                Rehearing granted in part and case remanded
               for resentencing under Booker on March 8, 2005
                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4379



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


DERRELL LAMONT GILCHRIST,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
02-245-DKC)


Submitted:   October 27, 2004               Decided:    January 11, 2005


Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Douglas Wood, ROBERTS & WOOD, Riverdale, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Deborah Johnston,
Assistant United States Attorney, Sandra Wilkinson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Derrell   Lamont    Gilchrist     appeals    from   a     district    court

judgment following his conviction and sentencing for three counts

of   armed   bank    robbery,    18   U.S.C.   §   2113(d),      one   count    of

carjacking, id. § 2119, one count of conspiracy to engage in a bank

robbery and a carjacking, id. § 371, four counts of using a firearm

during and in relation to a crime of violence, id. § 924(c), and

one count of possessing a firearm after having a felony conviction,

id. § 922(g).       We affirm.



                                       I

                                       A

      Between March 15, 2001 and July 13, 2001, Gilchrist engaged in

a series of violent offenses in the District of Maryland and

elsewhere.       Gilchrist’s     involvement       in   these    offenses      was

established through eyewitness and victim testimony, results of

forensic examinations, including fingerprint and DNA comparisons,

documents, and other evidence.

      On March 15, 2001, Gilchrist, acting alone, masked and armed

with a gun, entered a Columbia Bank branch located in Greenbelt,

Maryland.     Before Gilchrist entered the bank, the branch manager

saw Gilchrist outside the bank without a mask.                  In the hallway

outside the bank’s lobby, Gilchrist, wearing a mask, encountered a

customer who had already left the bank and demanded at gunpoint


                                       2
that the customer return to the bank and get on the floor.

Gilchrist then demanded money by pointing the gun at tellers and

customers. Gilchrist forcibly took federally insured United States

currency.     As he left the bank, Gilchrist stated, “Have a Merry

Christmas.”    Gilchrist was then observed by the branch manager and

others fleeing across the parking lot and entering a black Jeep

Cherokee.

     In a photographic lineup, the Columbia Bank branch manager

identified Gilchrist as the person she saw outside the bank on the

date of the robbery.    Bank surveillance photographs depicted the

robber as short and stocky, which matched Gilchrist’s physical

build.

     On April 25, 2001, Gilchrist robbed another bank, this time a

Bank of America branch in Mitchellville, Maryland.       Gilchrist,

masked and armed with a gun, entered the bank and demanded money by

pointing the gun at tellers and customers. Gilchrist forcibly took

federally insured United States currency.     As he left the bank,

Gilchrist was heard saying, “Have a blessed day” and “Have a Merry

Christmas.”

     Gilchrist was observed fleeing from the bank and running

behind a shopping center located adjacent to the bank parking lot.

A construction worker at the rear of the shopping center observed

the robber fleeing and observed him get entangled in some bushes.

A black nylon skull cap and a twenty-dollar bill were recovered in


                                  3
that same area of the bushes.            A DNA comparison was done and

Gilchrist was determined to be the major contributor of the DNA

found on the skull cap.

     Gilchrist’s next heist occurred on June 15, 2001 at a Sun

Trust Bank branch in Landover Hills, Maryland.            Gilchrist and a

taller, thinner African-American man were observed by Matilda

Burgos, a bank customer, in the bank’s parking lot.             Burgos made

eye contact with Gilchrist and watched Gilchrist and his accomplice

walk to the bank door, where she observed one of the men pulling

out a gun before entering the bank.        As described by witnesses and

depicted   in    the   bank   surveillance    photographs,    both    robbers

displayed guns and wore bandannas covering their faces.                  They

demanded and received United States currency.         One of the robbers

grabbed the keys to a customer’s minivan.        Both robbers fled in the

stolen minivan, which was later recovered a short distance from the

bank.

