Rehearing granted in part and case remanded
for resentencing under Booker on March 8, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRELL LAMONT GILCHRIST,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
02-245-DKC)
Submitted: October 27, 2004 Decided: January 11, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Douglas Wood, ROBERTS & WOOD, Riverdale, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Deborah Johnston,
Assistant United States Attorney, Sandra Wilkinson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derrell Lamont Gilchrist appeals from a district court
judgment following his conviction and sentencing for three counts
of armed bank robbery, 18 U.S.C. § 2113(d), one count of
carjacking, id. § 2119, one count of conspiracy to engage in a bank
robbery and a carjacking, id. § 371, four counts of using a firearm
during and in relation to a crime of violence, id. § 924(c), and
one count of possessing a firearm after having a felony conviction,
id. § 922(g). We affirm.
I
A
Between March 15, 2001 and July 13, 2001, Gilchrist engaged in
a series of violent offenses in the District of Maryland and
elsewhere. Gilchrist’s involvement in these offenses was
established through eyewitness and victim testimony, results of
forensic examinations, including fingerprint and DNA comparisons,
documents, and other evidence.
On March 15, 2001, Gilchrist, acting alone, masked and armed
with a gun, entered a Columbia Bank branch located in Greenbelt,
Maryland. Before Gilchrist entered the bank, the branch manager
saw Gilchrist outside the bank without a mask. In the hallway
outside the bank’s lobby, Gilchrist, wearing a mask, encountered a
customer who had already left the bank and demanded at gunpoint
2
that the customer return to the bank and get on the floor.
Gilchrist then demanded money by pointing the gun at tellers and
customers. Gilchrist forcibly took federally insured United States
currency. As he left the bank, Gilchrist stated, “Have a Merry
Christmas.” Gilchrist was then observed by the branch manager and
others fleeing across the parking lot and entering a black Jeep
Cherokee.
In a photographic lineup, the Columbia Bank branch manager
identified Gilchrist as the person she saw outside the bank on the
date of the robbery. Bank surveillance photographs depicted the
robber as short and stocky, which matched Gilchrist’s physical
build.
On April 25, 2001, Gilchrist robbed another bank, this time a
Bank of America branch in Mitchellville, Maryland. Gilchrist,
masked and armed with a gun, entered the bank and demanded money by
pointing the gun at tellers and customers. Gilchrist forcibly took
federally insured United States currency. As he left the bank,
Gilchrist was heard saying, “Have a blessed day” and “Have a Merry
Christmas.”
Gilchrist was observed fleeing from the bank and running
behind a shopping center located adjacent to the bank parking lot.
A construction worker at the rear of the shopping center observed
the robber fleeing and observed him get entangled in some bushes.
A black nylon skull cap and a twenty-dollar bill were recovered in
3
that same area of the bushes. A DNA comparison was done and
Gilchrist was determined to be the major contributor of the DNA
found on the skull cap.
Gilchrist’s next heist occurred on June 15, 2001 at a Sun
Trust Bank branch in Landover Hills, Maryland. Gilchrist and a
taller, thinner African-American man were observed by Matilda
Burgos, a bank customer, in the bank’s parking lot. Burgos made
eye contact with Gilchrist and watched Gilchrist and his accomplice
walk to the bank door, where she observed one of the men pulling
out a gun before entering the bank. As described by witnesses and
depicted in the bank surveillance photographs, both robbers
displayed guns and wore bandannas covering their faces. They
demanded and received United States currency. One of the robbers
grabbed the keys to a customer’s minivan. Both robbers fled in the
stolen minivan, which was later recovered a short distance from the
bank.
On July 13, 2002, Gilchrist and a taller, thinner African-
American man approached Raymond Redden at 1441 McCormick Drive in
Landover, Maryland and demanded his vehicle. Unbeknownst to
Gilchrist and his accomplice, Redden was a Prince George’s County
police officer, recently assigned to the narcotics unit, and the
vehicle was his undercover police vehicle. After Redden
relinquished his keys by putting them on the front seat, Gilchrist
told Redden to get on the ground because he was going to “cap him.”
4
Gilchrist and Officer Redden then struggled for the gun. In
the midst of the struggle, Gilchrist discharged his weapon but was
unable to fire it again because Redden had his hand over the slide
portion of the gun, thereby jamming the casing inside. During this
struggle, Gilchrist instructed his accomplice to kill Redden. The
accomplice tried to come closer to the two men, but was unable to
get a clear shot. Gilchrist and his accomplice fled the scene in
Redden’s unmarked police vehicle.
