U.S. v. Lawson, 04-3067.

• Decision Date: 10 June 2005
• Docket Number: No. 04-3067.,04-3067.
• Citation: 410 F.3d 735
• Parties: UNITED STATES of America, Appellee v. Willie LAWSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

410 F.3d 735

UNITED STATES of America, Appellee v. Willie LAWSON, Appellant.

No. 04-3067.

United States Court of Appeals, District of Columbia Circuit.

Argued April 12, 2005.

Decided June 10, 2005.

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.

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 surveillance 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 37-38, 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 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 confirmed that the taller robber had worn a stretch cap. See id. at 41-42; 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 82-86; Gov't Trial Exs. 35-36.

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 apartment agents found a stretch cap and a semi-automatic pistol with a silver hammer.

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 Oldsmobile 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 transaction. 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 78-79; 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 for twenty to thirty seconds and could identify him. See Motions Hr'g Tr., Nov. 17, 2003, at 70-71. 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 identifications 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 Sun Trust 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 111-13. 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 prejudice Lawson. Dec. 3, 2003 Order at 5-6. 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 sufficiently reliable. Trial Tr., Dec. 8, 2003, at 14-15.

At trial, Lawson was represented by counsel during the government's case-in-chief, but elected to waive his right to 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 identification 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, 93 S.Ct. 375, 34 L.Ed.2d 401 (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, 113-16, 97 S.Ct. 2243, 53 L.Ed.2d 140 (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 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 72-73.

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 considerable period of time — and she...