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 Title United States v. Lawson

 Argued April 12, 2005                    Decided June 10, 2005

 Subject Crime; Fourth Amendment

                                                                                                                                                                                                                

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 United States Court of Appeals

            FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2005                    Decided June 10, 2005

                          No. 04-3067

                 UNITED STATES OF AMERICA,

                           APPELLEE

                                V.

                        WILLIE  LAWSON,

                           APPELLANT

         Appeal from the United States District Court

                  for the District of Columbia

                      (No. 03cr00282-01)

    Amar D. Sarwal, appointed by the court, argued the cause

and filed the briefs for appellant.

    Brendan J. Crimmins, Attorney, U.S. Department of Justice,

argued the cause for appellee.  With him on the brief were

Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Roy W.

McLeese, III, and Frederick W. Yette.

    Before: RANDOLPH, GARLAND, and ROBERTS, Circuit

Judges.

    Opinion for the Court filed by Circuit Judge ROBERTS.

 

                                 2

     ROBERTS,  Circuit Judge: Willie Lawson appeals from

several rulings by the district court admitting evidence against

him in a bank robbery case.  Two of the rulings relate to out-of-

court identifications -- one by a bank teller who selected

Lawson from a photographic array, the other by a drug store

employee who selected one of the robbers from bank surveil-

lance photographs as the purchaser of items from the drug store

that were used during the robbery.  The district court also denied

Lawson's motion to suppress physical evidence seized from a

car he had loaned to his brother, and allowed the government to

present evidence of a second, uncharged bank robbery, for the

purpose of establishing Lawson's identity as one of the robbers

in the charged crime.  We affirm.

                                 I.

     On April 5, 2002, two unmasked men robbed a Riggs Bank

in southeast Washington, D.C.  The smaller of the two men

approached one of the tellers and instructed her to open a door

leading to the area behind the teller stalls.1  The other robber,

taller and heavier in build, approached the bank manager and

pressed to his head a black handgun with a silver hammer,

likewise instructing him to open the teller door.  The bank

manager would later identify the taller individual as Gregory

Smith, a man who had been to the bank on a prior occasion,

ostensibly to open an account.  Trial Tr., Dec. 9, 2003, at 37­38,

120.

     Once the teller door was opened, the smaller man collected

the contents of the tellers' drawers in a white, plastic bag, while

the taller man stood guard in the lobby, his gun trained on the

employees and customers.  The two men then fled, taking with

     1  Witnesses would offer conflicting testimony as to whether this

man was armed.  Compare Trial Tr., Dec. 9, 2003, at 12, 22­23, 27

with id. at 70, 89.

 

                                   3

them over twenty thousand dollars in cash and securities.  They

did not, however, get very far with their loot -- concealed within

the bundles of cash were packets of red dye that exploded

outside the bank, causing the robbers to abandon the plastic bag

and its contents.

     FBI agents recovered the plastic bag outside the bank, and

discovered that it was a Rite Aid pharmacy bag.  Inside the bag

they found, along with the stained cash and securities, a receipt

from a Rite Aid pharmacy for a box of latex gloves and a

Spartan-brand stretch cap.  Both men had worn such gloves

during the robbery, and bank surveillance photographs con-

firmed that the taller robber had worn a stretch cap.  See id. at

41­42; Gov't Trial Ex. 11.

     The following day, a tall and a shorter man robbed a

SunTrust Bank in Rockville, Maryland.              Unlike the Riggs

robbery, the SunTrust robbers wore masks, and the shorter

robber wore dark sweat pants with a broad stripe down the sides.

As in the Riggs robbery, however, the taller man wielded a

silver-hammered gun, and the shorter man collected money from

behind the teller stalls.  In addition, the taller man appeared to be

wearing the same clothes as the taller Riggs Bank robber.  See

Trial Tr., Dec. 11, 2003, at 82­86; Gov't Trial Exs. 35­36.

     On April 8, 2002, FBI agents arrested Willie Lawson

pursuant to a warrant issued for a Bank of America robbery in

Virginia.   Lawson was apprehended in his car, outside his

girlfriend's apartment, and he and his girlfriend consented to

searches of the car and apartment.  In Lawson's car agents found

black sweat pants with a broad red stripe, as well as credit and

identification cards belonging to Gregory Smith.  In the apart-

ment agents found a stretch cap and a semi-automatic pistol with

a silver hammer.

