                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-1995

United States v Emanuele
Precedential or Non-Precedential:

Docket 94-3283




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
              _____________________

                   No. 94-3283
              _____________________

            United States of America,




                        v.

             Joseph Arthur Emanuele,

                           Appellant.
              _____________________

 On Appeal from the United States District Court
    for the Western District of Pennsylvania
                (D.C. No. 94-cr-3)
              _____________________

             Argued January 31, 1995

Before: SCIRICA, ROTH, and SAROKIN, Circuit Judges

             (Filed March 28, l995)
              _____________________

                      Thomas S. White
                      Federal Public Defender
                      Michael D. Bartko (argued)
                      Karen S. Gerlach
                      Assistant Federal Public Defenders
                      415 Convention Tower, 960 Penn Ave.
                      Pittsburgh, PA 15222

                             Attorneys for Appellant

                      Frederick W. Thieman
                      United States Attorney
                      Bonnie R. Schlueter
                      Assistant United States Attorneys
                      633 United States Post Office &
                      Courthouse
                      Pittsburgh, PA 15219
                               John T. Bannon, Jr. (argued)
                               General Litigation & Legal Advice
                               Section, Criminal Division
                               P.O. Box 887 Ben Franklin Station
                               Washington, D.C. 20044

                                      Attorneys for Appellee

                       ____________________

                       OPINION OF THE COURT
                      _____________________



SAROKIN, Circuit Judge:



     Defendant was convicted of two counts of bank robbery in

violation of 18 U.S.C. §2113(a).     He appeals on the grounds that

as to the central issue, identification, the district court erred

by (1) permitting in-court identification testimony by the two

key witnesses, after they had observed defendant in shackles

escorted by U.S. Marshals and then discussed his identity; (2)

denying the defendant's motion for a line-up prior to the

testimony of the two witnesses; and (3) ordering defendant to
shave his moustache, put on glasses supplied by the government,

and stand before the jury.

     The district court had jurisdiction pursuant to 18 U.S.C.

§3231.   Defendant filed a timely notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. §1291.

                                I.
     Defendant Joseph Arthur Emanuele was convicted of robbing

two Integra Banks, the "Millvale Bank" and the "Waterworks Bank".

Martha Hottel, a teller, observed the man who robbed the Millvale

Bank standing at a writing table before he came to her window and

demanded money.     Five weeks later, when shown a six-photo array,

she selected a photograph of the defendant but stated that she

"wasn't one hundred percent sure" of her choice.      Appendix

("App.") at 44.     When shown a second array several weeks later,

Hottel selected the photograph of someone other than defendant.

The bank's security cameras malfunctioned without photographing

the robber, and latent fingerprints from the writing table and

bank door did not match those of defendant.

     The man who robbed the Waterworks Bank demanded money from

Lorraine Woessner, a teller.      Woessner observed the man for

several minutes at close range in the well-lit bank lobby.        Shown

a six-photo array that included a photograph of defendant

shortly after the crime, Woessner was unable to identify the

robber.   App. at    44, 48.   The one fingerprint taken from the

Waterworks Bank did not match that of defendant, but the

Waterworks Bank security cameras did photograph the robber.

     The two tellers were subpoenaed by the government to

testify, and after checking in at the U.S. Attorney's Office,

they were directed to sit outside the courtroom.     There, the

tellers saw defendant led from the courtroom in manacles by U.S.

Marshals.   Though later Woessner could not remember for certain
who had spoken first, outside the courtroom the two tellers

talked to each other about defendant, telling each other "it has

to be him."    App. at 135.

      Having learned of the encounter, defendant's attorney moved

to suppress the tellers' anticipated in-court identification

testimony as violative of defendant's right to due process, or in

the alternative, for a court-ordered line-up.   The government

conceded that it had been "careless," App. at 52, but argued that

because the confrontation was inadvertent no constitutional

violation had occurred.

      The court denied the motion as to the testimony of Hottel,

the teller who had identified defendant's photograph in one

photospread but selected someone else in another.    App. at 73,

82.   As to the testimony of Woessner, who had failed to identify

defendant's photograph in the only array she was shown, the court

held a hearing out of the presence of the jury and ruled that the

second teller's identification testimony was admissible.    The

court made no specific findings of fact.    Both tellers took the

stand and identified defendant as the robber.

      During trial, three government witnesses, who knew

defendant, testified that he was the person in the Waterworks

Bank surveillance photographs, and three defense witnesses, who

also knew him, testified that defendant was not the person in the

photographs.    An expert witness, a surgeon, testified that he had

compared the dimensions of defendant's face with those of the
face of the robber in the Waterworks Bank photographs and

determined that defendant could not be the robber in the

pictures.     Two government experts testified in rebuttal that the

surgeon's calculations were unreliable.

