United States Court of Appeals
FOR T HE D ISTRICT OF CO LUM BIA CIR CUIT
Argued April 12, 2005 Decided June 10, 2005
No. 04-3067
UNITED STATES OF AMERICA ,
APPELLEE
V.
WILLIE LAWSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00282-01)
Amar D. Sarwal, appointed by the court, argued the cause
and filed the briefs for appellant.
Brendan J. Crimmins, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Roy W.
McLeese, III, and Frederick W. Yette.
Before: RANDOLPH , GARLAND , and ROBERTS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
2
ROBERTS, Circuit Judge: Willie Lawson appeals from
several rulings by the district court admitting evidence against
him in a bank robbery case. Two of the rulings relate to out-of-
court identifications — one by a bank teller who selected
Lawson from a photographic array, the other by a drug store
employee who selected one of the robbers from bank surveil-
lance photographs as the purchaser of items from the drug store
that were used during the robbery. The district court also denied
Lawson’s motion to suppress physical evidence seized from a
car he had loaned to his brother, and allowed the government to
present evidence of a second, uncharged bank robbery, for the
purpose of establishing Lawson’s identity as one of the robbers
in the charged crime. We affirm.
I.
On April 5, 2002, two unmasked men robbed a Riggs Bank
in southeast Washington, D.C. The smaller of the two men
approached one of the tellers and instructed her to open a door
leading to the area behind the teller stalls.1 The other robber,
taller and heavier in build, approached the bank manager and
pressed to his head a black handgun with a silver hammer,
likewise instructing him to open the teller door. The bank
manager would later identify the taller individual as Gregory
Smith, a man who had been to the bank on a prior occasion,
ostensibly to open an account. Trial Tr., Dec. 9, 2003, at 37–38,
120.
Once the teller door was opened, the smaller man collected
the contents of the tellers’ drawers in a white, plastic bag, while
the taller man stood guard in the lobby, his gun trained on the
employees and customers. The two men then fled, taking with
1
Witnesses would offer conflicting testimony as to whether this
man was armed. Compare Trial Tr., Dec. 9, 2003, at 12, 22–23, 27
with id. at 70, 89.
3
them over twenty thousand dollars in cash and securities. They
did not, however, get very far with their loot — concealed within
the bundles of cash were packets of red dye that exploded
outside the bank, causing the robbers to abandon the plastic bag
and its contents.
FBI agents recovered the plastic bag outside the bank, and
discovered that it was a Rite Aid pharmacy bag. Inside the bag
they found, along with the stained cash and securities, a receipt
from a Rite Aid pharmacy for a box of latex gloves and a
Spartan-brand stretch cap. Both men had worn such gloves
during the robbery, and bank surveillance photographs con-
firmed that the taller robber had worn a stretch cap. See id. at
41–42; Gov’t Trial Ex. 11.
The following day, a tall and a shorter man robbed a
SunTrust Bank in Rockville, Maryland. Unlike the Riggs
robbery, the SunTrust robbers wore masks, and the shorter
robber wore dark sweat pants with a broad stripe down the sides.
As in the Riggs robbery, however, the taller man wielded a
silver-hammered gun, and the shorter man collected money from
behind the teller stalls. In addition, the taller man appeared to be
wearing the same clothes as the taller Riggs Bank robber. See
Trial Tr., Dec. 11, 2003, at 82–86; Gov’t Trial Exs. 35–36.
On April 8, 2002, FBI agents arrested Willie Lawson
pursuant to a warrant issued for a Bank of America robbery in
Virginia. Lawson was apprehended in his car, outside his
girlfriend’s apartment, and he and his girlfriend consented to
searches of the car and apartment. In Lawson’s car agents found
black sweat pants with a broad red stripe, as well as credit and
identification cards belonging to Gregory Smith. In the apart-
ment agents found a stretch cap and a semi-automatic pistol with
a silver hammer.
4
Lawson also directed FBI agents to the apartment of his
brother, Joseph, where Willie Lawson kept some personal
property. Outside that apartment agents noticed a gray Oldsmo-
bile that matched a description of the getaway vehicle in the
Bank of America robbery, with temporary tags matching four out
of five numbers from a license plate identification from that
robbery. Motions Hr’g Tr., Nov. 18, 2003, at 30.2 When asked
about the car, Joseph Lawson told the agents that it belonged to
the mother of Willie Lawson’s child, and that Willie had loaned
it to him two weeks prior to the agents’ arrival.
