446 F2d 60 United States v. E Ewing

446 F.2d 60

UNITED STATES of America, Appellee,
Richard E. EWING, Appellant.

No. 71-1652.

United States Court of Appeals, Ninth Circuit.

Aug. 2, 1971.

Frank O. Bell, Jr., Legal Aid Society, San Francisco, Cal., for appellant.

James L. Browning, Jr., U.S. Atty., F. Steele Langford, Chief, Crim. Div., James L. Hazard, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before DUNIWAY, HUFSTEDLER, and WRIGHT, Circuit Judges.


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Ewing appeals from his conviction for bank robbery (18 U.S.C. 2113(a)).


He contends that the line-up in which he was identified as the robber did not meet the standards of United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, because the two public defenders attending the lineup did not actively participate in those proceedings. Wade does not require any such activity. There is no indication that the line-up was unfair in any respect.


He also says that the court erred in refusing to strike the testimony of a police officer concerning the substance of a tip that he had received from an anonymous informant.


If the testimony were used for the purpose of proving the truth of the matter asserted by the informant, an assumption that is doubtful in the context in which the testimony was offered, we are nevertheless convinced that error in refusing to strike it was harmless beyond a reasonable doubt. The informant's oblique reference to Ewing was a repetition of earlier testimony that had been received without objection. The direct evidence of Ewing's guilt was unusually usually strong. The error, if any, could not have affected the outcome of the trial.


The judgment is affirmed.