       Defendant also challenges the district court's order

requiring him to shave his moustache and put on glasses similar

to ones worn by the Waterworks robber.      At trial, the court had

defendant wearing the glasses stand silently before the jury,

which was instructed that "these are not glasses that were found

anywhere.     They have been supplied by the government."   App. at

338.    No witness was on the stand at the time.

       After his conviction, defendant moved for a new trial based

on the admission of the tellers' identification testimony and the

orders to shave and wear glasses.      The court held another

hearing, at which time two receptionists from the U.S. Attorney's

Office testified that they had told the tellers to sit outside

the courtroom, as is the government's custom, without any

specific instruction from the prosecutor on the case.       The court

denied the motion for a new trial.      App. at 680-83.

                                 II.

       As with many evidentiary rulings, we review a decision to

admit identification testimony over an objection for abuse of

discretion.     Government of Virgin Islands v. Riley, 973 F.2d 224,

226 (3d Cir. 1992).     Where a motion to suppress has been denied,

we review the order "for clear error as to the underlying facts,
but exercise plenary review as to its legality in the light of

the court's properly found facts."    United States v. Inigo, 925

F.2d 641, 656 (3d Cir. 1991).    If the admission of identification

testimony violated the due process clause, as defendant contends,

then we will consider whether this constitutional error was

harmless.   Foster v. California, 394 U.S. 440, 444 (1969).
     A.     Admissibility of identification testimony

     A government identification procedure violates due process

when it is "unnecessarily suggestive" and creates a "substantial

risk of misidentification."     Riley, 973 F.2d at 228.   See United

States v. Stevens, 935 F.2d 1380, 1391-92 (3d Cir. 1991); United

States v. Dowling, 855 F.2d 114, 117 (3d Cir. 1988), aff'd, 493

U.S. 342 (1990); Neil v. Biggers, 409 U.S. 188, 198-99 (1972).

But see Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991)

(standard is "'very substantial likelihood of irreparable

misidentification'")(quoting Manson v. Brathwaite, 432 U.S. 98,

116 (1977) and Simmons v. United States, 390 U.S. 377, 384

(1968)), cert. denied, 112 S.Ct. 1679 (1992).    A "suggestive and

unnecessary identification procedure does not violate due process

so long as the identification possesses sufficient aspects of

reliability," for reliability is the "linchpin in determining the

admissibility of identification testimony."     Brathwaite, 432 U.S.
at 106, 114.    See also Reese, 946 F.2d at 258 (suggestive

interaction that creates no risk of misidentification does not

violate due process).
     To determine reliability, we examine the identification

procedure in light of the "totality of the circumstances."

Riley, 973 F.2d at 228.     These circumstances may include the

witness' original opportunity to observe a defendant and the

degree of attention during that observation; the accuracy of the

initial description; the witness' degree of certainty when

viewing a defendant or his image; and the length of time between

the crime and the identification procedure.      Biggers, 409 U.S. at

199-200; Brathwaite, 432 U.S. at 114; Riley, 973 F.2d at 228;

Reese, 946 F.2d at 258; Dowling, 855 F.2d at 117.

     Several aspects of the reliability inquiry deserve comment.

First, this court suggested in Reese that to determine

reliability we may also consider other evidence of the

defendant's guilt, Reese, 946 F.2d at 259, n.7, a principle we

applied in Riley as well.    973 F.2d at 228.   The suggestion is

contrary to the Supreme Court's guidance in Brathwaite that other

evidence indicating a defendant's guilt "plays no part in our

analysis" of reliability.    Brathwaite, 432 U.S. at 116.     Justice

Stevens emphasized the point in his Brathwaite concurrence,

applauding the majority opinion which "carefully avoids this

pitfall and correctly relies only on appropriate indicia of the

reliability of the identification itself."      Brathwaite, 432 U.S.
at 118 and note (Stevens, J., concurring).      We caution,

therefore, that only factors relating to the reliability of the

identification will be relevant to a due process analysis.
Independent evidence of culpability will not cure a tainted

identification procedure, nor will exculpatory information bar

admission of reliable identification testimony.   We will consider

other evidence only to determine whether an error, if present,

was harmless.   Brathwaite, 432 U.S. at 118, note (Stevens, J.

concurring).

     Second, we note that the standard enunciated for reliability

in Riley differs from that applied in Reese.   Compare Riley, 973

F.2d at 228 ("substantial risk of misidentification") with Reese,

946 F.2d at 258, 262 ("very substantial likelihood of irreparable

misidentification").   As in Riley, our phrasing of the standard

in Stevens and Dowling omitted the requirement of irreparability.

