FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30470 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00432-AJB

MICHAEL EMMETT BECK,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

September 13, 2004—Portland, Oregon

Filed January 5, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould

91
COUNSEL

Christopher J. Schatz, Assistant Federal Public Defender,

Portland, Oregon, for the defendant-appellant. 

Karin J. Immergut, United States Attorney, District of Oregon, and Frank Noonan, Assistant United States Attorney,

Portland, Oregon, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge: 

Michael Beck appeals several rulings of the district court

made during his trial for bank robbery pursuant to 18 U.S.C.

§ 2113(a). The district court denied Beck’s pre-trial motions

to exclude evidence of photograph identification and in-court

eyewitness identification of Beck, and also to prevent Beck’s

probation officer from giving lay opinion testimony identify94 UNITED STATES v. BECK
ing Beck as the person in the bank’s surveillance photograph.

Beck also appeals the district court’s denial of his trial motion

to exclude the government from presenting rebuttal testimony

of an FBI agent. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(1), and we affirm. 

I

On May 1, 2000, a man approached a teller window at the

Lloyd Center Tower branch of Key Bank, located in Portland,

Oregon. Shantina Green was the teller at the window. The

man handed Green a note, and told her that he had a gun and

would kill her. The man told Green to give him cash in fifty

and one-hundred dollar bills, and not to give him any tracking

device. Green said that she did not have fifty or one-hundred

dollar bills, and the man told her to give him whatever she

had. Green complied and the man walked away. Green then

activated the bank’s security system, which took photos of the

robber as he walked out of the bank. 

Three witnesses gave physical descriptions of the robber:

(1) Green, the teller; (2) William Zimmerman, a bank customer who had entered the bank after the robber had entered;

and (3) Kenneth Grage, another teller working at the bank on

the day of the robbery. Green described the robber as a white

male, about six feet tall, thin, in his mid-thirties, clean-shaven,

with framed prescription glasses and black, curly, shoulderlength hair. Zimmerman described the robber as male, white

or Native American, twenty-five to thirty years old, approximately six feet tall, with full, neatly cut, black hair. Grage

described the robber as male, possibly Hispanic or Filipino, in

his mid-twenties, about five feet, ten inches tall, with black,

wavy, collar-length hair. 

On May 23, 2000, Edward Glover, Beck’s federal probation officer, was shown the photograph from the bank’s surveillance system. Glover said that he believed Beck was the

UNITED STATES v. BECK 95
person shown in the photograph. Beck was arrested that same

day. 

FBI Special Agent Steven Whipple conducted a photographic spread line-up with the three eyewitnesses, Green,

Zimmerman, and Grage. Whipple showed each eyewitness a

bank surveillance photograph of the robber, and then asked

whether the eyewitness could identify the robber from any of

the individuals in a six-person photospread. Green selected

the person in position number “5” of the photospread as the

robber, which was Beck, and said that she was “sure it was

him.” Zimmerman also identified the man in position number

“5” of the photospread as the bank robber. Grage recognized

the robber from the surveillance photograph, but selected the

person in position number “2” as the man he thought was the

bank robber. The person Grage identified was not Beck. 

On October 16, 2002, the grand jury for the District of Oregon returned an indictment charging Beck with one count of

bank robbery, in violation of 18 U.S.C. § 2113(a). Beck was

arraigned on October 24, 2002. 

Beck filed two motions in limine that are relevant to the

issues raised on this appeal: a motion to exclude eyewitness

identification testimony and a motion to exclude testimony by

Glover, Beck’s federal probation officer. The district court

conducted an evidentiary hearing to resolve these motions at

which Agent Whipple testified that he had used computer

software to generate the photospread. Whipple limited the

scope of the search to “a white male with glasses and black

hair.” Whipple narrowed the results to six individuals, based

on hair color, glasses, hair length, and a clean-shaven face. 

Glover testified at the evidentiary hearing that he had four

contacts with Beck in the course of his work as Beck’s federal

probation officer: (1) February 9, 2000, for thirty minutes; (2)

February 28, 2000, for ten to twenty minutes; (3) March 21,

96 UNITED STATES v. BECK
2000, for twenty to twenty-five minutes; (4) April 4, 2000, for

ten to fifteen minutes. 

The district court denied both of Beck’s motions in limine.

