                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                            DEC 14 2000
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                          PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 00-3128
          v.                                             D. Kansas
 ROY BILL CRAWFORD,                            (D.C. No. CR-99-20071-001)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO and ANDERSON , Circuit Judges, and          MILLS,   **
                                                                        District
Judge.




      Roy Bill Crawford was convicted following a jury trial on one count of

robbing a bank in violation of 18 U.S.C. § 2113 (a) and (d) and one count of

using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1).

He raises two arguments on appeal. First, he contends that the district court erred


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Richard Mills, United States District Judge for the Central
District of Illinois, sitting by designation.
in admitting the eyewitness identification testimony of Quintin Ostrom because it

was the product of an unduly suggestive pretrial identification process. Second,

he claims that the district court erred in denying his motions for a mistrial and a

new trial after inadmissible evidence of another crime was inadvertently

introduced at trial by a witness for the government. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm.



                                I. BACKGROUND

      On August 9, 1999, the Gold Bank in Shawnee, Kansas, was robbed.

Quintin Ostrom, the bank’s vice president, invited the perpetrator to a private

conference room after the perpetrator stated that he was interested in obtaining a

small business loan. Once inside the conference room, the perpetrator handed

Ostrom a note stating that bombs had been planted in the bank and would be

detonated by accomplices if any alarms were triggered. The perpetrator then

brandished a handgun and handed Ostrom 25 large manilla envelopes and told

him to fill them with money.

      Ostrom left the conference room and filled two of the envelopes from the

open teller drawers. He returned to the conference room several times and

discussed with the perpetrator his inability to access the bank’s vault. The

perpetrator became increasingly irritated and told Ostrom to find a way to get into


                                          -2-
the vault so he could fill the remaining envelopes with money. Eventually,

another bank employee, Kelly Bartels, returned from lunch and was able to open

the vault. Ostrom filled the remaining envelopes mostly with one and five dollar

bills from the vault and he and Bartels carried them to the conference room and

gave them to the perpetrator. As he was leaving, the perpetrator advised Ostrom

to evacuate the building because of the bombs he claimed were inside. 1 Ostrom

did so.

      When Ostrom gave the evacuation order, Julie Green, a bank employee,

exited the building through the back door and observed the perpetrator get into

and drive away in a white, “four door, older style, like a Chevy Cavalier type of a

car.” Appellant’s App. Vol. I at 161. Green could not read the license plate

because it was dirty. Id. at 165. The bank determined that over $26,000 had been

taken, including $13,300 in one dollar bills.

      Late in the afternoon of August 9, 1999, Defendant made cash deposits into

his business account and his personal account. The two deposits together

included 205 one dollar bills. Id. at 401-03. The teller at the drive-through

window at Defendant’s bank observed that he had a considerable amount of

money in his wallet. Id. at 404. Around noon on August 10, 1999, Defendant

again made cash deposits to two of his accounts. They included a total of 537 one


      1
          Upon inspection, no bombs were found.

                                         -3-
dollar bills. Id. at 411-12. That same day, Defendant purchased a Colt .45

handgun and some ammunition from Pat’s Pawn & Gun Shop in Ogden, Kansas.

Patrick Livingston, the owner of the gun shop, testified that Defendant paid the

$584.68 purchase price with small denomination bills, including two or three

hundred one dollar bills. Id. at 426. Livingston also observed that Defendant

retrieved the money from a blue bag in which he saw more cash. Id.

      On August 10, 1999, the police learned that the week prior to the robbery,

Vonda Schnelle, a Gold Bank employee from another office, had stopped by the

Shawnee branch to drop something off. Upon arriving, she noticed a man sitting

in a car outside the bank looking into the bank. When she left, he was still there.

Because she was suspicious of the man, she wrote down the car’s license plate

number and a description of the car and the man inside. Her notes indicate that

the Kansas license plate was either AXL or HXL 602, the car was a white Chevy

Cavalier, and the occupant of the car was a white male with a beard. Id. at 189.