Stevens, 935 F.2d at 1391-92; Dowling, 855 F.2d at 117.   We

conclude that our most recent statement of the standard, that of

Riley, like our phrasings in Stevens and Dowling, most accurately

reflects Supreme Court precedent.   Thus, we must decide whether

there exists a "substantial risk of misidentification."

     Third, previous courts, as the district court here, have

wrestled with the degree of government complicity in a suggestive

procedure that is necessary to implicate the due process clause.

Where the alleged taint concerns the composition of a line-up or

photospread, the government's involvement is clear; where the

challenge concerns an encounter between witness and defendant on

the street, in the courthouse, or at a prison, some courts have

held that the government cannot be held responsible.   See, e.g.,
Reese, 946 F.2d at 261 (procedure proper where no evidence that

courthouse encounters "were deliberately arranged by the

government"); Stevens, 935 F.2d at 1390 n.11 (quoting Wilson v.

Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985)(defendant must "show

that the government's agents arranged the confrontation or took

some action during the confrontation which singled out the

defendant")).

     We hold that the government's intent may be one factor in

determining the risk of misidentification, but it is not an

essential element of defendant's burden of proof.    A series of

events that is suggestive and creates a substantial risk of

misidentification is no less a due process violation, even absent

evil intent on the part of the government.    Stated differently,

governmental intent is one of many factors in the totality of

circumstances, but we expressly do not require defendant to

establish the government's state of mind.    On the other hand,

evidence that the government intended and arranged such an

encounter would be a substantial factor in the court's analysis.
     B.   Application

     At the suppression hearing the district court determined

neither whether the courthouse encounter was unnecessarily

suggestive nor whether there was a substantial risk of

misidentification.   To the extent it considered the courthouse

encounter, the court focussed on the government's intent.     See
App. at 72, 87-88.1    Regarding the risk of misidentification, the

court made no findings as to the Biggers factors and in fact

instructed counsel that Woessner should "testify only on the

issue of what happened yesterday."     App. at 90.   At the close of

the hearing the court held:
     Okay. I'm going to allow Miss Woessner to testify and I'm
     going to deny the request for the lineup at this point,
     based on this witness' testimony that she has an independent
     basis of her identification of the defendant.


App. at 138.

        In essence, the district court relied on Woessner's

testimony that notwithstanding the suggestive circumstances, she

recognized the defendant.2    That testimony alone, even if

believed by the trial court, would not be dispositive.     Indeed,

if Woessner did not so testify, the issue would not even arise.

All of these instances are predicated upon a witness' insistence

that an identification can be made notwithstanding suggestive

circumstances, and there is frequently a good faith belief by the

    1In its only writing on the topic, denying the motion for a
new trial, the court concluded:

        [A]n incident occurred which did not involve a deliberate
        attempt   by  the   Government   to   obtain  a   suggestive
        identification by any witness . . . What occurred was an
        inadvertent and unplanned viewing . . . the Court finds that
        . . . this was not an identification procedure designed and
        manufactured by the Government to bolster the witnesses'
        testimony at trial . . .


May 3, 1994 Order, App. at 683 (emphasis added).
    2
    The dissent quite properly refers us to this testimony.
witness in such ability.   However, the sincerity or truthfulness

of the witness must be considered along with the other Biggers

factors in order to determine whether the risk of

misidentification still exists, notwithstanding a witness'

testimony to the contrary.    The trial court failed to consider

the "totality of the circumstances," such as in this case the

inability of the witness to recognize defendant in a photospread

despite a sufficient opportunity to observe the robber at close

range.   The court thus failed to apply the correct legal

standard.    Because the factual record is complete and

uncontroverted, however, we need not remand for further fact-

finding.    We will apply the appropriate standard to the

undisputed facts.

     We evaluate first whether the interaction was unnecessarily

suggestive.    It is undisputed that the two tellers were sitting

outside the courtroom because the U.S. Attorney's receptionists

had told them to be there, and that defendant was walked past

them in handcuffs with a U.S. Marshal on each shoulder.

Defendant had not asked to leave the courtroom -- he was ordered

out when the court granted the government's motion to have

defendant shave.

     In the face of these events, the government directs our

attention to Reese, where we concluded that it was not

impermissibly suggestive for a victim to glimpse defendant three

times in and around a courthouse.   946 F.2d at 261-62.     Our
analysis in Reese cited to and relied on United States v. Domina,

784 F.2d 1361, 1369-70 (9th Cir. 1986), cert. denied, 479 U.S.

1038 (1987), a decision which held that it was not unduly

suggestive for a victim to view a defendant leaving the courtroom

during recess, because the defendant was not handcuffed, not

escorted by marshals, and not otherwise singled out.    The

circumstances here fit cleanly within the Domina exceptions cited

in Reese, 946 F.2d at 261.

