United States v. Emanuele

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-28-1995
United States v Emanuele
Precedential or Non-Precedential:
Docket 94-3283
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 94-3283
_____________________
United States of America,
v.
Joseph Arthur Emanuele,
Appellant.
_____________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 94-cr-3)
_____________________
Argued January 31, 1995
Before: SCIRICA, ROTH, and SAROKIN, Circuit Judges
(Filed March 28, l995)
_____________________
Thomas S. White
Federal Public Defender
Michael D. Bartko (argued)
Karen S. Gerlach
Assistant Federal Public Defenders
415 Convention Tower, 960 Penn Ave.
Pittsburgh, PA 15222
Attorneys for Appellant
Frederick W. Thieman
United States Attorney
Bonnie R. Schlueter
Assistant United States Attorneys
633 United States Post Office &
Courthouse
Pittsburgh, PA 15219
John T. Bannon, Jr. (argued)
General Litigation & Legal Advice
Section, Criminal Division
P.O. Box 887 Ben Franklin Station
Washington, D.C. 20044
Attorneys for Appellee
____________________
OPINION OF THE COURT
_____________________
SAROKIN, Circuit Judge:
Defendant was convicted of two counts of bank robbery in
violation of 18 U.S.C. §2113(a). He appeals on the grounds that
as to the central issue, identification, the district court erred
by (1) permitting in-court identification testimony by the two
key witnesses, after they had observed defendant in shackles
escorted by U.S. Marshals and then discussed his identity; (2)
denying the defendant's motion for a line-up prior to the
testimony of the two witnesses; and (3) ordering defendant to
shave his moustache, put on glasses supplied by the government,
and stand before the jury.
The district court had jurisdiction pursuant to 18 U.S.C.
§3231. Defendant filed a timely notice of appeal, and we have
jurisdiction pursuant to 28 U.S.C. §1291.
I.
Defendant Joseph Arthur Emanuele was convicted of robbing
two Integra Banks, the "Millvale Bank" and the "Waterworks Bank".
Martha Hottel, a teller, observed the man who robbed the Millvale
Bank standing at a writing table before he came to her window and
demanded money. Five weeks later, when shown a six-photo array,
she selected a photograph of the defendant but stated that she
"wasn't one hundred percent sure" of her choice. Appendix
("App.") at 44. When shown a second array several weeks later,
Hottel selected the photograph of someone other than defendant.
The bank's security cameras malfunctioned without photographing
the robber, and latent fingerprints from the writing table and
bank door did not match those of defendant.
The man who robbed the Waterworks Bank demanded money from
Lorraine Woessner, a teller. Woessner observed the man for
several minutes at close range in the well-lit bank lobby. Shown
a six-photo array that included a photograph of defendant
shortly after the crime, Woessner was unable to identify the
robber. App. at 44, 48. The one fingerprint taken from the
Waterworks Bank did not match that of defendant, but the
Waterworks Bank security cameras did photograph the robber.
The two tellers were subpoenaed by the government to
testify, and after checking in at the U.S. Attorney's Office,
they were directed to sit outside the courtroom. There, the
tellers saw defendant led from the courtroom in manacles by U.S.
Marshals. Though later Woessner could not remember for certain
who had spoken first, outside the courtroom the two tellers
talked to each other about defendant, telling each other "it has
to be him." App. at 135.
Having learned of the encounter, defendant's attorney moved
to suppress the tellers' anticipated in-court identification
testimony as violative of defendant's right to due process, or in
the alternative, for a court-ordered line-up. The government
conceded that it had been "careless," App. at 52, but argued that
because the confrontation was inadvertent no constitutional
violation had occurred.
The court denied the motion as to the testimony of Hottel,
the teller who had identified defendant's photograph in one
photospread but selected someone else in another. App. at 73,
82. As to the testimony of Woessner, who had failed to identify
defendant's photograph in the only array she was shown, the court
held a hearing out of the presence of the jury and ruled that the
second teller's identification testimony was admissible. The
court made no specific findings of fact. Both tellers took the
stand and identified defendant as the robber.
During trial, three government witnesses, who knew
defendant, testified that he was the person in the Waterworks
Bank surveillance photographs, and three defense witnesses, who
also knew him, testified that defendant was not the person in the
photographs. An expert witness, a surgeon, testified that he had
compared the dimensions of defendant's face with those of the
face of the robber in the Waterworks Bank photographs and
determined that defendant could not be the robber in the
pictures. Two government experts testified in rebuttal that the
surgeon's calculations were unreliable.
