     Case: 15-20010      Document: 00513624750         Page: 1    Date Filed: 08/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                      No. 15-20010                                  FILED
                                                                               August 4, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

              Plaintiff–Appellee,

v.

ANTHONY MICHAEL SHAFFER,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-181-1


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Anthony Shaffer appeals his criminal conviction
on the ground that his Fifth Amendment right to due process was violated
when the trial court admitted in-court witness identifications that were
influenced by impermissibly suggestive pretrial procedures. The Government
concedes that the admission of the in-court identifications was constitutional
error but argues that the conviction should be affirmed because the error was


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-20010
harmless. Because we are not convinced that the error was harmless beyond a
reasonable doubt, we reverse.
                       I. FACTUAL BACKGROUND
      On December 11, 2013, surveillance cameras recorded a man, armed
with a gun, rob the Wal-Mart branch of Woodforest National Bank in Pearland,
Texas. The relevant footage shows a man approach the bank teller’s desk and
receive a withdrawal slip from the teller. The man briefly writes on the slip
and then pulls a gun from his waistband. According to the teller, he then
demanded the “loose hundreds.” After she gave him the money in her teller
drawer, the man walked to the adjacent teller and robbed her at gunpoint.
      The Wal-Mart’s external cameras captured the car used by the robber.
Based on the license plate of this vehicle, the Pearland Police Department
focused their investigation on Trevian Robinson. Police searched Robinson’s
home where they found a sweater, sweatpants, and a gun that appeared
similar to those in the surveillance video. Robinson conceded that the clothes
and gun belonged to him but told the police that he had been with his cousin,
Anthony Shaffer, the afternoon of the robbery and that Shaffer had asked for
a ride to the Wal-Mart where the robbery took place. After looking at still
photographs from the surveillance footage, Robinson said that the man who
robbed the bank looked like Shaffer.
      At the scene of the crime, police recovered the withdrawal slip upon
which the robber wrote a demand note. From this slip, police were able to
recover latent fingertip prints. Shaffer was fingerprinted and two law
enforcement officers testified at trial that a fingerprint on the withdrawal slip
matched Shaffer’s fingertip print.
      The day after the robbery, the two bank tellers who had been present
when the robbery occurred, A.L. and C.M., were shown a photographic array
that included Shaffer’s driver’s license photograph. Neither identified Shaffer.
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                                  No. 15-20010
At trial, however, both A.L. and C.M. positively identified Shaffer as the
robber. On cross-examination, both A.L. and C.M. testified that prior to trial,
the prosecutors had shown them still photographs from the surveillance video,
told them Shaffer’s name, and said that he had been charged with the crime.
C.M. also testified that prior to the trial, she had been brought to the courtroom
while Shaffer was present and asked if she recognized anyone. After each
admission, Shaffer’s attorney objected on the ground that the in-court
identification should be barred because it was influenced by impermissibly
suggestive pretrial identification procedures and moved for a mistrial. The
court overruled the objections and denied the motions for a mistrial.
      Robinson testified at trial that Shaffer had asked for a ride to the
Pearland Wal-Mart on the day the robbery occurred but that Shaffer did not
say why he wanted to go. Robinson stated that he drove Shaffer to the Wal-
Mart and stayed in the car while Shaffer went inside. Prosecutors showed
Robinson the surveillance video, and Robinson identified the clothes the robber
was wearing as belonging to him, as well as admitted his gun had been used
in the robbery. He also said that the man in the video was Shaffer. Shaffer’s
counsel argued in his closing that Robinson was the bank robber.
      In its closing arguments, while the Government acknowledged that
Robinson may have played a role in the crime, suggesting he may have been
the getaway driver, it asserted that the evidence convincingly established that
Shaffer was the one who robbed the bank. The Government repeatedly
emphasized the fact that both of the bank tellers had positively identified
Shaffer as the robber. Specifically, the Government told the jury that: “[W]hat
really convicts him and should convince you is that both [A.L.] and [C.M.] both
positively identified him for you here in this courtroom.”
      At the conclusion of the trial, the jury found Shaffer guilty on both counts
charged in the superseding indictment: bank robbery in violation of 18 U.S.C.
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                                  No. 15-20010
§ 2113(a) and (b) and brandishing a firearm in the commission of a crime in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Shaffer was sentenced to a total of 162
months imprisonment and ordered to pay restitution.
                        II. STANDARD OF REVIEW
      Because the Government concedes that the admission of A.L. and C.M.’s
in-court identifications was constitutional error, see, e.g., United States v.
Cueto, 611 F.2d 1056, 1064–65 (5th Cir. 1980), we need only address whether
this error was harmless beyond a reasonable doubt, see United States v. Wright,
777 F.3d 769, 777 (5th Cir.), cert. denied, 135 S. Ct. 2821 (2015). A
constitutional error is harmless if “there was [no] reasonable possibility that
the evidence complained of might have contributed to the conviction.” United
States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (alteration in
original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “The
government bears the burden of establishing the error is harmless beyond a