A high-speed chase ensued. A short time later, Gilchrist and
his accomplice abandoned the unmarked police vehicle and escaped on
foot. However, the police were able to recover Officer Redden’s
vehicle. Fingerprints recovered on the driver’s side exterior of
the vehicle were identified as belonging to Gilchrist. During a
search of the vehicle, a pager not belonging to Redden was
recovered.1
A photographic lineup was shown to Officer Redden, who
identified Gilchrist as the shorter of the two carjackers and the
one who tried to shoot him. Redden was also shown another
photographic lineup and identified another photograph as depicting
1
The pager recovered from Officer Redden’s vehicle belonged to
Syretta Smith, a prostitute whom Gilchrist robbed at gunpoint on or
about July 8, 2001. Smith was shown a photographic lineup and
identified Gilchrist as the man who robbed her of her money and
pager. Smith also identified a second photograph as the man who
assisted Gilchrist in robbing her.
5
the tall, thin man who was Gilchrist’s accomplice in the
carjacking.2
Less than two hours after the carjacking of Officer Redden,
Gwendolyn Day was walking from a Seven-Eleven convenience store to
a Chevy Chase Bank branch in Arlington, Virginia to join her sister
who was inside the bank. As she crossed the parking lot, Day
observed two men, one short and stocky, the other tall and thin,
running toward the front of the bank. Nothing was covering their
faces.
Moments later, when Day was inside the bank, the same short,
stocky man, whom she identified in court as Gilchrist, and his
tall, thin accomplice entered the bank. Both were wearing bandanna
masks and carrying guns. Gilchrist demanded money by pointing the
gun at tellers and customers, adding that he would “execute them”
if they did not follow his orders. Gilchrist and his accomplice
forcibly took federally insured United States currency.
While fleeing from the scene of the bank robbery in his Jeep
Cherokee, Gilchrist failed to yield the right of way and nearly
collided with another car. The other driver became angry and
followed Gilchrist, who sped away. After obtaining the Cherokee’s
license-plate number, the driver who was following Gilchrist
2
Of note, the person identified by Officer Redden as
Gilchrist’s accomplice in the carjacking was not the same person
that Smith identified as Gilchrist’s accomplice during the July 8,
2001 robbery of Smith.
6
returned to the Chevy Chase Bank branch and provided the
information to the police.
Later, Gilchrist abandoned his Jeep Cherokee at a government
office building in Washington, D.C. The vehicle was found on July
17, 2001 and, inside the vehicle, the police recovered dye-stained
money, a bullet, and a bullet casing. On July 19, 2001, Gilchrist
was apprehended, following a vehicular chase with a Washington,
D.C. police officer.
B
On July 26, 2002, a grand jury sitting in the District of
Maryland returned a superseding indictment charging Gilchrist with
four counts of armed bank robbery, 18 U.S.C. § 2113(d), one count
of carjacking, id. § 2119, one count of conspiracy to engage in a
bank robbery and a carjacking, id. § 371, five counts of using a
firearm during and in relation to a crime of violence, id.
§ 924(c), and one count of possessing a firearm after having a
felony conviction, id. § 922(g). On January 7, 2003, the case went
to trial. After eight days of trial, the jury returned a verdict
finding Gilchrist guilty of all of the counts except one of the
armed bank robbery counts and one of the § 924(c) counts.3 On
3
In the superceding indictment, the government alleged that
Gilchrist, armed with a firearm, robbed a Potomac Valley Bank
branch on June 21, 2001. This allegation formed the basis of one
of the armed bank robbery counts and one of the § 924(c) counts.
The jury acquitted Gilchrist on the counts related to the alleged
robbery of the Potomac Valley Bank branch.
7
April 25, 2003, the district court sentenced Gilchrist to 112
years’ imprisonment and ordered restitution in the amount of
$54,595. Gilchrist noted a timely appeal.
II
Gilchrist contends that he was improperly denied access to
evidence favorable to his defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). More specifically, he contends he
was entitled to know the name of the individual that Officer Redden
identified in the photographic lineup as Gilchrist’s accomplice in
the carjacking. With this information, Gilchrist posits, he would
have been able to impeach Redden’s testimony by demonstrating that
the person Redden identified in the photograph as Gilchrist’s
accomplice did not, in fact, participate in the carjacking or any
of the bank robberies, thereby undermining the government’s theory
of the case.4
In Brady, the Supreme Court held that the prosecution’s
failure to disclose favorable evidence to an accused “violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87. In order to establish that the
4
The government’s decision to refuse to disclose the name of
the person that Officer Redden identified in the photographic
lineup as Gilchrist’s accomplice in the carjacking primarily was
based on privilege and confidentiality concerns--its investigation
into the identity of Gilchrist’s accomplice was ongoing.