     Nor are we persuaded by the government's invocation of two

Eighth Circuit cases, United States v. Wade, 740 F.2d 625 (8th

Cir. 1984), which we discussed in Reese, and United States v.

Boykins, 966 F.2d 1240 (8th Cir. 1992), because each involve

facts different from those here.   Wade concerned a witness who,

while looking into a courtroom from outside, was asked "in a

nonleading fashion, shortly before she [took] the stand, whether

she can identify a person."   Wade, 740 F.2d at 628.   The Eighth

Circuit decided this was "the same question she will be asked

while testifying" and was not impermissibly suggestive.   Ibid.

In Boykins, a witness recognized a defendant while walking to the

courtroom and informed the prosecutor, who then accompanied the

witness down the courthouse hallway to confirm the

identification.   Boykins, 966 F.2d at 1242.   In Boykins the

government did not single out the defendant.   Furthermore, the

failure of the witnesses in Wade and Boykins to identify a

defendant in a previous photospread goes to the risk of
misidentification, not the suggestiveness of the courthouse

confrontation.

     We conclude that the confrontation was caused by the

government, albeit inadvertently, and that to walk a defendant --

in shackles and with a U.S. Marshal at each side -- before the

key identification witnesses is impermissibly suggestive.

     The more difficult question is whether this impermissibly

suggestive confrontation created a "substantial likelihood of

misidentification," in light of the totality of circumstances.

Riley, 973 F.2d at 228.   First, though we will consider the

reliability of each teller's testimony separately, we note

several Biggers factors common to both: the two tellers (a) had

several minutes to observe the robber, (b) at close range, (c) in

a well-lit space.   We agree with the government that the

unobstructed view of both tellers during the robberies would

strengthen the reliability of their testimony.   But this point

also supports defendant's position.    The tellers' protracted and

clear view of the robber highlights Woessner's failure to select

defendant's photo in the array and Hottel's choice of a different

photo in the second array shown her.

     Second, Woessner testified that she recognized defendant

immediately upon seeing him in the hallway.   We will assume that

her testimony was truthful and sincere.

      Third, in the courthouse the two tellers observed defendant

together and immediately spoke to each other about his identity,
prior to their testifying.     This conversation may well have

overwhelmed any doubts Hottel or Woessner retained after

observing defendant in the hallway, though given the indication

that Hottel spoke to Woessner first, it is the reliability of

Woessner's identification that is more impugned.       Woessner

testified:
     Q     Did Miss Hottel tell you that was him?

     A    Ah, not right away, only when he was down the hall she
     mentioned that. I mean, she spoke very softly and said that
     she, she was very upset because she didn't remember -- she
     didn't think she remembered what he looked like, but when
     she saw him she knew exactly that's who it was.

     . . .

     Q       She didn't say that was him to you?

     A    I think we both looked at each other and we were kind
     of it's, it has to be him (witness nodding.) . . .


App. at 134-35.

     Finally, we consider a crucial difference between the

circumstances of each teller's identification: the strength of

the initial identification.     As we noted in Reese, whether

subsequent viewings create a substantial risk of

misidentification may depend on the strength and propriety of the

initial identification.     946 F.2d at 262-63.    Upon viewing her

first photospread, Hottel recognized defendant as the robber.

Her slight qualification -- not being "one hundred percent sure"

-- does not significantly diminish the import of that

identification, nor does her subsequent selection of the
photograph of another person in a second array.     In contrast,

having scrutinized an array that included his photograph,

Woessner failed to identify defendant as the robber.     All the

photospreads were viewed close in time to the respective

robberies.

        Thus, we face a situation in which the one eye-witness who

would be able to identify the Waterworks robber and place

defendant at the scene of the crime, could not, despite her

opportunity to observe, recognize him in a photo array.     That

failure, coupled with the highly suggestive viewing of the

defendant in conditions reeking of criminality, bolstered by the

comments of another witness, render the in-court identification

unreliable.     The reaction "it has to be him" greatly diminishes

the reliability of Woessner's identification and renders manifest

the impact of her viewing defendant.     In effect, the viewing

communicated to the witness that the defendant was the robber,

and there was no reliable evidence that she would have so

concluded or testified absent that viewing.

