IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-31113

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICKEY JEROME ROGERS,

Defendant-Appellant.

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Appeal from the United States District Court for the

Middle District of Louisiana

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October 17, 1997

Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

Rickey Jerome Rogers appeals his conviction and his sentence for two robberies in violation

of 18 U.S.C. § 2113(a). Rogers raises three poi nts of error. He argues that: 1) an i n-court

identification was admitted in violation of his due process rights; 2) the evidence introduced at trial

was insufficient to support his conv ict io n o n the first count; and 3) his sentence was based on an

erroneous classification of him as a career offender. For the reasons set forth below, we affirm the

conviction and remand for re-sentencing.

Background

On August 8, 1995, Premier Bank in Baton Rouge, Louisiana, was robbed. Testimony at trial

showed that a black man wearing a baseball cap, sunglasses and a blue and burgundy jacket entered

the bank and h anded a t eller a note which said: “This is a robbery I have a gun If you draw any

attenti on

- you shall no doubt die first Give me prepacked $100 bills you have 10 Seconds.” When

the teller hesitated, the robber said to her: “Hurry up, hurry up, you bitch. Hurry up, you old bitch.2

I’ll blow your brains out.” The teller gave the robber two packages of hundred-dollar bills, totaling

$10,000.

On October 3, 1995, Regions Bank in Baton Rouge was robbed by a black man wearing a

baseball cap, wraparound sunglasses, a yello w hooded raincoat, and tennis shoes. He approached

a teller with a note which read: “I got a gun If you draw any attention I’ll shoot you first Move fast

give me prepacked hundred-dollar bills!! I don’t have nothing to lose. n othing .” The teller opened

her drawer and began t aking out packages of large bills. The robber told her to go faster and

threatened to shoot her, saying that he had “nothing to lose.” The robber left with $3,290 in cash.

A grand jury indicted Rickey Jerome Rogers for these two robberies. A jury found him guilty

on both counts of violating 18 U.S.C. § 2113(a), and the district court for the Mi ddl e Di stri ct of

Louisiana sentenced him to 21 years and 3 months imprisonment. Rogers filed timely appeal of his

conviction and his sentence.

I. In-Court Identification

Rogers first asserts that the district court erred in permitting the Government to recall as a

witness Deborah Rodrigue, the teller at Regions Bank who was approached by the robber on October

3, 1995. When first called to the witness stand, Rodrigue testified that a black man wearing a hooded

raincoat, a baseball cap, and large wraparound sunglasses approached her counter and handed her the

demand note; she was not asked to identify the person who had robbed the bank. Following crossexamination, the Assistant U.S. Attorney advised the district court that he “could see something odd

about Ms. Rodrigue” during her testimony, that he had asked the F.B.I. case agent to approach her

afterward, and that Rodrigue had told the ag ent she recognized the defendant as the robber. The

Government requested, and was given, permission--over an objection by Rogers’ attorney --to recall

Rodrigue to the stand. She then testified that she was “a hundred percent sure” that Rogers was the

man who had robbed Regions Bank.

Rogers argues that Rodrigue’s in-court identification was impermissibly suggestive because

the identification occurred only after she had seen him in court where he was seated by his lawyer,1 The relevant portion of the sidebar exchange was as follows:

Prosecutor: “I ask permission to recall Deborah Rodrigue. I think it’s relevant information.”

Defense Counsel: “Judge, we object to ---”

Prosecutor: “May I finish? I think it is permissible for that witness to talk about her own perception.

The defense is welcome to cross-examine her. This is something, as you can tell from my opening,

that I didn’t expect.”

Defense Counsel: “I would object t o t he case agent sitting in the courtroom, listening to the

testimony, going out and talking it over, and coming back now with some other stuff.”

Court: “Well, that’s the reason you sequester the witnesses, and the case agent certainly ought not

to ---”

Prosecutor: “My understanding was, I asked the agent to go do it because I could see something odd

about Ms. Rodrigue. The reason we sequest er wit nesses is so they will not be influenced by the

testimony in the courtroom. She hasn’t violated any rule.”

Court: “Well, I’m not ruling on it one way or the other. I think we’ll mull on this for today. We’re

not going to finish today anyway, so you bring her back tomorrow.”

