United States v. Rattler, Clyde

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2006 Decided February 6, 2007

No. 05-3103

UNITED STATES OF AMERICA,
APPELLEE

v.

CLYDE LACY RATTLER, A/K/A CLYDE LACY RATIER,
A/K/A RUNABOUT,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cr00466-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.

Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese III and Jeanne M. Hauch, Assistant U.S. Attorneys.
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Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The question on appeal is whether
the district court erred in denying Clyde Lacy Rattler’s motion
to suppress identification evidence that was the product of
photographic and show-up identification procedures. Rattler
contends that because the repeated display of his photograph to
bank employees increased the danger of misidentification and he
stood out in the photo array and show-up, the district court
should have suppressed the out-of-court, as well as the tainted
in-court, identifications of him and that the erroneous admission
of this evidence was not harmless beyond a reasonable doubt.
We conclude that, assuming without deciding that the
identification procedures were impermissibly suggestive, the
identifications were nonetheless sufficiently reliable to preclude
a very substantial likelihood of misidentification. The bank
employees gave detailed and accurate descriptions of the robber
prior to the objected-to identification procedures, and based on
one description, a security guard followed Rattler from one bank
to another bank whose “bait” money was found on his person
when he was arrested. Accordingly, we affirm the judgment of
conviction.

I.

Rattler was indicted and convicted of four counts of
violating 18 U.S.C. § 2133(a) for three bank robberies and an
attempted robbery that took place in June 2002.

The first robbery occurred on June 4th at a branch of the
SunTrust Bank. Bank teller Mary Murray was confronted by a
man who threatened to blow up the bank and demanded “large
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bills.” Murray gave the robber over $3,000.00, and he left the
bank. She described the robber within an hour to a Federal
Bureau of Investigation (“FBI”) agent as a black male with dark
skin, approximately 6' tall, weighing approximately 170 pounds,
of medium build with short black hair, a black beard with a
moustache, and wearing a dark suit jacket, dark shirt, dark pants,
and light-colored cowboy boots. Natasha Miller and Charles
Neill, two other bank employees, provided like descriptions of
the robber within an hour of the robbery. Within two or three
days, the FBI agent showed each of these employees
photographs of one man from a SunTrust surveillance tape and
asked whether they depicted “the person that robbed the bank.”
On June 21st, Murray saw the robber reenter the bank and when
she looked at him he left.

The second robbery occurred on June 14th at another
branch of the SunTrust Bank. Bank teller Latosha Conley was
confronted by a man who said he wanted her to give him “large
bills” or he was going to blow up the bank. Conley gave him
approximately $1,900.00, and the man left the bank. Conley
provided a description of the robber to the FBI shortly after the
robbery that matched the descriptions given by the employees at
the other SunTrust branch: black male, approximately 6' 1" tall,
slender, medium-length hair with a little gray in need of a
haircut, with a moustache and a “straggly beard,” and wearing
a black blazer or jacket and black or beige striped shirt. Conley
also said the robber had dark eyes and was in his late forties.
Another bank employee, Stephanie Long, provided a similar
description of the robber. Within two or three days, the FBI
agent showed each of them separately photographs of one man
from the bank’s surveillance tapes recorded at the time of the
robbery and asked each whether they depicted “the person that
robbed the bank.” Around this time, Conley saw the robber
reenter the bank; when he asked her to wait on him she refused.
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The attempted robbery occurred on June 19th at a branch of
the Bank of America. A man told bank teller Vera Smith to give
him money or he would blow up the bank. Smith did not take
him seriously at first and told him to get away from her teller
window. When he did not leave, she left her station and told her
supervisor there was a man at her window who was demanding
money. At this point the man left and the supervisor pushed the
alarm. Smith provided a description of the robber within an
hour of the robbery that was essentially the same as those given
by the SunTrust Bank employees: black male with dark skin,
approximately 6' 1" tall, weighing approximately 170 pounds,
medium build, 40-45 years old with short black hair, a black
beard and a moustache, and wearing a dark suit with a dark shirt,
dark pants, and light-colored cowboy boots. Another bank
employee, Arlethia Graham, provided a similar description:
black male, 6' 2" or 6' 3" tall, slim build, in his forties, some
facial hair, along with “some bushy hair,” maybe with some
gray in it, wearing a dark suit.

