United States v. Beck ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30470
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00432-AJB
MICHAEL EMMETT BECK,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
September 13, 2004—Portland, Oregon
Filed August 10, 2005
Before: J. Clifford Wallace, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Gould
10341
10344 UNITED STATES v. BECK
COUNSEL
Christopher J. Schatz, Assistant Federal Public Defender,
Portland, Oregon, for the defendant-appellant.
Karin J. Immergut, United States Attorney, District of Ore-
gon, and Frank Noonan, Assistant United States Attorney,
Portland, Oregon, for the plaintiff-appellee.
UNITED STATES v. BECK 10345
OPINION
GOULD, Circuit Judge:
Michael Beck appeals several rulings of the district court
made during his trial for bank robbery pursuant to 18 U.S.C.
§ 2113(a). The district court denied Beck’s pre-trial motions
to exclude evidence of photograph identification and in-court
eyewitness identification of Beck, and also to prevent Beck’s
probation officer from giving lay opinion testimony identify-
ing Beck as the person in the bank’s surveillance photograph.
Beck also appeals the district court’s denial of his trial motion
to exclude the government from presenting rebuttal testimony
of an FBI agent. We have jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742(a)(1), and we affirm.
I
On May 1, 2000, a man approached a teller window at the
Lloyd Center Tower branch of Key Bank, located in Portland,
Oregon. Shantina Green was the teller at the window. The
man handed Green a note, and told her that he had a gun and
would kill her. The man told Green to give him cash in fifty
and one-hundred dollar bills, and not to give him any tracking
device. Green said that she did not have fifty or one-hundred
dollar bills, and the man told her to give him whatever she
had. Green complied and the man walked away. Green then
activated the bank’s security system, which took photos of the
robber as he walked out of the bank.
Three witnesses gave physical descriptions of the robber:
(1) Green, the teller; (2) William Zimmerman, a bank cus-
tomer who had entered the bank after the robber had entered;
and (3) Kenneth Grage, another teller working at the bank on
the day of the robbery. Green described the robber as a white
male, about six feet tall, thin, in his mid-thirties, clean-shaven,
with framed prescription glasses and black, curly, shoulder-
length hair. Zimmerman described the robber as male, white
10346 UNITED STATES v. BECK
or Native American, twenty-five to thirty years old, approxi-
mately six feet tall, with full, neatly cut, black hair. Grage
described the robber as male, possibly Hispanic or Filipino, in
his mid-twenties, about five feet, ten inches tall, with black,
wavy, collar-length hair.
On May 23, 2000, Edward Glover, Beck’s federal proba-
tion officer, was shown the photograph from the bank’s sur-
veillance system. Glover said that he believed Beck was the
person shown in the photograph. Beck was arrested that same
day.
FBI Special Agent Steven Whipple conducted a photo-
graphic spread line-up with the three eyewitnesses, Green,
Zimmerman, and Grage. Whipple showed each eyewitness a
bank surveillance photograph of the robber, and then asked
whether the eyewitness could identify the robber from any of
the individuals in a six-person photospread. Green selected
the person in position number “5” of the photospread as the
robber, which was Beck, and said that she was “sure it was
him.” Zimmerman also identified the man in position number
“5” of the photospread as the bank robber. Grage recognized
the robber from the surveillance photograph, but selected the
person in position number “2” as the man he thought was the
bank robber. The person Grage identified was not Beck.
On October 16, 2002, the grand jury for the District of Ore-
gon returned an indictment charging Beck with one count of
bank robbery, in violation of 18 U.S.C. § 2113(a). Beck was
arraigned on October 24, 2002.
Beck filed two motions in limine that are relevant to the
issues raised on this appeal: a motion to exclude eyewitness
identification testimony and a motion to exclude testimony by
Glover, Beck’s federal probation officer. The district court
conducted an evidentiary hearing to resolve these motions at
which Agent Whipple testified that he had used computer
software to generate the photospread. Whipple limited the
UNITED STATES v. BECK 10347
scope of the search to “a white male with glasses and black
hair.” Whipple narrowed the results to six individuals, based
on hair color, glasses, hair length, and a clean-shaven face.
