location of the boat from defendant’s 
grand jury testimony, the court need not reach questions 
raised by search conducted by another officer); Chin Kay 
v. United States, 311 F.2d 317, 321-22 (9 Cir. 1962) (un- 
necessarj^ to consider attacks on two paragraphs of affi­
davit since others sufficient to establish probable cause); 
Howell V. Cupp, 427 F.2d 36, 38 (9 Cir. 1970) (officer’s 
finding stolen property in defendant’s front seat provided 
probable cause for warrant to search trunk, not invalidated 
by previous illegal search of trunk which informed officers 
of the contents). Insofar as contrary dicta of the Sixth 
Circuit in United States v. Langley, 466 F.2d 27, 35 (1972), 
and United States v. Nelson, 459 F.2d 884, 889 (1972), may 
not be distinguishable as Mr. Justice Powell has thought 
them to be, see Giordano v. United States, 416, U.S. 505, 
556 n.6 (dissenting opinion), we continue to adhere to the 
majority view.^̂

21 I t  cannot be successfully argued that Giordano impliedly disapproved 
the line of cases discussed above or dictates a contrary result in this case. 
There, the majority rejected the argument that because an original 
pen register order -was made prior to an illegal wiretap, -̂-----vten-

5411



It is true, of course, that if the sole guiding beacon in a 
Fourth Amendment case were the maximization of deter­
rence, all evidence obtained by illegal means in any signi­
ficant part would have to be suppressed, even though there 
was a sufficient lawful basis for securing it. But the Su­
preme Court’s decisions on other points of Fourth Amend­
ment law demonstrate that it is not disposed to tilt the 
balance that far. Alderman v. United States, 394 U.8. 165 
(1969); United States v. Calandra, 414 U.S. 338 (1974); 
Stone V. Powell, 428 U.S. 465 (1976). On the basis of the 
attitude embodied in such decisions, the precedents here 
reviewed, and our own belief that a violation of the Fourth 
Amendment should not require exclusion of evidence that 
was obtainable without it, we uphold the denial of the mo­
tion to suppress the note found on Marchand in a search 
incident to what we consider to have been a lawful arrest.

sions subsequent to tlie illegal tap could be sustained by the same 
showing of probable cause as the original order. The Court stated:

The application for the October 22 extension attached the logs of 
telephone conversations monitored under the October 16 order and 
asserted that these logs revealed the "continued use of the tele­
phone . . . for conversations regarding illegal trafficking in nar­
cotics.” App. 55. In these circumstances, it appears to us that the 
illegally monitored conversations should be considered a critical 
element in extending the pen register authority. We have been 
furnished with nothing to indicate that the pen register of No­
vember 6 should be accorded any different treatment.

We think the Court clearly meant that the extension order could not 
have been granted absent the illegal evidence.

Eeference should perhaps be made to cases in this circuit where a 
tax "saturation investigation” was launched partly from legal and 
partly from illegal leads. Any implication from language in United 
States V. Schipani, 414 l?.2d 1262, 1266 (2 Cir. 1969), cert, denied, .697 
TJ.S. 922 (1970), that an indictment stemming from such an investiga­
tion should be dismissed—and we doubt whether such an implication 
was ever justified—has been dissipated by United States v. Friedland, 
441 F.2d 855 (2 Cir.), cert, denied, 404 TJ.S. 867, 914 (1971), and 
United States v. Cole, 463 F.2d 163, 172 (2 Cir.), cert, denied, 409 
U.S. 942 (1972).

5412



V. Alleged Trial Errors

(1) Alleged errors concerning Perkins’ 'pre-trial photo­
graphic identification and sketch.

Appellant mounts a number of attacks relating to Perk­
ins’ photograpMc identification.