      That same day, the police discovered that there was no license plate AXL

602 in Kansas, but there was a license plate HXL 602 issued to a 1984 Chevy

Cavalier. The car was registered to Helen Proctor, Defendant’s mother. Proctor

informed police that her son had been driving the Cavalier for the past six weeks

while he had been living with her and that he was driving it on August 9, 1999.

Id. at 209. Police returned to Proctor’s home that evening and questioned


                                         -4-
Defendant, who claimed that he was running errands in Topeka during the time of

the robbery. Id. at 216.

      On August 11, 1999, the police arrested Defendant at his mother’s home in

Holton, Kansas. Police also obtained search warrants for Defendant’s home in

Topeka and for his mother’s home in Holton. At the Holton home, the police

found $3359 in cash, most of which was hidden in a garage loft. Id. at 307-09.

The Colt .45 Defendant purchased on August 10, 1999, was also seized during the

search of the Holton home. Neither the gun allegedly used in the robbery nor the

balance of the money taken from the bank was found.

      Defendant appeared in the United States Magistrate Court for the District

of Kansas on October 1, 1999, for an omnibus hearing and arraignment. Ostrom,

as the victim of a crime, was notified of the hearing pursuant to 42 U.S.C.

§ 10606(b)(3). After attending the hearing, Ostrom told the FBI that he was

positive that Defendant was the man who robbed the bank. When Defendant

learned that Ostrom had identified him as the bank robber, he filed a Motion to

Exclude Eyewitness Identification. After a hearing, the district court denied his

motion.

      Defendant also filed a motion in limine seeking to exclude evidence

relating to some marijuana that was found during the search of his residence. The

United States did not oppose the motion and represented to the district court that


                                         -5-
it did not intend to attempt to introduce any evidence regarding the marijuana.

Based on those representations, the district court declared the motion to be moot.

The case then proceeded to trial.

      In addition to the presentation of the evidence discussed above, the

following occurred at trial: (1) Defendant was identified as the perpetrator of the

bank robbery by eyewitnesses Quintin Ostrom and Kelly Bartels. Appellant’s

App. Vol. I at 100, 149; (2) Gary Strong, the owner of the building in which

Defendant’s sandwich shop was located, testified that Defendant’s business was

struggling financially by June of 1999. Id. at 56; (3) Chadrick Rogers, a man

incarcerated with Defendant, testified that Defendant told him the details of the

robbery, that he was guilty, but planned on going to trial anyway, that he had

grown a beard and used red dye in his hair and beard, that he had shaved off his

beard immediately after the robbery, that he brandished a gun during the robbery,

that he stole over $26,000 from the Gold Bank, that he got caught because of the

license plate on his car, that the bank vice president should not be able to

recognize him because his hair was shorter and he had a beard at the time of the

robbery, and that at trial he was planning to present an alibi that he was eating

lunch with his wife and mother at his mother’s house at the time of the robbery.

Appellant’s App. Vol. II at 446-50, 458; and (4) Christopher Nemmers, another

fellow prisoner of Defendant, testified that Defendant also told him about the


                                          -6-
robbery, that he got about $25,000 from the bank, that he was not able to get into

the bank vault immediately, that he used some of the money to buy a .45 caliber

handgun, that he deposited some of the smaller bills into a bank account and that

he planned to get some of his family members to corroborate a story that he was

at the dinner table when the robbery took place. Id. at 481-83. After the jury

found him guilty on both counts, Defendant was sentenced to a total of 141

months in prison and ordered to pay $23,355.82 in restitution. This appeal

followed.



                                II. DISCUSSION

A.    Eyewitness Identification

      Defendant challenges the district court’s decision to allow Ostrom’s

in-court identification on due process grounds claiming that the unduly suggestive

pretrial setting in which Ostrom first identified Defendant as the bank robber

created a strong likelihood of unreliability. “Whether identification procedures

are violative of due process is a legal question reviewed de novo.” United States

v. Brown, 200 F.3d 700, 707 (10th Cir. 1999), cert. denied, 120 S. Ct. 1213

(2000) and 120 S. Ct. 1706 (2000).