     On July 13, 2002, Gilchrist and a taller, thinner African-

American man approached Raymond Redden at 1441 McCormick Drive in

Landover, Maryland and demanded his vehicle.                 Unbeknownst to

Gilchrist and his accomplice, Redden was a Prince George’s County

police officer, recently assigned to the narcotics unit, and the

vehicle    was   his   undercover    police    vehicle.       After    Redden

relinquished his keys by putting them on the front seat, Gilchrist

told Redden to get on the ground because he was going to “cap him.”


                                     4
     Gilchrist and Officer Redden then struggled for the gun.                  In

the midst of the struggle, Gilchrist discharged his weapon but was

unable to fire it again because Redden had his hand over the slide

portion of the gun, thereby jamming the casing inside. During this

struggle, Gilchrist instructed his accomplice to kill Redden.                  The

accomplice tried to come closer to the two men, but was unable to

get a clear shot.      Gilchrist and his accomplice fled the scene in

Redden’s unmarked police vehicle.

     A high-speed chase ensued.           A short time later, Gilchrist and

his accomplice abandoned the unmarked police vehicle and escaped on

foot.    However, the police were able to recover Officer Redden’s

vehicle.      Fingerprints recovered on the driver’s side exterior of

the vehicle were identified as belonging to Gilchrist.                  During a

search   of    the   vehicle,   a   pager    not    belonging   to    Redden   was

recovered.1

     A   photographic     lineup    was     shown   to   Officer     Redden,   who

identified Gilchrist as the shorter of the two carjackers and the

one who tried to shoot him.                Redden was also shown another

photographic lineup and identified another photograph as depicting




     1
      The pager recovered from Officer Redden’s vehicle belonged to
Syretta Smith, a prostitute whom Gilchrist robbed at gunpoint on or
about July 8, 2001.    Smith was shown a photographic lineup and
identified Gilchrist as the man who robbed her of her money and
pager. Smith also identified a second photograph as the man who
assisted Gilchrist in robbing her.

                                       5
the   tall,    thin   man   who   was   Gilchrist’s      accomplice    in   the

carjacking.2

      Less than two hours after the carjacking of Officer Redden,

Gwendolyn Day was walking from a Seven-Eleven convenience store to

a Chevy Chase Bank branch in Arlington, Virginia to join her sister

who was inside the bank.          As she crossed the parking lot, Day

observed two men, one short and stocky, the other tall and thin,

running toward the front of the bank.             Nothing was covering their

faces.

      Moments later, when Day was inside the bank, the same short,

stocky man, whom she identified in court as Gilchrist, and his

tall, thin accomplice entered the bank. Both were wearing bandanna

masks and carrying guns.      Gilchrist demanded money by pointing the

gun at tellers and customers, adding that he would “execute them”

if they did not follow his orders.           Gilchrist and his accomplice

forcibly took federally insured United States currency.

      While fleeing from the scene of the bank robbery in his Jeep

Cherokee, Gilchrist failed to yield the right of way and nearly

collided with another car.          The other driver became angry and

followed Gilchrist, who sped away.          After obtaining the Cherokee’s

license-plate    number,    the   driver    who    was   following    Gilchrist



      2
      Of note, the person identified by Officer Redden as
Gilchrist’s accomplice in the carjacking was not the same person
that Smith identified as Gilchrist’s accomplice during the July 8,
2001 robbery of Smith.

                                        6
returned    to   the   Chevy    Chase     Bank   branch      and   provided    the

information to the police.

     Later, Gilchrist abandoned his Jeep Cherokee at a government

office building in Washington, D.C.          The vehicle was found on July

17, 2001 and, inside the vehicle, the police recovered dye-stained

money, a bullet, and a bullet casing.            On July 19, 2001, Gilchrist

was apprehended, following a vehicular chase with a Washington,

D.C. police officer.

                                        B

     On July 26, 2002, a grand jury sitting in the District of

Maryland returned a superseding indictment charging Gilchrist with

four counts of armed bank robbery, 18 U.S.C. § 2113(d), one count

of carjacking, id. § 2119, one count of conspiracy to engage in a

bank robbery and a carjacking, id. § 371, five counts of using a

firearm    during   and   in   relation     to   a   crime   of    violence,   id.