reasonable doubt.” United States v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011)
(quoting Alvarado-Valdez, 521 F.3d at 341).
      “In determining whether an error is harmless we look to the totality of
circumstances including all of the evidence adduced.” United States v. Watkins,
741 F.2d 692, 695 (5th Cir. 1984). “A court must then decide whether, absent
the so-determined unconstitutional effect, the evidence remains not only
sufficient to support the verdict but so overwhelming as to establish the guilt
of the accused beyond a reasonable doubt.” Id. (quoting Harryman v. Estelle,
616 F.2d 870, 876 (5th Cir. 1980) (en banc)). “[T]his is an exacting standard
that must be uncompromisingly applied.” Harryman, 616 F.2d at 876.
                              III. DISCUSSION
      While the Government acknowledges that the admission of A.L. and
C.M.’s in-court identifications was unconstitutional, we are compelled to note
the significant role this evidence had at trial. The central dispute was the
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                                  No. 15-20010
identity of the robber. A.L. and C.M. were the only two eyewitnesses to the
crime that testified, and they both stated that Shaffer was the robber.
“[E]yewitness identification evidence has a powerful impact on juries.” Watkins
v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting); see also United
States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997) (noting that “in-court
identifications can be powerfully persuasive”). Notably, the Government
focused on this evidence in its closing argument, stating that “what really
convicts him and should convince you is that both [A.L.] and [C.M.] both
positively identified [Shaffer] for you here in this courtroom.” As the
Government emphasized, while A.L.’s testimony “by itself would be enough to
convict [Shaffer,] . . . [w]e went further than that” as C.M. “also identified him.”
Because the Government repeatedly stated that the in-court identifications
were conclusive proof that Shaffer was the robber, “[t]here is no way to
determine whether the jury would have convicted [the defendant] purely on
the basis of [the tainted] testimony or of any of the other evidence.” Jackson,
636 F.3d at 697 (alterations in original) (quoting Alvarado-Valdez, 521 F.3d at
343). Accordingly, “[w]e cannot see how the government can conclusively show
that the tainted evidence did not contribute to the conviction, because the
government’s closing argument relied on that very evidence.” Alvarado-Valdez,
521 F.3d at 342–43.
      Nevertheless, the Government now contends that even when A.L. and
C.M.’s in-court identifications are removed from consideration, the evidence
presented at trial was so overwhelming as to establish Shaffer’s guilt beyond
a reasonable doubt. In support, the Government principally focuses on the
following evidence: (1) Robinson’s testimony; (2) the surveillance video; and (3)
the fingerprint found on the withdrawal slip.
      At trial, Robinson testified that he drove Shaffer to the Wal-Mart on the
day of the robbery and that the sweater, sweatpants, and gun worn and used
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                                 No. 15-20010
by the man in the surveillance video belonged to him. Robinson also identified
the man in the surveillance video as Shaffer.
      There is reason, however, to question portions of this testimony—
especially the identity of the robber. As Shaffer’s counsel argued at trial, the
robber arrived in Robinson’s car, was wearing Robinson’s clothes, and was
carrying Robinson’s gun. While Robinson told both the police and the jury that
it was Shaffer and not him in the surveillance video, he plainly had an
incentive to do so. Taking Robinson’s testimony on its face would force us to
accept the credibility of a paramount witness that we were unable to observe
and whom the Government conceded may have participated in the crime.
Given the outstanding questions about Robinson’s credibility, we cannot say
that his testimony is overwhelming evidence that Shaffer was the robber. See
Cueto, 611 F.2d at 1065 (noting credibility issues of witness in conducting
harmless error review).
      We also cannot accept the Government’s contention that the surveillance
video provides overwhelming evidence that Shaffer is guilty. The video,
although it includes the robber’s face, is of a grainy quality. The person in the
video is also wearing a cap that casts a shadow over his face and obscures his
facial features. Thus, we cannot determine with any certainty the surveillance
video’s probative force.
      Lastly, the Government’s fingerprint evidence does not persuade us that
the tainted in-court identifications were harmless beyond a reasonable doubt.
Specifically, the Government points to the fact that the surveillance video
shows the robber touching the demand note and that two fingerprint analysts
testified at trial that a single fingertip print found on the demand note matched
a single fingertip print from Shaffer. Yet the fingertip print—unlike the
robber’s gun, clothes, or getaway car—is the only physical evidence that does
not also implicate Robinson. While fingerprint evidence by itself may be
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                                  No. 15-20010
sufficient to support a jury’s guilty verdict, see Gibson v. Collins, 947 F.2d 780,
785 (5th Cir. 1991), where there is constitutional error, a guilty verdict may be
affirmed only where “there was [no] reasonable possibility that the evidence
complained of might have contributed to the conviction.” Alvarado-Valdez, 521
F.3d at 341 (alteration in original) (quoting Chapman, 386 U.S. at 24). Because
of the heavy emphasis that the Government placed on the tainted in-court
identifications and our doubts surrounding the strength of the Government’s
other evidence, the single fingertip-print match does not persuade us beyond a
reasonable doubt that the introduction of the tainted identification testimony
was harmless error.
                              IV. CONCLUSION
      For the foregoing reasons, we reverse Shaffer’s conviction and remand to
the district court.




