United States v. Hawkins ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 96-2176 and 97-2168*
v.
(D.C. No. CR-96-206-BB)
(D. New Mexico)
QUANTIS HAWKINS,
Defendant-Appellant.
ORDER AND JUDGMENT**
Before BRORBY, HOLLOWAY and EBEL, Circuit Judges,
Defendant Quantis Hawkins was convicted by a jury on one count of bank robbery.
Defendant filed a motion for a new trial which was denied by the district court. Defendant
*
On August 14, 1996, defendant, acting pro se, filed a letter with the district court
which was construed as a Notice of Appeal. This notice was premature as judgment was not
entered against the defendant until May 5, 1997. However, we assigned case number
96-2176 to defendant’s notice of appeal. On May 14, 1997, after judgment had been
entered, defendant’s appointed counsel filed a timely notice of appeal and our court assigned
the case a second case number, 97-2168. On our own motion, on June 3, 1997, we ordered
these two appeals consolidated for all purposes. This order and judgment shall be the
disposition of both appeals.
**
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under terms and
conditions of 10th Cir. R. 36.3
was then sentenced to a term of imprisonment of 51 months. Defendant appeals his
conviction and the denial of his motion for a new trial. We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and affirm.
I
On March 25, 1996, a lone robber, described as an African-American male in his early
twenties, wearing wrap-around sunglasses and a baseball cap, and carrying a gym bag,
robbed the Norwest Bank San Mateo Branch on Zuni Street in Albuquerque, New Mexico.
II R. at 35. The robbery occurred at about 10:10 a.m. Id. at 110.1 The robbery lasted less
than five minutes. Both the Federal Bureau of Investigation and the City of Albuquerque
Police Department responded to the bank robbery.
Lori Figura was designated as the FBI agent. Ms. Figura received information that
made defendant a suspect. She obtained a photograph of defendant, placed it in a photograph
array, and showed the array to one customer and two bank tellers who had been inside the
bank at the time of the robbery. Id. at 184-85. Both bank tellers identified defendant as the
robber. Id. at 185. The customer did not identify any of the individuals depicted in the photo
array as the robber. Id. at 45. Defendant was arrested the next day.
The trial commenced on July 30, 1996. The prosecution called eight witnesses: seven
who were present at the bank at the time of the robbery and FBI Agent Figura. All seven
eyewitnesses were within about three to fifteen feet of the robber during the robbery. Nearly
1
The bank is insured by the FDIC. Id. at 132.
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all of the witnesses estimated the bank robber’s height to be approximately between five feet
seven inches and six feet. Id. at 40; 60; 76; 114. Defendant is six feet four inches tall. No
witness described facial hair on the robber and several affirmatively remembered that the
robber was clean shaven. Id. at 61; 87; 101; 114. At the time of the robbery, defendant had
a mustache and sideburns.
Despite the inconsistencies in their description of the robber, three of the seven
witnesses identified defendant as the robber. Id. at 44 (Robert Chavez); id. at 98-99
(Raphael Martin); id. at 141-42 (Holly Revelles). Only two of the three witnesses
identifying defendant at trial had been presented with a pretrial identification photograph
array. One teller, Holly Roybal, testified that though she could not identify defendant as the
bank robber, she was “almost positive” that the tattoo on defendant’s neck was the same as
the tattoo on the robber. Id. at 168-69. The other three witnesses could not identify
defendant as the robber. Id. at 63 (Levi Scott); id. at 77 (Donna Burkholder); id. at 116
(Susan Moore). However, when questioned by the prosecutor, each testified that defendant
had physical characteristics similar to those of the robber. Id. at 64 (Levi Scott); id. at 78
(Donna Burkholder); id. at 116 (Susan Moore). Of these three, Susan Moore had previously
identified defendant as the robber in a photo spread conducted one week before trial. Id. at
117-18. Defendant’s counsel cross-examined each witness on the issue of defendant’s
identity. Id. at 51, 66, 81, 101, 121, 156, 176-77.