His first claim is that the array was impermissibly sug­
gestive because “the neutral effect of multiple numbers 
was totally undercut by the fact that Marchand’s picture 
was the only one which recurred and that of the two large 
photographs his was the only one of a light-haired man.” 
(Brief, p. 52). The defense also criticizes the nine months 
delay in presenting the array, and the use of a photograph 
display rather than a lineup. We are not persuaded by any 
of these points. The small photograph of Marchand was 
somewhat marred by glare; also the larger photograph 
seems to depict him at a later age. See fn. 6 supra. Indeed, 
the photographs were sufficients different to cause Perkins 
to select only one. Under such circumstances, over-repre­
sentation of a defendant in the array does not make the 
procedure impermissibly suggestive, let alone give rise to 
“a very substantial likelihood of irreparable misidentifica- 
tion.” Simmons v. United States, 390 U.S. 377, 384 (1968). 
In Simmons, the Court allowed in-court identifications 
based on a showing of at least six photos, primarily group 
photographs, with the defendant appearing several times. 
See United States v. Falange, 426 F.2d 939, 935 (2 Cir.), 
cert, denied, 400 U.S. 906 (1970) (inclusion of three photo­
graphs of defendant, taken years apart and at different 
angles, in an array of 16 pictures was not a denial of due 
process); United States v. Cunningham, 423 F.2d 1269, 
1271-73 (4 Cir. 1970) (admission of testimony concerning 
photographic identifications was not impermissibly sug­
gestive although seven of 14 photographs were of appel-

5413



lants, and the only color photographs were of appellants 
and a codefendant).

The differences of hair and skin color noted by March- 
and were not of great significance since all bnt three of the 
pictures were on black and white film. Nor did the differ­
ences in size of the pictures cause impermissible sngges- 
tiveness. As we have recently said:

The due process clause does not require law enforce­
ment officers to scour about for a selection of photo­
graphs so similar in their subject matter and composi­
tion as to make subconscious influences on witnesses 
an objective impossibility.

United States v. Buhar, F.2d — (2 Cir. 1977),
slip op. 4519, 4529. See United States v. Magnotti, 454 
F.2d 1140 (2 Cir. 1972) (full-view photograph of defendant 
in array with seven mug shots did not give rise to imper­
missible suggestion); United States v. Harrison, 460 F.2d 
270 (2 Cir.), cert, denied, 409 U.S. 862 (1972) (that defen­
dant was the only clean-shaven individual in photo array 
was not such an unnecessarily striking difference as to 
make him “stand out prominently from the others”). Al­
though the delay was regrettable, it is not decisive, see 
United States v. Hurt, 476 F.2d 1164, 1168 (D.C. Cir. 1973) 
(delay of one year); moreover, Agent Handoga testified 
that he had no photographs of Marchand until late 1975 
or early 1976. While it is preferable for law enforcement 
officers to use a line-up rather than yjhotographic identifi­
cation when the suspect is available, this is not a require­
ment. United States v. Boston, 508 F.2d 1171, 1176-77 (2 
Cir. 1974), cert, denied, 421 U.S. 1001 (1975).

Beyond all this, under Manson v. Brathivaite, supra,
----- XJ.S.------ (1977), 45 IJ.S.L.AV. 4681, decided after this
case was argued, even impermissible suggestiveness is not

5414



a per se bar to tbe receipt of a pliotograpbic identification; 
the admissibility of this must be determined on the basis of 
the totality of the circumstances. Here the first three of 
the factors noted in Manson—the opportunity to view, the 
degree of attention, and the accuracy of the description 
weigh in favor of admissibility. Although the two other 
factors which were relied on in Manson, “the witness’ level 
of certainty” and “the time between the crime and the 
[photographic] confrontation,” do not weigh in favor of 
admissibility, neither are they significant counterweights 
under the circumstances here presented. The judge was 
not bound to credit Perkins’ expression of uncertainty^^ 
and there is the unusual fact of the remarkable resemblance 
between Perkins’ sketch, made only a month after the 
crime, and the photograph later selected by him. There is, 
further, Perkins’ slip of the tongue, which we noted earlier, 
indicating that Perkins in fact knew Bob Marchand was 
Big Foot. Moreover, Perkins was under far less pressure 
to make a photographic identification than the identifying
narcotics agent in Manson, supra, see----- IJ.S. a t ------ , 45
IJ.8.L.W. at 4690 (Marshall, J., dissenting); he testified 
that he felt none.

