In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3172

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY WOODROW HARRIS,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-50--Rudolph T. Randa, Judge.

Argued February 12, 2001--Decided February 22, 2002



  Before CUDAHY, ROVNER, and WILLIAMS,
Circuit Judges.

  ROVNER, Circuit Judge. Larry Woodrow
Harris was convicted after a jury trial
of bank robbery in violation of 18 U.S.C.
sec. 2113(a). The district court
sentenced him to 210 months’
incarceration and three years’ supervised
release, and also ordered him to pay
$2,180 in restitution. On appeal Harris
argues that his conviction was tainted by
a dubious line-up identification and two
erroneous evidentiary rulings. We affirm.

I.   Background

  On the morning of September 1, 1999, a
man walked into an M & I Bank branch in
Milwaukee and approached a teller named
Talesha Wallace. The man handed Wallace a
note stating that he had a gun and wanted
money. After Wallace read the note, the
man told her "now." Wallace handed over
the money, and the man instructed her not
to do anything until he left. The man
exited the bank, money and note in hand.

  Police arrived soon after the robbery.
Wallace described the robber as African-
American, in his mid-50s, heavy-set, dark
complected, with black and gray hair, and
wearing a dark T-shirt with a logo on the
front and dark blue trousers. The
following day police showed Wallace
photographs of four individuals, and she
tentatively selected Harris as the
perpetrator.

  That same day an anonymous person told
investigators that he had worked with
Harris and that Harris had bragged about
committing various robberies. The
informant also told investigators that
Harris had tried to recruit him days
earlier to assist in a bank robbery. He
then identified Harris as the man
pictured in the bank’s surveillance foot
age.

  Acting on this tip, police interviewed
Louis Graber, the office manager at
Instant Labor Temporary Help Agency,
Harris’s employer. Graber identified
Harris as the man in the surveillance
photograph. Six months later Wallace was
asked to view a five-person line-up, and
she again identified Harris as the
perpetrator.

  Before trial Harris moved to suppress
Wallace’s line-up identification, arguing
that it was unduly suggestive because the
police had showed Harris’s picture to
Wallace a day after the robbery. After a
hearing the district court denied the
motion upon the recommendation of the
presiding magistrate judge.

  Harris then filed a motion in limine to
exclude testimony regarding the anonymous
tip on the grounds that it would be
overly prejudicial and irrelevant, and
would constitute inadmissible propensity
evidence. The district court granted the
motion in part, permitting the government
only to present evidence that the police
had information that Harris worked at
Instant Labor.

  At trial Harris called as a witness
Ralph Spano, one of the detectives
present at the line-up identification.
After defense counsel asked Spano about
witnesses who viewed the line-up other
than Wallace, the government objected on
the ground of hearsay. At a side-bar
conference, defense counsel told the
court that she intended to ask Spano if
there were any witnesses at the line-up
who did not identify Harris as the
robber. The court sustained the
government’s objection.

II.   Discussion
  On appeal Harris contends that the
district court erred by (1) allowing
Wallace’s line-up identification to be
admitted into evidence because it was
unduly suggestive, (2) allowing the
government to refer to the anonymous tip,
and (3) preventing him from eliciting
testimony from a detective that two
witnesses could not identify him as the
robber.


  A.   Line-up Identification

  The standard of review for decisions
refusing to suppress an identification
has been described both as clear error,
see United States v. Galati, 230 F.3d
254, 259 (7th Cir. 2000); United States
v. Moore, 115 F.3d 1348, 1359 (7th Cir.
1997); United States v. Funches, 84 F.3d
249, 253 (7th Cir. 1996), and as de novo
with due deference to the district
court’s findings of historical fact, see
United States v. Downs, 230 F.3d 272, 275
(7th Cir. 2000) (citing Ornelas v. United
States, 517 U.S. 690 (1996)); United
States v. Newman, 144 F.3d 531, 535 (7th
Cir. 1998); see also United States v.
Curry, 187 F.3d 762, 768 (7th Cir. 1999)
(recognizing but not resolving this
"apparent inconsistency").

  Consistent with Ornelas, we conclude
that the latter standard of review is
appropriate--a district court’s decision
to admit or suppress a line-up
identification should be subject to de
novo review with due deference to the
court’s findings of historical fact. This
standard conforms to that followed in our
sister circuits. See, e.g., United States
v. Bowman, 215 F.3d 951, 965 n.9 (9th
Cir. 2000); United States v. Flores, 149
F.3d 1272, 1278 (10th Cir. 1998); United
States v. Puckett, 147 F.3d 765, 769 (8th
Cir. 1998); United States v. Rusher, 966
F.2d 868, 873 (4th Cir. 1992). In Ornelas
the Supreme Court held that certain law
enforcement actions that implicate a
suspect’s Fourth Amendment rights, such
as determinations of probable cause and
reasonable suspicion, should be reviewed
de novo. See United States v. D.F., 115
F.3d 413, 416-17 (7th Cir. 1997). The
Court noted that a police officer’s
assessments of probable cause and reason
able suspicion involve common-sense,
practical considerations of everyday
life; the propriety of these
determinations depends on the facts of
the particular case. Ornelas, 517 U.S. at
695-96. In light of the particularized
factual context in which such decisions
are made, the Court concluded that the
policy of sweeping deference embodied by
the clear error standard would allow
different trial judges to reach disparate
conclusions in similar factual
circumstances, yielding varied results
that would be inconsistent with the idea
of a unitary system of law. Id. at 697.
The same principle applies to the
propriety of line-up identifications--
their legitimacy depends on the facts of
each case. A de novo standard of review
with due deference to findings of
historical fact will better unify case
precedent and provide law enforcement
officers with a defined set of rules when
they conduct line-ups. Id. at 697-98.

