                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1770

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

M C R AY B RIGHT,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 06 CR 342—Joan Humphrey Lefkow, Judge.



      A RGUED A PRIL 16, 2009—D ECIDED A UGUST 20, 2009




 Before E ASTERBROOK, Chief Judge, and B AUER and
M ANION, Circuit Judges.
  B AUER, Circuit Judge. A jury convicted McRay Bright
of violating various federal statutes, all having to do
with a bank robbery. The district court sentenced him to
181 months’ imprisonment. On appeal, Bright challenges
the admission of an eye-witness identification, from a six-
person photograph array. Bright also argues that the
district court erred by allowing the introduction of two
2                                               No. 08-1770

pieces of unduly prejudicial guilt-by-association evi-
dence. Lastly, he argues that the district court erred
when it applied an obstruction of justice enhancement
based on an attempted escape. For the following rea-
sons, we affirm.


                   I. BACKGROUND
  On March 28, 2006, three armed men robbed a LaSalle
Bank in Chicago of approximately $83,584. Several bank
employees were threatened with guns, corralled behind
the teller counter and ordered to stuff the vault’s holdings
into duffel bags. One bank teller, Jessica Lopez, was told
at gun-point to hold open the bags while another em-
ployee emptied the teller drawers’ cash into it. The three
men fled the scene with their takings before the police
arrived.
  The FBI questioned the witnesses, including Lopez,
manager Thanh Huynh-Staley, and security guard
Larry Williams. Lopez informed the FBI that the
youngest robber was a light or medium complected
African American. Lopez testified that all African Ameri-
cans resembled one another, “see, I’m not African Ameri-
can. . . . So to me everyone is the same.” Huynh-Staley, and
several other witnesses, also described the same
assailant as having a lighter skin tone.
  Roughly a month later, a cooperating witness
informed the FBI that Bright had participated in the
LaSalle Bank robbery. The FBI assembled a six-man
photograph array including Bright’s photograph and five
No. 08-1770                                                  3

other photographs with similar physical characteristics.
According to Bright, his photograph was one of only
two that featured light complected men, while the
other four photographs were of dark complected African
Americans.
  The FBI asked Lopez and Williams if they could
identify any of the bank robbers from the photo array.
Williams could not; Lopez noted that the photographs
did not allow her to see the individuals’ height and
build. Nonetheless, Lopez identified Bright as one of the
three men involved in the robbery, stating, “it is this one.
Look at the eyes. I just know it is this one.” (Later at trial,
“the eyes was what made me very certain that [Bright’s
photograph] was the one. . . . [I]f you have something
that bad happen to you . . . [y]ou can never forget that
person’s eyes.”) Lopez further described the array as
consisting of four dark complected men and two light
complected men.
  Bright was arrested on May 15, 2006. The next day, the
FBI went to the Chicago Police Department station, where
Bright had been held for a day, to transfer him to
federal custody. While his hands were cuffed behind
his back, and waiting in the station’s hallway, Bright
claims that an FBI agent responded to one of his ques-
tions with “shut the fuck up.” Upon hearing this, Bright
made a break for it; he sprinted down the hallway and
through two sets of the station’s doors into the parking
lot, where he was apprehended.
  The FBI invited Huynh-Staley and Williams to identify
the bank robbers from an in-person lineup; Bright
4                                              No. 08-1770

was not identified. Huynh-Staley told the FBI that a
couple of days later, she recognized Bright from the
lineup but had been unsure at the time. Because Bright’s
counsel had not been informed of this statement, the
government agreed to not raise this late identification
during the testimony of the FBI agent. Nonetheless, at
trial, Huynh-Staley and Williams each identified Bright
as one of the three men involved in the LaSalle Bank
robbery.
  After the in-person lineup, where Bright was not identi-
fied, the FBI arrested Brandon Lee, who admitted to being
one of the three bank robbers. Lee informed the FBI that
Bright was one of his co-conspirators in the bank robbery
and agreed to testify against him.
  The government prosecuted Bright for: (I) Conspiracy
to Commit Bank Robbery, 18 U.S.C. § 371, (II) Bank Rob-
bery, 18 U.S.C. § 2113(a), (III) Brandishing a Firearm
in Furtherance of a Crime of Violence, 18 U.S.C.
§ 924(c)(1)(A)(ii), and, based on his attempted flight from
the police station, (IV) Attempting to Escape, 18 U.S.C.
§ 751(a).
  At trial, Lopez, Huynh-Staley, Williams and Lee all
identified Bright as one of the three bank robbers. The
government also called one Cheri Avery to testify about
statements made in her presence by one of Bright’s close
friends, Antonio Harris. According to Avery, Harris
boasted about robbing a bank to Bright; Bright re-
sponded that it sounded like something he would like
to do. The government also introduced birth certificate
evidence linking Bright to his aunt, Ruby Parker,
No. 08-1770                                               5