On June 21st, Smith saw the robber when he returned to the
Bank of America and she alerted a security guard. The security
guard followed the robber to a branch of the First Union Bank,
the scene of the third robbery. There, the robber demanded
money from bank teller Erika Garner and threatened to blow up
the bank if she did not give it to him. Garner gave the man
about $1,500.00, which included bank “bait” bills. Garner
described the robber, approximately twenty minutes later as a
black male, dark complexion, approximately 6' 1" to 6' 3" tall,
approximately 170 pounds, slim build, in his forties, medium
length black head hair with some gray, with a beard and a
moustache, and wearing a black suit, a black tee-shirt, with
black slacks and dirty-brown hiking boots. Garner also
identified Rattler in a show-up outside of the Bank of America
branch; Rattler stood between two other black males with facial
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hair. When Rattler left the First Union Bank, the Bank of
America security guard detained him until he was arrested by an
FBI agent. Upon searching Rattler’s person, the agent found the
“bait” money from the First Union robbery.

During the following two months, an FBI agent presented
the bank employees (other than the First Union employees) with
a photo-array consisting of six color photographs that had been
reproduced on a single sheet of paper. All of the bank
employees picked out Rattler’s photograph as depicting the
robber.

Prior to trial, Rattler filed a motion to suppress the
identifications made through the use of the show-up and photo
array. He argued that the identification procedures were
impermissibly suggestive because Rattler stood out from the
other men in the array and that it was unduly suggestive
repeatedly to show only Rattler’s photograph to the bank
employees, initially in bank surveillance tape photographs and
again in the photo array. The district court denied the motion to
suppress. Although finding that the photographs from the
surveillance tapes were suggestive and acknowledging that a
show-up is a suggestive procedure, the district court found that
the men in the photo array were sufficiently similar in
appearance, skin complexion, and hair such that Rattler did not
stand out, and that the manner of presenting the array was not
suggestive because there was no prompting by the FBI agent in
displaying the array.

At trial, the four bank tellers who confronted the robber
(Murray, Conley, Smith, and Garner) and two other bank
employees (Miller and Long) testified, and all identified Rattler
as the bank robber. The jury found Rattler guilty as charged.
The district court sentenced Rattler to concurrent terms of 97
months’ imprisonment and three years’ supervised release on
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each count, and ordered him to pay a special assessment of
$400.00 and to make restitution of $5,530.00 to SunTrust Bank.
Rattler appeals.

II.

The long-established standard governing the admissibility
of identification evidence is “that of fairness as required by the
Due Process Clause of the Fourteenth Amendment.” Manson v.
Brathwaite, 432 U.S. 98, 113 (1977). A court must determine
first, whether the identification procedure “was impermissibly
suggestive,” United States v. Washington, 12 F.3d 1128, 1134
(D.C. Cir. 1994) (citing Neil v. Biggers, 409 U.S. 188, 197
(1972)), and if so, second, whether, under the totality of the
circumstances, the identification was sufficiently reliable to
preclude “a very substantial likelihood of irreparable
misidentification,” Manson, 432 U.S. at 116 (internal quotation
marks omitted). With respect to the second part of the test, the
Supreme Court has instructed that key factors include:

the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of attention,
the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation,
and the time between the crime and the confrontation.
Against these factors is to be weighed the corrupting
effect of the suggestive identification itself.

Id. at 114 (emphasis added). We review the district court’s legal
conclusions de novo and its findings of fact for clear error. See
United States v. Pindell, 336 F.3d 1049, 1052 (D.C. Cir. 2003).

As a threshold matter, the government maintains that Rattler
has waived any challenge to the in-court identifications by
failing to challenge those identifications in his motion to
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suppress. See FED. R. CRIM. P. 12(b)(3)(C), (e); United States
v. Sobin, 56 F.3d 1423, 1427 (D.C. Cir. 1995); cf. United States
v. Weathers, 186 F.3d 948, 957 (D.C. Cir. 1999). Rattler
responds that there has been no waiver because the claim was
implicit.

In United States v. Lawson, 410 F.3d 735 (D.C. Cir.), cert.
denied, 126 S. Ct. 779 (2005), this court noted, citing United
States v. Wade, 388 U.S. 218, 241 (1967), that “[i]f an out-of-
court identification is held inadmissible, any subsequent in-court
identification by the same witness will be barred, unless the
prosecution can show an independent, untainted source of the in-
court identification.” Lawson, 410 F.3d at 739 n.3. In other
words, as Rattler argued in moving to suppress, a challenge to
“the corrupting effect of the suggestive identification”
procedures, Manson, 432 U.S. at 114, implicitly challenges in-
court identification evidence. Thus, if the district court erred in
denying Rattler’s motion to suppress the show-up and photo
array identifications, then, as the Supreme Court in Wade has
instructed, the “primary illegality” is established, and, absent
evidence showing an independent, untainted source for each
identification by a witness, the in-court identifications are the
product of “exploitation of that illegality [and not] . . . by means
sufficiently distinguishable to be purged of the primary taint.”
Wade, 388 U.S. at 241 (quoting JOHN M. MAGUIRE, EVIDENCE
OF GUILT 221 (1959)).