  In this case the district court properly
admitted the line-up identification. We
conduct a two-step test in evaluating a
challenge to the admissibility of a line-
up identification. Harris must first
establish that the line-up was unduly
suggestive. See Downs, 230 F.3d at 275.
If the line-up was suggestive, we must
determine whether the identification was
nevertheless reliable. See Galati, 230
F.3d at 259. Here, we need not reach the
second step because there was nothing
unduly suggestive about Wallace’s line-up
identification. The four other men in the
line-up physically resembled each other
and fit the detailed description first
given by Wallace--all of the line-up
participants were of similar age, height,
weight, and general complexion, and all
had facial hair and wore identical
baseball caps. We have approved
repeatedly line-ups composed of
individuals who share like physical
features. See id. at 260; Moore, 115 F.3d
at 1360; Funches, 84 F.3d at 253; United
States v. Sleet, 54 F.3d 303, 309 (7th
Cir. 1995). Harris argues that the line-
up was unduly suggestive because he was
the only person to appear in both the
photo array and line-up. But there is
nothing impermissible about placing the
same suspect in two different
identification procedures. See Gullick v.
Perrin, 669 F.2d 1, 5 (1st Cir. 1981).
Moreover, the photo array was reasonable-
-police showed Wallace four pictures of
four men, all having similar physical
characteristics. And Wallace’s line-up
identification occurred nearly six months
after she was first shown the photo
array; after such a substantial passage
of time, it is unlikely that she was
influenced by the earlier photograph, let
alone that it led to misidentification.


  B.   Anonymous Tip

  Harris also contends that the district
court erred by admitting testimony
regarding the anonymous tip, a decision
we review for abuse of discretion. See
United States v. Hunt, 272 F.3d 488, 494
(7th Cir. 2001). The court, leery of
admitting evidence that Harris had
bragged of committing other robberies,
limited the government’s inquiry to why
the police went to Instant Labor. In
accordance with the court’s ruling, the
government asked a police detective the
following two questions:

COUNSEL: Did you have occasion to meet
with a person by the name of Louis Graber
on September 2, 1999?

DETECTIVE BEYER: Yes, I did.
COUNSEL: And very briefly, why was that?

DETECTIVE BEYER: I had information that
the suspect in this robbery may work at
Instant Labor, with the office being in
the 2200 block of South Muskego.

(Tr. at 78-79.)

  Harris argues that this evidence is
irrelevant and unfairly prejudicial.
Evidence is relevant if it has "any
tendency to make the existence of any
fact that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence." Fed. R. Evid. 401; United
States v. Rhodes, 229 F.3d 659, 661 (7th
Cir. 2000). Contrary to Harris’s
assertion, Beyer’s limited testimony was
relevant because it explained why the
police interviewed Graber, who was not
present at the bank but nevertheless
aided the investigation by identifying
Harris as the man pictured in the
surveillance photograph.

  Harris’s challenge under Federal Rule of
Evidence 403, which provides that
relevant evidence may be excluded if its
probative value is substantially
outweighed by the danger of unfair
prejudice, see United States v. Bogan,
267 F.3d 614, 622 (7th Cir. 2001), also
fails. Even if the probative value of
this testimony was marginal, Harris
cannot demonstrate prejudice. The jury
did not hear the substance of the tip;
Beyer made no mention that the anonymous
source told police that Harris had
bragged about committing other robberies.
As a result the court did not abuse its
discretion by allowing the testimony.

  C.   Failed Identifications

  Harris also argues that the district
court erred by precluding him from
eliciting testimony at trial that
twowitnesses were unable to identify him
at the line-up as the robber. The court
sustained the government’s objection that
such evidence constituted inadmissible
hearsay, a determination we review for
abuse of discretion. See United States v.
Green, 258 F.3d 683, 689 (7th Cir. 2001).
Defense counsel tried to ask Spano
whether any other witnesses present at
the line-up had failed to identify Harris
as the perpetrator. The court correctly
concluded that this line of questioning
called for inadmissible hearsay, i.e., an
out-of-court statement offered in
evidence to prove the truth of the matter
asserted. See Fed. R. Evid. 801(c);
United States v. Williams, 272 F.3d 845,
859 (7th Cir. 2001). Harris contends that
he wanted merely to introduce evidence
that only one of the three witnesses had
selected him as the robber. This line of
questioning, however, represented a back-
door attempt to submit second-hand (and
unchallengeable) evidence suggesting that
Harris may not have been the person they
saw who robbed the bank. The court
correctly prohibited the inquiry--Harris
could have called both witnesses to
testify but chose not to, giving the
government no opportunity to cross-
examine them as to why they could not
identify Harris. And because no exception
to the hearsay rule applies, the district
court’s refusal to allow such testimony
was not an abuse of discretion.

AFFIRMED.