 

                                     4

     Lawson also directed FBI agents to the apartment of his

brother, Joseph, where Willie Lawson kept some personal

property.  Outside that apartment agents noticed a gray Oldsmo-

bile that matched a description of the getaway vehicle in the

Bank of America robbery, with temporary tags matching four out

of five numbers from a license plate identification from that

robbery.  Motions Hr'g Tr., Nov. 18, 2003, at 30.2  When asked

about the car, Joseph Lawson told the agents that it belonged to

the mother of Willie Lawson's child, and that Willie had loaned

it to him two weeks prior to the agents' arrival.

     The agents informed Joseph Lawson that they needed to

seize the Oldsmobile, and Joseph handed them the keys.  A

subsequent search of the car revealed a pair of latex gloves and

packaging for a Spartan-brand cap bearing Willie Lawson's

fingerprints.

     Within a week of the Riggs robbery, FBI agent Michael

MacLean interviewed the Rite Aid employee who had presided

over the sale memorialized on the receipt found at the scene of

the crime.  The employee recalled the transaction and described

the purchaser as a black male in his twenties.  Agent MacLean

then showed the employee surveillance photos from the Riggs

robbery, and the employee identified the smaller of the two

robbers as the person with whom she had conducted the transac-

tion.  The surveillance photo of the smaller man showed only the

back and side of his head.  See Motions Hr'g Tr., Nov. 17, 2003,

at 78­79; Gov't Trial Ex. 8.

     Several weeks later, agent MacLean interviewed a teller

who had been present during the Riggs robbery.  The teller

indicated she had observed the smaller perpetrator at close range

     2  Despite these similarities, authorities ultimately determined that

the Oldsmobile was not the vehicle involved in the Bank of America

robbery.  Motions Hr'g Tr., Nov. 18, 2003, at 30.

 

                                 5

for twenty to thirty seconds and could identify him.  See Motions

Hr'g Tr., Nov. 17, 2003, at 70­71.          Agent MacLean then

produced a previously-prepared photographic lineup of six

individuals, and the teller immediately selected Willie Lawson's

photograph.  According to MacLean, " s he was very sure of

herself and very sure of the identification."  Motions Hr'g Tr.,

Nov. 18, 2003, at 28.

     Willie Lawson and Gregory Smith were indicted for the

Riggs robbery under 18 U.S.C. §§ 2, 2113(a) & (d) (aggravated

bank robbery and aiding and abetting) and 18 U.S.C. §§ 2,

924(c)(1)(A)(ii) (brandishing a firearm during a crime of

violence and aiding and abetting).  Because Smith had not been

apprehended, Lawson faced the prosecution alone.

     Prior to trial, Lawson filed motions to exclude the identifi-

cations by the bank teller and the Rite Aid employee and to

suppress the evidence obtained from the search of the gray

Oldsmobile.  Lawson also opposed the government's notice of

intent to offer evidence of the uncharged SunTrust robbery.

     The district court rejected Lawson's pleadings.        With

respect to the motion to suppress, the court held that Lawson did

not have a reasonable expectation of privacy in the Oldsmobile,

and thus could not contest its search.  Motions Hr'g Tr., Nov. 18,

2003, at 111­13.       The court found the SunTrust evidence

admissible as probative of identity in the Riggs robbery, and held

that the introduction of such evidence would not unduly preju-

dice Lawson.  Dec. 3, 2003 Order at 5­6.  Finally, the court

admitted both identifications, reasoning that the photographic

array shown to the bank teller was not unduly suggestive and

that the drug store employee's account was relevant and suffi-

ciently reliable.  Trial Tr., Dec. 8, 2003, at 14­15.

     At trial, Lawson was represented by counsel during the

government's case-in-chief, but elected to waive his right to

 

                                    6

counsel and presented the defense case himself.              The jury

convicted him on both counts and he now appeals.

                                   II.

     Before us, Lawson -- once again represented by counsel --

reiterates the arguments raised before the district court.  He

maintains that the Riggs Bank and Rite Aid identifications are

inadmissible, that the search of the Oldsmobile violated his

Fourth Amendment rights, and that the government should not

have been permitted to introduce evidence of the SunTrust

robbery.  We examine these contentions in turn.

     A.  A two-part inquiry governs the admissibility of out-of-

court identifications.  We first determine whether the identifica-

tion procedure was impermissibly suggestive.  United States v.

