                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 06-16344                SEPTEMBER 11, 2007
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                     D. C. Docket No. 06-80074-CR-DTKH

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

JOHN ALLEN DUPREE,

                                                       Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (September 11, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      John Allen Dupree appeals his conviction for bank robbery, a violation of 18

U.S.C. § 2113(a). On appeal, Dupree argues that the district court erred on the
following grounds: (1) by admitting, pursuant to Rule 404(b) of the Federal Rules

of Evidence, evidence of a 1996 bank robbery to which he pled guilty, for the

purpose of establishing identity; (2) by admitting the testimony of both a U.S.

Marshal and an investigating detective, neither of whom were present at the scene

of the robbery, in violation of Rule 602 of the Federal Rules of Evidence; (3) by

admitting evidence about an out-of-state witness’s identification of Dupree in a

photo lineup, in violation of his rights under the Confrontation Clause; and (4) by

miscalculating the restitution amount. The government concedes error on the last

issue. After careful review of the record and the parties’ briefs, we vacate and

remand for the limited purpose of correcting a $43 discrepancy in the restitution

order. In all other respects, we affirm.

      We review the district court’s decision to admit evidence of prior crimes

under Rule 404(b) for a clear abuse of discretion. United States v. Clemons, 32

F.3d 1504, 1508 (11th Cir. 1994).

      We normally review the district court’s evidentiary rulings for an abuse of

discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006), cert.

denied, 127 S. Ct. 990 (2007). However, when an appellant fails to object below

on the grounds asserted on appeal, we review for plain error only. See United




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States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).1 Under the plain error

standard, Dupree “must show that: (1) an error occurred; (2) the error was plain;

(3) it affected his substantial rights; and (4) it seriously affected the fairness of the

judicial proceedings.” See Gresham, 325 F.3d at 1265. An error cannot be plain

unless the error is “clear under current law.” United States v. Aguillard, 217 F.3d

1319, 1321 (11th Cir. 2000).

       We review de novo whether a defendant suffered a deprivation of his rights

under the Confrontation Clause; however, a Confrontation Clause violation does

not require remand if the error is harmless “beyond a reasonable doubt.” See

United States v. Mills, 138 F.3d 928, 937-38 (11th Cir. 1998).

       The relevant facts are these.          On May 6, 2006, Dupree was indicted for

robbing a bank that had deposits insured by the Federal Deposit Insurance

Corporation, in violation of 18 U.S.C. § 2113(a). Prior to trial, the government

disclosed its intention to present evidence, pursuant to Fed. R. Evid. 404(b), that




       1
          In order to preserve an issue for appeal, a defendant must “raise an objection that is
sufficient to apprise the trial court and the opposing party of the particular grounds upon which
appellate relief will later be sought”; however, “[a] general objection or an objection on other
grounds will not suffice.” United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986). In his
second issue, Dupree asserts error based on Rule 602 and based on improper bolstering due to a
witness’s identification as a law enforcement officer. Although he objected at trial to the testimony
that is at issue in claim two, he did not assert error based on Rule 602. Therefore, we review that
portion of his argument for plain error only. As to his claim of improper bolstering, we discern no
abuse of discretion.

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Dupree had committed a prior bank robbery in 1986 and three prior bank robberies

in 1996.

      At trial, Dawn Kowalak, Bank of America’s regional manager of corporate

security, testified that she investigated a January 13, 2006 incident during which

one of the bank’s branches was robbed, and determined that $2,157 was taken.

Bank teller Karen Morales testified that, on that date, a man came to her window,

and, as was her custom, she greeted him and looked at his face. She testified that

the man then pointed down at a deposit slip, on which he had written “give me the

money, no die [sic] pack, no paint . . . or I blow your head off, . . . 100’s, 50’s and

20’s.” She gave him the money from her teller station, and, after he left, she told

her assistant manager that she had been robbed. In court, she identified Dupree as

the man who had robbed her. The government entered into evidence the deposit

slip that Morales had described, as well as surveillance footage from the robbery.

As the footage was presented, Morales explained that it depicted Dupree going

toward a kiosk at which one could obtain deposit slips, similar to the one presented

into evidence by the government, and other bank documents.