The agents informed Joseph Lawson that they needed to
seize the Oldsmobile, and Joseph handed them the keys. A
subsequent search of the car revealed a pair of latex gloves and
packaging for a Spartan-brand cap bearing Willie Lawson’s
fingerprints.
Within a week of the Riggs robbery, FBI agent Michael
MacLean interviewed the Rite Aid employee who had presided
over the sale memorialized on the receipt found at the scene of
the crime. The employee recalled the transaction and described
the purchaser as a black male in his twenties. Agent MacLean
then showed the employee surveillance photos from the Riggs
robbery, and the employee identified the smaller of the two
robbers as the person with whom she had conducted the transac-
tion. The surveillance photo of the smaller man showed only the
back and side of his head. See Motions Hr’g Tr., Nov. 17, 2003,
at 78–79; Gov’t Trial Ex. 8.
Several weeks later, agent MacLean interviewed a teller
who had been present during the Riggs robbery. The teller
indicated she had observed the smaller perpetrator at close range
2
Despite these similarities, authorities ultimately determined that
the Oldsmobile was not the vehicle involved in the Bank of America
robbery. Motions Hr’g Tr., Nov. 18, 2003, at 30.
5
for twenty to thirty seconds and could identify him. See Motions
Hr’g Tr., Nov. 17, 2003, at 70–71. Agent MacLean then
produced a previously-prepared photographic lineup of six
individuals, and the teller immediately selected Willie Lawson’s
photograph. According to MacLean, “[s]he was very sure of
herself and very sure of the identification.” Motions Hr’g Tr.,
Nov. 18, 2003, at 28.
Willie Lawson and Gregory Smith were indicted for the
Riggs robbery under 18 U.S.C. §§ 2, 2113(a) & (d) (aggravated
bank robbery and aiding and abetting) and 18 U.S.C. §§ 2,
924(c)(1)(A)(ii) (brandishing a firearm during a crime of
violence and aiding and abetting). Because Smith had not been
apprehended, Lawson faced the prosecution alone.
Prior to trial, Lawson filed motions to exclude the identifi-
cations by the bank teller and the Rite Aid employee and to
suppress the evidence obtained from the search of the gray
Oldsmobile. Lawson also opposed the government’s notice of
intent to offer evidence of the uncharged SunTrust robbery.
The district court rejected Lawson’s pleadings. With
respect to the motion to suppress, the court held that Lawson did
not have a reasonable expectation of privacy in the Oldsmobile,
and thus could not contest its search. Motions Hr’g Tr., Nov. 18,
2003, at 111–13. The court found the SunTrust evidence
admissible as probative of identity in the Riggs robbery, and held
that the introduction of such evidence would not unduly preju-
dice Lawson. Dec. 3, 2003 Order at 5–6. Finally, the court
admitted both identifications, reasoning that the photographic
array shown to the bank teller was not unduly suggestive and
that the drug store employee’s account was relevant and suffi-
ciently reliable. Trial Tr., Dec. 8, 2003, at 14–15.
At trial, Lawson was represented by counsel during the
government’s case-in-chief, but elected to waive his right to
6
counsel and presented the defense case himself. The jury
convicted him on both counts and he now appeals.
II.
Before us, Lawson — once again represented by counsel —
reiterates the arguments raised before the district court. He
maintains that the Riggs Bank and Rite Aid identifications are
inadmissible, that the search of the Oldsmobile violated his
Fourth Amendment rights, and that the government should not
have been permitted to introduce evidence of the SunTrust
robbery. We examine these contentions in turn.
A. A two-part inquiry governs the admissibility of out-of-
court identifications. We first determine whether the identifica-
tion procedure was impermissibly suggestive. United States v.