8
government's failure to turn over evidence constitutes a Brady
violation, the defendant must demonstrate: (1) that the undisclosed
evidence was favorable, either because it was exculpatory or
impeaching; (2) that the prosecution had the materials and failed
to disclose them, either willfully or inadvertently; and (3) that
the evidence was material to the defense. Strickler v. Greene, 527
U.S. 263, 280-81 (1999). Evidence is “material” for purposes of
the Brady inquiry “only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985). A “‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”
Id. Thus, although “the term ‘Brady violation’ is sometimes used
to refer to any breach of the broad obligation to disclose
exculpatory [or impeachment] evidence--that is, to any suppression
of so-called ‘Brady material’-- . . . strictly speaking, there is
never a real ‘Brady violation’ unless the nondisclosure was so
serious that there is a reasonable probability that the suppressed
evidence would have produced a different verdict.” Strickler, 527
U.S. at 281.
In denying Gilchrist’s request for the government to disclose
the name of the person that Officer Redden identified in the
photographic lineup as Gilchrist’s accomplice in the carjacking,
the district court engaged in a lengthy colloquy with counsel.
9
During this colloquy, the court observed that, because the
government had doubts concerning the accuracy of Redden’s
identification of Gilchrist’s accomplice in the carjacking, the
government was not contending that the person Redden identified in
the photographic lineup participated in any of the crimes alleged
in the indictment.5 The court also observed that, in view of the
strong physical evidence linking Gilchrist to the carjacking,
Gilchrist did not seriously take issue with Redden’s identification
of Gilchrist as a participant in the carjacking. In light of these
two observations, the court viewed Gilchrist’s request as one that
sought evidence to prove a fact the government did not dispute,
namely, the man Redden identified in the photographic lineup as
Gilchrist’s accomplice was not the same individual who participated
in the carjacking or any of the bank robberies. Put simply, the
essence of the court’s ruling was that Gilchrist’s request did not
seek impeaching or exculpatory evidence because (1) the name of the
accomplice was irrelevant to any issue in the case and (2) there
were other persuasive ways to prove the inaccuracy of Redden’s
identification without disclosure of the name of the accomplice.
5
Although the government had doubts concerning the accuracy of
Officer Redden’s identification of Gilchrist’s accomplice in the
carjacking, the government did suggest to the court, and ultimately
argued to the jury, that the accomplice in the carjacking, whomever
that person might be, assisted Gilchrist in performing some of the
bank robberies.
10
In our view, Gilchrist’s Brady claim founders for the simple
reason that the identification evidence he sought was not material.
Given the certainty of Officer Redden’s identification of
Gilchrist, the presence of Gilchrist’s fingerprint on the outside
of Redden’s vehicle in the area where the struggle occurred, the
subsequent discovery of Smith’s pager in Redden’s vehicle, her
identification of Gilchrist as the person who stole her pager, and
the fact that the government was not contending that the person
Redden identified in the photographic lineup participated in any of
the crimes alleged in the indictment, it simply cannot be said that
disclosure of the identity of the accomplice in the carjacking
would have produced a different result at the trial. Accordingly,
there was no Brady violation.
In a related argument, Gilchrist contends that the district
court should have conducted an in camera review of the evidence
concerning Officer Redden’s identification of Gilchrist’s
accomplice in the carjacking. According to Gilchrist, such a
review was necessary because the court was obligated to determine
whether the government possessed information concerning the
accuracy of Redden’s identification of Gilchrist’s accomplice.
On occasion, the government may possess potential Brady
material that it deems privileged or that is otherwise
confidential. If the accused does not specifically request that it
be produced, this material is treated much like everything else in
11
the government’s file, i.e., “the prosecutor’s decision on
disclosure is final.” Pennsylvania v. Ritchie, 480 U.S. 39, 59
(1987). If, however, the defendant is able to identify the
requested confidential material with some degree of specificity, he
may then attempt to convince the district court that it is subject
to disclosure. Id. at 58 n.15 (requiring the accused to “at least
make some plausible showing” of how the evidence would be “both
material and favorable to his defense”).