Glover testified at the evidentiary hearing that he had four
contacts with Beck in the course of his work as Beck’s federal
probation officer: (1) February 9, 2000, for thirty minutes; (2)
February 28, 2000, for ten to twenty minutes; (3) March 21,
2000, for twenty to twenty-five minutes; (4) April 4, 2000, for
ten to fifteen minutes.
The district court denied both of Beck’s motions in limine.
Beck’s first jury trial began on April 15, 2003. The district
court declared a mistrial on April 17, 2003, after the district
court concluded that the jury was deadlocked. Beck’s second
jury trial began on July 22, 2003. The second jury returned a
guilty verdict the next day. Beck was given a 102-month sen-
tence and three years of supervised release.
II
We must decide whether the photospread, and the proce-
dure of showing the surveillance photograph to the eyewitness
before the photospread, were unduly suggestive. We also
must assess the extent of prior contact between a witness and
a defendant sufficient to render the witness’s lay opinion
admissible under Federal Rule of Evidence 701, in order to
decide whether probation officer Glover was properly permit-
ted to give lay opinion testimony. Finally, we must decide
whether the district court abused its discretion in admitting
Special Agent Whipple’s rebuttal testimony.
A
[1] Beck contends that the district court should have
excluded Green’s testimony regarding her out-of-court identi-
fication of Beck in the photospread because the composition
10348 UNITED STATES v. BECK
of the photospread was improperly suggestive.1 Suppression
of such evidence is appropriate only where the photospread
was “so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” United
States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
[2] The photospread in question was not impermissibly
suggestive. A review of the photospread shows that all six of
the pictures are of Caucasian males in the same age range,
with similar skin, eye, and hair coloring. Each photo depicts
a subject wearing distinctive glasses. Four of the six photos
show men with similar length hair, with two having somewhat
shorter hair. All except for one are clean-shaven. This photo-
spread was not so impermissibly suggestive as to create a sub-
stantial likelihood of misidentification. See Carbajal, 956
F.2d at 929 (holding that a photospread was not impermiss-
ibly suggestive where all six of the pictures in the photospread
“were of Hispanic males in the same age range, with similar
skin, eye, hair coloring,” and hair length, and each had a mous-
tache).2
[3] Beck further contends that the district court should have
excluded Green’s in-court testimony because Agent Whipple
improperly showed Green the bank surveillance photo before
showing her the photospread. We have held that “[p]ost-arrest
photographic displays are permissible if the procedure used
1
We review de novo the issue of whether out-of-court identification pro-
cedures were so suggestive as to violate a defendant’s due process rights.
United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991).
2
Beck’s arguments citing social science research about eyewitness iden-
tification do not persuade us in the precise context of this case. Although
such research may be relevant in deciding what constitutes an impermiss-
ibly suggestive procedure, that research does not convince us that the par-
ticular identification procedures used in this case create a substantial
likelihood of misidentification. The trial court did not abuse its discretion
in this case by admitting the identifications and allowing Beck to put on
his expert evidence before the jury, rather than excluding both from trial.
UNITED STATES v. BECK 10349
protects the rights of the accused.” United States v. Stubble-
field, 621 F.2d 980, 983 (9th Cir. 1980). Our precedent also
establishes that “[t]he rights of the accused are not jeopar-
dized when, as here, the recollection of an eyewitness is
refreshed by the use of photographs of the crime itself.” Id.We reject Beck’s contention because the surveillance pho-
tograph that Agent Whipple showed to Green depicted the
actual robber as he left the bank. See id. (observing that
“[l]ittle possibility of misidentification arises from the use of
photographs depicting the likeness not of some possible sus-
pect in the police files, but of the (persons) who actually com-
mitted the robbery”) (internal quotation marks omitted). In
Stubblefield we held that the rights of the accused were not
jeopardized because the government had not coerced the wit-
nesses to testify in a particular way, because the witness had
testified that her in-court identification was based on her
memory of the crime and not on the surveillance photographs,
and because the photographs shown to the witnesses were
those of the actual robber. Id. Beck’s rights were similarly not
jeopardized.