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The defendant did not testify at trial. He did present an alibi defense by the testimony
of two witnesses, Hawkins’s mother and stepfather. Both testified that Hawkins was at home
at the time of the robbery. His mother testified that he talked with her at approximately
10:00 a.m. that day and that he was still at home, just getting out of bed, when his parents
arrived about 10:20 a.m. II R. at 243-45, 259-260.
After the verdict of guilty and entry of judgment of conviction and sentence, this
appeal followed.
II
Defendant raises two issues on appeal. First, he directly appeals the district court’s
denial of his motion for a new trial. The basis for his request for a new trial is a claim of
ineffective counsel. Second, defendant contends the district court erred in permitting the
in-court identifications in violation of his due process rights.
A
Defendant’s Claim of Ineffective Counsel
Defendant appeals the district court’s denial of his motion for a new trial based on a
claim of ineffective counsel. However, such claims should be presented in collateral
proceedings, not on direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995) (en banc); United States v. Jackson, 88 F.3d 845, 846 (10th Cir. 1996).2
The preferred method of bringing a claim of ineffective counsel is by post-conviction
2
proceedings pursuant to 28 U.S.C. § 2255. A claim for relief under§ 2255 may afford an
opportunity for the district court to hold an evidentiary hearing. See Galloway, 56 F.3d at
-4-
Ineffectiveness of counsel claims that are asserted on direct appeal are presumptively
dismissible, and “virtually all will be dismissed.” Galloway, 56 F.3d at 1240.
In Galloway, we reasoned that the resolution of a claim of ineffective counsel requires
a developed factual record. Id. The district court is the forum appropriate for such
development. Id. The facts here are not so extraordinary that we find need to depart from
our adherence to the Galloway rule. See Jackson, 88 F.3d at 847. The record here has not
been adequately developed by the district court prior to appeal for us to determine the merits
of the claim of ineffective counsel. Compare United States v. Gallegos, 108 F.3d 1272, 1280
(10th Cir. 1997)(defendant asserted conflict of interest argument at trial and in post-trial
motion, which the district court, upon weighing the merits of the claim, denied in its
post-trial order).
We dismiss defendant’s claim of ineffectiveness of counsel without prejudice.
B
Defendant’s Claim That In-Court Identifications Were the Product of Questioning
So Impermissibly Suggestive As to Violate Due Process.
Defendant does not raise sufficiency of the evidence as an issue in this case. Instead,
defendant contends that all of the in-court identifications were the product of questioning so
impermissibly suggestive as to violate due process. It is a recognized ground of attack on a
conviction that confrontation and interrogation were so unnecessarily suggestive and
1240 n.1.
-5-
conductive to irreparable mistaken identification that the defendant was denied due process
of law. Stovall v. Denno, 388 U.S. 293, 301-02 (1967). Such a claimed violation of due
process depends on the totality of the circumstances surrounding it. Id. at 302. Because the
defendant did not object to the in-court identification at trial here, we review for plain error.
See United States v. Lonedog, 929 F.2d 568, 570 (10th Cir. 1991). For plain error to be
present, the error must be obvious or otherwise seriously affect the fairness, integrity or
public reputation of judicial proceedings. United States v. Simmonds, 931 F.2d 685, 687
(10th Cir. 1991).
Three of the witnesses, Moore, Revelles and Roybal, were shown a pretrial photo
array by FBI Agent Figura. Defendant does not challenge any pretrial identification
procedures as violative of his due process rights. The government contends that because
defendant failed to challenge the validity of the pretrial identifications, the subsequent
in-court identification cannot violate the defendant’s due process rights. Romero v. Tansy,
46 F.3d 1024, 1032 (10th Cir. 1995). “Any suggestiveness in the courtroom identification
procedure is a matter for the jury to consider in weighing the persuasiveness of the witness’
testimony.” Id.
We believe the proper analysis here is to examine the record to determine “whether
the in-court identification procedure was so suggestive that it denied defendant due process
of law.” United States v. Kimball, 73 F.3d 269, 273 (10th Cir. 1995); United States v.
Robertson, 19 F.3d 1318, 1323 (10th Cir. 1994); United States v. Aigbevbolle, 772 F.2d
-6-
652, 653 (10th Cir. 1985). A defendant is denied due process of law when an impermissibly
suggestive identification leads to a substantial likelihood of irreparable misidentification.