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                                           No. 15-20010
PRISCILLA R. OWEN, Circuit Judge, dissenting:
       I respectfully dissent. The prosecutor’s constitutional error in tainting
the in-court identifications made by the two bank tellers was harmless beyond
a reasonable doubt. 1        The fingerprint evidence establishes Shaffer’s guilt. 2
The majority opinion improperly discounts that evidence as well as the
probative strength of the minutes-long videotape of the robber committing the
robbery. The video is much clearer than the majority opinion implies, and the
jury had the opportunity to look at the video and then Shaffer and Robinson in
person at trial to determine which of them was caught in the act. The evidence
overwhelmingly establishes Shaffer’s guilt.               I would therefore affirm the
conviction,     in   spite    of   the    Government’s        extremely      improper      and
unprofessional conduct.
       Shaffer’s theory at trial was that Robinson, not Shaffer, robbed the
bank. 3 But it was Shaffer’s fingerprints, not Robinson’s, that were on the
deposit slip on which the robber penned a demand note before handing it to the
bank teller.     Importantly, there is no possibility that Shaffer could have
touched the deposit slip before the robbery or outside of the bank because the
teller gave the deposit slip to the robber. 4 The surveillance video tape reflects
that the deposit slip was handed to the robber by a bank teller after the robber
entered the bank and approached the counter. The robber then writes on the
slip (pressing down with his fingertips to hold the paper in place for more than




       1  See, e.g., Harrington v. California, 395 U.S. 250, 253-54 (1969); Harryman v. Estelle,
616 F.2d 870, 875-88 (5th Cir. 1980) (en banc).
        2 See United States v. Watkins, 741 F.2d 692, 695 (5th Cir. 1984).
        3 Ante at 6.
        4 Cf. Wright v. Florida, 474 U.S. 1094, 1096 (1986) (Blackmun, J., dissenting from

denial of certiorari) (explaining that because “Wright’s fingerprint could have been left during
[an] alleged earlier break-in, this case comes down to Wright’s word against Westberry’s”).
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                                          No. 15-20010
one minute). After demanding and receiving money, the robber departed the
area leaving the deposit slip/demand note behind. This is all memorialized on
the video tape, very clearly. Because it is indisputable that the piece of paper
was handed to the robber immediately before the robbery and then was left at
the scene, there is no reasonable explanation as to how Shaffer’s fingerprint
appeared on the slip other than to conclude that he was the robber. 5
       As the majority opinion recounts, detectives were able to recover a latent
fingertip print from the bank deposit slip used as the demand note. 6 Marcy
Farley, a latent fingerprint examiner from the Brazoria County Sheriff’s
Department, analyzed the print found on the deposit slip and confirmed that
it matched Shaffer’s. Farley also personally took Shaffer’s fingertip prints and
identified Shaffer at trial as the man she fingerprinted. The print’s match was
confirmed by two other fingerprint experts in the Brazoria County Sheriff’s
Department, one of whom testified at trial.                None of this evidence was
impeached in any material way. There is no contention, or even suggestion,
that the print belonged to Robinson. This is unrefuted physical evidence that
identifies Shaffer as the robber beyond any reasonable doubt.
       The video is also compelling evidence. The majority opinion overstates
the case in describing its quality as “grainy.” 7 The video was taken from inside
the bank directly in front of the teller counter occupied by A.L. at the time of
the robbery. The video shows that a man walks up to the counter, receives a
deposit slip that is handed to him, and begins to write on it. After securing the
slip with his fingertips and writing on the slip for over ninety seconds, the man