[4] We conclude that neither the photospread standing
alone nor Agent Whipple’s procedure of showing the eyewit-
nesses the surveillance photo of the robber before each wit-
ness scrutinized the photospread was impermissibly
suggestive. The photospread itself was assembled with a rea-
sonable, computer-assisted method, and displayed suspects
sharing sufficiently relevant characteristics so that the display
did not create a substantial risk of misidentification. More-
over, the display did not become impermissibly suggestive by
virtue of the prior disclosure to witnesses of the surveillance
photo of the actual bank robber; to the contrary, under our
precedent the procedure adopted permissibly protected the
rights of the accused.
10350 UNITED STATES v. BECK
B
Beck contends that the district court erred in admitting the
lay opinion testimony of his federal probation officer, Edward
Glover. At Beck’s second jury trial, Beck objected to the gov-
ernment’s introduction of Glover’s testimony under Federal
Rules of Evidence 403 and 701.3 The district court overruled
Beck’s objections, and directed Glover to testify but to con-
ceal from the jury his status as Beck’s probation officer.
Glover testified that he had a “professional relationship” with
Beck, and that he believed Beck was the person shown in the
bank surveillance photo.
Federal Rule of Evidence 403 provides that relevant evi-
dence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumu-
lative evidence.” Beck argues that the district court should
have excluded Glover’s testimony because testimony from a
law enforcement officer may be prejudicial. See, e.g., United
States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977). We
reject Beck’s argument because Glover merely testified that
he had a “professional relationship” with Beck, and not that
he was a law enforcement officer. Cf. United States v. Hen-
derson, 241 F.3d 638, 651 (9th Cir. 2001) (observing that
“there is no per se rule against [officer testimony identifying
a defendant in surveillance photographs]”). We hold that the
district court did not abuse its discretion in admitting Glover’s
lay testimony and properly balanced competing consider-
ations of evidentiary need and danger of unfair prejudice by
allowing Glover to testify and by directing Glover to conceal
his status as Beck’s probation officer.
3
We review for an abuse of discretion the district court’s resolution of
Beck’s Rule 403 objection. United States v. Gonzalez-Torres, 309 F.3d
594, 601 (9th Cir. 2002). We review for an abuse of discretion the district
court’s decision to admit lay opinion testimony. United States v. Matsu-
maru, 244 F.3d 1092, 1101 (9th Cir. 2001).
UNITED STATES v. BECK 10351
[5] Federal Rule of Evidence 701 provides that a non-
expert witness’s testimony “in the form of opinions or infer-
ences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, [and] (b)
helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue.” We have held that a lay
witness may give an opinion regarding the identity of a person
depicted in a photograph if that witness has had “sufficient
contact with the defendant to achieve a level of familiarity
that renders the lay opinion helpful,” United States v. Hender-
son, 68 F.3d 323, 326 (9th Cir. 1995), though we have not
provided clear guidance as to the extent of contact sufficient
to render lay opinion testimony rationally based and helpful
to the jury.4 Several of our sister circuits, however, have artic-
4
We have taken a case-by-case approach in deciding whether a lay opin-
ion witness had sufficient contact with the defendant to render the wit-
ness’s testimony helpful within the meaning of Rule 701:
In Henderson, we held that there was no abuse of discretion when a lay
witness testified to the defendant’s identity in surveillance photographs
and had known the defendant for more than four years, and had seen him
more than 100 times. 241 F.3d at 650-51.
In United States v. Holmes, 229 F.3d 782, 788-89 (9th Cir. 2000), we
held that there was no abuse of discretion where a lay witness had met the
defendant six times for at least thirty minutes each time.
In United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), we
held that the district court erred in admitting the lay opinion identification
testimony of a police officer who identified the defendant in robbery sur-
veillance photographs. The police officer had never met the defendant
before the robbery; his knowledge was based on review of photographs of
the defendant and the description of witnesses who knew the defendant.