Manson v. Brathwaite, 432 U.S. 98, 116 (1977); Aigbevbolle, 772 F.2d at 653. Our decision
in Romero should not be taken to mean that an in-court identification is always
constitutionally valid if a defendant fails to challenge a pretrial identification. Instead, our
analysis as to impermissible suggestiveness of an in-court identification is identical, whether
it concerns a witness who had a pretrial opportunity to identify defendant, or a witness who
identifies the defendant for the first time at trial.
Turning to the in-court identifications here, for purposes of defendant’s due process
claim we hold that the district court did not commit plain error by allowing the in-court
identifications because we do not view the prosecutor’s conduct as impermissibly
suggestive.3 The prosecutor asked each witness if he or she recognized the bank robber in
the courtroom. Some of the witnesses were able to identify defendant and others could not.
The prosecutor then inquired if defendant had characteristics similar to the characteristics of
the bank robber. While the procedure was not a reassuring model to support a conviction in
a criminal case, the prosecutor’s questioning was not so impermissibly suggestive as to lead
to a substantial likelihood of misidentification. Manson, 432 U.S. at 116. The prosecutor’s
inability to exact precise identifications gave defendant the opportunity to attack the
We summarize critical portions of the identification testimony in the appendix
3
following this order and judgment.
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reliability of each witness’ identification testimony on cross-examination. See Kimball, 73
F.3d at 273; Romero, 46 F.3d at 1032 (“Any suggestiveness surrounding the courtroom
identification was a matter to be considered by the jury in weighing the reliability of [the
witness’] identification testimony.”). Defendant’s counsel cross-examined each witness on
the identification.
Defendant’s principal argument is that the prosecutor goaded the witnesses into
testifying that defendant resembled the bank robber even though all of the witnesses had
some difficulty identifying defendant as the robber. An identification is not unreliable
because it is phrased in uncertain terms. United States v. Peoples, 748 F.2d 934, 936 (4th
Cir. 1984), cert. denied, 471 U.S. 1067 (1985). We have previously held that there is no
deprivation of due process rights by requiring a defendant to wear a cap and dark glasses
worn by the bank robber for purposes of identification. Robertson, 19 F.3d at 1322-23; see
also Burnett v. Collins, 982 F.2d 922, 927 (5th Cir. 1993)(compelling defendant to provide
voice exemplar does not violate Fifth Amendment privilege against self-incrimination);
United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir. 1987)(district court did not
commit error in granting prosecutor’s request to have prisoner try on a jacket and hold up a
pair of pants to facilitate identification). Here defendant was required to rise and state his
name, address and age for a witness to make a voice comparison, II R. at 142-144; defense
counsel did not object.
-8-
That defendant was only one of two African-Americans in the courtroom for most of
the trial is not reversible error. See United States v. Davis, 103 F.3d 660, 670 (8th Cir.
1997), cert. denied, 117 S. Ct. 2424 (1997). If defendant had concern with the racial
composition of the courtroom, defendant could have requested the district court to reduce the
inherent suggestiveness of the in-court identifications by facilitating other seating
arrangements, ordering in-court lineups, and/or altering the racial composition of the
courtroom. Robertson, 19 F.3d at 1323; United States v. Matthews, 20 F.3d 538, 547
(2d Cir. 1994).4
We are persuaded that, considering the totality of the circumstances, the
identifications were “reliable even though the confrontation procedure was suggestive.”
Neil, 409 U.S. at 199; see also Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989). Each
witness on identification of defendant had an opportunity to view the defendant at the time
of the crime. See id. at 712. Although there was a time gap from the robbery on March 25,
1996, until trial on July 30, 1996, and the witnesses all had some inconsistencies as to
defendant’s identity as the robber, these factors do not require a reversal here. See id.
(underestimation of height and errors in not reporting tattoos to police not sufficient to make
in-court identifications unreliable).
4
We note that defense counsel may tactically decide not to request such procedures.