      Morales identified the robber in still photographs and surveillance video

taken on the day of the robbery. She testified that she was shocked by the robbery

and remembered it “like it happened yesterday.” She also described how, about a



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month after the robbery, she positively identified Dupree’s photo among a group of

photos of people who “look[ed] like the person who robbed me.” The group of

photos was introduced into evidence. On cross-examination, Morales testified that,

when meeting with police, she described the robber as a black male, who was

clean-shaven and slightly shorter than her (around five feet, six inches tall), and

was wearing a hat, a blue jacket, black sweat pants, and white socks.

      Dupree objected to the testimony of the next witness, Nancy Lynn Navitsky,

a U.S. Marshals Service Deputy. He argued that Deputy Navitsky should not be

allowed to say that she had seen the defendant while working in her capacity as a

law enforcement officer, or as part of a “fugitive squad.”         In response, the

government explained that Deputy Navitsky was familiar with Dupree because she

had been preparing an arrest warrant for him on a probation violation, and argued

that she should be able to identify her occupation because: (1) the jury would find

it odd if she did not identify her occupation, while other witnesses had; (2) part of

her testimony regarded her special training in identification and naming her

occupation would help to explain why she had that training; and (3) her testimony

was necessary to explain how Dupree ultimately became a suspect.

      The district court ruled that Deputy Navitsky could identify her occupation,

describe her training, and testify that she recognized Dupree from a photograph,



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but she could not testify that she had seen Dupree’s photograph while preparing an

arrest file for him or working on a fugitive squad. The court characterized Deputy

Navitksy’s testimony as “lay opinion,” because it was based on her senses and

perception, but also found that Deputy Navitsky’s testimony about her training in

identification techniques was permissible to help explain how she recognized

Dupree. The district court further explained that, in addition to providing evidence

that Dupree was the robber, Deputy Navitsky’s testimony provided an

“explanatory bridge” to explain how local police came into contact with Dupree

after the robbery. Before Deputy Navitsky testified, the district court instructed the

jurors that, although they would hear testimony that a law enforcement officer

possessed a photograph of Dupree, they should not speculate as to why she

possessed the photograph, as Dupree was only on trial for the instant offense.

      Deputy Navitsky then testified that, as part of her work for the U.S.

Marshals Service, she had received training in the identification of individuals, as

part of a 14-week criminal investigation school. She testified that, one evening,

she was watching a local news broadcast about the January 13th robbery, and,

upon seeing the surveillance footage, she immediately recognized Dupree as the

robber, based on a photo she had recently seen. She subsequently reported her

identification of Dupree to the Palm Beach County Sheriff’s Office (“PBCSO”).



                                          6
      Jeff Weissman, a PBCSO detective, testified that, as part of his investigation

of the robbery, he distributed a news release, in which he included still images

taken from the surveillance video of the robbery. Deputy Navitsky subsequently

contacted him and told him that she believed that Dupree was the robber and that

she knew where to find Dupree. Thereafter, Detective Weissman personally met

with Dupree and agreed that he was the person depicted in the surveillance

photographs.    Detective Weissman testified that, after his conversation with

Deputy Navitsky, he prepared a photo lineup, which included Dupree’s photo, and

showed the lineup to Frank LaCosta, another bank employee, who positively

identified Dupree. When the government moved to introduce the lineup photos

into evidence, the defense objected on the ground that it violated Dupree’s

confrontation rights. The district court sustained the objection.

      Before the government called its next witness, the district court heard

argument on the admissibility, under Rule 404(b), of evidence of Dupree’s four

prior robberies. The government argued that identity was the primary issue at trial

and that, because the previous robberies were highly similar to the present robbery,

the previous crimes were admissible to show identity. More specifically, the

government argued, in each robbery, the robber walked into a bank, unarmed,

wearing a baseball cap, went to the check-writing station, wrote out a note on a



                                          7
bank document, got in line, and passed the note to the teller, using similar language

each time.    Dupree responded that the prejudice from such evidence would

outweigh its weak probative value, and that the past robberies were “too generic,”

since they involved behavior common to many bank robberies.