Id. We reasoned that the police officer’s level of familiarity with the
defendant’s appearance fell short of that required by Ninth Circuit case
law and Rule 701’s requirement of helpfulness. Id.In United States v. Brannon, 616 F.2d 413 (9th Cir. 1980), we held that
the district court did not abuse its discretion in admitting the testimony of
four lay witnesses who identified the defendant as the person depicted in
robbery surveillance photographs. Two of the witnesses had not met the
defendant before the robbery. Id. at 417. We did not address explicitly
whether and why the testimony was “rationally based” or “helpful.”
10352 UNITED STATES v. BECK
ulated standards by which to assess whether a lay witness’s
testimony is rationally based and helpful to a jury. See, e.g.,
United States v. Pierce, 136 F.3d 770, 774-75 (11th Cir.
1998); United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir.
1995); United States v. Allen, 787 F.2d 933, 935-36 (4th Cir.
1986), vacated on other grounds by 479 U.S. 1077 (1987);
United States v. Jackson, 688 F.2d 1121, 1124-26 (7th Cir.
1982).
[6] We hold that a lay witness’s testimony is rationally
based within the meaning of Rule 701 where it is “based upon
personal observation and recollection of concrete facts.”
Allen, 787 F.2d at 935 (internal quotation marks omitted). As
have the Fourth and Seventh Circuits, we conclude that the
extent of a witness’s opportunity to observe the defendant
goes to the weight of the testimony, not to its admissibility.
Id. at 936; Jackson, 688 F.2d at 1125; see also Fed. R. Evid.
701 advisory committee’s note (indicating that direct and
cross-examination of a lay witness testifying as to his or her
opinion is relied upon to verify the accuracy of the testi-
mony).
[7] Our precedent provides that lay witness testimony is
permissible where the witness has had “sufficient contact with
the defendant to achieve a level of familiarity that renders the
lay opinion helpful.” Henderson, 241 F.3d at 650. In accord
In Butcher, we held admissible the lay opinion identification testimony
of two police officers and a probation officer who identified the defendant
as the culprit depicted in bank surveillance photographs. 557 F.2d at 670.
The witnesses had varying levels of prior contacts with the defendant: the
first officer had known the defendant for one and a half years and had met
the defendant about three times for a total of two and a half hours; the sec-
ond officer had known the defendant for five months and had observed the
defendant for between two and three hours; the probation officer had
known the defendant for just over one year, and had met the defendant
about twelve times with each meeting lasting between fifteen and thirty
minutes. Id. at 667 n.3.
UNITED STATES v. BECK 10353
with the decisions of our sister circuits, we hold that whether
a lay opinion is helpful depends on a totality of the circum-
stances including the witness’s “[f]amiliarity with the defen-
dant’s appearance at the time the crime was committed,”
Jackman, 48 F.3d at 5, the witness’s familiarity with the
defendant’s customary manner of dress, insofar as such infor-
mation related to the clothing of the person depicted in the
surveillance photograph, see Pierce, 136 F.3d at 774, whether
the defendant disguised his or her appearance during the
offense or altered his or her appearance before trial, id. at 775,
and whether the witness knew the defendant over time and in
a variety of circumstances, such that the witness’s lay identifi-
cation testimony offered to the jury “a perspective it could not
acquire in its limited exposure” to the defendant, Allen, 787
F.2d at 936.
The absence of any single factor will not render testimony
inadmissible because cross-examination exists to highlight
potential weaknesses in lay opinion testimony. See, e.g., Jack-
man, 48 F.3d at 5. Also, the governing standard under Federal
Rule of Evidence 701(b) assesses whether the lay witness
identification testimony is potentially “helpful to . . . the
determination of a fact in issue,” in the totality of the circum-
stances, see Pierce, 136 F.3d at 774-75 (holding that the
admissibility of lay witness identification testimony “turns on
a number of factors”), and this assessment does not hinge on
the presence of any particular factor.
[8] Here, Glover had met with Beck four times in a two-
month period, for a total of more than seventy minutes.