        Under such suspect circumstances, there clearly was a

substantial risk of misidentification.3    It was thus an abuse of

    3
     Even   were  we  to   require   proof   that  the   risk  of
misidentification by Woessner was irreparable, Reese, 946 F.2d at
258, 262, our conclusion would be no different. Had the district
court granted defendant's request for a line-up, the risk could
perhaps have been "repaired," but under the facts of this case,
the denial of the motion for a line-up for Woessner was an abuse
of discretion. See United States v. Sebetich, 776 F.2d 412, 420-
21 (3d Cir. 1985) (line-up or similar procedure should "be
employed   whenever  necessary   to   ensure   the  accuracy  and
discretion to admit Woessner's in-court identification testimony,

in violation of defendant's right to due process.   As to Hottel,

we conclude that her identification was reliable, and thus the

admission of her testimony was not an abuse of discretion.
     C.   Harmless error analysis

     We must determine whether the admission of Woessner's

identification testimony, which we have determined to be a

constitutional error, was harmless.   Foster, 394 U.S. at 444.   We

inquire whether the government has shown "beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained."   Chapman v. California, 386 U.S. 18, 24

(1967).   "To say that an error did not contribute to the verdict

is . . . to find that error unimportant in relation to everything

else the jury considered on the issue in question, as revealed in

the record."   Yates v. Evatt, 500 U.S. 391, 403 (1991).   See also

United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994).

Because we recognize the risk that Woessner's testimony about the

Waterworks robbery may have had a spill-over effect on the

Millvale robbery verdict, we will consider its impact on both

convictions.
     1.   Waterworks conviction

reliability of identifications"), cert. denied, 484 U.S. 1017
(1988). Woessner's observation of defendant from the stand has
destroyed the curative capacity of a line-up, and to remand for a
line-up at this juncture would neither assist the court in
determining the reliability of Woessner's testimony nor vindicate
defendant's constitutional rights.
     Apart from the contested surveillance photographs, there is

no physical evidence linking defendant to the Waterworks robbery.

The government refers us to evidence that defendant had an

expensive drug addiction and unexplained income, as well as his

post-arrest comment to another inmate that he would "beat the

case."   The government also relies on testimony of three persons,

each of whom knew defendant, that he was the person in the

Waterworks surveillance photographs.    Of the government's three

witnesses, one testified he had seen defendant only two or three

times; the second was an admitted drug user on probation for a

prior drug conviction; and the third was a convicted drug

offender with pending charges for drug and prostitution offenses.

App. at 166, 180, 191-93.

     In his defense, defendant's mother and two friends testified

that he was not the person in the surveillance photographs.     App.

at 344-45, 350, 362.   Defendant also introduced expert testimony

from a surgeon who had compared the dimensions of defendant's

face to those of the robber in the surveillance photographs and

concluded that he was "100 percent certain that they are not the

same two people."   App. at 407-08.   In rebuttal, two government

experts testified that the calculations made by defendant's

expert were unreliable.

     Woessner's testimony was crucial evidence on the robber's

identity, the only issue at trial, and we cannot conclude that

her testimony was "unimportant in relation to everything else the
jury considered" on the issue.   Yates, 500 U.S at 403.   A

conviction should not be permitted to stand under such

circumstances, and accordingly, we conclude that the error was

not harmless.

     Heeding the advice of Justice Black in his Foster dissent,

we will clarify the proceedings to follow.    Foster, 394 U.S. at

445 (Black, J. dissenting) (where appellate court vacates

conviction for unconstitutional admission of identification

testimony, court should specify which testimony by witness is

barred at retrial).   First, because the hearings on defendant's

motions to suppress and for a new trial elicited all the relevant

facts and left nothing in dispute, another hearing on the

reliability of Woessner's identification testimony is

unnecessary.    Second, on remand for a new trial, the district

court is directed to exclude in-court and out-of-court

identification testimony by Woessner.    To admit evidence of

Woessner's recognition of defendant in the courthouse hallway

would violate the due process clause for the same reasons as did

admission of the in-court identification testimony.     Third,

subject to any other objections not herein considered, we do not

limit the ability of the government or defendant to question

Woessner on other aspects of the case, including the robbery

itself, her initial description, and her failure to select

defendant's photograph from the array.
     2.   Millvale conviction
     As to the identity of the Millvale robber, Woessner's

testimony was not directly relevant: she identified the

Waterworks robber and said nothing about the Millvale robbery.

The court recognizes, however, that there is a slight risk that

Woessner's identification of defendant tended to buttress that of

Hottel.   However, we are satisfied that such risk is minimal and

the error harmless because of the other evidence supporting

defendant's conviction for the Millvale robbery.   In addition to

the same circumstantial evidence of defendant's drug addiction,

unexplained income, and jailhouse statements, there was properly

admitted in-court identification testimony by Hottel and evidence

that she had recognized defendant in the first photo-array.   That

identification testimony, as stated previously, was supported by

her opportunity to observe the robber.

     We conclude that Woessner's identification was unimportant

in relation to all else the jury considered on the issue of the

Millvale robber's identity, and hence the admission of Woessner's

testimony was harmless error in that conviction.