      The district court found a “remarkabl[e]” similarity among the written notes

in each case, especially the shape of the letter “F”’s on each note, and that in the

robberies, the robber wore a baseball hat, used a bank document for the note, and

carried the money out of the bank in his hands. The district court also recognized

the need to “take appropriate steps to attempt to modify the prejudicial impact” of

the testimony. Thus, the court ruled that the government could introduce evidence

of only one of the four past robberies, reasoning that the jury, if it heard about all

of them, might be “tempted to give up its responsibility” to focus on the instant

robbery, and instead convict Dupree on the basis that, if he “commit[ted] multiple

bank robberies, he probably did this one, too.”

      Immediately prior to the admission of evidence of Dupree’s previous

robbery, the district court instructed the jury that “it is a fundamental principle that

somebody is only on trial for the crime that is charged in the indictment,” and

explained that it was admitting evidence of a previous robbery “only for the

purpose of establishing the identity of . . . the person who committed the robbery



                                           8
on January 13th, 2006.” The district court further charged the jurors that they

could consider the evidence only if they found that the past robberies and the

robbery on trial were “so distinctive, . . . so idiosyncratic, . . . that you could find

beyond a reasonable doubt that the same person committed both acts.” Moreover,

the court instructed:

      [i]t would be 100 percent wrong if the jury just said, well, here is a
      prior bank robbery. If he did it before, he probably did it here. That
      would be terrible. This evidence cannot be used for that purpose, and
      you really need to consciously be aware of that.

The district judge continued to admonish the jury on this point, and then asked the

jurors if they understood his instructions, and they stated “yes.”

      Martin Ruiz de Gamboa, a special agent for the Federal Bureau of

Investigations, then testified that, in May 1996, he investigated a bank robbery, in

which the perpetrator (later identified as Dupree), wearing a baseball cap, a t-shirt,

and long pants, went into a bank and wrote a demand note on one of the bank’s

credit card applications. The demand note, which was submitted into evidence,

read “I have a gun. If you value your life, pass the money. No die [sic] pack or

alarm, pass the 20.” Special Agent de Gamboa testified that it was “very unusual”

for a bank robber to write out a demand note in the bank. He stated that “[in] ten

years I don’t think that personally I had more than maybe two cases in which

stationary from the bank was used” for a robbery.         Special Agent de Gamboa

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further testified that during the 1996 robbery, Dupree had stood in line like a

regular customer, passed the note to the teller, and walked out of the bank carrying

the money. Dupree had pled guilty and was convicted of the May 1996 robbery.

Special Agent de Gamboa made an in-court identification of Dupree as the May

1996 robber.    The government introduced into evidence a certified copy of

Dupree’s 1996 robbery conviction.

       Dupree testified in his own defense, the primary theory of which was

misidentification. He stated that he had a beard and mustache at the time of the

instant offense, contrary to Morales’s testimony that the robber was clean-shaven.

Dupree introduced a photograph of himself with a beard and mustache.             He

testified that the photo was taken when he was sent to jail on February 6, 2006. It

was Dupree’s theory that he could not have grown a full beard and mustache in the

time between the January 13th robbery and his February 6th admission to jail, and

thus that Morales had misidentified him as the robber. On cross-examination, he

admitted that he pled guilty to the 1996 robbery, as well as to writing the note in

that robbery, though he denied that the handwriting in the 2006 note looked like

his.

       During the government’s rebuttal case, Maria Hogans testified that in May

1996, she worked as a teller at Barnett Bank, where she was robbed. She testified



                                        10
that a man handed her a note, then told her that he wanted some money and that he

had a gun. Hogan identified the note that the government previously had entered

into evidence, confirming it was the note she had been given. She also testified

that after the robbery, she had positively identified the robber in a photo lineup,

and the photo that she identified as depicting the robber, with her initials below it,

was submitted into evidence. The government also presented surveillance

photographs from the 1996 robbery, in which a man, who Hogans identified as the

robber, stood at a counter writing on a credit card application.

