U.S. v. Rogers

• Decision Date: 17 October 1997
• Docket Number: No. 96-31113,96-31113
• Citation: 126 F.3d 655
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rickey Jerome ROGERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 655

126 F.3d 655

UNITED STATES of America, Plaintiff-Appellee, v. Rickey Jerome ROGERS, Defendant-Appellant.

No. 96-31113.

United States Court of Appeals Fifth Circuit.

Oct. 17, 1997.

Michael R. Davis, Baton Rouge, LA, for Plaintiff-Appellee.

Kathrine Sara Williamson, Alexandria, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, and BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

Rickey Jerome Rogers appeals his conviction and his sentence for two robberies in violation of 18 U.S.C. § 2113(a). Rogers raises three points of error. He argues that: 1) an in-court identification was admitted in violation of his due process rights; 2) the evidence introduced at trial was insufficient to support his conviction on the first count; and 3) his sentence was based on an erroneous classification of him as a career offender. For the reasons set forth below, we affirm the conviction and remand for re-sentencing.

Background

On August 8, 1995, Premier Bank in Baton Rouge, Louisiana, was robbed. Testimony at trial showed that a black man wearing a baseball cap, sunglasses and a blue and burgundy jacket entered the bank and handed a teller a note which said: "This is a robbery I have a gun If you draw any attention--you shall no doubt die first Give me prepacked $100 bills you have 10 Seconds." When the teller hesitated, the robber said to her: "Hurry up, hurry up, you bitch. Hurry up, you old bitch. I'll blow your brains out." The teller gave the robber two packages of hundred-dollar bills, totaling $10,000.

On October 3, 1995, Regions Bank in Baton Rouge was robbed by a black man wearing a baseball cap, wraparound sunglasses, a yellow hooded raincoat, and tennis shoes. He approached a teller with a note which read: "I got a gun If you draw any attention I'll shoot you first Move fast give me prepacked hundred-dollar bills!! I don't have nothing to lose. nothing." The teller opened her drawer and began taking out packages of large bills. The robber told her to go faster and threatened to shoot her, saying that he had "nothing to lose." The robber left with $3,290 in cash.

A grand jury indicted Rickey Jerome Rogers for these two robberies. A jury found him guilty on both counts of violating 18 U.S.C. § 2113(a), and the district court for the Middle District of Louisiana sentenced him to 21 years and 3 months imprisonment. Rogers filed timely appeal of his conviction and his sentence.

I. In-Court Identification

Rogers first asserts that the district court erred in permitting the Government to recall as a witness Deborah Rodrigue, the teller at Regions Bank who was approached by the robber on October 3, 1995. When first called to the witness stand, Rodrigue testified that a black man wearing a hooded raincoat, a baseball cap, and large wraparound sunglasses approached her counter and handed her the demand note; she was not asked to identify the person who had robbed the bank. Following cross-examination, the Assistant U.S. Attorney advised the district court that he "could see something odd about Ms. Rodrigue" during her testimony, that he had asked the F.B.I. case agent to approach her afterward, and that Rodrigue had told the agent she recognized the defendant as the robber. The Government requested, and was given, permission--over an objection by Rogers' attorney--to recall Rodrigue to the stand. She then testified that she was "a hundred percent sure" that Rogers was the man who had robbed Regions Bank.

Rogers argues that Rodrigue's in-court identification was impermissibly suggestive because the identification occurred only after she had seen him in court where he was seated by his lawyer, the only black man at the defense table. The Government argues that the identification procedure was not unduly suggestive, and contends that Rogers did not raise this objection at trial and that, therefore, this court's review of the question is limited to plain error.