Antoine Washington, 12 F.3d 1128, 1134 (D.C. Cir. 1994)

(citing Neil v. Biggers, 409 U.S. 188, 197 (1972)).  If it was, we

then ask, in light of the totality of the circumstances, whether

"the identification was sufficiently reliable to preclude a

substantial likelihood of misidentification."  Id. (citing Manson

v. Brathwaite, 432 U.S. 98, 113­16 (1977)).3

     In evaluating the bank teller's identification, we need not

proceed beyond the first step of the inquiry.  The photographic

array shown to the teller was not the least bit suggestive.  The

array depicts six African-American individuals of generally

similar ages and facial features.  See Def. Motion Hr'g Ex. 19.

While Lawson contends that his complexion is lighter than that

of the others, and that his lips and chin are more prominent, in

     3 If an out-of-court identification is held inadmissible, any

subsequent in-court identification by the same witness will also be

barred, unless the prosecution can show an independent, untainted

source for the in-court identification.  United States v. Wade, 388 U.S.

218, 241 (1967).

 

                                7

each respect at least one other pictured individual appears

comparable.    Moreover, agent MacLean gave the teller a

standard admonishment in advance of showing her the array,

including a warning that "photographs may not always depict the

true complexion of a person" and that such complexion "may be

lighter or darker than shown in the photo."  Gov't Trial Ex. 42;

see Motions Hr'g Tr., Nov. 17, 2003, at 72­73.

     We also note that, were we to reach the reliability prong of

the test, the teller's identification would easily pass muster.

Although the identification took place several weeks after the

robbery, the teller indicated that she could identify the smaller

robber -- having observed him at close range and for a consider-

able period of time -- and she showed no hesitation in picking

Lawson from the array.  See Motions Hr'g Tr., Nov. 17, 2003, at

70­71.

     The Rite Aid identification presents a closer question, in

that the employee was shown surveillance photographs -- an

arguably suggestive medium -- and the photographs only depict

the two individuals who had robbed the bank.  Further, the

employee purported to identify a customer she had seen face to

face -- across a sales counter -- as the same individual appear-

ing in a photograph showing only the side and the back of a

person's head.

     We need not determine whether the admission of the Rite

Aid identification was error, however, because any such error

would have been harmless "beyond a reasonable doubt."

Chapman v. California, 386 U.S. 18, 24 (1967).  First, the

government adduced ample evidence of guilt.  In particular, the

government introduced the bank teller's identification of Lawson

as the smaller robber; the distinctive silver-hammered gun,

resembling the item used by the taller robber, found in the

apartment of Lawson's girlfriend; credit and identification cards

belonging to Gregory Smith found in Lawson's car; striped

 

                                 8

sweat pants matching those worn by the smaller robber in the

subsequent SunTrust robbery, also found in Lawson's car; and

the Rite Aid receipt found at the scene of the crime and items

matching that purchase found in the apartment of Lawson's

girlfriend and in the gray Oldsmobile Lawson had loaned to his

brother.

     Second, the probative value of the Rite Aid identification

was minimal.  In the interview with agent MacLean, the Rite Aid

employee did no more than indicate which of the robbers had

purchased the items.  She failed to follow up her out-of-court

linking of the surveillance photograph to the Rite Aid purchaser

with an in-court identification of Lawson as either the purchaser

or the smaller robber.  See Trial Tr., Dec. 9, 2003, at 110­11.

Under such circumstances, we can say with confidence that the

out-of-court identification did not contribute to the jury's

verdict.  See United States v. Jerome Washington, 353 F.3d 42,

45­46 (D.C. Cir. 2004) (identification held harmless where

"there was abundant evidence of defendant's  guilt" and "the

potential impact on the jury of the  identification was slight").

     B.    Lawson next challenges the admission of evidence

seized from the gray Oldsmobile.  As noted above, the district

court dismissed his challenge on the ground that Lawson did not

have a reasonable expectation of privacy, holding that Lawson

effectively gave up any such expectation when he loaned the car

to his brother two weeks before the search.  We affirm on a

different ground -- that the search of the Oldsmobile was

supported by probable cause.4

     4  Although the government did not argue probable cause before

the district court, we may affirm on grounds other than those pre-

sented and relied on below.  United States v. Garrett, 720 F.2d 705,

710 (D.C. Cir. 1983).  Moreover, although courts sometimes refer to

the reasonable expectation of privacy issue as "standing" to contest a

 

                                  9

     Authorities may conduct a warrantless search of a motor

vehicle if they have probable cause to believe it contains

contraband or evidence of a crime.  See, e.g., California v.