      In its instructions to the jury regarding the evidence of Dupree’s previous

bank robbery, the district court again told the jury that it would be “terribly wrong”

to convict Dupree of the present robbery based on the fact that he had committed a

past robbery, and that the jury could convict Dupree based on that evidence only if

it concluded that “the similarities [between the two robberies] are so striking that

the jury can say beyond a reasonable doubt the same person committed both of

these robberies, and that person is Mr. Dupree.” The court admonished the jury

that it was not permitted to use the evidence “for any other purpose.”

      The jury found Dupree guilty, as charged, of bank robbery. Based on his

career-criminal classification, a base offense level of 32, and a criminal history




                                          11
category VI, Dupree was sentenced to a 216-month term of imprisonment. He also

was ordered to pay $2,200 in restitution. This appeal followed.

      First, Dupree challenges the admission of evidence concerning the May

1996 robbery. Federal Rule of Evidence 404(b) provides: “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident . . . .” Fed. R. Evid. 404(b).

Thus, Rule 404(b) permits the admission of prior-bad-acts evidence to show

motive, preparation, knowledge, identity, and intent, as well as an ongoing scheme

or plan. See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir.

1992); United States v. Cross, 928 F.2d 1030, 1047-48 (11th Cir. 1991).

      In reviewing 404(b) decisions, we apply a three-part test for admissibility of

such evidence: (1) the evidence must be relevant to an issue other than the

defendant’s character; (2) there must be sufficient proof so that a jury could find

that the defendant committed the extrinsic act; and (3) the evidence must have

probative value that is not substantially outweighed by undue prejudice. See

Jernigan, 341 F.3d at 1280. “A similarity between the other act and a charged

offense will make the other offense highly probative with regard to a defendant’s



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intent in the charged offense.” United States v. Ramirez, 426 F.3d at 1344, 1354

(11th Cir. 2005).   When using 404(b) evidence of a past crime to show identity,

“the likeness of the offenses is the crucial consideration. The physical similarity

must be such that it marks the offenses as the handiwork of the accused. In other

words, the evidence must demonstrate a modus operandi.” United States v. Miller,

959 F.2d 1535, 1539 (11th Cir. 1992) (quotation omitted).

      Here, Dupree concedes that the government met the first two criteria under

Rule 404(b): (1) that the evidence was admitted to establish identity, which is a

proper purpose, and (2) that the prior crime occurred. However, he argues, under

the third prong, that the government did not show the probative value of the

evidence outweighed its potential for prejudice. Dupree says that because there

was no “unique signature” to his previous crime, the similarities between the

robberies were insufficient to be substantially probative of his identity. He also

argues that because the prior crime was “very similar” to the present robbery, the

potential for prejudice was high.

      The district court found many similarities between the perpetrators of both

robberies, as well as a “remarkabl[e]” similarity among the written notes in each

case, especially the shape of the letter “F”’s in each note. Moreover, the court

noted the fact that the robber used a bank document each time -- a point that was



                                        13
substantiated by the testimony of Special Agent de Gamboa, who testified that he

had investigated between 40 and 50 bank robberies and found it was “very

unusual” for a bank robber to write out a demand note in the bank. Indeed, as he

put it, “[in] ten years I don’t think that personally I had more than maybe two cases

in which stationary from the bank was used” for a robbery. Moreover, de Gamboa

testified that, in his experience, he had never before seen the exact combination of

factors present in Dupree’s robberies.

      In addition to the district court’s findings on the similarities of the robberies,

the court issued clear, strict instructions to the jury to use the evidence only “for a

very, very limited purpose,” which was to allow the jury to decide whether the

previous robbery and the instant one were “so distinctive, . . . so idiosyncratic, . . .

that you could find beyond a reasonable doubt that the same person committed

both acts.” The district court issued these special instructions twice, once before

the evidence was admitted at which point the jury verbally indicated that it

understood the instruction, and again in the jury charge. Moreover, the court took

the additional step of admitting evidence of only one of Dupree’s past robberies,

rather than the four that the government proposed, in order to mitigate the

evidence’s prejudicial impact.     In short, the district court based its evidentiary

ruling on similarities between the two crimes -- including, in particular, the



                                          14
similarity of the handwriting on the notes and use of a bank document -- and not

solely on similarities common to many robberies, as Dupree suggests. On this

record, we discern no clear abuse of discretion in the district court’s ruling.