Antoine Washington, 12 F.3d 1128, 1134 (D.C. Cir. 1994)
(citing Neil v. Biggers, 409 U.S. 188, 197 (1972)). If it was, we
then ask, in light of the totality of the circumstances, whether
“the identification was sufficiently reliable to preclude a
substantial likelihood of misidentification.” Id. (citing Manson
v. Brathwaite, 432 U.S. 98, 113–16 (1977)).3
In evaluating the bank teller’s identification, we need not
proceed beyond the first step of the inquiry. The photographic
array shown to the teller was not the least bit suggestive. The
array depicts six African-American individuals of generally
similar ages and facial features. See Def. Motion Hr’g Ex. 19.
While Lawson contends that his complexion is lighter than that
of the others, and that his lips and chin are more prominent, in
3
If an out-of-court identification is held inadmissible, any
subsequent in-court identification by the same witness will also be
barred, unless the prosecution can show an independent, untainted
source for the in-court identification. United States v. Wade, 388 U.S.
218, 241 (1967).
7
each respect at least one other pictured individual appears
comparable. Moreover, agent MacLean gave the teller a
standard admonishment in advance of showing her the array,
including a warning that “photographs may not always depict the
true complexion of a person” and that such complexion “may be
lighter or darker than shown in the photo.” Gov’t Trial Ex. 42;
see Motions Hr’g Tr., Nov. 17, 2003, at 72–73.
We also note that, were we to reach the reliability prong of
the test, the teller’s identification would easily pass muster.
Although the identification took place several weeks after the
robbery, the teller indicated that she could identify the smaller
robber — having observed him at close range and for a consider-
able period of time — and she showed no hesitation in picking
Lawson from the array. See Motions Hr’g Tr., Nov. 17, 2003, at
70–71.
The Rite Aid identification presents a closer question, in
that the employee was shown surveillance photographs — an
arguably suggestive medium — and the photographs only depict
the two individuals who had robbed the bank. Further, the
employee purported to identify a customer she had seen face to
face — across a sales counter — as the same individual appear-
ing in a photograph showing only the side and the back of a
person’s head.
We need not determine whether the admission of the Rite
Aid identification was error, however, because any such error
would have been harmless “beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967). First, the
government adduced ample evidence of guilt. In particular, the
government introduced the bank teller’s identification of Lawson
as the smaller robber; the distinctive silver-hammered gun,
resembling the item used by the taller robber, found in the
apartment of Lawson’s girlfriend; credit and identification cards
belonging to Gregory Smith found in Lawson’s car; striped
8
sweat pants matching those worn by the smaller robber in the
subsequent SunTrust robbery, also found in Lawson’s car; and
the Rite Aid receipt found at the scene of the crime and items
matching that purchase found in the apartment of Lawson’s
girlfriend and in the gray Oldsmobile Lawson had loaned to his
brother.
Second, the probative value of the Rite Aid identification
was minimal. In the interview with agent MacLean, the Rite Aid
employee did no more than indicate which of the robbers had
purchased the items. She failed to follow up her out-of-court
linking of the surveillance photograph to the Rite Aid purchaser
with an in-court identification of Lawson as either the purchaser
or the smaller robber. See Trial Tr., Dec. 9, 2003, at 110–11.
Under such circumstances, we can say with confidence that the
out-of-court identification did not contribute to the jury’s
verdict. See United States v. Jerome Washington, 353 F.3d 42,
45–46 (D.C. Cir. 2004) (identification held harmless where
“there was abundant evidence of [defendant’s] guilt” and “the
potential impact on the jury of [the] identification was slight”).
B. Lawson next challenges the admission of evidence
seized from the gray Oldsmobile. As noted above, the district
court dismissed his challenge on the ground that Lawson did not
have a reasonable expectation of privacy, holding that Lawson
effectively gave up any such expectation when he loaned the car
to his brother two weeks before the search. We affirm on a
different ground — that the search of the Oldsmobile was
supported by probable cause.4
4
Although the government did not argue probable cause before
the district court, we may affirm on grounds other than those pre-
sented and relied on below. United States v. Garrett, 720 F.2d 705,
710 (D.C. Cir. 1983). Moreover, although courts sometimes refer to
the reasonable expectation of privacy issue as “standing” to contest a
9
Authorities may conduct a warrantless search of a motor
vehicle if they have probable cause to believe it contains
contraband or evidence of a crime. See, e.g., California v.
