United States v. Michael C. Fisher, 455 F.2d 1101 (2d Cir. 1972). · Go Syfert
United States v. Michael C. Fisher, 455 F.2d 1101 (2d Cir. 1972). Cases Citing This Book View Copy Cite
57 citation events (4 in the last 25 years) across 23 distinct courts.
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Cited for
At page 1104 Weighing prejudice against probative value of evidence19 citing casesholding use of grand jury to “freeze” -witness testimony after the indictment was filed was improper1 citing court put it this way
  • United States v. Sampson, 820 F. Supp. 2d 202 (D. Mass. 2011).published
    (holding use of grand jury to “freeze” -witness testimony after the indictment was filed was improper)
  • United States v. Flemmi, 108 F. Supp. 2d 39 (D. Mass. 2000).published
    United States v. Fisher, *44 455 F.2d 1101, 1104 (2d Cir.1972); Gibbons, 607 F.2d at 1329 ; United States v. Jackson, 863 F.Supp. 1449, 1454 (D.Kan. 1994) (citing cases).
  • United States v. Jackson, 863 F. Supp. 1449 (D. Kan. 1994).published
    See Gibbons, 607 F.2d at 1328 (argued improper use to discover new evidence against defendant or to freeze and preserve eo-defendant’s testimony for trial); United States v. Beasley, 550 F.2d 261 (5th Cir.) (argued improper use to secure a…
  • In re Grand Jury Subpoena, 626 F. Supp. 1057 (D.P.R. 1986).published
    It is also well established that “once a defendant has been indicted, a prosecutor may not use the grand jury’s investigative powers for the purpose of securing additional evidence against the defendant for use in the upcoming trial.” In R…
  • Payden v. United States, 605 F. Supp. 839 (S.D.N.Y. 1985).published 3 cites
    United States v. Doss, 563 F.2d 265, 276 (6th Cir.1977) (en banc); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir.1972).
  • In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985, 605 F. Supp. 839 (S.D.N.Y. 1985).published 3 cites
    United States v. Doss, 563 F.2d 265, 276 (6th Cir.1977) (en banc); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir. 1972).
  • United States v. Shakur, 560 F. Supp. 313 (S.D.N.Y. 1983).published
    See United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); United States v. Fisher, 455 F.2d 1101, 1104 (2d Cir.1972).
  • United States Court of Appeals, Third Circuit, 632 F.2d 1033 (3d Cir. 1980).unpublished
    E. g., United States v. Woods, 544 F.2d 242, 249 (6th Cir. 1976); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir. 1972); United States v. Star, 470 F.2d 1214, 1217 (9th Cir. 1972); In re National Glass Workers, 287 F. 219 (N.D.Ohi…
  • United States ex rel., L.C.J. v. VanArtsdale, 632 F.2d 1033 (3d Cir. 1980).published
    E. g., United States v. Woods, 544 F.2d 242, 249 (6th Cir. 1976); United States v. Fisher, 455 F.2d 1101, 1104-05 (2d Cir. 1972); United States v. Star, 470 F.2d 1214, 1217 (9th Cir. 1972); In re National Glass Workers, 287 F. 219 (N.D.Ohi…
  • United States v. Carol Asbury, 586 F.2d 973 (2d Cir. 1978).published
    United States v. Fisher, 455 F.2d 1101, 1104 (2d Cir. 1972).
Show 9 more citing cases
At page 1105 Grand jury's independent investigatory function and limits10 citing casesThe grand jury does not function as an arm of the prosecution.1 citing court put it this way
  • Jones v. Murdoch, 2009-NMSC-002, 200 P.3d 523.published
    (The grand jury does not function as an arm of the prosecution.)
  • United States v. Calk, 87 F.4th 164 (2d Cir. 2023).published
    Nevertheless, courts may not ignore possible abuse of the grand jury process, as “the grand jury is not meant to be the private tool of a prosecutor.” United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972).
  • Petition of the Dist. Attorney for the Plymouth Dist., 464 N.E.2d 62 (Mass. 1984).published
    We have stated that “it is improper to use [a] grand jury for the purpose of preparing an already pending indictment for trial.” Commonwealth v. Liebman, 379 Mass. 671, 677 (1980). 6 See United States v. Doe, 455 F.2d 1270 , *728 1273 (1st…