§ 924(c), and one count of possessing a firearm after having a

felony conviction, id. § 922(g).          On January 7, 2003, the case went

to trial.    After eight days of trial, the jury returned a verdict

finding Gilchrist guilty of all of the counts except one of the

armed bank robbery counts and one of the § 924(c) counts.3                     On



     3
      In the superceding indictment, the government alleged that
Gilchrist, armed with a firearm, robbed a Potomac Valley Bank
branch on June 21, 2001. This allegation formed the basis of one
of the armed bank robbery counts and one of the § 924(c) counts.
The jury acquitted Gilchrist on the counts related to the alleged
robbery of the Potomac Valley Bank branch.

                                        7
April 25, 2003, the district court sentenced Gilchrist to 112

years’ imprisonment and ordered restitution in the amount of

$54,595.   Gilchrist noted a timely appeal.



                                     II

     Gilchrist contends that he was improperly denied access to

evidence   favorable    to   his   defense   in   violation   of   Brady    v.

Maryland, 373 U.S. 83 (1963).        More specifically, he contends he

was entitled to know the name of the individual that Officer Redden

identified in the photographic lineup as Gilchrist’s accomplice in

the carjacking.   With this information, Gilchrist posits, he would

have been able to impeach Redden’s testimony by demonstrating that

the person Redden identified in the photograph as Gilchrist’s

accomplice did not, in fact, participate in the carjacking or any

of the bank robberies, thereby undermining the government’s theory

of the case.4

     In Brady, the Supreme Court held that the prosecution’s

failure to disclose favorable evidence to an accused “violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.”     Id.   at   87.     In   order   to   establish   that    the


     4
      The government’s decision to refuse to disclose the name of
the person that Officer Redden identified in the photographic
lineup as Gilchrist’s accomplice in the carjacking primarily was
based on privilege and confidentiality concerns--its investigation
into the identity of Gilchrist’s accomplice was ongoing.

                                     8
government's failure to turn over evidence constitutes a Brady

violation, the defendant must demonstrate: (1) that the undisclosed

evidence was favorable, either because it was exculpatory or

impeaching; (2) that the prosecution had the materials and failed

to disclose them, either willfully or inadvertently; and (3) that

the evidence was material to the defense. Strickler v. Greene, 527

U.S. 263, 280-81 (1999).          Evidence is “material” for purposes of

the Brady inquiry “only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.”               United States v. Bagley,

473 U.S. 667, 682 (1985).              A “‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.”

Id.    Thus, although “the term ‘Brady violation’ is sometimes used

to    refer   to   any   breach   of   the   broad   obligation   to   disclose

exculpatory [or impeachment] evidence--that is, to any suppression

of so-called ‘Brady material’-- . . . strictly speaking, there is

never a real ‘Brady violation’ unless the nondisclosure was so

serious that there is a reasonable probability that the suppressed

evidence would have produced a different verdict.”             Strickler, 527

U.S. at 281.

       In denying Gilchrist’s request for the government to disclose

the name of the person that Officer Redden identified in the

photographic lineup as Gilchrist’s accomplice in the carjacking,

the district court engaged in a lengthy colloquy with counsel.


                                        9
During   this    colloquy,     the   court   observed   that,   because   the

government      had   doubts   concerning     the   accuracy    of   Redden’s

identification of Gilchrist’s accomplice in the carjacking, the

government was not contending that the person Redden identified in

the photographic lineup participated in any of the crimes alleged

in the indictment.5      The court also observed that, in view of the

strong physical evidence linking Gilchrist to the carjacking,

Gilchrist did not seriously take issue with Redden’s identification

of Gilchrist as a participant in the carjacking.          In light of these

two observations, the court viewed Gilchrist’s request as one that

sought evidence to prove a fact the government did not dispute,

namely, the man Redden identified in the photographic lineup as

Gilchrist’s accomplice was not the same individual who participated

in the carjacking or any of the bank robberies.            Put simply, the

essence of the court’s ruling was that Gilchrist’s request did not

seek impeaching or exculpatory evidence because (1) the name of the

accomplice was irrelevant to any issue in the case and (2) there

were other persuasive ways to prove the inaccuracy of Redden’s

identification without disclosure of the name of the accomplice.