Acevedo, 500 U.S. 565, 569–70 (1991); United States v. Wider,
951 F.2d 1283, 1286 (D.C. Cir. 1991). If authorities have
probable cause, they may either conduct an immediate search or
remove the vehicle to a police station and search it at some later
time. Chambers v. Maroney, 399 U.S. 42, 52 (1970).
Here FBI agents were justified in seizing the Oldsmobile
and in conducting the subsequent search. The vehicle matched
a physical description of the getaway car in the Bank of America
robbery — the crime for which Willie Lawson initially had been
arrested. Four out of five numbers on the temporary license
plate matched a witness account of the getaway car’s tags.
Motions Hr’g Tr., Nov. 18, 2003, at 30. Further, prior to seizing
the car, agents “saw some latex gloves laying in the right front
passenger area.” Motions Hr’g Tr., Nov. 17, 2003, at 98. In
light of these circumstances, it was reasonable for agents to
believe the vehicle contained contraband or instrumentalities of
crime.
C. Finally, Lawson argues the district court erred in
permitting the government to present evidence of the uncharged
SunTrust robbery. That evidence was admitted to help prove
identity — if the jury concluded that Lawson participated in the
SunTrust robbery, and that the SunTrust and Riggs robberies
were similar, it could infer that Lawson also participated in the
Riggs robbery. See Trial Tr., Dec. 15, 2003, at 70–71 (jury
instruction). Lawson further argues that even if the evidence
search, the question “is more properly placed within the purview of
substantive Fourth Amendment law than within that of standing,”
Minnesota v. Carter, 525 U.S. 83, 88 (1988) (citation omitted), and
thus we need not resolve it prior to addressing probable cause.
10
was admissible for this purpose, the district court should have
excluded it as unfairly prejudicial.
Federal Rule of Evidence 404(b), which governs the
admission of evidence of other crimes or bad acts, “is a rule of
inclusion rather than exclusion.” United States v. Bowie, 232
F.3d 923, 929 (D.C. Cir. 2000). The rule bars admission of such
evidence when offered for the purpose of proving that a defen-
dant acted in conformity with his character, but allows admission
so long as the evidence is offered for any other relevant purpose.
Id. at 930. If a court finds that evidence of other crimes is
admissible under Rule 404(b), it must then decide whether the
probative value of the evidence “is substantially outweighed by
the danger of unfair prejudice.” Fed. R. Evid. 403. We accord
substantial deference to the district court’s rulings on these
issues. See United States v. Pindell, 336 F.3d 1049, 1056–57
(D.C. Cir. 2003) (404(b) rulings reviewed for abuse of discre-
tion); United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir.
2002) (403 rulings reviewed for “grave abuse”).
There was no abuse of discretion here. Rule 404(b)
specifically lists “identity” as one of the purposes for which
evidence of “other crimes, wrongs, or acts” may be admissible.
See United States v. Carr, 373 F.3d 1350, 1352–53 (D.C. Cir.
2004). Contrary to Lawson’s suggestion, the SunTrust and
Riggs robberies shared sufficient characteristics to permit an
inference of identity. Both were executed by a taller man
wielding a distinctive silver-hammered handgun and a shorter
man who collected money from the tellers, and the taller
individual appeared to wear the same clothes during both crimes.
Moreover, the SunTrust evidence was relevant to the Riggs
robbery — if the jury believed, based on the evidence seized
(including the striped sweat pants resembling those worn by the
smaller robber in the SunTrust crime) that Lawson had commit-
ted the SunTrust robbery, the similarities between the offenses
11
made it more likely that he was one of the Riggs Bank robbers
as well.
Nor did the district court gravely abuse its discretion in
concluding that the probative value of the SunTrust robbery
evidence was not “substantially outweighed by the danger of
unfair prejudice.” Fed. R. Evid. 403. The SunTrust evidence
was probative on the central issue in the case — the identity of
the smaller Riggs Bank robber. As for unfair prejudice, the
district court noted that the details of the SunTrust robbery “add
no emotional or other pejorative emphasis not already introduced
by the evidence of the Riggs robbery.” Dec. 3, 2003 Order at 6.
The judgment of the district court is affirmed.