  • United States v. (Under Seal), 714 F.2d 347 (4th Cir. 1983).published
    The former rests on the simple, but fundamental, concept that the grand jury serves an independent investigatory function and is “not meant to be the private tool of the prosecutor.” United States v. Fisher, 455 F.2d 1101, 1105 (2 Cir.1972…
  • United States v. Comput. Sciences Corp., 511 F. Supp. 1125 (E.D. Va. 1981).published
    “The fact that grand jury proceedings are secret, ex parte and largely under the control of the federal prosecutor, magnifies [the] concern” the court must show “. . . for the right to indictment by an unbiased grand jury.” United States v…
  • Application of Jordan, 439 F. Supp. 199 (S.D. W. Va. 1977).published
    United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972).
  • In re Stolar, 397 F. Supp. 520 (S.D.N.Y. 1975).published
    Just as the grand jury is not meant to be “the private tool of [the] prosecutor”, United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972), it should not be allowed to become an arm of the FBI.
  • United States v. Kleen Laundry & Cleaners, Inc., 381 F. Supp. 519 (E.D.N.Y. 1974).published
    United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972).
  • In re Grand Jury Investigation Of Cuisinarts, Inc., 665 F.2d 24 (2d Cir. 1981).published
    See United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972).
  • United States v. Cuisinarts, Inc., 665 F.2d 24 (2d Cir. 1981).published
    See United States v. Fisher, 455 F.2d 1101, 1105 (2d Cir. 1972).
At page 1103 Admissibility of evidence from robbery and seizure6 citing casesDistrict Court for the Eastern District of New York, together with four co-defendants. The jury acquitted two co-defendants, failed to reach a verdict on the…opening of page *1103 (no citing court says what it cites this page for)
  • Jerry Jerome Jackson v. State of Mississippi, No. 96-KA-00952-SCT (Miss. Aug. 6, 1996).unpublished
    See, e.g., Martin v. State, 413 So.2d 730, 733-34 (Miss. 1982) (citing United States v. Campanile, 516 F.2d 288, 292 (2d Cir. 1975); United States v. Fisher, 455 F.2d 1101,1103-04 (2d Cir. 1972); United States v. Ravich, 421 F.2d 1196, 120…
  • Martin v. State, 413 So. 2d 730 (Miss. 1982).published
    See United States v. Campanile, 516 F.2d 288, 292 (2 Cir.1975); United States v. Fisher, 455 F.2d 1101, 1103-4 (2 Cir.1972); United States v. Ravich, 421 F.2d 1196, 1204-05 (2 Cir.), cert. denied, 400 U.S. 834 [ 91 S.Ct. 69 , 27 L.Ed.2d 66…
  • United States v. Cecil Robinson, 544 F.2d 611 (2d Cir. 1976).published 2 cites
    Nor was Robinson in possession of inherently suspicious burglary or robbery gear, such as masks or quantities of weapons and burglary tools, as in United States v. Eatherton, 519 F.2d 603, 611-12 (1st Cir.), cert. denied, 423 U.S. 987 , 96…
  • United States v. Richard Wiener, 534 F.2d 15 (2d Cir. 1976).published
    See United States v. Campanile, 516 F.2d 288, 292 (2 Cir. 1975); United States v. Fisher, 455 F.2d 1101, 1103-04 (2 Cir. 1972); United States v. Ravich, 421 F.2d 1196, 1204-05 (2 Cir.), cert. denied, 400 U.S. 834 (1970); United States v. P…
  • United States v. Zare Tirinkian, 488 F.2d 873 (2d Cir. 1973).published
    Cf. United States v. Fisher, 455 F.2d 1101, 1103-1104 (2 Cir. 1972).
  • United States v. James Wright, 466 F.2d 1256 (2d Cir. 1972).published
    See United States v. Fisher, 455 F.2d 1101, 1103-1104 (2d Cir. 1971).
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Michael C. FISHER, Appellant
361, Docket 71-1830.
Court of Appeals for the Second Circuit.
Feb 14, 1972.
Published opinion
455 F.2d 1101
1972 U.S. App. LEXIS 11297
Jesse Berman, New York City (Stan-hope Lacy, Jr., Jamaica, N. Y., on the brief), for appellant., Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for Eastern District of New York, David G. Trager and Thomas P. Puccio, Asst. U. S. Attys., on the brief), for appellee.
Smith, Feinberg, Mulligan.
Cited by 49 opinions  |  Published
FEINBERG, Circuit Judge:

Appellant Michael C. Fisher appeals from a judgment of conviction for armed bank robbery in violation of 18 U.S. C. § 2113(a), (d) and for conspiracy to commit the robbery, 18 U.S.C. § 371. He was tried before Judge Orrin G. Judd and a jury in the United States[*1103] District Court for the Eastern District of New York, together with four co-defendants. The jury acquitted two co-defendants, failed to reach a verdict on the third, and found the fourth, Gary Bush, guilty along with Fisher on the substantive counts and on the conspiracy count. Fisher and Bush were each sentenced to 25 years imprisonment and both appealed, although Bush’s appeal has been severed. We affirm appellant Fisher’s conviction.

The evidence introduced at trial — if properly admitted — overwhelmingly established that appellant was one of the six men who, on December 30, 1970, robbed a Brooklyn branch of the Manufacturers Hanover Trust Company. These men, armed with a small arsenal of dangerous weapons, stole over $15,000 and fled in two getaway cars. Appellant contends, however, that for various reasons, some of the evidence was improperly admitted and that his conviction should be reversed. We will consider his contentions in turn.

On the evening of January 4, 1971, five days after the robbery, two New York City patrolmen stopped appellant and a co-defendant while they were driving one of the getaway cars. The car was initially stopped because it had defective tail lights, but a subsequent radio check revealed that the car had been stolen. At the time of their arrest, appellant and the co-defendant were in possession of $2,538, two federal reserve bank straps (used to fasten large bundles of money), and a box of .357 magnum ammunition, as well as a small quantity of narcotics. Appellant claims that since the money thus seized was not demonstrated to have been stolen, it should not have been admitted into evidence. Also, since appellant’s prior economic status was not established, it is argued that the Government could not properly rely on a theory of sudden acquisition of wealth. See United States v. Trudo, 449 F.2d 649, 651 (2d Cir. 1971); United States v. Ravich, 421 F. 2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). Both these arguments, however, overlook certain simple facts. First $2,-500 is a large sum of cash by almost any standard. Second, although the money did not contain any of the bank’s recorded “bait money,” it was seized in one of the getaway cars only five days after the robbery. Third, bait money and large sums of cash had been turning up all around appellant. For example, the $1,-000 cash bail posted by appellant’s mother and girlfriend included some of the marked bills. In such circumstances, it is understatement to say that the sum found on appellant and his co-defendant was sufficiently relevant to be admissible. Evidence need not prove the Government’s case before it can be introduced. People v. Adamson, 27 C.2d 478, 165 P.2d 3, 6-7 (Cal.1946) (Traynor, J.); 1 Wigmore, Evidence §§ 28, 29 (3d ed. 1940). Similarly, the bank straps may not be conclusive on the issue of complicity in this particular robbery, but they surely are relevant to the issue.

Appellant also objects to the introduction of other real evidence: (1) $5,261 in cash, including some bait money, found in the house of co-defendant Bush’s father-in-law during a search on the evening of January 5, 1971; (2) a shotgun found in the home of Bush’s parents; and (3) certain weapons that had been left in one of the getaway cars during the robbery. The first two items were admitted only against defendant Bush. Nonetheless, appellant claims that the “cumulative prejudicial display of guns and money . . . [which] bore little or no relation to the proof” unfairly affected all of the defendants. [1] This claim is without merit. Bush had access to the houses of both his parents and his father-in-law. That he did not have exclusive control over those premises may certainly affect the probative value of the evidence — but that factor alone does not dictate exclusion. Similarly, possession of weapons at the scene of the[*1104] crime and subsequent to the crime was relevant at least to show preparation for the crime and to corroborate the testimony of a key government witness. [2] See United States v. Ravich, supra, 421 F.2d at 1204. To be sure, all of this money and hardware was potentially unfairly prejudicial. But if relevant, the task of weighing possible unfair prejudice against probative value rests with the sound discretion of the trial judge, and “his determination will rarely be disturbed on appeal.” United States v. Ravich, supra, 421 F.2d at 1205. The trial record amply demonstrates that Judge Judd considered the dangers of admitting this evidence, and, in light of the record, we are not persuaded that his decisions should be reversed.