Consistent with the purposes of Rule 12, see United States
v. Mitchell, 951 F.2d 1291, 1297 (D.C. Cir. 1991), Rattler’s
motion alerted the district court to legal issues before it. The
district court tentatively ruled that there was an independent
source for the identifications, but ultimately concluded that the
identification procedures did not warrant exclusion of the out-of-
court identification evidence. Now in contending that the
district court erred in denying his motion to suppress, Rattler
 8

maintains that the identification procedures were impermissibly
suggestive, and thus increased the likelihood of misidentification
in violation of his due process rights. See Biggers, 409 U.S. at
198. As it turns out, we need not definitely resolve the Rule 12
waiver issue.

Rattler’s challenge is premised on the acknowledgment by
the Supreme Court in Simmons v. United States, 390 U.S. 377
(1968), that:

Even if the police subsequently follow the most correct
photographic identification procedures . . . there is
some danger that the witness may make an incorrect
identification. This danger will be increased if the
police display to the witness only the picture of a
single individual who generally resembles the person
he saw, or if they show him the pictures of several
persons among which the photograph of a single such
individual recurs or is in some way emphasized. . . .
Regardless of how the initial misidentification comes
about, the witness thereafter is apt to retain in his
memory the image of the photograph rather than of the
person actually seen, reducing the trustworthiness of
subsequent lineup or courtroom identification.

Id. at 383-84. Rattler makes three main arguments.

First, he emphasizes the fact that within days of each of the
bank robberies, the FBI agent showed bank employees
photographs from each bank’s surveillance tapes depicting him
and then asked each witness the leading question whether this
was the person who robbed the bank. As Rattler notes, the
Supreme Court has instructed that “identifications arising from
single-photograph displays may be viewed in general with
suspicion.” Manson, 432 U.S. at 116 (citing Simmons, 390 U.S.
 9

at 383). This court has concluded that such identifications are
“highly suggestive.” Mason v. United States, 414 F.2d 1176,
1182 (D.C. Cir. 1969). More recently, this court observed that
bank surveillance photographs showing only two individuals
suspected of robbing a bank were “an arguably suggestive
medium.” Lawson, 410 F.3d at 740. Thus Rattler maintains the
identification procedures used with respect to the surveillance
photographs unnecessarily suggested his guilt to the bank
employees.

Second, Rattler maintains, the suggestivity in showing only
his photograph to the bank employees was exacerbated by the
fact that the bank employees were shown a photo array in which
his photograph stood out. Only Rattler’s photograph
corresponded to the bank employees’ descriptions of the robber
as having “[l]ong,” “scraggly” facial hair and “bushy,”
“unke[m]pt,” “grown-out” head hair. He makes a similar
argument about the show-up: He was the only person having the
key physical characteristics that bank teller Garner identified.
As Rattler points out, this court has recognized that the
suggestivity of a photo array “depends in part upon the
relationship between the characteristics a witness is searching
for and their distribution in the staged array,” United States v.
Hinton, 631 F.2d 769, 782 n.42 (D.C. Cir. 1980), and that an
array is impermissibly suggestive where only the defendant’s
distinctive hair corresponds to the witness’s descriptions, United
States v. Sanders, 479 F.2d 1193, 1197 (D.C. Cir. 1973); see
also United States v. Eltayib, 88 F.3d 157, 166-67 (2d Cir.
1996); United States v. Gidley, 527 F.2d 1345, 1350-51 (5th Cir.
1976). A relatively small number of photographs in an array
heightens the need to examine the suggestivity of irregularities
between the subjects in the array. See United States v. Wiseman,
172 F.3d 1196, 1209-10 (10th Cir. 1999); United States v.
Sanchez, 24 F.3d 1259, 1263 (10th Cir. 1994).
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Third, Rattler points to the fact that only his photograph was
consecutively shown to the bank employees, thereby increasing
the danger of misidentification. As this court recognized in
United States v. (Jerome) Washington, 353 F.3d 42, 45 (D.C.
Cir. 2004), the use of consecutive identification procedures
“may be impermissibly suggestive where there is only one
‘repeat player.’” Id.; see also Foster v. California, 394 U.S.
440, 443 (1969); Sanders, 479 F.2d at 1197-98.