Defendant also challenges the district court's order
requiring him to shave his moustache and put on glasses similar
to ones worn by the Waterworks robber. At trial, the court had
defendant wearing the glasses stand silently before the jury,
which was instructed that "these are not glasses that were found
anywhere. They have been supplied by the government." App. at
338. No witness was on the stand at the time.
After his conviction, defendant moved for a new trial based
on the admission of the tellers' identification testimony and the
orders to shave and wear glasses. The court held another
hearing, at which time two receptionists from the U.S. Attorney's
Office testified that they had told the tellers to sit outside
the courtroom, as is the government's custom, without any
specific instruction from the prosecutor on the case. The court
denied the motion for a new trial. App. at 680-83.
II.
As with many evidentiary rulings, we review a decision to
admit identification testimony over an objection for abuse of
discretion. Government of Virgin Islands v. Riley, 973 F.2d 224,
226 (3d Cir. 1992). Where a motion to suppress has been denied,
we review the order "for clear error as to the underlying facts,
but exercise plenary review as to its legality in the light of
the court's properly found facts." United States v. Inigo, 925
F.2d 641, 656 (3d Cir. 1991). If the admission of identification
testimony violated the due process clause, as defendant contends,
then we will consider whether this constitutional error was
harmless. Foster v. California, 394 U.S. 440, 444 (1969).
A. Admissibility of identification testimony
A government identification procedure violates due process
when it is "unnecessarily suggestive" and creates a "substantial
risk of misidentification." Riley, 973 F.2d at 228. See United
States v. Stevens, 935 F.2d 1380, 1391-92 (3d Cir. 1991); United
States v. Dowling, 855 F.2d 114, 117 (3d Cir. 1988), aff'd, 493
U.S. 342 (1990); Neil v. Biggers, 409 U.S. 188, 198-99 (1972).
But see Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991)
(standard is "'very substantial likelihood of irreparable
misidentification'")(quoting Manson v. Brathwaite, 432 U.S. 98,
116 (1977) and Simmons v. United States, 390 U.S. 377, 384
(1968)), cert. denied, 112 S. Ct. 1679 (1992). A "suggestive and
unnecessary identification procedure does not violate due process
so long as the identification possesses sufficient aspects of
reliability," for reliability is the "linchpin in determining the
admissibility of identification testimony." Brathwaite, 432 U.S.
at 106, 114. See also Reese, 946 F.2d at 258 (suggestive
interaction that creates no risk of misidentification does not
violate due process).
To determine reliability, we examine the identification
procedure in light of the "totality of the circumstances."
Riley, 973 F.2d at 228. These circumstances may include the
witness' original opportunity to observe a defendant and the
degree of attention during that observation; the accuracy of the
initial description; the witness' degree of certainty when
viewing a defendant or his image; and the length of time between
the crime and the identification procedure. Biggers, 409 U.S. at
199-200; Brathwaite, 432 U.S. at 114; Riley, 973 F.2d at 228;
Reese, 946 F.2d at 258; Dowling, 855 F.2d at 117.
Several aspects of the reliability inquiry deserve comment.
First, this court suggested in Reese that to determine
reliability we may also consider other evidence of the
defendant's guilt, Reese, 946 F.2d at 259, n.7, a principle we
applied in Riley as well. 973 F.2d at 228. The suggestion is
contrary to the Supreme Court's guidance in Brathwaite that other
evidence indicating a defendant's guilt "plays no part in our
analysis" of reliability. Brathwaite, 432 U.S. at 116. Justice
Stevens emphasized the point in his Brathwaite concurrence,
applauding the majority opinion which "carefully avoids this
pitfall and correctly relies only on appropriate indicia of the
reliability of the identification itself." Brathwaite, 432 U.S.
at 118 and note (Stevens, J., concurring). We caution,
therefore, that only factors relating to the reliability of the
identification will be relevant to a due process analysis.
Independent evidence of culpability will not cure a tainted
identification procedure, nor will exculpatory information bar
admission of reliable identification testimony. We will consider
other evidence only to determine whether an error, if present,
was harmless. Brathwaite, 432 U.S. at 118, note (Stevens, J.
concurring).
Second, we note that the standard enunciated for reliability
in Riley differs from that applied in Reese. Compare Riley, 973
F.2d at 228 ("substantial risk of misidentification") with Reese,
946 F.2d at 258, 262 ("very substantial likelihood of irreparable
misidentification"). As in Riley, our phrasing of the standard
in Stevens and Dowling omitted the requirement of irreparability.