      “The admission of in-court identification testimony violates due process

only when, under the totality of the circumstances, it was tainted by unnecessarily


                                         -7-
suggestive pretrial identification procedures creating a ‘very substantial

likelihood of misidentification.’” Id. (quoting United States v. Smith, 156 F.3d

1096, 1051 (10th Cir. 1998)). Even if the pretrial identification procedures are

impermissibly suggestive, the identification evidence or testimony may be

admitted at trial if, under the totality of the circumstances, the identification was

reliable. Neil v. Biggers, 409 U.S. 188, 198-99 (1972). Because the United

States concedes that the pretrial identification procedures used in this case were

unduly suggestive, we proceed directly to the reliability analysis.

      In determining whether Ostrom’s identification of Defendant as the bank

robber is reliable notwithstanding the unduly suggestive setting in which it first

took place, we follow the guidance of The Supreme Court:

      [T]he factors to be considered in evaluating the likelihood of
      misidentification include the opportunity of the witness to view the
      criminal at the time of the crime, the witness’ degree of attention, the
      accuracy of the witness’ prior description of the criminal, the level of
      certainty demonstrated by the witness at the confrontation, and the
      length of time between the crime and the confrontation.

Id. at 199-200.

      The record shows that Ostrom had a significant amount of time in which to

view the perpetrator of the bank robbery. Ostrom testified that the robbery lasted

approximately 25 minutes and that the time he actually spent with the perpetrator

in the conference room during the robbery was between five and ten minutes.

Appellant’s App. Vol. II at 804-05. After reviewing the record we agree with the

                                          -8-
district court that “it’s clear that [Ostrom] had ample opportunity . . . to speak

with the perpetrator face to face, to observe his build, his demeanor, his personal

characteristics, and such matters as race, stature, age, sex, hair color, eye color, et

cetera.” Id. at 842. In addition, the detail of Ostrom’s testimony as to the

sequence of events, what the perpetrator was wearing, the bags he was carrying

and what he said to Ostrom during the robbery indicate that Ostrom was highly

attentive during the robbery.

      Despite his high degree of attention, Ostrom’s description of the

perpetrator, if the perpetrator was, in fact, Defendant, was not perfect. Ostrom

stated that the perpetrator had dark eyes and appeared to have some acne scarring.

In fact, Defendant has blue eyes and no apparent acne scarring. However, the rest

of Ostrom’s description was largely accurate. For example, he described the

perpetrator as a white male in his mid forties that was about 6’0 tall with dark

reddish hair and a beard and mustache. Appellant’s App. Vol. I at 99-100. There

was testimony at trial indicating that Defendant had disguised himself by coloring

his hair red and growing a beard and mustache. That evidence makes it entirely

possible that Ostrom’s description of the perpetrator was accurate even though

Defendant was clean shaven when he was apprehended. Based on our review of

the record, we conclude that Ostrom’s description of the Defendant following the

robbery was reasonably accurate.


                                          -9-
     The record shows, and both parties agree, that Ostrom displayed a high

degree of certainty when he identified Defendant as the perpetrator of the bank

robbery. Lastly, the period of time between the crime, which occurred on

August 9, 1999, and Ostrom’s identification of Defendant at his omnibus hearing

on October 1, 1999, is not impermissibly lengthy.

      Based on the foregoing analysis of the five Biggers factors, we conclude

that Ostrom’s identification was reliable notwithstanding the overly suggestive

circumstances in which it was first made. Therefore, we hold that the district

court did not err in denying Defendant’s motion to exclude Ostrom’s

identification.



B.    Denial of Motions for a Mistrial or New Trial

      Defendant next argues that the district court erred in denying his motions

for a mistrial or a new trial after inadmissible, prejudicial evidence was

inadvertently introduced through the stray comment of a government witness. We

review both the denial of a motion for a mistrial and a motion for a new trial for

an abuse of discretion. 2 United States v. McKissick, 204 F.3d 1282, 1299 (10th


      2
       Defendant claims that the district court’s actions in dealing with the
inadvertently introduced marijuana testimony have constitutional implications and
urges us to engage in a harmless constitutional error analysis. After full
consideration, we have concluded that no constitutional error took place, noting,
                                                                      (continued...)

