United States v. Nicholson , 89 F. App'x 371 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4133
WILLIAM HENRY NICHOLSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-02-119, CR-02-216)
Submitted: October 29, 2003
Decided: December 22, 2003
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michelle D. Reingold, Clemmons, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Lisa B. Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NICHOLSON
OPINION
PER CURIAM:
William Henry Nicholson and Michael Daniel Hammonds were
indicted for the January 2, 2002, robbery of $61,857 from the First
Citizens Bank of Archdale, North Carolina. Nicholson was indicted
for the March 13, 2002, robbery of $10,561 from the Fidelity Bank
of Mebane, North Carolina. Nicholson was found guilty by a jury of
two counts of bank robbery, 18 U.S.C. § 2113(a) (2000), two counts
of armed bank robbery, 18 U.S.C. § 2113(d) (2000), and two counts
of carrying and using a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(ii) (2000). Nicholson, in a timely appeal, raises three
issues related to the evidence introduced against him at trial. Finding
no reversible error, we affirm.
First, Nicholson asserts that the evidence offered by a teller, Debo-
rah Manzoor, who was present at the January 2, 2002, robbery of
Centura Bank, was based on an impermissibly suggestive out of court
photographic identification. Because Nicholson did not object to the
photographic line-ups as suggestive prior to his appeal, the issue is
reviewed for clear error. See United States v. Olano, 507 U.S. 725,
731-32 (1993) (providing standard).
In the first photographic line-up, Manzoor identified a picture of
Nicholson’s brother as the robber, but noted the man in the picture
appeared older than the robber. After ruling out Nicholson’s brother
as a suspect, police conducted a second photographic line-up. Nichol-
son contends that the second photographic line-up was impermissibly
suggestive because his photograph was substituted for the picture of
his brother contained in the first photographic array. See Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994). At the second photographic
line-up, Manzoor positively identified the picture of William Nichol-
son as the second robber, stating "it gave me cold chills and brought
everything back." Nicholson has failed to show error in the composi-
tion of the photographic array. Even if the substitution of William’s
picture for his brother’s picture occurred as Nicholson asserts on
appeal, four months elapsed between the two line-ups. There is no
evidence that Manzoor chose either picture because of its position in
the array. Nicholson also fails to demonstrate that his substantial
UNITED STATES v. NICHOLSON 3
rights were affected by the identification by Manzoor in the face of
the testimony by Nicholson’s co-defendant, Hammonds, that Nichol-
son was the other robber.
Nicholson did object at trial to the admission of Manzoor’s in-court
identification as improper based on her identification of two different
individuals in the photographic line-ups and the presence of Nichol-
son as the only defendant and the only black male at the defense table.
The district court, after voir dire examination of Manzoor, found her
identification to be admissible under the criteria established in Neil v.
Biggers, 409 U.S. 188, 199-200 (1972). In-court identifications are
not per se impermissibly suggestive. See United States v. Bennett, 675
F.2d 596, 597-98 (4th Cir. 1982) (holding that propriety of in-court
identification procedure is determined by trial court in exercise of its
discretion, and trial court did not abuse its discretion when it admitted
into evidence in-court identification of defendant, who was only black
male in courtroom). Accordingly, we find the district court did not
abuse it discretion in admitting Manzoor’s testimony.
Second, Nicholson contends the admission of evidence that a simi-
lar robbery of Centura Bank in Asheboro, North Carolina was com-
mitted by Hammonds and Nicholson on December 17, 2001, and
evidence that Nicholson and Hammonds were arrested in response to
a report of an attempted robbery of First Citizens Bank in Fort Mill,
South Carolina, on May 29, 2002, was irrelevant and highly prejudi-
cial. The court found the proffered evidence to be probative of iden-
tity and not unduly prejudicial. Fed. R. Evid. 404(b). United States v.
Queen, 132 F.3d 991, 995 (4th Cir. 1997). The court also gave a limit-
ing instruction that satisfied the defense. Rule 404(b) decisions are
not reversed unless they are arbitrary and irrational. United States v.
Powers, 59 F.3d 1460, 1464-65 (4th Cir. 1995). We find the district
court did not abuse its discretion in admitting the evidence of Ham-
monds and Nicholson’s arrest and Hammonds’ testimony regarding
the robberies. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
Nicholson objected to the admission of testimony of Stephanie
Eden, a teller at Centura Bank. Eden identified Hammonds as one of
the men in the surveillance photographs but failed to identify Nichol-
son. Eden’s testimony was further colored by her emotional recount-
ing of the manner in which the robbery was committed. Assuming, as
4 UNITED STATES v. NICHOLSON
Nicholson suggests, that the district court improperly admitted Eden’s
testimony, we find that any error was harmless. See United States v.
Ince, 21 F.3d 576, 583 (4th Cir. 1994) (providing standard).
Finally, Nicholson contends the district court erred in its denial of
his motion to exclude the evidence from the warrantless search of the
apartment leased to his fiancee, Allison Fox. This court reviews the
factual findings underlying the denial of a motion to suppress for
clear error, while reviewing the legal determinations de novo. United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a suppres-
sion motion has been denied, review of the evidence is made in the
light most favorable to the government. United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998). The district court found that although
Nicholson lived in the apartment, Fox was the leaseholder of the
apartment and had access to the entirety of the property. The district
court further found that Fox had standing to grant consent to search
the entire apartment and that Nicholson had no expectation of privacy
in the hall utility closet. The district court did not err in these findings
and properly denied the motion to suppress.
Accordingly, we affirm Nicholson’s convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument will not aid
in the decisional process.
AFFIRMED