     5
      Although the government had doubts concerning the accuracy of
Officer Redden’s identification of Gilchrist’s accomplice in the
carjacking, the government did suggest to the court, and ultimately
argued to the jury, that the accomplice in the carjacking, whomever
that person might be, assisted Gilchrist in performing some of the
bank robberies.

                                       10
     In our view, Gilchrist’s Brady claim founders for the simple

reason that the identification evidence he sought was not material.

Given     the    certainty        of    Officer    Redden’s    identification          of

Gilchrist, the presence of Gilchrist’s fingerprint on the outside

of Redden’s vehicle in the area where the struggle occurred, the

subsequent discovery of Smith’s pager in Redden’s vehicle, her

identification of Gilchrist as the person who stole her pager, and

the fact that the government was not contending that the person

Redden identified in the photographic lineup participated in any of

the crimes alleged in the indictment, it simply cannot be said that

disclosure of the identity of the accomplice in the carjacking

would have produced a different result at the trial.                       Accordingly,

there was no Brady violation.

     In a related argument, Gilchrist contends that the district

court should have conducted an in camera review of the evidence

concerning        Officer     Redden’s       identification          of        Gilchrist’s

accomplice in the carjacking.                 According to Gilchrist, such a

review was necessary because the court was obligated to determine

whether    the     government          possessed    information      concerning       the

accuracy of Redden’s identification of Gilchrist’s accomplice.

     On    occasion,        the   government       may   possess     potential      Brady

material        that   it    deems       privileged      or   that        is     otherwise

confidential. If the accused does not specifically request that it

be produced, this material is treated much like everything else in


                                            11
the   government’s    file,   i.e.,    “the   prosecutor’s    decision    on

disclosure is final.”       Pennsylvania v. Ritchie, 480 U.S. 39, 59

(1987).     If, however, the defendant is able to identify the

requested confidential material with some degree of specificity, he

may then attempt to convince the district court that it is subject

to disclosure.     Id. at 58 n.15 (requiring the accused to “at least

make some plausible showing” of how the evidence would be “both

material and favorable to his defense”).

      Once the defendant has made a plausible showing that the

evidence would be both material and favorable, the district court

must review the evidence in camera to ascertain its true nature and

determine whether it must be disclosed.          Id. at 58-60.   The court

conducts its examination in private because the Constitution does

not accord a defendant the right of unrestricted access to the

government’s files. Id. at 59-60. The court’s ultimate conclusion

as to whether the information is subject to disclosure--whether the

evidence is both material and favorable--may be disturbed on appeal

only if it is clearly erroneous.       United States v. Trevino, 89 F.3d

187, 190 (4th Cir. 1996).

      In   this   case,   Gilchrist   suggests   that   he   satisfied   the

“plausible showing” requirement because disclosure of the name of

the carjacking accomplice possibly would have led to admissible

evidence.    However, mere speculation that the information may be

helpful is insufficient to justify an in camera review.             United


                                      12
States v. Mitchell, 178 F.3d 904, 907-08 (7th Cir. 1999).                 In any

event, it is difficult to see how the name of the carjacking

accomplice was favorable and/or material because Gilchrist simply

did not need the name of the accomplice to impeach Officer Redden’s

credibility. Gilchrist could have attacked Redden’s credibility by

presenting evidence that the accomplice identified by Redden in the

photographic lineup had not been charged with any of the crimes

alleged in the indictment.          Presentation of such evidence would

have   been   equally,   if   not   more,       powerful   than   any   evidence

Gilchrist could have marshaled through the disclosure of the name

of   Gilchrist’s   accomplice       in    the    carjacking.      Accordingly,

Gilchrist’s claim that the district court erred by failing to

conduct an in camera review is without merit.



                                         III

       Gilchrist also contends that the district court erred when it

admitted into evidence two in-court identifications of him, one by

Matilda Burgos, the other by Gwendolyn Day.