                                        -10-
Cir. 2000) (mistrial); United States v. Byrne, 171 F.3d 1231, 1235 (10th Cir.

1999) (new trial).

      When Defendant’s home was searched, the police found a half pound of

marijuana. Realizing that evidence of the marijuana would be inadmissible both

as irrelevant and more prejudicial than probative, the United States did not oppose

Defendant’s motion in limine to exclude that evidence. The government also, as

indicated above, represented that it did not intend to attempt to introduce any

evidence concerning the marijuana. In response to a question about what

Defendant had told him about a particular court hearing, Chadrick Rogers, a

witness for the government, stated, “[h]e had a court hearing here that they were

trying to suppress some evidence. One of the big things of the evidence was they

found half a pound of marijuana in his house.” Appellant’s App. Vol. II at 453.

Counsel for the United States stopped Rogers in mid-sentence and asked to

approach the bench. Defendant moved for a mistrial. The district court denied

the motion and immediately issued a lengthy curative instruction to the jury

charging it to completely disregard the statement about the marijuana. 3 Id. at 455-


      (...continued)
      2

however, that even if a constitutional error had occurred, it would have been
harmless beyond a reasonable doubt due to the overwhelming evidence of
Defendant’s guilt contained in the record.
      3
          The district court instructed the jury as follows:

                                                                       (continued...)

                                           -11-
57. A jury is presumed to follow the instructions it receives. United States v.

Castillo, 140 F.3d 874, 884 (10th Cir. 1998).

      This situation is similar to the one we faced in United States v. Brooks, 161

F.3d 1240 (10th Cir. 1998). In Brooks, a witness for the government was

testifying as to a meeting with the defendant in order to establish that the witness

could identify the defendant and recognize his voice. The nature of the meeting

was not supposed to be presented to the jury, but the witness blurted out a

statement indicating that the meeting was a drug buy. Id. at 1244. Government

counsel immediately stopped the witness. The district court issued a cautionary

instruction and denied the defendant’s motion for a mistrial. Id. We upheld that

action on appeal after determining that it was within the discretion of the district

court. Id. at 1245.




      3
       (...continued)
       Members of the jury, with regard to that last bit of testimony, I want you to
understand that in this trial you will not be hearing any evidence which connects
Mr. Crawford in any way with any marijuana that was allegedly found in his
home. The Court was aware of this matter before trial and, in fact, had entered an
order that the attorneys not bring it up in any way because we did not want this to
improperly influence your verdict since you won’t be hearing any evidence which
connects it with Mr. Crawford.

       Therefore, I’m going to strike this evidence and instruct you that you need
to totally disregard it and we’ll move on with the rest of this witness’ testimony.

Appellant’s App. Vol. II at 457.

                                         -12-
      Defendant attempts to distinguish Brooks stating that in that case, “the

challenged evidence was determined relevant for purposes of identification of the

defendant. Therefore, the ‘stray remark’ was not, per se prejudicial.” Appellant’s

Reply Br. at 5. We disagree. The stray remark and the challenged evidence in

Brooks (that the meeting was a drug buy) was not admissible for any purpose. It

was the fact that a meeting between the witness and the defendant had taken place

that was being used to establish identity. The purpose of the meeting, however,

was probably being withheld from the jury because the defendant in Brooks was

charged with selling drugs. After carefully reading Brooks, we are unable to

distinguish it from the case at bar.

      In light of the district court’s superior perspective in assessing the effect of

Rogers’ stray remark and the strong cautionary instruction given, we conclude

that the district court did not abuse its discretion when it denied Defendant’s

motions for a mistrial or a new trial. See Brooks, 161 F.3d at 1245.




                                         -13-
                              III. CONCLUSION

      After thoroughly examining the record and carefully analyzing Defendant’s

claims on appeal, we conclude that Defendant has failed to demonstrate the

occurrence of any reversible error during his trial. Accordingly, we AFFIRM his

conviction and sentence.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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