The defense further contends that evidence of Perkins’ 
pre-trial photographic identification and of the making of 
the sketch was not within Federal Eule of Evidence 801(d) 
(1) (C) which says that “A statement is not hearsay if 
. . . the declarant testifies at the trial or hearing and is 
subject to cross-examination and the statement is . . . (C) 
one of identification of a person made after perceiving 
him” since that rule allegedly is limited to corporeal identi­
fications. This argument rests on reading the final words 
“after perceiving him” as referring to the perception at

22 The trial court did not -find, as defendant argues, that Perkins’ photo­
graphic identification was uncertain. The court merely reported Perkins’ 
"concession” on that point.

5415



the time of the identification rather than at the time of the 
crime and then confining “him” to the defendant’s person 
rather than to representations of it. This is too confining. 
The purpose of the rule was to permit the introduction of 
identifications made by a witness when memory was fresher 
and there had been less opportunity for influence to he ex­
erted upon him.^  ̂ We thus agree that “Rule 801(d) (1) (C) 
should . . .  be interpreted as allowing evidence of prior 
identification by the witness of a photograph of the person 
whom he had initially perceived,” 4 Weinstein & Berger, 
Commentary on Rules of Evidence for the United States 
Courts and Magistrates 801-107 to 108 (1976), and also to 
descriptions and sketches.

The defendant further contends that the purpose of the 
Rule to allow introduction of more probative evidence 
than in-court identifications dictates exclusion of the un­
certain and unreliable identifications by Perkins. We have 
already expressed our views with regard to the certainty 
of the photographic selection. The objection that the 
sketch should not have been admitted because of Perkins’ 
later disclaimer of it merits little discussion in view of 
what we have already said about the remarkable corre­
spondence between it and the photograph and about Per­
kins’ telling slip of the tongue. But even if we felt other­
wise with respect to these factual matters, we would not 
hold that the Rule requires exclusion of this evidence. 
Protection against identifications of questionable certainty 
is afforded by the requirement that the declarant be avail­
able for cross-examination; questions of the probative 
value of the testimony are thus for the jury. See S. Rep. 
No. 94-199, 94 Cong., 1 Sess. (1975), reprinted in 4 Wein-

23 As noted at the outset of this opinion, it was fairly inferable that the 
latter was one plausible explanation of the loss of recollection by the 
identifying witness Fine in United States v. De Sisto, supra, 329 F.2d 
at 932-34.

5410



stein & Berger, supra at 801-4. See also id. at 801-4.6. 
While the trial judge doubtless has discretion under Buies 
102 and 403 to exclude an identification which he con­
siders to have been too flimsy to warrant the jury’s con­
sideration, appellate courts should be wary of reversing 
where the judge has decided that the identification was 
sufficiently certain to be appropriate for submission.

Appellant argues that even if the evidence was admis­
sible as substantive evidence under Rule 801(d)(1)(C), 
it should have been excluded as unreliable on the authority 
of United States v. Jenkins, 496 F.2d 57, 68-70 (2 Cir.), 
cert, denied, 420 U.S. 925 (1975). But that decision, in a 
case arising before the effective date of the Federal Rules 
of Evidence, concerned the different problem when proof 
of a prior identification (in that ease a non-identification of 
Jenkins and an identification of another) is sought to be 
proved through a person other than the declarant. See the 
discussion in 4 Weinstein & Berger, supra, 801-108 to 110. 
While in Jenkins we sustained a refusal to allow the third 
party to testify, we did allow the declarant to testify to 
his recollection—or more aptly, his lack of recollection—of 
the ijhotographic identification.

Appellant also objects to the court’s having instructed 
the jury that it could “consider” Perkins’ photographic 
identification and sketch without having given the instruc­
tion requested by the defendant as to the dangers inherent 
in eyewitness identification. In United States v. Fernandez, 
456 F.2d 638, 643-44 (2 Cir. 1972), we said:

While a defendant is not entitled to a reading of all 
that was said about the dangers of misidentification 
in United States v. Wade, supra, 388 U.S. at 228-236, 
87 S.Ct. at 1926, and Simmons v. United States, supra, 
390 U.S. at 383-384, 88 S.Ct. at 967, we would think it 
reasonable that a properly drafted instruction, draw-

5417



ing particularly on Mr. Justice Harlan’s language in 
Simmons, should be given if requested. Whether 
failure to do so would be reversible error would 
depend on the circumstances.