3 the only black man at the defense table. The Government argues that the identification procedure was

not unduly suggestive, and contends that Rogers did not raise this obje ct ion at trial and that,

therefore, this court’s review of the question is limited to plain error. Ordinarily t he district

court’s admission of evidence is reviewed for abuse of discretion. U nited States v. McConnell

, 988

F.2d 530, 533 (5th Cir. 1993). When a defendant fails to object in a timely manner, however, we

generally review only for plain error. United States v. Krout , 66 F.3d 1420, 1434 (5th Cir. 1995),

cert. denied

, 116 S.Ct. 963 (1996). Plain error is “error which, when examined in the context of the

entire case, is so obvious and substantial that failure to notice and correct it would affect the fairness,

integrity or public reputati on of judicial proceedings.” U nited States v. Lopez

, 923 F.2d 47, 50 (5th

Cir. 1991). In t his case, Ro gers did not clearly raise the claim of impermissible suggestion. 1

Nevertheless, when liberally construed, his objection could be taken to have generally challenged the

reliabilit y of Rodrigue’s identification. This court has suggested that increased scrutiny will be given

in plain error review when a constitutional right is at stake, and when an objection was raised on a

related ground. I d. ; Uni t ed States v. Brown

, 555 F.2d 407, 420 (5th Cir. 1977). Given the4

importance of the due process questions raised here regarding in-court identifications, we will give

Rogers the benefit of the doubt with respect to the objection, and will co nsider his claim with

increased scrutiny.

The Due Process Clause protects accused individuals from the use against them of evidence

derived from unreliable identifications that resulted from impermissibly suggestive pr o cedures.

Manson v. Brathwaite

, 432 U.S. 98 (1977); United States v. Sanchez

, 988 F.2d 1384, 1389 5th Cir.

1993). The admissibility of identification evidence is governed by a two-step test under which we

ask first whether the identification procedure was impermissibly suggestive and, second, whether the

procedure posed a “very substantial likelihood of irreparable misidentification.” S anchez

, 988 F.2d

at 1389 (quoting Simmons v. United States

, 390 U.S. 377, 384). If the answer to both questions is

yes, the identification is not admissi b le. “The gravamen of the determination is fairness and

reliability.” Sanchez , 988 F.2d at 1389.

With respect to the first prong of the test, we agree with the Second Circui t that i t i s

obviously suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who

is the defendant. U nited States v. Archibald

, 734 F.2d 938, 941, 943 (2d Cir. 1984); see also United

States v. Hill , 967 F.2d 226, 232 (6th Cir. 1992) (where the court assumed, without deciding, that

an in-court identification was impermissibly suggestive, and went on to consider the second prong

of the test); United States v. Rundell

, 858 F.2d 425, 427 (8th Cir. 1988) (per curium) (same); but see

United States v. Bush

, 749 F.2d 1227, 1232 (7th Cir. 1984) (holding that when defendant’s position

at counsel table was the only suggestive circumstance, the court need not move to the second prong

of the test). Moreover, when, as here, the defendant is of a different race than the witness, concern

about suggestiveness is heightened. S ee Sheri Lynn Johnson, Cross-Racial Identification Errors in

Criminal Cases , 69 Cornell L. Rev. 934 (1984). Thus we move on to the second prong of the test

to consider the reliability of the identification.

The five factors to be considered in determining the likelihood of misidentification are: 1) the

opportunity of the witness to observe the criminal at the time of the crime; 2) the witness’s degree5

of attention; 3) the accuracy of the witness’s prior description; 4) the witness’s level of certainty; and

5) the time between the crime and the identification. N e il v. Biggers , 409 U.S. 188, 199 (1972).

These factors are to be weighed against the corrupting effect of the suggest ive ident ification.

Manson , 432 U.S. at 114; United States v. Watkins , 741 F.2d 692, 693-94 (5th Cir. 1984).

Here, the exact length of time the robber was in Regions Bank is not clear from the record,

but Rodrigue indicated at trial that she had not observed him for very long. Moreover, Rodrigue was

able to see only the lower part of the r o bber’s face during the crime because he was wearing

wraparound sunglasses and a baseball cap, though she did explain that her identification was based

on Rogers’ “very distinct” nose and “narrow chin.” It is also relevant that although the prosecutor

indicat ed that the robber had facial hair when Rodrigue saw him at the bank, Rogers did not have

facial hair at the trial. In light of the short time for observation, and the extent to which the robber’s

face was obscured at the time of the crime, the witness’s opportuni ty to view him must be regarded

as relatively limited.

The witness’s degree of attenti on must also be considered suspect given that she testified that

her reaction to the ro bber was “stark fear, fear for my life.” That such a response is entirely

reasonable under the circumstances does not change the fact that it weighs against the reliability of

her identification by throwing some doubt on her ability to concentrate on and remember his face.

There is no indication in the record of any pre-trial description of the robber by Rodrigue so

the third f

act o r weighs neither in favor of, nor against, reliability. Turning to the fourth factor,

Rodrigue’s level of certainty in the identification was extremely high. With respect to the fifth factor,

the time between the crime and the identification was almost ten months--a length which does not by

itself preclude the use o f an identification, but which raises concerns about the accuracy of the

memory.

