United States v. Joseph Arthur Emanuele

51 F.3d 1123, 41 Fed. R. Serv. 1072, 1995 U.S. App. LEXIS 6197, 1995 WL 131384
CourtCourt of Appeals for the Third Circuit
DecidedMarch 28, 1995
Docket94-3283
StatusPublished
Cited by68 cases

This text of 51 F.3d 1123 (United States v. Joseph Arthur Emanuele) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph Arthur Emanuele, 51 F.3d 1123, 41 Fed. R. Serv. 1072, 1995 U.S. App. LEXIS 6197, 1995 WL 131384 (3d Cir. 1995).

Opinions

OPINION OF THE COURT

SAROKIN, Circuit Judge:

Defendant was convicted of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). He appeals on the grounds that as to the central issue, identification, the district court erred by (1) permitting in-court identification testimony by the two key witnesses, after they had observed defendant in shackles escorted by U.S. Marshals and then discussed his identity; (2) denying the defendant’s motion for a line-up prior to the testimony of the two witnesses; and (3) ordering defendant to shave his moustache, put on glasses supplied by the government, and stand before the jury.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Defendant filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

I.

Defendant Joseph Arthur Emanuele was convicted of robbing two Integra Banks, the “Millvale Bank” and the ‘Waterworks Bank”. Martha Hottel, a teller, observed the man who robbed the Millvale Bank standing at a writing table before he came to her window and demanded money. Five weeks later, when shown a six-photo array, she selected a photograph of the defendant but stated that she “wasn’t one hundred percent sure” of her choice. Appendix (“App.”) at 44. When shown a second array several weeks later, Hottel selected the photograph of someone [1127]*1127other than defendant. The bank’s security cameras malfunctioned without photographing the robber, and latent fingerprints from the writing table and bank door did not match those of defendant.

The man who robbed the Waterworks Bank demanded money from Lorraine Woessner, a teller. Woessner observed the man for several minutes at close range in the well-lit bank lobby. Shown a six-photo array that included a photograph of defendant shortly after the crime, Woessner was unable to identify the robber. App. at 44, 48. The one fingerprint taken from the Waterworks Bank did not match that of defendant, but the Waterworks Bank security cameras did photograph the robber.

The two tellers were subpoenaed by the government to testify, and after checking in at the U.S. Attorney’s Office, they were directed to sit outside the courtroom. There, the tellers saw defendant led from the courtroom in manacles by U.S. Marshals. Though later Woessner could not remember for certain who had spoken first, outside the courtroom the two tellers talked to each other about defendant, telling each other “it has to be him.” App. at 185.

Having learned of the encounter, defendant’s attorney moved to suppress the tellers’ anticipated in-court identification testimony as violative of defendant’s right to due process, or in the alternative, for a court-ordered line-up. The government conceded that it had been “careless,” App. at 52, but argued that because the confrontation was inadvertent no constitutional violation had occurred.

The court denied the motion as to the testimony of Hottel, the teller who had identified defendant’s photograph in one photo-spread but selected someone else in another. App. at 73, 82. As to the testimony of Woessner, who had failed to identify defendant’s photograph in the only array she was shown, the court held a hearing out of the presence of the jury and ruled that the second teller’s identification testimony was admissible. The court made no specific findings of fact. Both tellers took the stand and identified defendant as the robber.

During trial, three government witnesses, who knew defendant, testified that he was the person in the Waterworks Bank surveillance photographs, and three defense witnesses, who also knew him, testified that defendant was not the person in the photographs. An expert witness, a surgeon, testified that he had compared the dimensions of defendant’s face with those of the face of the robber in the Waterworks Bank photographs and determined that defendant could not be the robber in the pictures. Two government experts testified in rebuttal that the surgeon’s calculations were unreliable.

Defendant also challenges the district court’s order requiring him to shave his moustache and put on glasses similar to ones worn by the Waterworks robber. At trial, the court had defendant wearing the glasses stand silently before the. jury, which was instructed that “these are not glasses that were found anywhere. They have been supplied by the government.” App. at 338. No witness was on the stand at the time.

After his conviction, defendant moved for a new trial based on the admission of the tellers’ identification testimony and the orders to shave and wear glasses. The court held another hearing, at which time two receptionists from the U.S. Attorney’s Office testified that they had told the tellers to sit outside the courtroom, as is the government’s custom, without any specific instruction from the prosecutor on the ease. The court denied the motion for a new trial. App. at 680-83.

II.

As with many evidentiary rulings, we review a decision to admit identification testimony over an objection for abuse of discretion. Government of Virgin Islands v. Riley, 973 F.2d 224, 226 (3d Cir.1992). Where a motion to suppress has been denied, we review the order “for clear error as to the underlying facts, but exercise plenary review as to, its legality in the light of the court’s properly found facts.” United States v. Inigo, 925 F.2d 641, 656 (3d Cir.1991). If the admission of identification testimony violated the due process clause, as defendant contends, then we will consider whether this [1128]*1128constitutional error was harmless. Foster v. California, 394 U.S. 440, 444, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402 (1969).

A. Admissibility of identification testimony

A government identification procedure violates due process when it is “unnecessarily suggestive” and creates a “substantial risk of misidentification.” Riley, 973 F.2d at 228. See United States v. Stevens, 935 F.2d 1380, 1391-92 (3d Cir.1991); United States v. Dowling, 855 F.2d 114, 117 (3d Cir.1988), aff'd, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). But see Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir.1991) (standard is “ ‘very substantial likelihood of irrep arable misidentification’ ”) (quoting Manson v. Brathwaite, 432 U.S.

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Bluebook (online)
51 F.3d 1123, 41 Fed. R. Serv. 1072, 1995 U.S. App. LEXIS 6197, 1995 WL 131384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-arthur-emanuele-ca3-1995.