Once the defendant has made a plausible showing that the
evidence would be both material and favorable, the district court
must review the evidence in camera to ascertain its true nature and
determine whether it must be disclosed. Id. at 58-60. The court
conducts its examination in private because the Constitution does
not accord a defendant the right of unrestricted access to the
government’s files. Id. at 59-60. The court’s ultimate conclusion
as to whether the information is subject to disclosure--whether the
evidence is both material and favorable--may be disturbed on appeal
only if it is clearly erroneous. United States v. Trevino, 89 F.3d
187, 190 (4th Cir. 1996).
In this case, Gilchrist suggests that he satisfied the
“plausible showing” requirement because disclosure of the name of
the carjacking accomplice possibly would have led to admissible
evidence. However, mere speculation that the information may be
helpful is insufficient to justify an in camera review. United
12
States v. Mitchell, 178 F.3d 904, 907-08 (7th Cir. 1999). In any
event, it is difficult to see how the name of the carjacking
accomplice was favorable and/or material because Gilchrist simply
did not need the name of the accomplice to impeach Officer Redden’s
credibility. Gilchrist could have attacked Redden’s credibility by
presenting evidence that the accomplice identified by Redden in the
photographic lineup had not been charged with any of the crimes
alleged in the indictment. Presentation of such evidence would
have been equally, if not more, powerful than any evidence
Gilchrist could have marshaled through the disclosure of the name
of Gilchrist’s accomplice in the carjacking. Accordingly,
Gilchrist’s claim that the district court erred by failing to
conduct an in camera review is without merit.
III
Gilchrist also contends that the district court erred when it
admitted into evidence two in-court identifications of him, one by
Matilda Burgos, the other by Gwendolyn Day.
When considering whether in-court identification evidence is
admissible, the district court employs a two-step analysis. The
court first determines whether the defendant established that the
identification procedure was unnecessarily suggestive. United
States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996). Second, if
the identification procedure was unnecessarily suggestive, the
13
court must determine whether the identification evidence
nevertheless is reliable. Id. In determining the reliability of
the identification evidence, the court considers a number of
factors, specifically: (1) the witness’s opportunity to see the
defendant at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s description; (4) the
witness’s level of certainty; and (5) the time between the crime
and the confrontation. Id. These factors are weighed against the
“corrupting effect of the suggestive identification itself.”
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
Gilchrist contends that the in-court identification of him by
Burgos violated his due process rights. Specifically, he alleges
that Burgos’s in-court identification was unnecessarily suggestive
and unreliable because: (1) during a court recess just prior to her
testimony, Burgos arrived in the courtroom, took the stand, saw
Gilchrist, and advised counsel she recognized Gilchrist; and (2)
Burgos was shown bank surveillance photographs prior to her
testimony.
With regard to Gilchrist’s first contention concerning
Burgos’s in-court identification of him, we have held that giving
a witness an opportunity to observe the defendant in court is not
an unnecessarily suggestive identification procedure. See United
States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995) (“[A]lthough
the Government allowed the witnesses to see [the defendant] seated
14
at the defense table prior to their testimony, it did not create a
substantial likelihood of irreparable misidentification” because
the witnesses “would have seen [the defendant] at the defense table
immediately before testifying.”). Under this court’s holding in
Murray, allowing Burgos to see Gilchrist at counsel’s table a few
moments before her testimony did not make the identification
procedure unnecessarily suggestive, as Burgos would have seen
Gilchrist in any event a few moments later when she took the
witness stand.
Gilchrist also contends the in-court identification of him by
Burgos violated his due process rights because Burgos was shown
bank surveillance photographs prior to her testimony. As the
argument goes, a due process violation occurred because the
government falsely told the district court that Burgos had been
shown “no pictures” of Gilchrist when, in fact, she had been shown
the bank surveillance photographs depicting Gilchrist wearing a
mask. This argument is without merit for the simple reason that
the government’s statement was true in the sense that Burgos was
not shown any pictures which identified Gilchrist; rather, she only
was shown pictures of Gilchrist wearing a mask.
In any event, Burgos’s identification of Gilchrist was
reliable and therefore admissible. An in-court identification is
admissible if the witness has independent knowledge which
attenuates the inherently suggestive environment of a courtroom
15
identification of a single defendant. Murray, 65 F.3d at 1169
(identification based upon witness’s “clear recollection of
[defendant] during the robbery”); United States v. Johnson, 732
F.2d 379, 381 (4th Cir. 1984) (identification based upon an
opportunity to view the defendant at a time other than in the
courtroom). Burgos’s trial testimony clearly satisfies that
requirement because she had an independent basis for her
identification of Gilchrist.