See Matthews, 20 F.3d at 547 (“counsel may well deem it preferable not to chance
bolstering the in-court identification of his client in any way, permitting counsel to argue to
the jury that the in-court identification was inherently weak.”).
-9-
The claim of ineffectiveness of counsel is DISMISSED WITHOUT PREJUDICE;
otherwise, the judgment of the district court is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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APPENDIX
We summarize below testimony of several government witnesses:
Holly Revelles
Holly Revelles testified she was an employee of Norwest Bank for about two years
as a teller. II R. at 124. She first started October 19, 1994, and started working at the
San Mateo Branch on Zuni Street in November 1994. She was working there on March 25,
1996.
She was helping a customer at about 10:10 that morning who was at her window.
She was interrupted by a gentleman who said, “Excuse me.” Id. at 127. She told him he
would need to wait because she was with a customer. This man seemed to hesitate and then
came forward and said, “Excuse me,” again. Id. at 128. Then he told her: “No, I don’t think
you understand. This is a bank robbery.”
Ms. Revelles identified in a photograph, Government Exhibit 1, the man who said it
was a robbery. Id. at 129. He was a gentleman with a baseball cap and a plaid shirt behind
her customer. The surveillance photograph said 9:20 a.m. Id. at 129. The fourth
photograph in Government Exhibit 1 showed the man handing her the backpack, and this
was when he instructed Revelles to put all of the money in the bag. The photo showed
Ms. Revelles as the teller. Id. at 130. She did not see a gun and the robber never said
anything about a gun. Id. at 131. She put almost $3,000 in the bag. Ms. Revelles said the
bank is insured by the FDIC. Id. at 132.
Ms. Revelles wears glasses and had them on at the time. Id. at 134. She was
approximately three feet from the robber and said she did get a good look at him. Id. at 135.
He was African-American, in his early twenties, and about 5'7" or 5'8" tall. Id. at 136. She
said that if she had told an FBI agent the robber was 6'1" that would be the height. Id. at
137. He was average in build. She did not see any facial hair.
Ms. Revelles testified she thought she would recognize the person who robbed her
about five months ago. Id. at 139. She was asked then to look around the room and she
identified a man at the counsel table. The prosecutor asked permission to have defendant
Hawkins rise, which was permitted. Ms. Revelles looked at him and then said: “Yes, I
would say that is him.” This was because of his features and skin tone, and his whole
appearance. Id. at 140. She did not see any distinctive tattoos on the robber. She said that
the man who stood was “in the same height category” as the robber. Id. at 141. Defendant
Hawkins had the same build as the robber and he had the same skin tone as the person who
i
robbed her. Id. at 141-42. The prosecutor asked: “Are you sure that Mr. Hawkins is the
robber, Ms. Revelles?” She replied, “Yes, I am.” Id. at 142. She said this was because of
his whole physical appearance and that “he looks like the person that robbed me.” Id. at
142.
The prosecutor asked whether there was anything distinctive about the robber’s
voice, and Ms. Revelles said his tone was “very nice, very cordial . . . the man who came in
just had a pleasant voice.” Id. at 143. The prosecutor asked if the court would instruct
defendant Hawkins to state his name, address and age, and with no objection by defense
counsel, Hawkins did so. The prosecutor then asked about the voice, and Ms. Revelles said,
“It strikes a memory in my mind of the voice that I heard when I was robbed. It is a familiar
voice.” Id. at 144. She concluded: “I am confident that this voice is similar to the man that
robbed me on that day . . . I would say it was the same voice.” Id. at 145.
Looking at a photograph of defendant, Revelles said she recognized him. She saw
there was a mustache on the picture, but said she did not recall seeing one the day of the
robbery. Id. at 146.
On cross-examination, Revelles said that the subject who committed the robbery
could have had a mustache. Id. at 148. Revelles testified that her recollection at trial was
the robber was 5'6" to 5'7", but he could have been 6'1". Her “recollection had diminished
over the period of time.” Id. at 151. Revelles said that looking at Hawkins, he was the same
height as the robber. Id. at 152. Revelles admitted that in his photo in Government
Exhibit 1, the subject was clean-shaven and with no mustache. Id. at 156.