Stevens, 935 F.2d at 1391-92; Dowling, 855 F.2d at 117. We
conclude that our most recent statement of the standard, that of
Riley, like our phrasings in Stevens and Dowling, most accurately
reflects Supreme Court precedent. Thus, we must decide whether
there exists a "substantial risk of misidentification."
Third, previous courts, as the district court here, have
wrestled with the degree of government complicity in a suggestive
procedure that is necessary to implicate the due process clause.
Where the alleged taint concerns the composition of a line-up or
photospread, the government's involvement is clear; where the
challenge concerns an encounter between witness and defendant on
the street, in the courthouse, or at a prison, some courts have
held that the government cannot be held responsible. See, e.g.,
Reese, 946 F.2d at 261 (procedure proper where no evidence that
courthouse encounters "were deliberately arranged by the
government"); Stevens, 935 F.2d at 1390 n.11 (quoting Wilson v.
Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985)(defendant must "show
that the government's agents arranged the confrontation or took
some action during the confrontation which singled out the
defendant")).
We hold that the government's intent may be one factor in
determining the risk of misidentification, but it is not an
essential element of defendant's burden of proof. A series of
events that is suggestive and creates a substantial risk of
misidentification is no less a due process violation, even absent
evil intent on the part of the government. Stated differently,
governmental intent is one of many factors in the totality of
circumstances, but we expressly do not require defendant to
establish the government's state of mind. On the other hand,
evidence that the government intended and arranged such an
encounter would be a substantial factor in the court's analysis.
B. Application
At the suppression hearing the district court determined
neither whether the courthouse encounter was unnecessarily
suggestive nor whether there was a substantial risk of
misidentification. To the extent it considered the courthouse
encounter, the court focussed on the government's intent. See
App. at 72, 87-88.1 Regarding the risk of misidentification, the
court made no findings as to the Biggers factors and in fact
instructed counsel that Woessner should "testify only on the
issue of what happened yesterday." App. at 90. At the close of
the hearing the court held:
Okay. I'm going to allow Miss Woessner to testify and I'm
going to deny the request for the lineup at this point,
based on this witness' testimony that she has an independent
basis of her identification of the defendant.
App. at 138.
In essence, the district court relied on Woessner's
testimony that notwithstanding the suggestive circumstances, she
recognized the defendant.2 That testimony alone, even if
believed by the trial court, would not be dispositive. Indeed,
if Woessner did not so testify, the issue would not even arise.
All of these instances are predicated upon a witness' insistence
that an identification can be made notwithstanding suggestive
circumstances, and there is frequently a good faith belief by the
1In its only writing on the topic, denying the motion for a
new trial, the court concluded:
[A]n incident occurred which did not involve a deliberate
attempt by the Government to obtain a suggestive
identification by any witness . . . What occurred was an
inadvertent and unplanned viewing . . . the Court finds that
. . . this was not an identification procedure designed and
manufactured by the Government to bolster the witnesses'
testimony at trial . . .
May 3, 1994 Order, App. at 683 (emphasis added).
2
The dissent quite properly refers us to this testimony.
witness in such ability. However, the sincerity or truthfulness
of the witness must be considered along with the other Biggers
factors in order to determine whether the risk of
misidentification still exists, notwithstanding a witness'
testimony to the contrary. The trial court failed to consider
the "totality of the circumstances," such as in this case the
inability of the witness to recognize defendant in a photospread
despite a sufficient opportunity to observe the robber at close
range. The court thus failed to apply the correct legal
standard. Because the factual record is complete and
uncontroverted, however, we need not remand for further fact-
finding. We will apply the appropriate standard to the
undisputed facts.
We evaluate first whether the interaction was unnecessarily
suggestive. It is undisputed that the two tellers were sitting
outside the courtroom because the U.S. Attorney's receptionists
had told them to be there, and that defendant was walked past
them in handcuffs with a U.S. Marshal on each shoulder.
Defendant had not asked to leave the courtroom -- he was ordered
out when the court granted the government's motion to have
defendant shave.
In the face of these events, the government directs our
attention to Reese, where we concluded that it was not
impermissibly suggestive for a victim to glimpse defendant three
times in and around a courthouse. 946 F.2d at 261-62. Our
analysis in Reese cited to and relied on United States v. Domina,
784 F.2d 1361, 1369-70 (9th Cir. 1986), cert. denied, 479 U.S.
1038 (1987), a decision which held that it was not unduly
suggestive for a victim to view a defendant leaving the courtroom
during recess, because the defendant was not handcuffed, not
escorted by marshals, and not otherwise singled out. The
circumstances here fit cleanly within the Domina exceptions cited
in Reese, 946 F.2d at 261.