                               III.

     Over defendant's objection that it would violate due process

and Fed.R.Evid. 403, the district court ordered the defendant to

shave and to stand before the jury wearing a pair of glasses that

resembled those worn by the robber and that were supplied by the

government.   Rule 403 provides: "Although relevant, evidence may
be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice . . . or misleading the jury."

     In other cases, defendants have unsuccessfully invoked the

Fifth Amendment privilege against self-incrimination to challenge

motions requiring them to shave or put on clothing.   See Holt v.

United States, 218 U.S. 245, 252-53 (1910) (order to wear

blouse); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th

Cir. 1983) (order to shave); United States v. Lamb, 575 F.2d

1310, 1316 (10th Cir.) (order to shave), cert. denied, 439 U.S.

854 (1978).

     Here, defendant raises a due process objection to the

orders.   Some courtroom practices so deprive a defendant of his

Sixth Amendment right to a fair trial that they implicate the due

process clause.   See Estelle v. Williams, 425 U.S. 501, 505-06

(1976)(compelling defendant to appear in prison uniform

unconstitutional).   Others, however, while seemingly prejudicial,

may comport with the Sixth Amendment in particular circumstances.

There is nothing inherently prejudicial in the orders requiring

defendant to shave and wear glasses in this case, nor has

defendant demonstrated that they so prejudiced him as to deny his

constitutional right to a fair trial.   Indeed, the court informed

the jury before defendant put on the glasses that they were

supplied by the government and had not been discovered with

defendant or any of his belongings.
     Defendant also contends that the orders to shave and wear

glasses violated Rule 403, in that the court failed to weigh

their probative and prejudicial values.    "As a general rule, we

exercise great restraint in reviewing a district court's ruling

on the admissibility of evidence under Rule 403."    Government of

the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir.

1993).     However, where an objection raises Rule 403 and a court

fails to record its balancing analysis, we may review the record

and need not defer to the trial court.    Ibid.

     Before deciding the motions, the district court held a

hearing and determined:
     The burden is simply to establish substantial similarity of
     circumstances, and I think the government has done that
     here, and I think it's clear the government has done that
     from my observations of the photographs, from the testimony
     of the [FBI] Agent, and from the offer of the defense
     witness. And I think there's enough similarity and
     substantial particulars to grant the government's motion
     . . .


App. at 38.

     Though the court did not record an analysis balancing the

probative and prejudicial value of the proposed orders, we have

reviewed the record and will affirm the orders.    The Waterworks

surveillance photographs showed a robber wearing glasses, and

photographs taken eight days after the robbery, when defendant

was arrested, depicted him with a slight moustache, one the court

described as not "comparable" to the one he had at the pre-trial

hearing.    App. at 37.   There was also evidence that defendant had

worn similar glasses before.    Thus, there was substantial
probative value to having defendant shave and put on glasses.

Defendant offered no evidence demonstrating prejudice regarding

the order requiring him to shave, and the court informed the jury

that the glasses were provided by the government and were not

found with defendant.   We conclude that the probative value of

the twin orders outweighed any prejudice and Rule 403 was not

violated.

                                IV.

     For the foregoing reasons, we affirm the judgment of

conviction on the Millvale robbery count, vacate the judgment of

conviction on the Waterworks robbery count, and remand for a new

trial on the Waterworks count consistent with the foregoing

decision.

                         __________________



United States v. Joseph Emanuele



No. 94-3283




ROTH, Circuit Judge, concurring in part and dissenting in part:




            I respectfully dissent from that portion of the

majority's opinion which reverses the defendant's conviction on
the Waterworks bank robbery count.     I do not agree with the

majority's review of the evidence of Lorraine Woessner's

encounter with the defendant in the courthouse hallway.     I am

concerned that the majority in its citation of the facts focusses

on facts which support its conclusion that the identification of

the defendant by Lorraine Woessner was impermissibly suggestive,

rather than looking at the whole picture.    Such a limited focus

does support the majority's ultimate determination that the

circumstances of the hallway viewing created a "substantial risk

of misidentification."    However, I conclude that a broader review

of Woessner's voir dire testimony is required and that review

supports the conclusion arrived at by the district court.

          My reading of the record convinces me that, when the

evidence is viewed completely and in context, it will uphold the

district judge's decision to permit Lorraine Woessner to identify

Emanuele in the courtroom, without holding a prior line-up.

Before permitting Woessner to testify or to identify the

defendant, the district court had Woessner examined on voir dire

concerning the hallway encounter.     I will set out Woessner's

examination more completely so that its full scope can be

appreciated.    I begin my discussion with relevant portions of her

direct examination:
          Q At some time did you see someone come out of the
          courtroom?