Glover had sufficient contacts with Beck so that Glover’s per-
ception of the person in the bank surveillance photo was help-
ful to a clear understanding of the determination of a fact in
issue, that is, the identity of the person in the bank surveil-
lance photo. We hold that the district court did not err in
determining that Glover’s lay opinion identification testimony
was rationally based and helpful to the trier of fact, and the
10354 UNITED STATES v. BECK
district court did not abuse its discretion in admitting Glover’s
testimony.5
C
Beck contends that the district court erred in admitting the
government’s rebuttal testimony from Agent Whipple regard-
ing the procedures Whipple used in creating the photospread.6
There is no dispute that Beck introduced at trial Dr. Daniel
Reisberg’s expert testimony concerning alleged deficiencies
in the photospread regarding its methodology and use. Beck
“opened the door” to the government’s rebuttal testimony by
raising, in Dr. Reisberg’s testimony, the specific issue of
whether the methodology used by Whipple made the photo-
spread inappropriately suggestive. We hold that the district
court did not abuse its discretion in admitting rebuttal testi-
mony from Agent Whipple.
5
At the hearing on the motion in limine, Glover stated that he knew that
someone thought that Beck was depicted in the surveillance photograph
before the photograph was shown to him. However, Glover stated at trial
that he had viewed the photograph and formed an opinion concerning its
depiction of Beck before he was advised that Beck had been identified in
the photograph by another person. Beck contends that his Sixth Amend-
ment right to cross examination was violated by the combination of Glov-
er’s change of testimony at trial, compared to his prior testimony at the in
limine evidentiary hearing, and the district court’s procedure of concealing
from the jury Glover’s status as Beck’s probation officer. Alleged viola-
tions of the Sixth Amendment’s Confrontation Clause are reviewed de
novo. Lilly v. Virginia, 527 U.S. 116, 136-37 (1999). We reject Beck’s
constitutional argument because Beck elicited cross-examination testi-
mony from Glover acknowledging that Glover’s testimony at trial differed
from that at the evidentiary hearing; this issue goes to weight of testimony
and does not amount to a Sixth Amendment Confrontation Clause viola-
tion.
6
We review for an abuse of discretion a district court’s admission of
rebuttal evidence. United States v. Antonakeas, 255 F.3d 714, 724 (9th
Cir. 2001).
UNITED STATES v. BECK 10355
III
The district court did not err in admitting the in-court iden-
tification testimony of Green because the pretrial identifica-
tion procedures were not so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misi-
dentification. Neither did the district court abuse its discretion
in admitting the lay opinion identification testimony of Glover
because Glover’s testimony was rationally based and helpful
to the determination of a fact in issue. Likewise, the district
court did not abuse its discretion in allowing Agent Whipple’s
rebuttal testimony to rehabilitate the methodology of the
FBI’s photospread procedures.7
[9] Although Beck did not initially raise the issue on
appeal, the district court sentenced Beck under the premise
that the United States Sentencing Guidelines were mandatory.
We now know the Guidelines are advisory. United States v.
Booker, 125 S. Ct. 738, 755-56 (2005). Pursuant to United
States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en
banc), we ordered the parties to file supplemental briefs. Beck
indicated that he wishes to pursue a remand. Id. (“If an eligi-
ble party seeks resentencing under Booker/Fanfan, we will
then engage in the plain error analysis described in this opin-
ion.”); see also United States v. Moreno-Hernandez, No. 03-
30387, 2005 WL 1560269, at *9 (9th Cir. July 5, 2005).
Because the record does not indicate what sentence the dis-
trict court would have imposed had the Guidelines been
employed in an advisory capacity, we must remand this case
to the district court. Moreno-Hernandez, 2005 WL 1560269,
at *9; United States v. Barken, No. 03-50441, 2005 WL
1501496, at *6 (9th Cir. June 27, 2005).
Conviction AFFIRMED; sentence REMANDED.
7
Because the district court did not err on any of the grounds asserted by
Beck, we also reject Beck’s contention that the cumulative effect of the
alleged errors of the district court denied him a fair trial.