In 1999, the Justice Department published guidelines
developed by the Office of Justice Programs for refining
investigative practices dealing with eyewitness identifications.
EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT
(Nat’l Inst. of Justice, Office of Justice Programs, U.S. Dep’t of
Justice, Oct. 1999); see also EYEWITNESS EVIDENCE: A
TRAINER’S MANUAL FOR LAW ENFORCEMENT (Nat’l Inst. of
Justice, Office of Justice Programs, U.S. Dep’t of Justice, Sept.
2003) (together “guidelines”). Although not addressing every
identification procedure that Rattler challenges, the guidelines
emphasize: (1) the importance of selecting other subjects in
arrays and lineups who resemble the suspect in respect to
significant features described by the witnesses; (2) the dangers
of simultaneous identification procedures, like the six-person
photo array used in Rattler’s case, that encourage inaccurate
relative judgments; and (3) the inherent suggestiveness of
identifications in which only one individual is shown to a
witness. The guidelines also reference studies documenting
concerns about some of the identification procedures used in
Rattler’s case.1 In his brief, Rattler references other secondary

1
The appendices to the guidelines cite materials for further
reading, including those that have criticized eyewitness identifications
where: (1) only a single suspect is shown and show-ups generally, see
Gary L. Wells et al., Eyewitness Identification Procedures:
Recommendations for Lineups and Photospreads, 22 LAW & HUM.
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sources that indicate the lack of a significant correlation between
the accuracy of a witness’s prior description of a suspect and the
accuracy of a later identification, and between a witness’s
certainty about an identification and the accuracy of that
identification.2

We need not decide whether the identification procedures
used in Rattler’s case were impermissibly suggestive, however,
because even if they were, we conclude that the identifications
were nonetheless sufficiently reliable under the totality of
circumstances.

First, each of the bank tellers directly confronted by the
robber gave him her focused attention for a period of minutes
under good lighting conditions. The SunTrust and the Bank of
America tellers viewed the robber from a distance of only a few
feet, while the First Union teller observed the robber from a

BEHAV. 603, 630-31 (1998); Gary L. Wells et al., Guidelines for
Empirically Assessing the Fairness of a Lineup, 3 LAW & HUM.
BEHAV. 285, 291-92 (1979); (2) only one individual in an array,
lineup, or show-up exhibits key traits referenced by a witness, see
Gary L. Wells et al., On the Selection of Distractors for Eyewitness
Lineups, 78 J. APPLIED PSYCHOL. 835, 835-44 (1993); and (3) an array
has multiple photographs on a single page, see Wells et al., Eyewitness
Identification Procedures, at 613-17, 639-40.
2
See, e.g., Neil Brewer et al., The Confidence-Accuracy
Relationship in Eyewitness Identification: The Effects of Reflection
and Disconfirmation on Correlation and Calibration, 8 J.
EXPERIMENTAL PSYCHOL. 44 (2002); Connie Mayer, Due Process
Challenges to Eyewitness Identification Based on Pretrial
Photographic Arrays, 13 PACE L. REV. 815, 845 (1994); Steven
Penrod & Brian Cutler, Witness Confidence and Witness Accuracy:
Assessing Their Forensic Relation, 1 PSYCH., PUB. POL., & LAW 817,
825 (1995).
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distance of three feet and also had observed him waiting in line.
The other bank employees (Miller and Long) who testified also
had unobstructed views of a man demanding money from the
tellers. Except at First Union, the tellers also had the
opportunity to observe the robber a second time in the flesh
when he returned to their banks.

Second, each of the bank employees who identified Rattler
at trial gave detailed descriptions of the robber shortly after each
robbery, prior to being asked to make a photographic or show-
up identification. The four tellers gave descriptions within an
hour of the robberies that were very similar and accurate in
terms of complexion, height, weight, age, facial hair, and dress.
Although there were some differences in the physical
descriptions of the robber, they are insignificant. Even Conley’s
reference to the robber’s pink lips, a characteristic not
mentioned by any other bank employee, does not detract from
the overall congruence of the bank employees’ descriptions of
the robber.

Third, the absence of a very substantial likelihood of
misidentification is further indicated by the fact that, as a result
of teller Smith’s identification of the robber to a security guard
upon the robber’s return to the Bank of America, the security
guard followed the man to the First Union Bank and upon his
exit, detained him until the FBI arrived. Upon his arrest, this
man, Rattler, had First Union’s “bait” money on his person.
Smith’s accurate identification thus led to Rattler being caught
red-handed.

Moreover, the tellers also were certain in picking out
Rattler’s photograph from the array, as was the First Union teller
when she saw him in the show-up. Although the certainty factor
has been subject to much criticism, see, e.g., supra note 2, the
Supreme Court has yet to repudiate it. It is true that the array
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identifications occurred six to eight weeks after the robberies,
but in another instance this court did not find this amount of
time to affect significantly the reliability of the identifications
where other factors, as here, strongly indicated the accuracy of
the identifications. See Lawson, 410 F.3d at 739.

Because the totality of circumstances shows that the out-of-
court identifications were sufficiently reliable to preclude “a
very substantial likelihood of irreparable misidentification,”
Simmons, 390 U.S. at 384; see Washington, 12 F.3d at 1134, we
hold that the district court did not err in denying Rattler’s
motion to suppress. Accordingly, we affirm the judgment of
conviction.