       When considering whether in-court identification evidence is

admissible, the district court employs a two-step analysis.                 The

court first determines whether the defendant established that the

identification procedure was unnecessarily suggestive.                    United

States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996).              Second, if

the identification procedure was unnecessarily suggestive, the


                                         13
court    must     determine      whether         the    identification       evidence

nevertheless is reliable.             Id.   In determining the reliability of

the identification evidence, the court considers a number of

factors, specifically: (1) the witness’s opportunity to see the

defendant at the time of the crime; (2) the witness’s degree of

attention; (3) the accuracy of the witness’s description; (4) the

witness’s level of certainty; and (5) the time between the crime

and the confrontation.          Id.    These factors are weighed against the

“corrupting     effect    of    the     suggestive       identification      itself.”

Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

     Gilchrist contends that the in-court identification of him by

Burgos violated his due process rights.                  Specifically, he alleges

that Burgos’s in-court identification was unnecessarily suggestive

and unreliable because: (1) during a court recess just prior to her

testimony, Burgos arrived in the courtroom, took the stand, saw

Gilchrist, and advised counsel she recognized Gilchrist; and (2)

Burgos   was    shown    bank    surveillance          photographs   prior    to   her

testimony.

     With      regard    to    Gilchrist’s       first     contention    concerning

Burgos’s in-court identification of him, we have held that giving

a witness an opportunity to observe the defendant in court is not

an unnecessarily suggestive identification procedure.                    See United

States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995) (“[A]lthough

the Government allowed the witnesses to see [the defendant] seated


                                            14
at the defense table prior to their testimony, it did not create a

substantial likelihood of irreparable misidentification” because

the witnesses “would have seen [the defendant] at the defense table

immediately before testifying.”).              Under this court’s holding in

Murray, allowing Burgos to see Gilchrist at counsel’s table a few

moments before her testimony did not make the identification

procedure unnecessarily suggestive, as Burgos would have seen

Gilchrist in any event a few moments later when she took the

witness stand.

     Gilchrist also contends the in-court identification of him by

Burgos violated his due process rights because Burgos was shown

bank surveillance photographs prior to her testimony.                     As the

argument    goes,     a   due   process    violation   occurred     because   the

government falsely told the district court that Burgos had been

shown “no pictures” of Gilchrist when, in fact, she had been shown

the bank surveillance photographs depicting Gilchrist wearing a

mask.     This argument is without merit for the simple reason that

the government’s statement was true in the sense that Burgos was

not shown any pictures which identified Gilchrist; rather, she only

was shown pictures of Gilchrist wearing a mask.

     In    any    event,    Burgos’s      identification     of   Gilchrist   was

reliable and therefore admissible.             An in-court identification is

admissible       if   the   witness    has     independent    knowledge    which

attenuates the inherently suggestive environment of a courtroom


                                          15
identification of a single defendant.                     Murray, 65 F.3d at 1169

(identification        based     upon    witness’s        “clear    recollection     of

[defendant] during the robbery”); United States v. Johnson, 732

F.2d    379,   381    (4th   Cir.    1984)       (identification      based   upon   an

opportunity to view the defendant at a time other than in the

courtroom).          Burgos’s    trial     testimony      clearly     satisfies     that

requirement     because        she   had     an    independent       basis    for    her

identification of Gilchrist.

       As established at trial, on June 15, 2001, after completing

her banking business and saying hello to her sister, Burgos left

the Sun Trust Bank branch.               As she walked toward her vehicle,

Burgos observed two men, one covered with a mask and the other

wearing a jacket, walking toward her vehicle.                    Burgos entered her

vehicle and locked the door because she was afraid of the men.                       She

only saw the suspect with the mask for a moment.                     Burgos, however,

saw the face of the other suspect, whom she identified in court as

Gilchrist.     Moreover, she watched the men walk up to the bank door,

at which time one of them pulled out a gun and both entered the

bank.    Burgos observed them for approximately thirty-five seconds.