As established at trial, on June 15, 2001, after completing
her banking business and saying hello to her sister, Burgos left
the Sun Trust Bank branch. As she walked toward her vehicle,
Burgos observed two men, one covered with a mask and the other
wearing a jacket, walking toward her vehicle. Burgos entered her
vehicle and locked the door because she was afraid of the men. She
only saw the suspect with the mask for a moment. Burgos, however,
saw the face of the other suspect, whom she identified in court as
Gilchrist. Moreover, she watched the men walk up to the bank door,
at which time one of them pulled out a gun and both entered the
bank. Burgos observed them for approximately thirty-five seconds.
As she was driving away from the bank parking lot, Burgos called
the police to report the incident. Burgos was not interviewed
during the initial investigation and was first contacted by the FBI
in December 2002. Burgos was shown the bank surveillance
photographs in which both suspects wore masks and, therefore, as
16
Burgos testified, she could not see their faces or identify them in
the photographs. Burgos did testify, however, that the body builds
and the clothing worn by the suspects in the bank surveillance
photographs matched the builds and clothing of the suspects whom
she had seen in the parking lot.
Based upon her opportunity to observe Gilchrist, her level of
concentration, and her degree of certainty exhibited during her
testimony, Burgos’s in-court identification of Gilchrist was
reliable and properly admitted. Cf. Coleman v. Alabama, 399 U.S.
1, 5-6 (1970) (affirming admissibility of in-court identification
by a witness who had a fleeting but good look at his assailant in
the headlights of a passing car, thereby finding an independent
basis for the in-court identification).
Gilchrist also argues that the in-court identification of him
by Gwendolyn Day, a customer at the Chevy Chase Bank branch in
Arlington, Virginia was unreliable. Gilchrist asserts that the in-
court identification was inadmissible because: (1) Day had an
insufficient opportunity to view Gilchrist at the time of the
robbery; (2) she improperly observed the bank surveillance
photographs prior to her testimony; and (3) she was tentative in
her in-court identification of Gilchrist.
Day testified that, as she was going to the bank on the day of
the robbery, she observed two unmasked men running in her direction
from across the street. She noticed that one was thin and the
17
other was heavy-set. Day described the manner in which the heavier
person ran. Day entered the bank moments later to join her sister
who was inside the bank and almost immediately felt someone behind
her. Although he was now masked, Day could see his eyes and
recognized him from his physical appearance as the same person she
had observed about five seconds earlier running across the street.
Day saw the man pull out a silver gun, order everyone on the floor,
and threaten to start executing the customers unless he got some
money.
In preparation for her trial testimony, Day reviewed bank
surveillance photographs to identify her location and the location
of others in the bank during the robbery. Both robbers were armed
and wore bandannas covering their faces in those bank photographs.
During her trial testimony, Day looked in the direction of
Gilchrist, which precipitated the following exchange between the
government and Day:
GOVERNMENT: Why are you looking in that direction?
MS. DAY: Because he -- he looks like the guy I seen
coming across the street. Because I looked -- see when
I seen him coming across, you know, the bus went by, and
I thought they were just running for the bus.
After identifying Gilchrist as the person that she was looking at
in the courtroom, Day stated, “He looks like the guy that came
across the street, the one standing there with the gun in his hand
[in the bank].”
18
In this case, based on Day’s opportunity to view the robber’s
face as he ran across the street, her opportunity to see his eyes
moments later inside the bank while he was directing everyone to
the floor and threatening to execute the bank customers, the impact
such an event had upon her, and the unsolicited nature of her in-
court identification of Gilchrist, it is clear that her
identification of Gilchrist was based upon her recollection of the
bank robbery and not the result of any inherently suggestive
atmosphere in the courtroom. Accordingly, the court did not err in
admitting the evidence. Cf. United States v. Peoples, 748 F.2d
934, 936 (4th Cir. 1984) (holding that an identification can be
reliable even if it is phrased in uncertain terms).
IV
Gilchrist also raises three additional arguments that he
contends should be resolved in his favor. First, he argues that
the bank robbery and carjacking counts were improperly joined in
the indictment and, therefore, the district court erred when it
denied his motion for severance. Second, Gilchrist argues that the
court erred when it refused to allow him to introduce evidence
concerning a shooting incident that did not involve him, but did
involve Officer Redden. Finally, Gilchrist argues that Redden made
false statements at trial or, alternatively, that the government
knowingly utilized false testimony. We have reviewed all of these
19
arguments and find them to be without merit. Accordingly, for the
reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
20