Susan Denise Moore
Ms. Moore testified that she had been a bank teller at the Norwest Bank Branch on
San Mateo and Zuni Streets for some six months. She was working there on March 25,
1996. Id. at 109-110. At about 10:10 a.m. she was serving as a teller along with Holly
Revelles and Holly Roybal. She was shown Government Exhibit 1, a composite and the
fourth photograph in the series showed the three tellers and a person who robbed the bank.
Id. at 111. Moore was about two feet away from the point where the robbery took place.
Moore heard the robber say, “Give me the money.” But she did not see a gun or any
weapon. Id. at 112. Moore saw Revelles put the money in the bag, and then the robber ran
out the door. Id. at 112.
Moore got a “fairly good look at [the robber].” Id. at 113. The robber was average
in height, not taller than 6', and about 135 lbs. in weight. He was clean-shaven. Id. at 114.
ii
Ms. Moore was asked to look around the courtroom and whether anyone looked like
the person who robbed the bank. She replied: “I can’t say for sure.” Id. at 116. Defendant
was asked to rise, to which there was no objection. Moore was asked about similarities or
dissimilarities to the bank robber. She said his skin tone was the same: “He was good
looking. He wasn’t scruffy, about the same height, same build. I couldn’t say for sure that
that would be him.” Id. at 116. She did not see any distinctive tattoos on the robber. Id. at
117.
She testified that she had picked out photo number five on Government Exhibit 4
“because of the skin tone and the good looking characteristics.” Id. at 118. She was asked
about facial hair and she said she was sure there was none “on the sides,” but she did not
remember about a mustache. Id. at 119. On cross-examination she testified she had been
shown a photo lineup with six pictures on it. There was no suggestion made that the person
was in the photo lineup. Id. at 122. She did pick defendant Hawkins out on the photo
lineup because of his complexion and color. Id. at 122. She said she was asked whether
from looking at defendant Hawkins she could say he was the bank robber, and she replied:
“No, not for sure.” Id. at 123.
Holly Roybal
Holly Roybal had been employed at the Norwest Bank for ten months in the branch
at San Mateo on Zuni Street. A man came up to the teller next to her, Holly Revelles, and,
after a couple of minutes, said: “This is a robbery.” Id. at 162. In Government Exhibit No.
1, Roybal recognized herself and saw the person who ultimately robbed the bank. Id. at 163.
The man said: “This is a robbery.” And then he leaned on the counter. Id. at 164. She got
a good look at his face. He had a black hat and black sunglasses on. Id. at 165.
The robber was an African-American, probably 5'10" or 6' in height. Id. at 166. Ms.
Roybal saw a tattoo on the right side of his neck. Id. at 167. She said to the police that the
tattoo looked “like a grapevine or a picket fence.” Id. at 167. Looking at a photograph,
Government Exhibit No. 3, Roybal testified that she was almost positive it was the same
tattoo she saw on the bank robber. Id. at 169.
She was asked to look around the courtroom, and replied that she could not say from
the glasses and hat she remembered that the robber appeared to be there. She said, “I don’t
think it would be fair to point him out.” Id. at 170. She was asked about the defendant’s
relative build, which compared to the robber. She said he did fit the size, height and weight
of the robber but that she still could not say Hawkins was the robber: “I just don’t think that
is fair, I am sorry.” Id. at 173. On cross-examination, Ms. Roybal said she did not
remember the robber having any facial hair at all. Id. at 176. She remembered the tattoo
iii
looking like “a grapevine.” Id. at 176. On redirect, she was shown a photo in Government
Exhibit 3, and had no doubt it was the same tattoo she saw on the bank robber. Id. at 178.
Lori Figura
The government called Lori Figura as a witness for the prosecution. She testified she
is an FBI agent. II R. at 179. Ms. Figura is assigned to the Violent Crimes Reactive Squad,
which encompasses bank robberies. Id. at 180. She responded to the bank robbery at the
Norwest Bank on March 25th of 1996. She said that she arrived at the bank at approximately
11:00 or shortly after 11:00, and was accompanied by other FBI agents; she thinks that there
were three. Id. at 181. Then another joined, so that there were five agents in all.