      Next, Dupree argues that the district court erred by admitting the testimony

of both Deputy Navitsky and PBCSO Detective Weissman concerning photographs

of Dupree and bank surveillance videos. Citing Rule 602 of the Federal Rules of

Evidence, Dupree suggests the district court erred by allowing Navitsky and

Weissman to testify that they had seen a photograph of Dupree and recognized him

in surveillance photographs of the robbery, because neither of the two had

“personal knowledge” of the robbery, as required by Rule 602 of the Federal Rules

of Evidence.

      Rule 602 states that a witness “may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge

of the matter.” Fed. R. Evid. 602. Rule 403 authorizes the exclusion of evidence

whose probative value is “substantially outweighed by the danger of unfair

prejudice. . . .” Fed. R. Evid. 403. In reviewing evidence under Rule 403, we view

the evidence “in a light most favorable to its admission, maximizing its probative

value and minimizing its under prejudicial value.” United States v. Jernigan, 341

F.3d 1273, 1284 (11th Cir. 2003).



                                           15
      Because the record established that Deputy Navitsky and Detective

Weissman had personal knowledge of Dupree’s appearance, the district court did

not err by admitting their testimony that they recognized Dupree from surveillance

images of the robbery.      Moreover, Deputy Navitsky’s testimony that she was

trained in identification, along with Detective Weissman’s testimony that he agreed

with Navitsky’s identification of Dupree, was highly probative of the identity of

the robber, which was the primary issue at trial, as misidentification was Dupree’s

theory of defense. Put simply, we can find no abuse of discretion in the district

court’s ruling that the probative value was not substantially outweighed by its

potential for unfair prejudice, especially given the court’s instruction that the jurors

should not speculate as to why law enforcement officers possessed photographs of

Dupree.

      Next, Dupree argues that his confrontation rights were violated when

Detective Weissman testified that Frank LaCosta, a bank employee, had identified

Dupree in a photo lineup, in an out-of-court statement. Dupree contends that the

admission of this evidence violated the rule of Crawford v. Washington, 541 U.S.

36 (2004), that the Sixth Amendment’s guarantee of an accused’s right to confront

and cross-examine witnesses against him extends only to “testimonial” statements.

See also Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006) (reaffirming this



                                          16
rule).    According to Dupree, because LaCosta’s statement was an out-of-court

identification that occurred during a police interview, the statement was

testimonial, and he was entitled to confront the witness. See Davis, 126 S. Ct.

2266, 2273-74 (2006) (defining as “testimonial” any statements made to police

officers, under circumstances that “objectively indicate . . . that the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecutions.”).

         We easily resolve this claim because even if the admission of LaCosta’s

identification was error, it was harmless beyond any reasonable doubt. In United

States v. Mills, we held that a Confrontation Clause violation was harmless beyond

a reasonable doubt when: (1) the out-of-court witness’s testimony was not “vital”

to the prosecution, in that the key evidence upon which the conviction was based

came from other witnesses; (2) the witness’s testimony was mentioned only twice,

in passing, in the government’s closing argument; (3) the testimony was only

cumulative of other testimony; and (4) cross-examination by other defendants

provided a forum by which the defense could undermine the testimony. See 138

F.3d 928, 939-40.

         Here, even assuming LaCosta’s statement was admitted in contravention of

Dupree’s confrontation rights, the statement was merely cumulative of the



                                         17
government’s overwhelming proof that Dupree was the May 1996 robber, and the

statement was mentioned only once throughout the trial. On this record, we readily

conclude that any error in the admission of the identification was harmless beyond

a reasonable doubt.

      Finally, Dupree argues that the district court committed plain error by

ordering him to pay $2,200 restitution, because the evidence established that he

stole only $2,157. The government concedes error on this point and urges this

Court for a limited remand to allow the district court to correct the $43

discrepancy.   Accordingly, we vacate the restitution order and remand for the

limited purpose of correcting the $43 discrepancy in that order.

AFFIRMED IN PART; VACATED AND REMANDED IN PART, WITH

INSTRUCTIONS.




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