The reversal in that case rested on other grounds. De­
fendant has cited no decision holding that the giving of 
such a charg’e is mandatory, and a number have refused 
to do so. United States v. Evans, 484 F.2d 1178, 1187-88 
(2 Cir. 1973); United States v. Gentile, 530 F.2d 461, 469 
(2 Cir.), cert, denied, 426 U.S. 936 (1976); United States 
V. Barber, 442 F.2d 517, 525-26 (3 Cir.), cert, denied, 404 
IJ.S. 958 (1971) (noting “formidable precedential author­
ity” that cautionary instruction is not required). This 
would be an exceedingly inappropriate case for seeking to 
make new law on this subject. The identifications v/ere only 
a part of the case that Marchand was the supplier, a less 
important part than counsel would have us believe, and 
the circumstances were such that a cautionary instruction 
might have led the jury away from the truth rather than 
toward it.

(2) Alleged errors concerning Boy’s grand jury testi­
mony.

Defendant complains in regard to the Government’s sum­
mation and the charge with respect to Hoy’s grand jury 
testimony. The complaints about the summation relate to 
statements that Eoy “gave sworn testimony under oath to 
a Grand Jury that identified Bob Marchand as ‘Big Foot’ 
or Bob, the supplier” “he told the Grand Jury that this 
friend committed a felony; that this friend gave him 180 
pounds of marijuana” ; and he “told . . . the Grand Jury 
that Bob Marchand was ‘Big Foot’.” While Roy did not 
tell the grand jury in so many words that Bob Marcliand 
was Bob or Big Foot, he did testify that the supplier was

5418' ■



the Bob, also known as Big Foot (or vice versa), who was 
the same man he had known from Amherst, Mass., days, 
whom he remet in a Brattleboro bar with a girl named Ann 
and who had given him telephone numbers to call to pur­
chase marijuana. Eoy did in fact testify at trial, without ob­
jection, that he led the grand jury to think he could identify 
Marchand as the person who supplied him with the mari­
juana and that “this friend” was the man v\̂ ho supplied 
him with marijuana, which was indeed a felony. The mo­
tion for a mistrial was based not on any minor inaccuracies 
in the prosecutor’s statements concerning the grand jury 
testimony but on the basis that the testimony could not be 
used as substantive evidence under Rule 801(d)(1)(A), a 
point which we reject below.

The charge was as follows:
Now if you find that the witness R oy on that occa­

sion before the Grand Jury, did identify the defendant 
M a e c h a n d  along with his girl companion A n n  C u r t is  
as the same person as “Big Foot” whom he had pre­
viously seen with A n n  C u r t is , you may consider his 
testimony to the Grand Jury as substantive evidence 
of the facts as he represented them to be in his testi­
mony to the Grand Jury and this is so, although the 
witness R oy has stated he misled the Grand Jury and 
was not entirely truthful to that body.

It is for you the Jury to determine in the light of 
all the evidence in the case bearing on the question 
which testimony o f  R oy is true. His testimony at the 
trial, or his testimony before the Grand Jury in July 
o f  1976.

The objection to this was:
Mr. Weinberg: Dur first objection. Your Honor,

T/oiild be, . . the first objection, Your Honor, would be

5419



to your allowing the Jury to use Mr. Roy’s Grand 
Jury testimony substantively.

We would object both because there was no evidence 
of an I.D. of M a e c h a n d  in the Grand Jury that came 
out through the evidence.

Secondly, there were no statements within Rule 801.
Third, because there couldn’t liave been any intro­

duced becarrse of the taint issue coming from the, your 
exclusion of the pre-trial photographic identification.

Moreover, I think Tour Honor inadvertently invited 
the Jury to guess which is truthful by asking them to 
make that kind of decision.

I ask Your Honor to instruct the Jury they can’t 
surmise, conjecture, or guess when R oy  told the truth 
because there wasn’t enough evidence to base that kind 
of judganent on.

The criticisms now made relate to the judge’s character­
ization of Roy’s grand jury testimony. These are that the 
only grand jury statements introduced before the trial jury 
referred simply to Ann and not to Ann Curtis and that 
nowhere in the grand jury testimony so introduced did Roy 
identify Marchand as Big Foot.