Nor are we persuaded by the government's invocation of two
Eighth Circuit cases, United States v. Wade, 740 F.2d 625 (8th
Cir. 1984), which we discussed in Reese, and United States v.
Boykins, 966 F.2d 1240 (8th Cir. 1992), because each involve
facts different from those here. Wade concerned a witness who,
while looking into a courtroom from outside, was asked "in a
nonleading fashion, shortly before she [took] the stand, whether
she can identify a person." Wade, 740 F.2d at 628. The Eighth
Circuit decided this was "the same question she will be asked
while testifying" and was not impermissibly suggestive. Ibid.
In Boykins, a witness recognized a defendant while walking to the
courtroom and informed the prosecutor, who then accompanied the
witness down the courthouse hallway to confirm the
identification. Boykins, 966 F.2d at 1242. In Boykins the
government did not single out the defendant. Furthermore, the
failure of the witnesses in Wade and Boykins to identify a
defendant in a previous photospread goes to the risk of
misidentification, not the suggestiveness of the courthouse
confrontation.
We conclude that the confrontation was caused by the
government, albeit inadvertently, and that to walk a defendant --
in shackles and with a U.S. Marshal at each side -- before the
key identification witnesses is impermissibly suggestive.
The more difficult question is whether this impermissibly
suggestive confrontation created a "substantial likelihood of
misidentification," in light of the totality of circumstances.
Riley, 973 F.2d at 228. First, though we will consider the
reliability of each teller's testimony separately, we note
several Biggers factors common to both: the two tellers (a) had
several minutes to observe the robber, (b) at close range, (c) in
a well-lit space. We agree with the government that the
unobstructed view of both tellers during the robberies would
strengthen the reliability of their testimony. But this point
also supports defendant's position. The tellers' protracted and
clear view of the robber highlights Woessner's failure to select
defendant's photo in the array and Hottel's choice of a different
photo in the second array shown her.
Second, Woessner testified that she recognized defendant
immediately upon seeing him in the hallway. We will assume that
her testimony was truthful and sincere.
Third, in the courthouse the two tellers observed defendant
together and immediately spoke to each other about his identity,
prior to their testifying. This conversation may well have
overwhelmed any doubts Hottel or Woessner retained after
observing defendant in the hallway, though given the indication
that Hottel spoke to Woessner first, it is the reliability of
Woessner's identification that is more impugned. Woessner
testified:
Q Did Miss Hottel tell you that was him?
A Ah, not right away, only when he was down the hall she
mentioned that. I mean, she spoke very softly and said that
she, she was very upset because she didn't remember -- she
didn't think she remembered what he looked like, but when
she saw him she knew exactly that's who it was.
. . .
Q She didn't say that was him to you?
A I think we both looked at each other and we were kind
of it's, it has to be him (witness nodding.) . . .
App. at 134-35.
Finally, we consider a crucial difference between the
circumstances of each teller's identification: the strength of
the initial identification. As we noted in Reese, whether
subsequent viewings create a substantial risk of
misidentification may depend on the strength and propriety of the
initial identification. 946 F.2d at 262-63. Upon viewing her
first photospread, Hottel recognized defendant as the robber.
Her slight qualification -- not being "one hundred percent sure"
-- does not significantly diminish the import of that
identification, nor does her subsequent selection of the
photograph of another person in a second array. In contrast,
having scrutinized an array that included his photograph,
Woessner failed to identify defendant as the robber. All the
photospreads were viewed close in time to the respective
robberies.
Thus, we face a situation in which the one eye-witness who
would be able to identify the Waterworks robber and place
defendant at the scene of the crime, could not, despite her
opportunity to observe, recognize him in a photo array. That
failure, coupled with the highly suggestive viewing of the
defendant in conditions reeking of criminality, bolstered by the
comments of another witness, render the in-court identification
unreliable. The reaction "it has to be him" greatly diminishes
the reliability of Woessner's identification and renders manifest
the impact of her viewing defendant. In effect, the viewing
communicated to the witness that the defendant was the robber,
and there was no reliable evidence that she would have so
concluded or testified absent that viewing.