When Ms. Figura and her fellow FBI agents got there at 11:00, Albuquerque Police
Department officers were already there, three of them. II R. at 181. Ms. Figura was the case
agent on this bank robbery. The Albuquerque Police Department and the FBI attempted to
locate the robber, searching the neighborhood. Id. at 183. The neighborhood search was
not successful.
Agent Figura received information making the defendant Hawkins a suspect and she
then obtained a photograph of Mr. Hawkins. She put it in a photo spread with five other
photographs. Id. at 184-85. She then took the photo spread over to the Norwest Bank to
show the two tellers, Holly Revelles and Holly Roybal. They identified position number five
as the suspect, the position in which the photo of Mr. Hawkins was placed in the photo
spread. This was on the day of the robbery. Id. at 185. Agent Figura then prepared an
affidavit for an arrest warrant for defendant Hawkins. Agent Figura was then asked and
identified Mr. Hawkins as sitting at the defense table. She said he was in position number
five on the photo spread. Id. at 186. The arrest of Mr. Hawkins occurred the next day,
March 26, about 4:25 p.m. Id. at 186. Agent Figura also prepared a search warrant for the
residence at which Mr. Hawkins lived with his parents at 1516 Williams. Other members
of the FBI executed the search warrant. Id. at 186.
The search began at 4:40 p.m. after the defendant’s arrest in the neighborhood around
his house where he was found a block away. Id. at 187. Agent Figura identified in her
testimony Exhibit 5, which was one of the photographs from the office where defendant was
photographed and processed the day after the bank robbery. Id. at 188. Exhibit 3 was
identified as a photo of defendant taken of the right side of defendant’s neck. Id. at 188.
Ms. Figura also received four photographs from the bank’s surveillance camera which are
represented in Government Ex. 1. Id. at 189. The counter was “dusted” for latent or
unknown fingerprints. One that was found did not match Mr. Hawkins’s print. II R. at 192.
iv
At the house on Williams Street, the agents searched defendant’s room and his
possessions and the rest of the residence. Id. at 193. Searching throughout the entire house,
nothing was found that related back to either the money or items of clothing identified in the
videotape or a Jansport Bag. Id. at 193. The same was true of the residence of the girlfriend
of defendant Hawkins. Nothing was found that would support what he was wearing or what
he had taken from the bank. Id. at 194.
Hawkins was taken back to the FBI office and was given his Miranda warnings from
a form. Hawkins waived his rights and gave a statement to Agent Figura. Id. at 194. This
was at approximately 4:45 or 4:50 p.m., when Hawkins began talking with the agents.
Agent Tresder asked the questions, and they talked with Hawkins for approximately 45 or
50 minutes. They asked Hawkins whether he had robbed the bank the day before, and he
said he did not. Id. at 196-97. He said he had awakened around 10:00 that day, when his
mother called him. Hawkins walked around the neighborhood for a while and then went to
his friend’s house around noon time.
On cross-examination, Agent Figura said they found about $137 at defendant’s
residence, but there were no $50 bills. Id. at 201. None of the bait money was found there.
A shirt that was seized was found not to be the correct shirt that defendant had warned. Id.
at 201. From the consensual search at the house of defendant’s girlfriend, no evidence was
seized. II R. at 202. So far as Agent Figura knew, defendant did not own any vehicle. Id.
The agents searched everywhere that they knew of where defendant might have stored any
money. Id.
The day Mr. Hawkins was arrested, he had a mustache. Id. at 203. The mustache on
defendant was about the same when Agent Figura saw him the day after the robbery as it
appeared in the courtroom. Id. Figura was asked to examine Government Ex. 2 and said
that this photo looked the way defendant did. His sideburns, mustache and everything were
a little cleaner, but almost the same as in the courtroom. Figura said the mustache was
clearly visible. Id. at 204. Agent Figura said that if she noted “clean-shaven,” that indicated
that the person interviewed did not specifically mention facial hair. Id. at 206. The photo
identified as Government Ex. 2 was one taken a few months earlier, at least. Id. at 206-07.
v