The Ann Curtis matter need not detain us. As previously 
stated, the Government had introduced portions of Roy’s 
grand jury testimony in which he had referred to “Ann” 
as Big Foot’s female associate. Roy admitted that the Ann 
he referred to before the grand jury was the same Ann 
who was Marchand’s fiancee. The judge could reasonably 
conclude that Roy’s subsequent testimony that he never 
in fact had seen the girl who was with Big Foot with Bob 
Marchand did not contradict his statement that the Ann 
he meant when he purportedly misled the grand jury was 
Marchand’s financee. Further, if counsel had thought the 
reference to “Curtis” to be significant, it was his duty to

5420



bring this error to the attention of the judge who would 
doubtless have corrected it, United States v. Kahaner, 317 
F.2d 459, 478-79 (2 Cir.), cert, denied, 375 U.S. 836 (1963). 
Counsel could well have thought that doing so would only 
highlight the point.

With respect to the statement in regard to Marehand, 
we repeat what we have said about the summation. Grand 
jury testimony which was read to the jury did have the 
effect of identifying Marehand as Big Foot, as Roy seemed 
to recognize in his trial testimony. The judge could well 
have understood the objection to be that since the trial jury 
had not heard, and under his suppression ruling should 
not have heard, evidence of Roy’s grand jury photographic 
identification, no use of Roy’s grand jury testimony as 
substantive evidence was permissible. This simply was 
not so. Even if Roy’s grand jury statements which were 
read to the trial jury were not admissible under Rule 801 
(d) (1) (C), they were receivable under Rule 801(d) (1) (A). 
The flaw underlying much of appellant’s argument is the 
inarticulate premise that identity can be proved only by 
corporeal or photographic identification after the crime. 
Manifestly this is not true, as in the case where the person 
originally observed as the perpetrator has significantly 
altered his appearance. In such a case and many others, 
cf. United States v. Barbati, 284 F. Supp. 409, 411 
(E.D.N.Y. 1968), identity can be established by other evi­
dence showing how the perpetrator had been known be­
fore the crime and then linking the defendant with him; 
if a witness has testified to such facts before a grand jury 
and forgets or denies them at trial, his grand jury testi­
mony or any fair representation of it falls squarely within 
Rule 801(d)(1)(A).

In view of this discussion, little need be said in regard 
to appellant’s further contention that the Government’s 
eliciting from Roy that he had misled the grand jury was a

5421



backhanded way of bringing before it the evidence of the 
photographic identification in violation of the judge’s 
order and Marchand’s due process rights. The jury heard 
nothing about Eoy’s photographic identification, and the 
judge evidently did not consider his order to have been 
violated. The former point suffices to dispose of the con­
stitutional claim as well.̂ ^

In a footnote to his reply brief Marchand seems to 
suggest that it was error to allow the Government to ask 
the questions about misleading the grand jury at all, since 
Rule 801(d) (1) (A) affords the only way to get inconsistent 
grand jury testimony of a witness before the trier of the 
facts. This misconceives the limited function of the Rule, 
namely, to withdraw the hearsay bar from material coming 
within it. The Rule does not prohibit the use of other 
material for impeachment, see Rule 613. All that the judge 
allowed to be considered “as substantice evidence” were 
portions of the grand jury testimony that were read to the 
trial jury.

IV. Sufficiency of the evidence.
Although, as indicated, fn. 3 supra, counsel for appellant 

argued sufficiency of the evidence as their initial point and

24 We have serious doubt whether the judge was correct in granting 
suppression on the ground of impermissible suggestiveness, not only in 
light of the Supreme Court’s recent decision in Manson v. Bralliivaite, 
supra, but even apart from it. Eoy had made his first photographic 
identification, such as it was, without impermissible suggestion; the 
supplying of a better and later photograph of "a Bob” was to see 
whether this would strengthen recognition already made. The problem 
lay rather in whether there had in fact been an identification. Mar­
chand’s correct constitutional claim, on the "backhanded” argument 
would thus be rather that he had no opportunity to show the trial jury 
how slender Eoy’s photographic identification had been, an opportunity 
of rather small value in light of Eoy’s admission to the grand jury that 
he had identified his supplier. How’ever, since the jury never heard that 
there was a photographic identification, the issue does not arise.