Under such suspect circumstances, there clearly was a
substantial risk of misidentification.3 It was thus an abuse of
3
Even were we to require proof that the risk of
misidentification by Woessner was irreparable, Reese, 946 F.2d at
258, 262, our conclusion would be no different. Had the district
court granted defendant's request for a line-up, the risk could
perhaps have been "repaired," but under the facts of this case,
the denial of the motion for a line-up for Woessner was an abuse
of discretion. See United States v. Sebetich, 776 F.2d 412, 420-
21 (3d Cir. 1985) (line-up or similar procedure should "be
employed whenever necessary to ensure the accuracy and
discretion to admit Woessner's in-court identification testimony,
in violation of defendant's right to due process. As to Hottel,
we conclude that her identification was reliable, and thus the
admission of her testimony was not an abuse of discretion.
C. Harmless error analysis
We must determine whether the admission of Woessner's
identification testimony, which we have determined to be a
constitutional error, was harmless. Foster, 394 U.S. at 444. We
inquire whether the government has shown "beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained." Chapman v. California, 386 U.S. 18, 24
(1967). "To say that an error did not contribute to the verdict
is . . . to find that error unimportant in relation to everything
else the jury considered on the issue in question, as revealed in
the record." Yates v. Evatt, 500 U.S. 391, 403 (1991). See also
United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994).
Because we recognize the risk that Woessner's testimony about the
Waterworks robbery may have had a spill-over effect on the
Millvale robbery verdict, we will consider its impact on both
convictions.
1. Waterworks conviction
reliability of identifications"), cert. denied, 484 U.S. 1017
(1988). Woessner's observation of defendant from the stand has
destroyed the curative capacity of a line-up, and to remand for a
line-up at this juncture would neither assist the court in
determining the reliability of Woessner's testimony nor vindicate
defendant's constitutional rights.
Apart from the contested surveillance photographs, there is
no physical evidence linking defendant to the Waterworks robbery.
The government refers us to evidence that defendant had an
expensive drug addiction and unexplained income, as well as his
post-arrest comment to another inmate that he would "beat the
case." The government also relies on testimony of three persons,
each of whom knew defendant, that he was the person in the
Waterworks surveillance photographs. Of the government's three
witnesses, one testified he had seen defendant only two or three
times; the second was an admitted drug user on probation for a
prior drug conviction; and the third was a convicted drug
offender with pending charges for drug and prostitution offenses.
App. at 166, 180, 191-93.
In his defense, defendant's mother and two friends testified
that he was not the person in the surveillance photographs. App.
at 344-45, 350, 362. Defendant also introduced expert testimony
from a surgeon who had compared the dimensions of defendant's
face to those of the robber in the surveillance photographs and
concluded that he was "100 percent certain that they are not the
same two people." App. at 407-08. In rebuttal, two government
experts testified that the calculations made by defendant's
expert were unreliable.
Woessner's testimony was crucial evidence on the robber's
identity, the only issue at trial, and we cannot conclude that
her testimony was "unimportant in relation to everything else the
jury considered" on the issue. Yates, 500 U.S at 403. A
conviction should not be permitted to stand under such
circumstances, and accordingly, we conclude that the error was
not harmless.
Heeding the advice of Justice Black in his Foster dissent,
we will clarify the proceedings to follow. Foster, 394 U.S. at
445 (Black, J. dissenting) (where appellate court vacates
conviction for unconstitutional admission of identification
testimony, court should specify which testimony by witness is
barred at retrial). First, because the hearings on defendant's
motions to suppress and for a new trial elicited all the relevant
facts and left nothing in dispute, another hearing on the
reliability of Woessner's identification testimony is
unnecessary. Second, on remand for a new trial, the district
court is directed to exclude in-court and out-of-court
identification testimony by Woessner. To admit evidence of
Woessner's recognition of defendant in the courthouse hallway
would violate the due process clause for the same reasons as did
admission of the in-court identification testimony. Third,
subject to any other objections not herein considered, we do not
limit the ability of the government or defendant to question
Woessner on other aspects of the case, including the robbery
itself, her initial description, and her failure to select
defendant's photograph from the array.
2. Millvale conviction
As to the identity of the Millvale robber, Woessner's
testimony was not directly relevant: she identified the
Waterworks robber and said nothing about the Millvale robbery.
The court recognizes, however, that there is a slight risk that
Woessner's identification of defendant tended to buttress that of
Hottel. However, we are satisfied that such risk is minimal and
the error harmless because of the other evidence supporting
defendant's conviction for the Millvale robbery. In addition to
the same circumstantial evidence of defendant's drug addiction,
unexplained income, and jailhouse statements, there was properly
admitted in-court identification testimony by Hottel and evidence
that she had recognized defendant in the first photo-array. That
identification testimony, as stated previously, was supported by
her opportunity to observe the robber.