       5 See United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001) (holding error harmless
with fingerprints as primary evidence against defendant); United States v. Wade, 740 F.2d
625, 628 (8th Cir. 1984) (same).
       6 Ante at 6.
       7 Ante at 6.

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                                       No. 15-20010
displays a gun, then waits another thirty seconds until the teller hands him
money. All told, the man is in the video’s frame, seen from the waist up, for
more than three minutes. He appears to be standing no more than an arm’s
length away from the camera for almost the entire duration.
         The majority concludes that the video has little probative value for
purposes of our harmless error analysis based on the opinion’s assessment that
the video was of “grainy quality” and that shadows from the robber’s hat
“obscure[ ] his facial features.” 8 The video in fact provides a reasonably clear
image of the robber’s face at times. Shadows cast from the perpetrator’s hat
do obscure his features at some points during the video, but his unmasked face
can be seen with clarity during other portions as he shifts his body positioning
and turns his head. There were still shots of the robber’s face taken from the
video.
         The jury was shown this video during trial. The jury also had multiple
opportunities to view Robinson and to compare him to the man in the video:
Robinson testified at trial for the Government and also appeared in the court
room during the testimony of both A.L. and C.M., another teller present during
the robbery, during which both witnesses were asked whether Robinson was
the man that robbed the bank. Both testified that he was not. Although these
negative identifications are likely tainted by the same suggestive pretrial
procedures that tainted the positive identifications of Shaffer, Robinson’s
appearance in the court room during each of these witnesses’ testimony offered
the jury extended opportunities to look at Robinson and compare him to the
robber shown in the video. One of Robinson’s appearances in the courtroom
occurred only four minutes after the jury viewed the video. The jury also


         8   Ante at 6.
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                                    No. 15-20010
requested an opportunity to view the video from “up close” during their
deliberations, giving the members of the jury another opportunity to compare
the robber’s identity to both Shaffer and Robinson.         This second viewing
appears to have featured prominently in the jury’s deliberations—it returned
a guilty verdict only 20 minutes after viewing the video.
      More confounding is the majority opinion’s conclusion that the
fingerprint evidence does not overwhelmingly establish Shaffer’s guilt. With
essentially no analysis, it holds that the fingerprint recovered from the demand
note written by the robber “does not persuade” as to the harmlessness of the
district court’s error. 9 The majority opinion fails to explain how Shaffer’s
fingerprint on the demand note could allow any reasonable doubt that Shaffer
was responsible for the robbery.
      Finally, although Shaffer is correct that the Government emphasized the
identifications made by A.L. and C.M. several times during its opening and
closing statements, it is important to note that Shaffer’s counsel forcefully
cross-examined those witnesses about their previous failures to identify
Shaffer and elicited testimony about the suggestiveness of the procedures that
led to their identifications.   Defense counsel also elicited testimony from
Detective Jernigan, one of the Government’s primary witnesses, that
eyewitness identifications are not always reliable. Armed with this testimony,
Defense counsel argued to the jurors during his closing argument that they
should doubt the positive identifications.     In any event, the fingerprint
evidence coupled with the surveillance video overwhelmingly establishes
Shaffer’s guilt.