5422



included a great deal of discussion of rules of evidence in 
that argument, we have felt it necessarjr to deal first with 
their claims that much of the evidence was improperly 
received. Having held these to be without merit, we find 
the question of sufficiency relatively easy.

We start with the solid core of facts as to which there 
is no real dispute. Bob or Big Foot was the same man 
all along. He was Eoy’g friend at Amherst, Mass.; the 
renewed acquaintance at Brattleboro; the man with whom 
discussions about marijuana began at Springfield; the man 
who had a female associate identified before the grand 
jury as Ann; the man who engaged in two previous 
narcotics sales to Roy and Perkins; the man who gave Roy 
telephone numbers which Roy could call to purchase 
narcotics; and the man who sold the 180 pounds of 
marijuana on July 18. There were no Bob on the one hand 
and Big Foot on the other; the two were one and the same. 
Roy, Perkins or both made frequent calls just before the 
July 18 transaction to telephones listed in the names of 
Robert Marchand and Ann Curtis. Roy had meant to 
implicate Marchand before the grand jury, thought he had 
done so, and got word to Hillman.^^ Hillman informed 
Marchand, who made careful note, including Roy’s address, 
see fn. 11, supra, and shortly departed for Florida. This 
would justify a reasonable juror in being convinced beyond 
a reasonable doubt that Robert Marchand was Bob-Big 
Foot even if there were nothing more.

But there was. Perkins’ photographic identification was 
before the jury. To be sure, Perkins testified that he was 
asked to select the photograph that “most closely resem­
bled” Bob or Big Foot, and the judge so found despite 
Agent Handoga’s testimony that Perkins was asked to and

25 Since this evidence was brought out by the defense, it cannot and 
does not object on the ground of hearsay.

5423



did make a positive identification;^® and appellant relies in 
this connection on such photographic identification cases 
as United States v. Keller, 512 F.2d 182, 184 (3 Cir. 1975) 
(“a conviction cannot stand when it rests solely on an 
identification as uncertain as this one”), and United States 
V. Johnson, 427 F.2d 957, 961 (5 Cir. 1970) (where “sole 
witness is unsure and there are no other connecting or 
corroborating circumstances” the jury cannot find guilt 
beyond a reasonable doubt). But these cases dealt with 
identification by victims who had only scanty opportunity 
for observation and where there were no corroborating 
circumstances.^^ There were also Perkins’ description and.

26 The jury could reasonably have believed that the emphasis on the 
"closely resembles" selection was supplied by defense counsel and not 
by Perkins, and that Perkins picked out the man he thought was Mar- 
chand, not someone who resembled him. Perkins testified that he was 
aware that the task at hand in the photographic identification was to 
"find the two people I  had seen on July 1975.” In cross-examination 
coneering the photographic identification, defense counsel handed Perkins 
a photograph and the following exchange occurred:

Q. What is it?
A. I t  was a photograph I  picked to he the other person that had 

been wdth Big Foot.
Q. The person who most resembled the person who had been with 

Big Foot in July of 1975?
Q. Correct. (Emphasis supplied).

Belief by the jury that Perkins selected the man he thought to be Big 
Foot thus would not be inconsistent with the trial court’s finding on the 
suppression motion that he was asTced to make a "closely resembles” 
selection.

27 Defendant also cites a number of cases in which in-court testimony 
that the defendant resembled the perpetrator of the crime was held 
insufficient to sustain a conviction, but these are easily distinguishable. 
In Hendrix v. United States, 327 F.2d 971, 974 (5 Cir. 1964), the only 
evidence connecting the defendant with the cashing of forged cheeks 
was "testimony of a resemblance and the fact that the person sought 
to be identified was accompanying the persons who are more clearly 
tied in with the offense charged.” In Alexander v. United States, 354 
F.2d 59, 63-64 (5 Cir. 1965), the only positive identification of the 
defendant put him at the scene of the bank theft the day before it 
occurred. The only other admissible evidence was testimony of bank