We conclude that Woessner's identification was unimportant
in relation to all else the jury considered on the issue of the
Millvale robber's identity, and hence the admission of Woessner's
testimony was harmless error in that conviction.
III.
Over defendant's objection that it would violate due process
and Fed.R.Evid. 403, the district court ordered the defendant to
shave and to stand before the jury wearing a pair of glasses that
resembled those worn by the robber and that were supplied by the
government. Rule 403 provides: "Although relevant, evidence may
be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice . . . or misleading the jury."
In other cases, defendants have unsuccessfully invoked the
Fifth Amendment privilege against self-incrimination to challenge
motions requiring them to shave or put on clothing. See Holt v.
United States, 218 U.S. 245, 252-53 (1910) (order to wear
blouse); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th
Cir. 1983) (order to shave); United States v. Lamb, 575 F.2d
1310, 1316 (10th Cir.) (order to shave), cert. denied, 439 U.S.
854 (1978).
Here, defendant raises a due process objection to the
orders. Some courtroom practices so deprive a defendant of his
Sixth Amendment right to a fair trial that they implicate the due
process clause. See Estelle v. Williams, 425 U.S. 501, 505-06
(1976)(compelling defendant to appear in prison uniform
unconstitutional). Others, however, while seemingly prejudicial,
may comport with the Sixth Amendment in particular circumstances.
There is nothing inherently prejudicial in the orders requiring
defendant to shave and wear glasses in this case, nor has
defendant demonstrated that they so prejudiced him as to deny his
constitutional right to a fair trial. Indeed, the court informed
the jury before defendant put on the glasses that they were
supplied by the government and had not been discovered with
defendant or any of his belongings.
Defendant also contends that the orders to shave and wear
glasses violated Rule 403, in that the court failed to weigh
their probative and prejudicial values. "As a general rule, we
exercise great restraint in reviewing a district court's ruling
on the admissibility of evidence under Rule 403." Government of
the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir.
1993). However, where an objection raises Rule 403 and a court
fails to record its balancing analysis, we may review the record
and need not defer to the trial court. Ibid.
Before deciding the motions, the district court held a
hearing and determined:
The burden is simply to establish substantial similarity of
circumstances, and I think the government has done that
here, and I think it's clear the government has done that
from my observations of the photographs, from the testimony
of the [FBI] Agent, and from the offer of the defense
witness. And I think there's enough similarity and
substantial particulars to grant the government's motion
. . .
App. at 38.
Though the court did not record an analysis balancing the
probative and prejudicial value of the proposed orders, we have
reviewed the record and will affirm the orders. The Waterworks
surveillance photographs showed a robber wearing glasses, and
photographs taken eight days after the robbery, when defendant
was arrested, depicted him with a slight moustache, one the court
described as not "comparable" to the one he had at the pre-trial
hearing. App. at 37. There was also evidence that defendant had
worn similar glasses before. Thus, there was substantial
probative value to having defendant shave and put on glasses.
Defendant offered no evidence demonstrating prejudice regarding
the order requiring him to shave, and the court informed the jury
that the glasses were provided by the government and were not
found with defendant. We conclude that the probative value of
the twin orders outweighed any prejudice and Rule 403 was not
violated.
IV.
For the foregoing reasons, we affirm the judgment of
conviction on the Millvale robbery count, vacate the judgment of
conviction on the Waterworks robbery count, and remand for a new
trial on the Waterworks count consistent with the foregoing
decision.
__________________
United States v. Joseph Emanuele
No. 94-3283
ROTH, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from that portion of the
majority's opinion which reverses the defendant's conviction on
the Waterworks bank robbery count. I do not agree with the
majority's review of the evidence of Lorraine Woessner's
encounter with the defendant in the courthouse hallway. I am
concerned that the majority in its citation of the facts focusses
on facts which support its conclusion that the identification of
the defendant by Lorraine Woessner was impermissibly suggestive,
rather than looking at the whole picture. Such a limited focus
does support the majority's ultimate determination that the
circumstances of the hallway viewing created a "substantial risk
of misidentification." However, I conclude that a broader review
of Woessner's voir dire testimony is required and that review
supports the conclusion arrived at by the district court.
My reading of the record convinces me that, when the
evidence is viewed completely and in context, it will uphold the
district judge's decision to permit Lorraine Woessner to identify
Emanuele in the courtroom, without holding a prior line-up.
Before permitting Woessner to testify or to identify the
defendant, the district court had Woessner examined on voir dire
concerning the hallway encounter. I will set out Woessner's
examination more completely so that its full scope can be
appreciated. I begin my discussion with relevant portions of her
direct examination:
Q At some time did you see someone come out of the
courtroom?