Thus, the only factor that weighs in favor of the reliabilit y of the identification is the witness’

level of certainty. Her conviction cannot be enough to outweigh the factors that undercut its6

reliability in light of the circumstances under which Rodrigue came to identify the defendant. Even

the best intentioned among us cannot be sure that our recollection is not influenced by the fact that

we are looking at a person we know the Gover nment has charged with a crime. Due process

precludes sending evidence of such questionable credibility to a jury. Accordingly, we find that this

identification was imper missibly suggestive and posed a very substantial risk of irreparable

misidentification and, therefore, should not have been admitted. Having found t hat an error exists

is not the end of our inquiry. Under the plain error standard, in order to be reversible an error must

“affec[t] substantial rights.” United States v. Olano

, 507 U.S. 725, 732 (1993) (internal quotation

marks and citation omitted). In Olano

the Supreme Court explained that determining whether an error affects substantial rights entails

essentially the same sort of analysis as a harmless error inquiry, but with the burd en of showing

prejudice falling on the defendant rather than on the Government. I d

. at 734. Thus we now consider

whether Rogers has shown that the erroneous admission of the in-court identification prejudiced the

outcome of this case.

The bulk of the evidence presented at trial could not be used in o ur preceding analysis of

whether Rodrigue’s identification of Rogers was reliable because admissibilit y rests on the reliabilit

y

of the identification judged solely by the circumstances indicating whether it was likely to be a wellgrounded identification, not whether it seems likely to have been correct in light of other available

evidence. M anson

, 432 U.S. at 118 ( St evens, J., concurring) (noting that though it is sometimes

difficult t o put o t her evidence of guilt to one side, the Court “carefully avoid[ed] this pitfall and

correctly relie[d] only on appropriate indicia of the reliabilit y of the identification itself.”). In contrast,

when considering whether the error was prejudicial we “look to the t ot alit y of circumstances

including all of the evidence adduced,” W atkins , 741 F.2d at 695; see also Archibald

, 734 F.2d at

943 (finding error harmless although the identification challenged was impermissibly suggestive), and

we find error harmless if it is “beyond a reasonable doubt that the error complained of did no t

contribute to the verdict obtained .” Chapman v. California , 87 S.Ct. 824, 828 (1967). Having7

reviewed the record in this case, we are convinced beyond a reasonable doubt that the jury would

have rendered a guilty verdict in the absence of the impermissible in-c ourt identifi cati on. In

particular, we note that evidence adduced at trial showed that the tennis shoes, rai ncoat, and

wraparound sunglasses described by Rodrigue and depicted in surveillance photographs taken at the

second robbery were found in Rogers’ home and car. More important, fingerprints taken from each

of the two, similarly-worded, demand notes were identified as Rogers’ fingerprin ts. The defense

raised no plausible doubts as to the authenticity of the fingerprint identification. Additionally, the

record indicated that Rogers attempted to escape after his arrest. The jury was properly instructed

that it could draw inferences regarding his guilt from those facts. S ee United States v. Ballard

, 423

F.2d 127 (1970). Although in-court identifications can be powerfully persuasive, Rodrigue’s

iden t ification in this case was a last-minute addition to an otherwise overwhelmingly persuasive

accumulation of evidence against the defendant. Accordingly, we find that, though ill-advised, the

admission did not substantially affect the defendant’s rights.

II. Sufficiency of the Evidence

Rogers next contends that there was insufficient evidence to support his conviction on Count

One, the robbery of Prem ier Bank. In reviewing a sufficiency of the evidence claim, we consider

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” J ackson v.

Virginia

, 443 U.S. 307, 320 2789 (1979); accord United States v. Resio-Trejo

, 45 F.3d 907, 910-11

(5th Cir. 1995).

Rogers argue s t hat t he Government did not offer evidence that could prove beyond a

reasonable doubt that he was the individual who robbed Premier Bank on August 8, 1995. In support

of his claim, Ro gers cit es the D.C. Circuit’s decision in B orum v. United States

, 380 F.2d 595

(D.C.Cir. 1967), and our discussion of Borum in Gibson v. Co llins

, 947 F.2d 780 (5th Cir. 1991),

where we accepted the Borum rule insofar as it says that when the only evidence against a defendant

is fingerprints from the scene of the crime, a reasonable juror may find guilt beyond a reasonable2 Rogers asserts that the demand notes were more different than similar, but that determination

was for the jury.

8 doubt only if the evidence indicates that the imprinted obje ct was generally inaccessible to the

defendant except during the commission of the crime. G ibson

, 947 F.2d at 785. B orum does not

control here, however, because the fingerprint on the demand note was not the only evidence adduced

at trial regarding the identity of the man who robbed Premier B ank. The similarity of the demand

notes used in the two robberies supports a theory that they were perpetrated by the same person. 2

Additionally, the jury was allowed to consider, with respect to guilt on each of the two counts, the

evidence that Rogers had fled police custody after his arrest. Reviewing the evidence in the light

most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable

doubt that Rogers was guilty on Count One.