5424



most important, Ms sketch. As we have previously stated, 
the resemblances between this and the photograph which 
Perkins later identified are too strong for anyone to believe 
that Perkins could have drawn the sketch if he had never 
seen the subject. And Perkins was clear that he had seen 
the man he was drawing only in connection with the three 
narcotics transactions, never anywhere else. Despite what 
the jury could reasonably have deemed a charade about 
his inability to make a courtroom identification, there was 
Perkins’ inadvertent admission on cross-examination by 
defense counsel about the sketch that the man standing 
before him in the courtroom Avas indeed the man he had 
tried to draw. Also quite probative was Perkins’ selection, 
tentative though it was, from the scores of phone numbers 
listed in the toll records, of Marchand’s number as the one 
at which Big Foot could be reached. Finally, there were 
the various changes of testimony by Eoy and Perkins; far 
from the judge and the jury being bound to swallow the 
version most favorable to Marchand, they Avere free to 
believe, on the basis of self-contradiction and demeanor, 
that these witnesses were lying^* when they weakened 
their earlier statements and that the former identifications 
and the grand jury testimony read into the record were 
the truth. Indeed Roy’s brash demeanor comes through 
even on a cold record. Whatever merit the learned discus­
sions by counsel might have on other facts, they have none 
here. As in Achilles v. New England Tree Expert Co.,

employees that the defendant looked like someone who had been on the 
premises on the day when the theft oeenrred. Id. at 61. In both United 
States V. Musquiz, 445 F.2d 963, 965-66 (5 Cir. 1971), and United 
States V. I aicTc, 447 F.2d 1333 (6 Cir. 1971), the only admissible evidence 
connecting the defendant with the crime was uncertain identification 
testimony.

28 On one occasion when Eoy explained his changed testimony on the 
basis that he was now testifying under a grant of immunity, the court 
warned him that the grant did not include perjury or false statements.

5425



396 F.2d 72 (2 Cir. 1966) (Medina, J.), the verdict was a 
tribute to Vermont common sense.

We have carefully considered defendant’s other claims 
of error but, except for the ones rejected in the margin,^® 
find them unworthy of discussion.

The judgment of conviction is affirmed.

29 Defendant’s argument that the indictment should have been dismissed 
under United States v. Estepa, 471 F.2d 1132, 1137 (2 Cir. 1972), is 
meritless. We there held that dismissal would be required when there 
is a high probability that the grand jury would not have indicted if 
presented with first-hand testimony rather than hearsay, or W'here the 
prosecution misleads the grand jury as to the "shoddy merchandise they 
are getting." The complaints here are that instead of calling Perkins 
before the grand jury the prosecutor had Agent Handoga read Perkins’ 
testimony before the first grand jury which included the statement that 
he had "found out [Big Foot’s] name was Bob Marchand” but not what 
Perkins later claimed to be the rather weak photographic identification, 
and added Handoga’s own observations with respect to Perkins and 
Boy’s identifications. Perkins’ testimony before the first grand jury was 
clearly hearsay with respect to the second grand jury under the cir­
cumstances, and we shall assume arguendo that the agent’s also was, 
cf. 4 Weinstein and Berger, supra, at 801-137 to 140. Assuming that 
Estepa has survived United States v. Calandra, 414 U.S. 338, 344-45 
(1974), as we seemingly did in United States v. Bertolotti, 529 F.2d 149, 
159 (2 Cir. 1974), we do not find either branch of the test to have 
been met. There was no deception of the grand jury; United States v. 
Harrington, 490 F.2d 487, 489-90 (2 Cir. 1973); United States v. Olsev, 
453 F.2d 612, 615 (2 Cir.), cert, denied suh nom. Leach v. United States, 
406 U.S. 927 (1972), and there is not the slightest doubt that the grand 
jury would have indicted if Perkins had been called, as he should have 
been if available.

We likewise reject defendant's argument that the indictment should 
have been dismissed because it was based in part on Boy’s photographic 
identification which was later ruled to be inadmissible at trial because 
of impermissible suggestiveness. Apart from our doubt as to the cor­
rectness of that ruling, see fns. 15, 24 supra, the Government, in present­
ing a case to the grand jury, cannot be expected, save perhaps in the 
most egregious cases of which this was not one, to anticipate later 
unfavorable suppression decisions. See United States v. Calandra, supra, 
414 U.S. at 344-45.

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