      9   Ante at 7.
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                                           No. 15-20010
          The majority opinion reasons that because “‘in-court identifications can
be powerfully persuasive’” 10 and the Government relied on the identifications
in its closing argument, 11 there is a reasonable possibility that the tainted
identifications “might have contributed to the conviction.” 12 The majority
opinion’s application of the harmless error rule formulated in Chapman v.
California 13 is in tension with decisions of the Supreme Court and of our en
banc court.
          In Harrington v. California, 14 in which the Supreme Court directly
reviewed a state court conviction, four defendants were tried together and the
confessions of two of them, who did not testify at trial, were admitted into
evidence with the limiting instruction that the jury was to consider each
confession only against the confessor. 15 Citing Bruton v. United States, 16 the
Supreme Court held that this violated Harrington’s rights under the
Confrontation Clause of the Sixth Amendment because Harrington did not
have the opportunity to cross-examine these two non-testifying defendants.
The Supreme Court held that the error was harmless, however, explaining that
“[i]t is argued that we must reverse if we can imagine a single juror whose
mind might have been made up because of [the two co-defendants’] confessions




          10 Ante at 5 (quoting United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997)).
          11 Ante at 5.
          12 Ante at 7 (quoting United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir.

2008)).
          386 U.S. 18, 19, 24 (1967) (holding, in a case in which under state law, the prosecutor
          13

was permitted to comment and did comment on the defendants’ failure to testify or to deny
or explain incriminating evidence, “that before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a reasonable
doubt”).
       14 395 U.S. 250 (1969).
       15 Id. at 252.
       16 391 U.S. 123 (1968).

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                                         No. 15-20010
and who otherwise would have remained in doubt and unconvinced.” 17 The
Court rejected this argument, stating “[o]ur judgment must be based on our
own reading of the record and on what seems to us to have been the probable
impact of the two confessions on the minds of an average jury.” 18 The Court
concluded, “[t]he case against Harrington was not woven from circumstantial
evidence. It is so overwhelming that unless we say that no violation of Bruton
can constitute harmless error, we must leave this state conviction
undisturbed.” 19
      The same can be said of the evidence against Shaffer in the present case.
The fingerprint and videotape evidence was not circumstantial.                  It was
substantial physical evidence and convincing beyond a reasonable doubt.
      The majority opinion is inconsistent with Harryman v. Estelle, in which
our court, sitting en banc, applied the harmless error rule in a habeas
proceeding. 20 Harryman was arrested, and in searching his person, one of the
officers found a condom containing a white powdered substance. 21 Before
reciting the Miranda 22 warning, the office asked Harryman “[w]hat is this” and
Harryman responded “[o]h, you know what it is. It is heroin.” 23 At trial, the
arresting officers testified about this statement, 24 and one of the prosecutors
referred to it three times in closing argument to the jury. 25 Harryman was
convicted in state court of possession of heroin and sentenced to life in prison.



      17 Harrington, 395 U.S. at 254.
      18 Id.
      19 Id.
      20 616 F.2d 870, 875-78 (5th Cir. 1980) (en banc).
      21 Id. at 873.
      22 Miranda v. Arizona, 384 U.S. 436 (1966).
      23 Harryman, 616 F.2d at 873.
      24 Id.
      25 Id. at 877.

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                                         No. 15-20010
In habeas proceedings, after concluding that Miranda had been violated and
that there was constitutional error, 26 our court addressed the harmless error
standard. We said, “‘it is necessary to review the facts of the case and the
evidence adduced at trial’ to determine the effect of the unlawfully admitted
evidence ‘upon the other evidence adduced at trial and upon the conduct of the
defense.’” 27 “A court must then decide whether, absent the so-determined
unconstitutional effect, the evidence remains not only sufficient to support the
verdict but so overwhelming as to establish the guilt of the accused beyond a
reasonable doubt.” 28 Harryman maintained that the condom in his possession
contained only milk sugar, that the police failed to maintain a chain of custody
of the condom and confused it with another condom also in police custody that
contained heroin. 29 It was undisputed that the police had custody of two
condoms, one containing milk sugar and the other containing heroin. 30
However, our court concluded that the testimony regarding the chain of
custody established that the condom containing heroin was the one found on
Harrington’s person at the time he was arrested and therefore, that the
Miranda violation was harmless beyond a reasonable doubt. 31
      In the present case, the evidence that the robber was Shaffer and not
Robinson was physical evidence—a fingerprint and a lengthy video showing
the robber’s face.      The in-court identifications were harmless beyond a
reasonable doubt.
                                        *        *        *



      26 Id. at 875.
      27 Id. at 876 (quoting Fahy v. Connecticut, 375 U.S. 85, 87 (1963)).
      28 Id.
      29 Id. at 877-78.
      30 Id.
      31 Id. at 878.

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                                No. 15-20010
  I would affirm Shaffer’s conviction. I therefore respectfully dissent.




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