formerly a senior teller at the bank that was robbed. A
government witness testified that Parker would have
known that an armored delivery truck would have
been making a delivery to the bank on the day that it
was robbed. Bright had moved to exclude the birth
records in limine on relevancy and prejudicial grounds;
the district court denied the motion and admitted the
evidence, over Bright’s objection, at trial.
  At trial, the jury reported to the district court that it
was deadlocked because it could not reconcile two in-
structions. After the district court clarified the instruc-
tions, the jury returned a guilty verdict on all counts.
  During sentencing, the government argued that the
district court should apply a two-level enhancement to
Bright’s base offense level for the obstruction of justice,
both for false statements made after arrest and his at-
tempting to escape conviction. Bright argued that his
age, unfortunate childhood experience and the profanity
used by the FBI agent sparked his flight from the hall-
way. The district court rejected Bright’s argument and
said that “[i]t’s not necessary to get into a discussion of
the various incidents of making false statements in light
of the conviction for the escape, which . . . is a clear en-
hancement under . . . [U.S.S.G. § 3C1.1], obstruction of
justice.”
  With this enhancement, and after Bright apologized
for his actions, the district court sentenced Bright to
181 months’ imprisonment. This timely appeal followed.
6                                                 No. 08-1770

                     II. DISCUSSION
  Bright argues that the district court erroneously
allowed Lopez’s unreliable identification from the sug-
gestive photo array, and permitting prejudicial guilt-by-
association evidence by allowing Avery to testify about
Harris’s statements, and allowing the birth records
linking Bright to Parker. Bright also argues that the
district court erroneously enhanced his sentence for
obstructing justice.


    A. Lopez’s Identification
  We begin by addressing whether the district court erred
when it admitted Lopez’s identification of Bright. Bright
claims that Lopez’s identification was based on a
flawed, suggestive photo array prepared by the FBI,
and its admission violated his due process rights. Accord-
ing to Bright, the six-man array was essentially an im-
permissible, two-man array; the array included four
photographs of dark complected African American
men, and two medium complected men, one of which
was Bright. Bright points out that Lopez had stated that
the assailant was “medium” complected and was of a
lighter skin tone than, in her view, a typical African
American, and therefore, the array was of two men, not
six. Moreover, Bright calls attention to Lopez’s racially-
biased statement that all African Americans looked
alike to her.
  Bright failed to move for the suppression of Lopez’s
identification before trial, and failed to object to its admis-
No. 08-1770                                                  7

sion at trial. See Fed. R. Crim. P. 12(b)(3). Under Rule 12,
this failure waives the argument. See Fed. R. Crim.
P. 12(e). We therefore review the objection to Lopez’s
identification under a plain error standard. See United
States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005). Bright
now argues that the failure to file a suppression
motion may be curable by a showing of good cause. He
claims that good cause can be shown by the “surprise
avalanche of undisclosed positive identifications,” in
reference to Huynh-Staley’s and Williams’s positive in-
court identifications after they had failed to select Bright
out of a line-up, including Huynh-Staley’s identification
days after the line-up. However, Bright did not argue
good cause at trial; indeed, he did not object. See id. at 730-
31. Moreover, we find no substance to this argument
since it does not explain why Bright failed to move for
the suppression of Lopez’s identification, not Huynh-
Staley’s or Williams’s. It was not the district court’s duty
to raise the issue sua sponte. We find that Rule 12 man-
dates that Bright must have filed a suppression motion
before his trial or risk losing it and, because he did not,
it cannot be said that the district court committed any
error, let alone plain error, when it followed the
federal rules as written.


  B. Rule 403 Evidence
  Bright also argues that Federal Rule of Evidence 403
should have precluded the admission of two pieces of
highly prejudicial evidence—Avery’s testimony re-
garding Harris’s prior bank robbery and the birth certifi-
8                                              No. 08-1770

cates linking Bright to his aunt Parker—because the
evidence invited the jury to infer Bright’s guilt based on
the actions of his associates. Rule 403 requires that a
district court determine whether the prejudicial effect of
admitting such evidence substantially outweighs its
probative value and thereby renders it inadmissible. See
Fed. R. Evid. 403. Because this concerns an evidentiary
ruling by the district court, we review the decision for an
abuse of discretion, disturbing it only if no reasonable
person could agree. United States v. Toro, 359 F.3d 879,
884-85 (7th Cir. 2004).
   First, according to Bright, the government’s use of
Avery’s testimony was a prejudicial attempt to taint
Bright’s character through his association with ad-
mitted bank robber Harris. The Rule does not exclude
detrimental relevant evidence, only evidence where its
unfair prejudice substantially outweighs its relevancy.
See United States v. Perkins, 548 F.3d 510, 515 (7th Cir.
2008) (citations omitted). The government argues that the
district court did not abuse its discretion by allowing the
statements for contextual purposes. Avery testified that,
while shooting dice with Harris and Bright, Harris had
boasted about a bank robbery he had committed, to
which Bright admitted, “Sound [sic] like something
I want to do.” Avery testified as to the conversation
between Harris and Bright and, because Harris died
shortly after the bank robbery, the testimony provided
context for Bright’s admission. The statement was not
unduly prejudicial and the district court did not abuse
its discretion by allowing the statement into evidence.
No. 08-1770                                                9