A Yes, we did, um hum.
Q Could you describe to the Court exactly what
happened?
A Well, we were sitting there and we were, I guess we
were waiting to be called in as the witness and three
men came out, and we both were kind of startled, and I
recognized him right away and, um, didn't say anything.
And he was down the hall, and pretty far down the hall
when we said to each other, it's him.
Q So now, if I get this straight, when he first came
out of the courtroom did anybody say anything to you
prior to your having recognized him?
A No.
Q Now, why did you recognize him? What was your basis
for recognizing him?
A I think it was like his eyes, only it was -- because
-- it was his eyes.
Q Now, at the time -- so, and what were you basing
that, that rec-- that recognition on, on your
recollection of what occurred on the December 1, 1993?
A Well, because when it happened, he came in and
stood, not behind my customer that I was waiting on,
just about two feet onto the side of him and he just --
he had his glasses on and he just starred [sic] at me.
I mean, it just like -- I, I mean, I'll never forget
it.
Q How long was he in front of you?
A I would say -- I was finishing up with my customer.
I would say like about three or four minutes.
Q Now, the government has previously shown to you a
series of pictures; correct?
A Um hum.
Q And if I could show you what's been marked as
Government Exhibits 4 through 9 for purposes of trial,
will you look at these for a moment?
Now, you've looked at those previously, right?
A Um hum.
Q And you weren't able to identify anybody?
A Huh ah.4
Q And you still can't?
A I can identify him, but I mean --
Q You can't identify him from the picture?
A Huh ah.
Q But you can identify the person that you saw in the
hallway?
A Um hum.
App. at 128-130 (emphasis added).
Further information was then developed on the defense's
cross-examination of Lorraine Woessner on voir dire:
Q And from the doors in the courtroom there's like a
hallway leading to the hallway where you were sitting?
In this hallway, there's a hallway that goes down?
A Yes.
Q So, it -- like you were sitting like at the end of a
"T" almost, so that you could see the courtroom doors?
A We could see the courtroom doors.
Q Okay. And there's, I don't know, 20 feet or some --
approximately something like that from where you were
sitting to the courtroom doors?
A Yes.
4
I interpret "um hum" as "yes" and "huh ah" as "no."
Q And you and Miss Hottel were talking about what?
A We were just talking about things that we were
previously through. We had gone through Integra
training and we had gone through that.
Q I see. Now, the courtroom doors open and three men
walk out?
A Yes.
Q The gentleman in the middle has his arms behind his
back?
A Yes.
Q And he has one man on each side?
A Yes.
Q Did the men on each side have like their hand on his
arm or?
A I didn't notice that.
Q Didn't notice that?
A Huh ah.
Q You did notice, though, that the man in the middle
had his hands behind his back?
A Yes.
Q And you did notice at some time that he was
handcuffed?
A After he was down the hall.
Q You could see when he was going down the hall that
he was handcuffed?
A Um hum.
Q But you knew he was being escorted; he was in the
middle from two guys that were escorting him out of the
courtroom?
A Yes.
Q Did Miss Hottel tell you that was him?
A Ah, not right away, only when he was down the hall
she mentioned that. I mean, she spoke very softly and
said that she, she was very upset because she didn't
remember -- she didn't think she remembered what he
looked like, but when she saw him she knew exactly
that's who it was.
Q After the person was taken down the hallway?
A Yes.
Q You and Miss Hottel said that it was him. You
turned to each other?
A No, not really.
Q No?
A Huh ah.
Q Did you discuss the person that came out?
A No, no.
Q Didn't say that was him?
A Huh ah.
Q She didn't say that was him to you?
A I think we both looked at each other and we were
kind of it's, it has to be him (witness nodding.)
Q But, it has to be him?
A Um hum.
Q Because he was handcuffed or?
A Well, no, not because he was handcuffed, because
from, from his personal appearance.
. . .
Q After this happened.
Did you discuss with Miss Hottel the eyes?
A No.
Q She didn't tell you that?
A Well, she, she thought it was his eyes, and I, I
mean, I agreed with her.
Q You agreed with her?
A Right.
Q But Miss Hottel did mention something about the
eyes?
A Um hum.
Q Did she bring up the eyes first or did you?
A I don't really remember that.
Q The two of you, though, did have a conversation
about the eyes on the person that was escorted out of
the courtroom?
A Well, we didn't have a conversation.
Q You just said it was the eyes?
A Right.
App. at 133-136.
