United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3691
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Ronald Lee Williams, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 11, 2003
Filed: April 8, 2003
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Before McMILLIAN, FAGG, and LOKEN,* Circuit Judges.
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PER CURIAM.
Ronald Lee Williams robbed a federal credit union in Omaha, Nebraska of
$5025. At Williams’s bench trial, two bank employees identified Williams in court
as the person who had committed the crime. On cross-examination, one of the
employees, Cresynthia Rogers, testified prosecuting attorneys showed her a black and
white photograph of Williams while preparing her testimony. During a break,
defense counsel asked the prosecutor to provide him with a copy of the photograph
*
The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
shown to Rogers, and the prosecutor indicated no photograph had been shown. The
trial proceeded. A third employee testified she saw a car leaving the credit union
immediately after the robbery and took down the license plate number. The car was
traced to Williams’s friend, Terry Spevak, who testified he loaned Williams the car
during the time of the robbery, while Spevak was at a meeting with his pretrial
diversion officer. Spevak also viewed the credit union’s surveillance tape of the
robbery and said the robber was Williams. A Federal Bureau of Investigation (FBI)
agent testified that after Williams was arrested in an Illinois bus terminal the day
following the robbery, $4900 was found in a bag strapped to his groin area and a
loaded gun was found in his luggage. The agent also testified Williams waived his
Miranda rights and confessed to the robbery.
After Williams was convicted, the prosecutor called to inform defense counsel
she had been mistaken and now recalled the government had shown Rogers several
color police booking photographs of Williams. Williams filed a motion for an
acquittal or a new trial. See Fed. R. Crim. P. 33. Williams argued (1) Rogers’s
testimony was the product of an unduly suggestive pretrial identification procedure
and thus violated Williams’s due process rights, (2) the government’s failure to
produce the evidence violated his right to cross-examination guaranteed by the
Confrontation Clause, and (3) the government suppressed evidence favorable to the
defense and material to the issue of guilt in violation of Brady v. Maryland, 373 U.S.
83 (1963). The district court** denied Williams’s motion.
On appeal, Williams reasserts the same arguments. We reject them all. First,
even if Rogers’s in-court identification of Williams was improperly admitted, the
error was harmless beyond a reasonable doubt given the other overwhelming
evidence of Williams’s guilt. United States v. Davila, 964 F.2d 778, 782 (8th Cir.
**
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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1992); Raheem v. Kelly, 257 F.3d 122, 133, 142 (2d Cir. 2001); Cossel v. Miller, 229
F.3d 649, 655 (7th Cir. 2000). Rogers’s identification of Williams was simply not
important considering the overall strength of the prosecution’s case. Although the
identification bore on a critical fact, the robber’s identity, Rogers’s identification was
merely corroborative and cumulative. Another eyewitness employee testified and
identified Williams as the robber. Spevak, Williams’s friend of ten years, viewed the
surveillance tape of the robbery, identified Williams as the robber, and testified he
had loaned the getaway car to Williams during the time of the robbery. Other
evidence showed Williams fled Omaha on a bus after the robbery. When
apprehended, Williams had nearly the exact amount of cash stolen hidden on his
person, and confessed to the crime. Given the overwhelming evidence of Williams’s
guilt, we conclude beyond a reasonable doubt that admission of Rogers’s
identification did not have a substantial and injurious effect on the verdict. For the
same reasons, even if Williams was denied the opportunity to effectively impeach
Rogers in violation of the Confrontation Clause, the error was harmless beyond a
reasonable doubt. United States v. Simmons, 964 F.2d 763, 770 (8th Cir. 1992).
Last, the district court did not abuse its discretion in denying Williams’s motion for
a new trial based on the alleged Brady violation because there is not a reasonable
probability Williams would have been acquitted had the photographs been timely
disclosed to him. United States v. Dittrich, 204 F.3d 819, 822 (8th Cir. 2000); see Dye
v. Stender, 208 F.3d 662, 665 (8th Cir. 2000).
We thus affirm the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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