  Second, Bright argues that the district court abused its
discretion when it allowed birth certificate evidence
linking Bright to his aunt, ex-bank employee Parker. He
claims that the evidence was highly prejudicial because
the jury could infer Bright’s guilt based on his associa-
tion with Parker, and her knowledge of the armored
truck delivery schedule. Again, the district court found,
and we agree, that this evidence, although prejudicial,
does not rise to the elevated standard of substantially
outweighing its probative value since it was probative
as to why Bright selected that particular LaSalle Bank. The
evidence was probative to circumstantially show that
Bright knew that an armored truck delivery was
scheduled on the same day the bank was robbed. The
district court’s decision to admit the evidence was not
an abuse of discretion.


  C. Obstruction of Justice Enhancement
  Finally, Bright argues that the district court erroneously
enhanced his sentence for obstructing justice, U.S.S.G.
§ 3C.1.1, based on his conviction for attempting to escape.
See 18 U.S.C. § 751(a). “We review the sentencing court’s
factual determinations regarding obstruction of justice
for clear error, but review interpretations of the Sen-
tencing Guidelines de novo.” United States v. Draves, 103
F.3d 1328, 1337 (7th Cir. 1997) (citations omitted) (emphasis
in original). In this inquiry, we afford “due deference”
to the district court’s application of the Guidelines to
the facts since the court’s determination on whether a
defendant obstructed justice under § 3C1.1 is a factual
finding, upheld unless clearly erroneous. Id.
10                                              No. 08-1770

  The district court, according to Bright, committed error
when it found that a conviction for attempted escape
was sufficient to require a two-level base level enhance-
ment for obstruction of justice. In particular, Bright
claims that the district court failed to make the requisite
mens rea finding in enhancing the sentence. The obstruc-
tion of justice enhancement requires that a defendant
willfully obstruct or impede, or attempt to obstruct or
impede the administration of justice, see U.S.S.G. § 3C1.1,
and it is this willful intent finding, Bright argues, that
the district court failed to make. Rather, the district
court used Bright’s attempted escape conviction, which
required only that Bright knowingly attempted to
escape from custody, as the necessary mens rea for the
enhancement. This is the heart of Bright’s challenge: that
the district court used a “knowingly” finding rather
than a “willful” one in the enhancement.
   We have held that willful intent, for § 3C1.1 purposes,
cannot be presumed by the unauthorized flight of a
handcuffed defendant from the back of an officer’s car.
See Draves, 103 F.3d at 1336-37 (7th Cir. 1997). In Draves,
we entertained similar arguments to those that Bright is
now raising—namely, that Bright’s individual circum-
stances align more with an instinctual, reactionary
flight (which is not sufficient for the enhancement)
rather than a willful intent to escape custody (which
is sufficient). Bright claims that he has the mental and
emotional capacity of a teenager and, coupled with the
FBI’s verbal abuse, his flight was instinctive and spontane-
ous. Thus, he lacked, and the district court never found,
No. 08-1770                                           11

the deliberate and willful mens rea required for the
enhancement.
  The problem with this line of reasoning is that Bright
was not fleeing arrest but custody. Application note 4(e)
states that “escaping or attempting to escape from cus-
tody” justifies the enhancement and here, Bright at-
tempted to escape custody. Bright was arrested and spent
the night behind bars. The next day, cuffed and awaiting
transfer, under minimal supervision, in federal custody
in the hallway, Bright attempted to escape. We must
emphasize that he had already spent a day in jail and
his attempted escape was from custody, not arrest.
Although application note 5(d) states that “avoiding or
fleeing from arrest” ordinarily does not justify the en-
hancement, exemplified by the panicked situation in
Draves, Bright’s flight was a calculated evasion from
custody when his chances for escape were the greatest.
  These circumstances established that Bright willfully
and intentionally attempted to obstruct justice by at-
tempting to escape custody, sufficient to warrant the
enhancement.


                  III. CONCLUSION
  Accordingly, we A FFIRM Bright’s convictions and sen-
tence.




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