U.S. v. Bright

• Decision Date: 20 August 2009
• Docket Number: No. 08-1770.,08-1770.
• Citation: 578 F.3d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. McRay BRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

578 F.3d 547

UNITED STATES of America, Plaintiff-Appellee, v. McRay BRIGHT, Defendant-Appellant.

No. 08-1770.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 2009.

Decided August 20, 2009.

Sunil R. Harjani, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Jon Pulkkinen, Law Student (argued), Sarah O'Rourke Schrup, Attorney, Northwestern University School of Law, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and MANION, Circuit Judges.

BAUER, Circuit Judge.

A jury convicted McRay Bright of violating various federal statutes, all having to do with a bank robbery. The district court sentenced him to 181 months' imprisonment. On appeal, Bright challenges the admission of an eye-witness identification, from a six-person photograph array. Bright also argues that the district court erred by allowing the introduction of two pieces of unduly prejudicial guilt-by-association evidence. Lastly, he argues that the district court erred when it applied an obstruction of justice enhancement based on an attempted escape. For the following reasons, we affirm.

I. BACKGROUND

On March 28, 2006, three armed men robbed a LaSalle Bank in Chicago of approximately $83,584. Several bank employees were threatened with guns, corralled behind the teller counter and ordered to stuff the vault's holdings into duffel bags. One bank teller, Jessica Lopez, was told at gun-point to hold open the bags while another employee emptied the teller drawers' cash into it. The three men fled the scene with their takings before the police arrived.

The FBI questioned the witnesses, including Lopez, manager Thanh Huynh-Staley, and security guard Larry Williams. Lopez informed the FBI that the youngest robber was a light or medium complected African American. Lopez testified that all African Americans resembled one another, "see, I'm not African American.... So to me everyone is the same." Huynh-Staley, and several other witnesses, also described the same assailant as having a lighter skin tone.

Roughly a month later, a cooperating witness informed the FBI that Bright had participated in the LaSalle Bank robbery. The FBI assembled a six-man photograph array including Bright's photograph and five other photographs with similar physical characteristics. According to Bright, his photograph was one of only two that featured light complected men, while the other four photographs were of dark complected African Americans.

The FBI asked Lopez and Williams if they could identify any of the bank robbers from the photo array. Williams could not; Lopez noted that the photographs did not allow her to see the individuals' height and build. Nonetheless, Lopez identified Bright as one of the three men involved in the robbery, stating, "it is this one. Look at the eyes. I just know it is this one." (Later at trial, "the eyes was what made me very certain that [Bright's photograph] was the one.... [I]f you have something that bad happen to you ... [y]ou can never forget that person's eyes.") Lopez further described the array as consisting of four dark complected men and two light complected men.

Bright was arrested on May 15, 2006. The next day, the FBI went to the Chicago Police Department station, where Bright had been held for a day, to transfer him to federal custody. While his hands were cuffed behind his back, and waiting in the station's hallway, Bright claims that an FBI agent responded to one of his questions with "shut the fuck up." Upon hearing this, Bright made a break for it; he sprinted down the hallway and through two sets of the station's doors into the parking lot, where he was apprehended.

The FBI invited Huynh-Staley and Williams to identify the bank robbers from an in-person lineup; Bright was not identified. Huynh-Staley told the FBI that a couple of days later, she recognized Bright from the lineup but had been unsure at the time. Because Bright's counsel had not been informed of this statement, the government agreed to not raise this late identification during the testimony of the FBI agent. Nonetheless, at trial, Huynh-Staley and Williams each identified Bright as one of the three men involved in the LaSalle Bank robbery.

After the in-person lineup, where Bright was not identified, the FBI arrested Brandon Lee, who admitted to being one of the three bank robbers. Lee informed the FBI that Bright was one of his co-conspirators in the bank robbery and agreed to testify against him.

The government prosecuted Bright for: (I) Conspiracy to Commit Bank Robbery, 18 U.S.C. § 371, (II) Bank Robbery, 18 U.S.C. § 2113(a), (III) Brandishing a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii), and, based on his attempted flight from the police station, (IV) Attempting to Escape, 18 U.S.C. § 751(a).

At trial, Lopez, Huynh-Staley, Williams and Lee all identified Bright as one of the three bank robbers. The government also called one Cheri Avery to testify about statements made in her presence by one of Bright's close friends, Antonio Harris. According to Avery, Harris boasted about robbing a bank to Bright; Bright responded that it sounded like something he would like to do. The government also introduced birth certificate evidence linking Bright to his aunt, Ruby Parker, formerly a senior teller at the bank that was robbed. A government witness testified that Parker would have known that an armored delivery truck would have been making a delivery to the bank on the day that it was robbed. Bright had moved to exclude the birth records in limine on relevancy and prejudicial grounds; the district court denied the motion and admitted the evidence, over Bright's objection, at trial.

At trial, the jury reported to the district court that it was deadlocked because it could not reconcile two instructions. After the district court clarified the instructions, the jury returned a guilty verdict on all counts.

During sentencing, the government argued that the district court should apply a two-level enhancement to Bright's base offense level for the obstruction of justice, both for false statements made after arrest and his attempting to escape conviction. Bright argued that his age, unfortunate childhood experience and the profanity used by the FBI agent sparked his flight from the hallway. The district court rejected Bright's argument and said that "[i]t's not necessary to get into a discussion of the various incidents of making false statements in light of the conviction for the escape, which ... is a clear enhancement under ... [U.S.S.G. § 3C1.1], obstruction of justice."

With this enhancement, and after Bright apologized for his actions, the district court sentenced Bright to 181 months' imprisonment. This timely appeal followed.

II. DISCUSSION

Bright argues that the district court erroneously allowed Lopez's unreliable identification from the suggestive photo array, and permitting prejudicial guilt-by-association evidence by allowing Avery to testify about Harris's statements, and allowing the birth records linking Bright to Parker. Bright also argues that the district court erroneously enhanced his sentence for obstructing justice.

A. Lopez's Identification

We begin by addressing whether the district court erred when it admitted Lopez's identification of Bright. Bright claims that Lopez's identification was based on a flawed, suggestive photo array prepared by the FBI, and its admission violated his due process rights. According to Bright, the six-man array was essentially an impermissible, two-man array; the array included four photographs of dark complected African American men, and two medium complected men, one of which was Bright. Bright points out that Lopez had stated that the assailant was "medium" complected and was of a lighter skin tone than, in her view, a typical African American, and therefore, the array was of two men, not six. Moreover, Bright calls attention to Lopez's racially-biased statement that all African Americans looked alike to her.

Bright failed to move for the suppression of Lopez's identification before trial, and failed to object to its admission at trial. See Fed.R.Crim.P. 12(b)(3). Under Rule 12, this failure waives the argument. See Fed.R.Crim.P. 12(e). We therefore review the objection to Lopez's identification under a plain error standard. See United States v. Johnson, 415 F.3d 728, 730 (7th Cir.2005). Bright now argues that the failure to file a suppression motion may be curable by a showing of good cause. He claims that good cause can be shown by the "surprise avalanche of undisclosed positive identifications," in reference to Huynh-Staley's and Williams's positive in-court identifications after they had failed to select Bright out of a line-up, including Huynh-Staley's identification days after the line-up. However, Bright did not argue good cause at trial; indeed, he did not object....