Acevedo, 500 U.S. 565, 569­70 (1991); United States v. Wider,

951 F.2d 1283, 1286 (D.C. Cir. 1991).  If authorities have

probable cause, they may either conduct an immediate search or

remove the vehicle to a police station and search it at some later

time.  Chambers v. Maroney, 399 U.S. 42, 52 (1970).

     Here FBI agents were justified in seizing the Oldsmobile

and in conducting the subsequent search.  The vehicle matched

a physical description of the getaway car in the Bank of America

robbery -- the crime for which Willie Lawson initially had been

arrested.  Four out of five numbers on the temporary license

plate matched a witness account of the getaway car's tags.

Motions Hr'g Tr., Nov. 18, 2003, at 30.  Further, prior to seizing

the car, agents "saw some latex gloves laying in the right front

passenger area."  Motions Hr'g Tr., Nov. 17, 2003, at 98.  In

light of these circumstances, it was reasonable for agents to

believe the vehicle contained contraband or instrumentalities of

crime.

     C.   Finally, Lawson argues the district court erred in

permitting the government to present evidence of the uncharged

SunTrust robbery.  That evidence was admitted to help prove

identity -- if the jury concluded that Lawson participated in the

SunTrust robbery, and that the SunTrust and Riggs robberies

were similar, it could infer that Lawson also participated in the

Riggs robbery.  See Trial Tr., Dec. 15, 2003, at 70­71 (jury

instruction).  Lawson further argues that even if the evidence

search, the question "is more properly placed within the purview of

substantive Fourth Amendment law than within that of standing,"

Minnesota v. Carter, 525 U.S. 83, 88 (1988) (citation omitted), and

thus we need not resolve it prior to addressing probable cause.

 

                                10

was admissible for this purpose, the district court should have

excluded it as unfairly prejudicial.

     Federal Rule of Evidence 404(b), which governs the

admission of evidence of other crimes or bad acts, "is a rule of

inclusion rather than exclusion."  United States v. Bowie, 232

F.3d 923, 929 (D.C. Cir. 2000).  The rule bars admission of such

evidence when offered for the purpose of proving that a defen-

dant acted in conformity with his character, but allows admission

so long as the evidence is offered for any other relevant purpose.

Id. at 930.  If a court finds that evidence of other crimes is

admissible under Rule 404(b), it must then decide whether the

probative value of the evidence "is substantially outweighed by

the danger of unfair prejudice."  Fed. R. Evid. 403.  We accord

substantial deference to the district court's rulings on these

issues.  See United States v. Pindell, 336 F.3d 1049, 1056­57

(D.C. Cir. 2003) (404(b) rulings reviewed for abuse of discre-

tion); United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir.

2002) (403 rulings reviewed for "grave abuse").

     There was no abuse of discretion here.          Rule 404(b)

specifically lists "identity" as one of the purposes for which

evidence of "other crimes, wrongs, or acts" may be admissible.

See United States v. Carr, 373 F.3d 1350, 1352­53 (D.C. Cir.

2004).  Contrary to Lawson's suggestion, the SunTrust and

Riggs robberies shared sufficient characteristics to permit an

inference of identity.    Both were executed by a taller man

wielding a distinctive silver-hammered handgun and a shorter

man who collected money from the tellers, and the taller

individual appeared to wear the same clothes during both crimes.

Moreover, the SunTrust evidence was relevant to the Riggs

robbery -- if the jury believed, based on the evidence seized

(including the striped sweat pants resembling those worn by the

smaller robber in the SunTrust crime) that Lawson had commit-

ted the SunTrust robbery, the similarities between the offenses

 

                                 11

made it more likely that he was one of the Riggs Bank robbers

as well.

     Nor did the district court gravely abuse its discretion in

concluding that the probative value of the SunTrust robbery

evidence was not "substantially outweighed by the danger of

unfair prejudice."  Fed. R. Evid. 403.  The SunTrust evidence

was probative on the central issue in the case -- the identity of

the smaller Riggs Bank robber.  As for unfair prejudice, the

district court noted that the details of the SunTrust robbery "add

no emotional or other pejorative emphasis not already introduced

by the evidence of the Riggs robbery."  Dec. 3, 2003 Order at 6.

     The judgment of the district court is affirmed.

 

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