As she was driving away from the bank parking lot, Burgos called

the police to report the incident.                   Burgos was not interviewed

during the initial investigation and was first contacted by the FBI

in   December    2002.          Burgos     was    shown    the     bank   surveillance

photographs in which both suspects wore masks and, therefore, as


                                            16
Burgos testified, she could not see their faces or identify them in

the photographs. Burgos did testify, however, that the body builds

and the clothing worn by the suspects in the bank surveillance

photographs matched the builds and clothing of the suspects whom

she had seen in the parking lot.

     Based upon her opportunity to observe Gilchrist, her level of

concentration, and her degree of certainty exhibited during her

testimony,   Burgos’s    in-court    identification   of     Gilchrist   was

reliable and properly admitted.       Cf. Coleman v. Alabama, 399 U.S.

1, 5-6 (1970) (affirming admissibility of in-court identification

by a witness who had a fleeting but good look at his assailant in

the headlights of a passing car, thereby finding an independent

basis for the in-court identification).

     Gilchrist also argues that the in-court identification of him

by Gwendolyn Day, a customer at the Chevy Chase Bank branch in

Arlington, Virginia was unreliable. Gilchrist asserts that the in-

court identification was inadmissible because: (1) Day had an

insufficient opportunity to view Gilchrist at the time of the

robbery;   (2)   she    improperly   observed   the   bank    surveillance

photographs prior to her testimony; and (3) she was tentative in

her in-court identification of Gilchrist.

     Day testified that, as she was going to the bank on the day of

the robbery, she observed two unmasked men running in her direction

from across the street.       She noticed that one was thin and the


                                     17
other was heavy-set. Day described the manner in which the heavier

person ran.   Day entered the bank moments later to join her sister

who was inside the bank and almost immediately felt someone behind

her.     Although he was now masked, Day could see his eyes and

recognized him from his physical appearance as the same person she

had observed about five seconds earlier running across the street.

Day saw the man pull out a silver gun, order everyone on the floor,

and threaten to start executing the customers unless he got some

money.

       In preparation for her trial testimony, Day reviewed bank

surveillance photographs to identify her location and the location

of others in the bank during the robbery.   Both robbers were armed

and wore bandannas covering their faces in those bank photographs.

       During her trial testimony, Day looked in the direction of

Gilchrist, which precipitated the following exchange between the

government and Day:

       GOVERNMENT: Why are you looking in that direction?

       MS. DAY: Because he -- he looks like the guy I seen
       coming across the street. Because I looked -- see when
       I seen him coming across, you know, the bus went by, and
       I thought they were just running for the bus.

After identifying Gilchrist as the person that she was looking at

in the courtroom, Day stated, “He looks like the guy that came

across the street, the one standing there with the gun in his hand

[in the bank].”



                                 18
     In this case, based on Day’s opportunity to view the robber’s

face as he ran across the street, her opportunity to see his eyes

moments later inside the bank while he was directing everyone to

the floor and threatening to execute the bank customers, the impact

such an event had upon her, and the unsolicited nature of her in-

court   identification    of    Gilchrist,   it   is   clear   that   her

identification of Gilchrist was based upon her recollection of the

bank robbery and not the result of any inherently suggestive

atmosphere in the courtroom. Accordingly, the court did not err in

admitting the evidence.        Cf. United States v. Peoples, 748 F.2d

934, 936 (4th Cir. 1984) (holding that an identification can be

reliable even if it is phrased in uncertain terms).



                                    IV

     Gilchrist also raises three additional arguments that he

contends should be resolved in his favor.         First, he argues that

the bank robbery and carjacking counts were improperly joined in

the indictment and, therefore, the district court erred when it

denied his motion for severance. Second, Gilchrist argues that the

court erred when it refused to allow him to introduce evidence

concerning a shooting incident that did not involve him, but did

involve Officer Redden. Finally, Gilchrist argues that Redden made

false statements at trial or, alternatively, that the government

knowingly utilized false testimony.      We have reviewed all of these


                                    19
arguments and find them to be without merit.   Accordingly, for the

reasons stated herein, the judgment of the district court is

affirmed.

                                                          AFFIRMED




                               20