          A    Yes, we did, um hum.
Q Could you describe to the Court exactly what
happened?

A Well, we were sitting there and we were, I guess we
were waiting to be called in as the witness and three
men came out, and we both were kind of startled, and I
recognized him right away and, um, didn't say anything.
And he was down the hall, and pretty far down the hall
when we said to each other, it's him.

Q So now, if I get this straight, when he first came
out of the courtroom did anybody say anything to you
prior to your having recognized him?

A   No.

Q Now, why did you recognize him?      What was your basis
for recognizing him?

A I think it was like his eyes, only it was -- because
-- it was his eyes.

Q Now, at the time -- so, and what were you basing
that, that rec-- that recognition on, on your
recollection of what occurred on the December 1, 1993?

A Well, because when it happened, he came in and
stood, not behind my customer that I was waiting on,
just about two feet onto the side of him and he just --
he had his glasses on and he just starred [sic] at me.
I mean, it just like -- I, I mean, I'll never forget
it.

Q   How long was he in front of you?

A I would say -- I was finishing up with my customer.
I would say like about three or four minutes.

Q Now, the government has previously shown to you a
series of pictures; correct?

A   Um hum.

Q And if I could show you what's been marked as
Government Exhibits 4 through 9 for purposes of trial,
will you look at these for a moment?
                Now, you've looked at those previously, right?

          A   Um hum.

          Q   And you weren't able to identify anybody?

          A   Huh ah.4

          Q   And you still can't?

          A   I can identify him, but I mean --

          Q   You can't identify him from the picture?

          A   Huh ah.

          Q But you can identify the person that you saw in the
          hallway?

          A   Um hum.

App. at 128-130 (emphasis added).


          Further information was then developed on the defense's

cross-examination of Lorraine Woessner on voir dire:

          Q And from the doors in the courtroom there's like a
          hallway leading to the hallway where you were sitting?
          In this hallway, there's a hallway that goes down?

          A   Yes.

          Q So, it -- like you were sitting like at the end of a
          "T" almost, so that you could see the courtroom doors?

          A   We could see the courtroom doors.

          Q Okay. And there's, I don't know, 20 feet or some --
          approximately something like that from where you were
          sitting to the courtroom doors?

          A   Yes.

    4
    I interpret "um hum" as "yes" and "huh ah" as "no."
Q   And you and Miss Hottel were talking about what?

A We were just talking about things that we were
previously through. We had gone through Integra
training and we had gone through that.

Q I see.      Now, the courtroom doors open and three men
walk out?

A   Yes.

Q The gentleman in the middle has his arms behind his
back?

A   Yes.

Q   And he has one man on each side?

A   Yes.

Q Did the men on each side have like their hand on his
arm or?

A   I didn't notice that.

Q   Didn't notice that?

A   Huh ah.

Q You did notice, though, that the man in the middle
had his hands behind his back?

A   Yes.

Q And you did notice at some time that he was
handcuffed?

A   After he was down the hall.

Q You could see when he was going down the hall that
he was handcuffed?

A   Um hum.
Q But you knew he was being escorted; he was in the
middle from two guys that were escorting him out of the
courtroom?

A   Yes.

Q   Did Miss Hottel tell you that was him?

A Ah, not right away, only when he was down the hall
she mentioned that. I mean, she spoke very softly and
said that she, she was very upset because she didn't
remember -- she didn't think she remembered what he
looked like, but when she saw him she knew exactly
that's who it was.

Q   After the person was taken down the hallway?

A   Yes.

Q You and Miss Hottel said that it was him.     You
turned to each other?

A   No, not really.

Q   No?

A   Huh ah.

Q   Did you discuss the person that came out?

A   No, no.

Q   Didn't say that was him?

A   Huh ah.

Q   She didn't say that was him to you?

A I think we both looked at each other and we were
kind of it's, it has to be him (witness nodding.)

Q   But, it has to be him?

A   Um hum.

Q   Because he was handcuffed or?
          A Well, no, not because he was handcuffed, because
          from, from his personal appearance.

                               . . .

          Q   After this happened.

                Did you discuss with Miss Hottel the eyes?

          A   No.

          Q   She didn't tell you that?

          A Well, she, she thought it was his eyes, and I, I
          mean, I agreed with her.

          Q   You agreed with her?

          A   Right.

          Q But Miss Hottel did mention something about the
          eyes?

          A   Um hum.

          Q   Did she bring up the eyes first or did you?

          A   I don't really remember that.

          Q The two of you, though, did have a conversation
          about the eyes on the person that was escorted out of
          the courtroom?

          A   Well, we didn't have a conversation.

          Q   You just said it was the eyes?