Ordinarily the district court's admission of evidence is reviewed for abuse of discretion. United States v. McConnell, 988 F.2d 530, 533 (5th Cir.1993). When a defendant fails to object in a timely manner, however, we generally review only for plain error. United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 963, 133 L.Ed.2d 884 (1996). Plain error is "error which, when examined in the context of the entire case, is so obvious and substantial that failure to notice and correct it would affect the fairness, integrity or public reputation of judicial proceedings." United States v. Lopez, 923 F.2d 47, 50 (5th Cir.1991). In this case, Rogers did not clearly raise the claim of impermissible suggestion. ¹ Nevertheless, when liberally construed his objection could be taken to have generally challenged the reliability of Rodrigue's identification. This court has suggested that increased scrutiny will be given in plain error review when a constitutional right is at stake, and when an objection was raised on a related ground. Id.; United States v. Brown, 555 F.2d 407, 420 (5th Cir.1977). Given the importance of the due process questions raised here regarding in-court identifications, we will give Rogers the benefit of the doubt with respect to the objection, and will consider his claim with increased scrutiny.

The Due Process Clause protects accused individuals from the use against them of evidence derived from unreliable identifications that resulted from impermissibly suggestive procedures. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir.1993). The admissibility of identification evidence is governed by a two-step test under which we ask first whether the identification procedure was impermissibly suggestive and, second, whether the procedure posed a "very substantial likelihood of irreparable misidentification." Sanchez, 988 F.2d at 1389 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247). If the answer to both questions is yes, the identification is not admissible. "The gravamen of the determination is fairness and reliability." Sanchez, 988 F.2d at 1389.

With respect to the first prong of the test, we agree with the Second Circuit that it is obviously suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who is the defendant. United States v. Archibald, 734 F.2d 938, 941, 943 (2d Cir.1984); see also United States v. Hill, 967 F.2d 226, 232 (6th Cir.1992) (where the court assumed, without deciding, that an in-court identification was impermissibly suggestive, and went on to consider the second prong of the test); United States v. Rundell, 858 F.2d 425, 427 (8th Cir.1988) (per curium) (same); but see United States v. Bush, 749 F.2d 1227, 1232 (7th Cir.1984) (holding that when defendant's position at counsel table was the only suggestive circumstance, the court need not move to the second prong of the test). Moreover, when, as here, the defendant is of a different race than the witness, concern about suggestiveness is heightened. See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934 (1984). Thus we move on to the second prong of the test to consider the reliability of the identification.

The five factors to be considered in determining the likelihood of misidentification are: 1) the opportunity of the witness to observe the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of the witness's prior description; 4) the witness's level of certainty; and 5) the time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). These factors are to be weighed against the corrupting effect of the suggestive identification. Manson, 432 U.S. at 114, 97 S.Ct. at 2253; United States v. Watkins, 741 F.2d 692, 693-94 (5th Cir.1984).

Here, the exact length of time the robber was in Regions Bank is not clear from the record, but Rodrigue indicated at trial that she had not observed him for very long. Moreover, Rodrigue was able to see only the lower part of the robber's face during the crime because he was wearing wraparound sunglasses and a baseball cap, though she did explain that her identification was based on Rogers' "very distinct" nose and "narrow chin." It is also relevant that although the prosecutor indicated that the robber had facial hair when Rodrigue saw him at the bank, Rogers did not have facial hair at the trial. In light of the short time for observation, and the extent to which the robber's face was obscured at the time of the crime, the witness's opportunity to view him must be regarded as relatively limited.

The witness's degree of attention must also be considered suspect given that she testified that her reaction to the robber was "stark fear, fear for my life." That such a response is entirely reasonable under the circumstances does not change the fact that it weighs against the reliability of her identification by throwing some doubt on her ability to concentrate on and remember his face.

There is no indication in the record of any pre-trial description of the robber by Rodrigue so the third factor weighs neither in favor of, nor against, reliability. Turning to the fourth factor, Rodrigue's level of certainty in the identification was extremely high. With respect to the fifth factor, the time between the crime and the identification was almost ten months--a length which does not by itself preclude the use of an identification, but which raises concerns about the accuracy of the memory.

Thus, the only factor that weighs in favor of the reliability of the identification is the witness' level of certainty. Her conviction cannot be enough to outweigh the factors that undercut its reliability in light of...