Based on this voir dire examination of Lorraine
Woessner, the district judge decided that she would allow
Woessner to testify and would deny the defense motion for a
lineup because the judge found that Woessner had "an independent
basis for her identification of the defendant." App. at 138.
From my review of this testimony, I do not find this factual
determination by the district judge to be clearly erroneous. See
United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991)
(district court's refusal to suppress documents reviewed for
clear error as to the underlying facts).
In reviewing such a factual determination by the
district court, we do not have to agree with the conclusion
arrived at by the district judge (although I am prepared to do
so). We must instead determine whether the district judge's
conclusion is supported by the evidence. See e.g. Cooper v.
Tard, 855 F.2d 125, 126 (3d cir. 1988) (for clear error "our
standard of review is whether there is sufficient evidence in the
record to support [the district court's] findings). Clearly here
there is sufficient evidence. Lorraine Woessner testified that
she recognized the defendant "right away" as he came out of the
courtroom -- before he passed her so that she could see the
handcuffs and before Martha Hottel said anything about his
identity. The district judge was present to hear the testimony
and to weigh credibility. I find it inappropriate for us to
completely disregard the judge's credibility determination -- as,
it would seem, we must if we do not accept Lorraine Woessner's
testimony that she recognized the defendant "right away" as he
emerged from the courtroom.5
In view of the credence which the district judge had to
give to Lorraine Woessner's statement that she recognized
Emanuele "right away,"6 what weight must I give to the fact that,
after Emanuele had walked past her, Woessner could see that his
hands were cuffed behind him? In view of the immediate
recognition, I do not find Woessner's subsequent observation of
the handcuffs to be unduly suggestive -- just as the majority
does not find unduly suggestive the fact that Martha Hottel saw
the handcuffs also.
This then brings me to the issue of the propriety of
the standard followed by the district court: Was there "an
independent basis" for the identification; i.e., is Woessner's
immediate recognition of Emanuele, a sufficient ground to support
the denial of the defense's motion for a lineup. I conclude that
"an independent basis" for an identification is consistent with
an identification which possesses sufficient aspects of
reliability; that Woessner's testimony of immediate recognition
of the defendant eliminates the "substantial risk of
5
As the majority acknowledges, because there was no apparent
government complicity in the way in which the confrontation came
about, I do not have to factor the element of evil government
intent into my consideration.
6
The district judge could not have arrived at the decision
she did if she had not believed Woessner on this point.
misidentification" which could be engendered by such an
encounter. If Woessner recognized Emanuele immediately in the
corridor, I easily infer that she would have recognized him
immediately in the courtroom had the corridor encounter not
occurred. Lorraine Woessner testified on voir dire that, at the
bank, she observed the defendant for three or four minutes as he
stood about two feet from the side of the customer she was
waiting on; that she recognized the defendant immediately when he
came out of the courtroom, before she could see his hands cuffed
behind him; that she recognized him in the hallway from his eyes;
and that the photograph of defendant, which she could not
identify as the defendant when it was shown to her by the F.B.I.,
she again in the courtroom, after the hallway encounter, could
not identify as the defendant.
For all the above reasons, I believe that the district
court did not err when it permitted Lorraine Woessner to make a
courtroom identification of the defendant. I am, therefore, of
the opinion that defendant's conviction on the Waterworks bank
robbery count should be affirmed.7
7
Because I would affirm the district court's admission of
Woessner's in-court identification of the defendant, I do not
need to go on to harmless error. However, were that necessary, I
would find any error to be harmless. The surveillance photos,
taken at the Waterworks bank, are independent corroboration of
defendant's involvement. They were identified, as being of
defendant, by a disinterested witness, who had recently repaired
Emanuele's car for him, and by a woman who had given him a
temporary place to stay. The "interest" of the witnesses, such
as defendant's mother and his girl friend, who could not identify
the bank photos, was made evident to the jurors, who also saw the
photos.
Moreover, defendant's "expert witness," the plastic surgeon
who testified from a comparison of photographs that the bank
photos were not of Emanuele, admitted that he knew little about
photography. The photographs he compared with the bank photos
were taken with a different camera and different film; the image
was captured at a different location on the surface of the camera
lens, while Emanuele was standing still. App. at 444-46. As the
prosecution's photography expert testified, the slow film and
poor lens in the bank camera could "smear" a moving figure on the
film so that the image was distorted. App. at 465-67. In
addition, the defense expert made his measurements from points,
such as the eyebrows, which may move according to the subject's
expression, e.g., a frown or a smile. I raise my own eyebrows at
this type of expertise.