On the morning following appellant’s arrest by the City patrolmen, he was arraigned in Brooklyn Criminal Court on charges of grand larceny and possession of narcotics and was then held in the Brooklyn House of Detention. Shortly before midnight on January 5, 1971, appellant was there “re-arrested” by the FBI, taken to an FBI office and interrogated. During the interrogation, appellant admitted participating in the robbery by carrying a shotgun into the bank to provide “cover” for the other defendants. Appellant moved to suppress his admission on the grounds of involuntariness, but after a lengthy pretrial hearing Judge Judd denied the motion and the admission was introduced at trial.

Appellant has conceded that shortly after arriving at the FBI office he was informed of his Miranda rights and that he signed a waiver. In addition, he has abandoned his allegations made in the district court of brutality and threatened brutality, as well as his claim that he was not permitted to call his attorney. [3] In continuing to press his claim of involuntariness, however, appellant emphasizes that at the time his interrogation began he had already been in custody (possibly without food) for over 24 hours, and that the continuous interrogation by federal agents lasted at least from approximately 12:30 a.m. to 6:00 a.m. on January 6, 1971, if not longer. It appears, however, that the interrogation was interrupted while appellant was fingerprinted, photographed and given something to eat. Moreover, the testimony apparently credited indicates that appellant was questioned about the Manufacturers Hanover bank robbery toward the beginning of the interrogation, cf. United States ex rel. Sims v. LaVallee, 418 F.2d 437 (2d Cir. 1969) (per curiam). Indeed, part of the reason the interrogation seems to have lasted as long as it did was appellant’s willingness to discuss the numerous other bank robberies with which he was familiar. In short, “in light of the totality of the circumstances” we cannot say the district court was wrong in concluding that appellant’s will had not been overborne. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971); cf. United States ex rel. Burns v. LaVallee, 436 F.2d 1352 (2d Cir. 1970) , cert. denied, 402 U.S. 1012, 91 S. Ct. 2190, 29 L.Ed.2d 436 (1971).

At trial, appellant objected to the entire testimony of co-conspirator Ronald Singleton. The ground for the objection, renewed on appeal, is that the Government “froze” Singleton’s testimony by improperly having him appear before a grand jury after the indictment in this case had been filed and the investigation of this and other related bank robberies had been terminated. See United States v. Pack, 150 F.Supp. 262, 264 (D.Del.1957). The Assistant United[*1105] States Attorney who argued this appeal [4] candidly admitted that this use of the grand jury was improper, but he indicated that “freezing” testimony by some means is commonplace. We agree. The Government could easily have obtained an affidavit from Singleton containing all the information that was elicited before the grand jury. It is true that the Government’s conduct cannot be justified, and should not be repeated; the grand jury is not meant to be the private tool of a prosecutor. Nevertheless, we are not persuaded that appellant was prejudiced here.

Appellant claims that a mistrial should have been granted when the Government asked certain questions relating to his character and to his possible involvement • in other bank robberies. Also, appellant objects to a portion of the trial court’s charge on voluntariness of admissions. We have considered these arguments and find them without merit.

Judgment affirmed.

1

. Appellant’s Brief at 30.

2

. Co-eonsinrator Ronald Singleton testified that some of the weapons in the possession of the conspirators were “left in the car.” Subsequent to the trial, Singleton pleaded guilty and was sentenced to eight years imprisonment.

3

. Appellant does continue to maintain that during the interrogation the officers denied his request to speak to his mother. However, in view of the trial court’s finding that appellant’s testimony as to the alleged requests generally was “incredible” and “unworthy of belief,” we need not consider this complex issue. See Note, Right to Non-Legal Counsel During Police Interrogation, 70 Colum.L.Rev. 757 (1970).

4

. Not the Assistant in charge of the case in the district court.