To the extent that defendant’s brief raises as a separate issue a challenge to the jury

instructions on the first count, we review the instructions for plain error because no objection was

m ade in the district court. U nited States v. Reyes

, 102 F.3d 1361, 1364 (5th Cir. 1996 ). Rogers

suggests that the instructions did not clarify the Government’s burden of proof with respect to the

identity element of Count One. While more extensive instructions were given regarding the issue of

identity with respect to Count Two, the instructions spelled out the elements of the crime charged

in each count and directed that the jury consider each count separately. We therefore find no plain

error in the instructions.

III. Sentencing

Rogers appeals his sentence, arguing that it was increased on the basis of an erroneous

determination that he was a career offender under U. S.S.G § 4B1.1. Rogers contends, and the

Government concedes, that the district court relied on a prior conviction for attempted distribution

o f cocaine to increase Rogers’s sentence in this case, and that attempt offenses could not suppo rt

career offender status at the time of the robberies for which Rogers was convicted. S ee United States

v. Bellazerius

, 24 F.3d 698 (5th Cir. 1994). As is well known, the e x post facto clau se of the9

Constitution prohibits the retroacti ve applicat ion of a penal law if it causes a disadvantage to the

defendant. S ee U.S. Const. art. 1, § 9, cl.3; United States v. Suarez

, 911 F.2d 1016, 1021 (5th Cir.

1990). The Government does not dispute that Rogers should have been sentenced under the

guidelines as they stood at the time of his offense, when his previous attempt crime would not have

not qualified him as a career offender. Nonetheless, the Government contends that the sentence given

should be upheld, asserting that the error was harmless.

The Government argues that the error in sentencing was harmless because, had the district

c ourt not found Rogers to be a career offender, it would have departed upward to the same

sentencing range. The Sentencing Reform Act o f 1984 allows a district court to depart from a

guideline range under certain circumstances. 18 U.S.C. § 3553(b). However, the court had denied

the Government’s motion for upward departure, which had argued that Rogers's criminal history

category did not adequately reflect the seriousness of his past conduct. In denying the motion, the

court said: “I decline to upwardly depart from the guidelines range, but I do not hold that there is no

foundation for the Government’s moti o n. If this guidelines range were less than it is, I would

certainly grant the Government’s motion, and there would be an upward departure.” Later, when the

court sentenced Rogers, the court said that his "criminal history, these offenses, and the other

information contained in the presentence report, and the firm and fixed opinion of this court at this

time mandates that [Rogers] be sentenced at the maximum range of the guidelines.” The Government

argues that given these statements of the district court, it can be inferred that, in the absence of the

error which led to Rogers’s being sentenced as a career offender, the court would have granted the

upward departure and given Rogers the same sentence.

The misapplication of a guideline is harmless error if the district court would have imposed

the same sentence even

in t he absence of the error. W illiams v. United States

, 503 U.S. 193, 203

(1992); United States v. Tello

, 9 F.3d 1119, 1129-31 (5th Cir. 1993). The Supreme Court has said

that once it is shown that a district court relied on an invalid factor in sentencing, the burden is on the

party favoring the sentence to show that it would have been the same absent the error. W illiams

, 5033 We do not today consider whether such a departure would have been reasonable.

10 U.S. at 203-05. The question is not whether the district court c ould have chosen the same sentence,

but whether it would

have chosen that sentence. Tello , 9 F.3d at 1131 (holding that application of

the wrong sentencing range is not harmless error even where the same sentence was available under

the correct sentencing range). While the district court’s statement does indicate an inclination

to grant an upward departure in the absence of a career offender enhancement , t here is no way to

know that an upward departure wo uld have resulted in the same 262-month sentence that Rogers

received. Moreover, when a district court departs from the range prescribed by the guidelines, it must

consider upward departures incrementally and must state specific reasons for the imposition of the

higher sentence chosen. 18 U.S.C. § 3553(c); U nited States v. Lambert

, 984 F.2d 658, 662-63 (5th

Cir. 1993) (en banc). Without the erroneous career offender enhancement, Rogers’s adjusted offense

level is 28, his criminal history category is VI, and his resulting guideline range is 140-175 months.

To reach a 262-month sentence, the district court would have h ad to consider and rej ect three

intermediate offense levels and then decide that an offense level of 32 was appropri ate--steps the

court did not take. 3 Thus, although we agree with the Government that whether, and how much, to

upwardly depart are within the district court’s discretion, we cannot affirm here because the district

court has not yet exercised that discretion.

For the foregoing reasons, we affirm the conviction and vacate the sentence, remanding for

further proceedings consistent with this opinion. In re-sentencing Rogers, the district court may, of

course, reconsider the motion for upward departure.