          A   Right.

App. at 133-136.


          Based on this voir dire examination of Lorraine

Woessner, the district judge decided that she would allow

Woessner to testify and would deny the defense motion for a
lineup because the judge found that Woessner had "an independent

basis for her identification of the defendant."    App. at 138.

From my review of this testimony, I do not find this factual

determination by the district judge to be clearly erroneous.      See

United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991)

(district court's refusal to suppress documents reviewed for

clear error as to the underlying facts).

            In reviewing such a factual determination by the

district court, we do not have to agree with the conclusion

arrived at by the district judge (although I am prepared to do

so).   We must instead determine whether the district judge's

conclusion is supported by the evidence.   See e.g. Cooper v.

Tard, 855 F.2d 125, 126 (3d cir. 1988) (for clear error "our

standard of review is whether there is sufficient evidence in the

record to support [the district court's] findings).    Clearly here

there is sufficient evidence.    Lorraine Woessner testified that

she recognized the defendant "right away" as he came out of the

courtroom -- before he passed her so that she could see the

handcuffs and before Martha Hottel said anything about his

identity.    The district judge was present to hear the testimony

and to weigh credibility.    I find it inappropriate for us to

completely disregard the judge's credibility determination -- as,

it would seem, we must if we do not accept Lorraine Woessner's
testimony that she recognized the defendant "right away" as he

emerged from the courtroom.5

          In view of the credence which the district judge had to

give to Lorraine Woessner's statement that she recognized

Emanuele "right away,"6 what weight must I give to the fact that,

after Emanuele had walked past her, Woessner could see that his

hands were cuffed behind him?   In view of the immediate

recognition, I do not find Woessner's subsequent observation of

the handcuffs to be unduly suggestive -- just as the majority

does not find unduly suggestive the fact that Martha Hottel saw

the handcuffs also.

          This then brings me to the issue of the propriety of

the standard followed by the district court:   Was there "an

independent basis" for the identification; i.e., is Woessner's

immediate recognition of Emanuele, a sufficient ground to support

the denial of the defense's motion for a lineup.   I conclude that

"an independent basis" for an identification is consistent with

an identification which possesses sufficient aspects of

reliability; that Woessner's testimony of immediate recognition

of the defendant eliminates the "substantial risk of


    5
     As the majority acknowledges, because there was no apparent
government complicity in the way in which the confrontation came
about, I do not have to factor the element of evil government
intent into my consideration.
    6
     The district judge could not have arrived at the decision
she did if she had not believed Woessner on this point.
misidentification" which could be engendered by such an

encounter.   If Woessner recognized Emanuele immediately in the

corridor, I easily infer that she would have recognized him

immediately in the courtroom had the corridor encounter not

occurred.    Lorraine Woessner testified on voir dire that, at the

bank, she observed the defendant for three or four minutes as he

stood about two feet from the side of the customer she was

waiting on; that she recognized the defendant immediately when he

came out of the courtroom, before she could see his hands cuffed

behind him; that she recognized him in the hallway from his eyes;

and that the photograph of defendant, which she could not

identify as the defendant when it was shown to her by the F.B.I.,

she again in the courtroom, after the hallway encounter, could

not identify as the defendant.

            For all the above reasons, I believe that the district

court did not err when it permitted Lorraine Woessner to make a

courtroom identification of the defendant.   I am, therefore, of

the opinion that defendant's conviction on the Waterworks bank

robbery count should be affirmed.7

    7
     Because I would affirm the district court's admission of
Woessner's in-court identification of the defendant, I do not
need to go on to harmless error. However, were that necessary, I
would find any error to be harmless.    The surveillance photos,
taken at the Waterworks bank, are independent corroboration of
defendant's involvement.    They were identified, as being of
defendant, by a disinterested witness, who had recently repaired
Emanuele's car for him, and by a woman who had given him a
temporary place to stay. The "interest" of the witnesses, such
as defendant's mother and his girl friend, who could not identify
the bank photos, was made evident to the jurors, who also saw the
photos.
     Moreover, defendant's "expert witness," the plastic surgeon
who testified from a comparison of photographs that the bank
photos were not of Emanuele, admitted that he knew little about
photography.   The photographs he compared with the bank photos
were taken with a different camera and different film; the image
was captured at a different location on the surface of the camera
lens, while Emanuele was standing still. App. at 444-46. As the
prosecution's photography expert testified, the slow film and
poor lens in the bank camera could "smear" a moving figure on the
film so that the image was distorted.       App. at 465-67.    In
addition, the defense expert made his measurements from points,
such as the eyebrows, which may move according to the subject's
expression, e.g., a frown or a smile. I raise my own eyebrows at
this type of expertise.