Beck’s first jury trial began on April 15, 2003. The district

court declared a mistrial on April 17, 2003, after the district

court concluded that the jury was deadlocked. Beck’s second

jury trial began on July 22, 2003. The second jury returned a

guilty verdict the next day. Beck was given a 102-month sentence and three years of supervised release.

II

We must decide whether the photospread, and the procedure of showing the surveillance photograph to the eyewitness

before the photospread, were unduly suggestive. We also

must assess the extent of prior contact between a witness and

a defendant sufficient to render the witness’s lay opinion

admissible under Federal Rule of Evidence 701, in order to

decide whether probation officer Glover was properly permitted to give lay opinion testimony. Finally, we must decide

whether the district court abused its discretion in admitting

Special Agent Whipple’s rebuttal testimony. 

A

[1] Beck contends that the district court should have

excluded Green’s testimony regarding her out-of-court identification of Beck in the photospread because the composition

of the photospread was improperly suggestive.1 Suppression

of such evidence is appropriate only where the photospread

was “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” United

States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (quoting

Simmons v. United States, 390 U.S. 377, 384 (1968)). 

1We review de novo the issue of whether out-of-court identification procedures were so suggestive as to violate a defendant’s due process rights.

United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991). 

UNITED STATES v. BECK 97
[2] The photospread in question was not impermissibly

suggestive. A review of the photospread shows that all six of

the pictures are of Caucasian males in the same age range,

with similar skin, eye, and hair coloring. Each photo depicts

a subject wearing distinctive glasses. Four of the six photos

show men with similar length hair, with two having somewhat

shorter hair. All except for one are clean-shaven. This photospread was not so impermissibly suggestive as to create a substantial likelihood of misidentification. See Carbajal, 956

F.2d at 929 (holding that a photospread was not impermissibly suggestive where all six of the pictures in the photospread

“were of Hispanic males in the same age range, with similar

skin, eye, hair coloring,” and hair length, and each had a moustache).2

[3] Beck further contends that the district court should have

excluded Green’s in-court testimony because Agent Whipple

improperly showed Green the bank surveillance photo before

showing her the photospread. We have held that “[p]ost-arrest

photographic displays are permissible if the procedure used

protects the rights of the accused.” United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980). Our precedent also

establishes that “[t]he rights of the accused are not jeopardized when, as here, the recollection of an eyewitness is

refreshed by the use of photographs of the crime itself.” Id.

We reject Beck’s contention because the surveillance photograph that Agent Whipple showed to Green depicted the

actual robber as he left the bank. See id. (observing that

“[l]ittle possibility of misidentification arises from the use of

2Beck’s arguments citing social science research about eyewitness identification do not persuade us in the precise context of this case. Although

such research may be relevant in deciding what constitutes an impermissibly suggestive procedure, that research does not convince us that the particular identification procedures used in this case create a substantial

likelihood of misidentification. The trial court did not abuse its discretion

in this case by admitting the identifications and allowing Beck to put on

his expert evidence before the jury, rather than excluding both from trial.

98 UNITED STATES v. BECK
photographs depicting the likeness not of some possible suspect in the police files, but of the (persons) who actually committed the robbery”) (internal quotation marks omitted). In

Stubblefield we held that the rights of the accused were not

jeopardized because the government had not coerced the witnesses to testify in a particular way, because the witness had

testified that her in-court identification was based on her

memory of the crime and not on the surveillance photographs,

and because the photographs shown to the witnesses were

those of the actual robber. Id. Beck’s rights were similarly not

jeopardized. 

[4] We conclude that neither the photospread standing

alone nor Agent Whipple’s procedure of showing the eyewitnesses the surveillance photo of the robber before each witness scrutinized the photospread was impermissibly

suggestive. The photospread itself was assembled with a reasonable, computer-assisted method, and displayed suspects

sharing sufficiently relevant characteristics so that the display

did not create a substantial risk of misidentification. Moreover, the display did not become impermissibly suggestive by

virtue of the prior disclosure to witnesses of the surveillance

photo of the actual bank robber; to the contrary, under our

precedent the procedure adopted permissibly protected the

rights of the accused. 

B

Beck contends that the district court erred in admitting the

lay opinion testimony of his federal probation officer, Edward

Glover. At Beck’s second jury trial, Beck objected to the government’s introduction of Glover’s testimony under Federal

Rules of Evidence 403 and 701.3 The district court overruled

3We review for an abuse of discretion the district court’s resolution of

Beck’s Rule 403 objection. United States v. Gonzalez-Torres, 309 F.3d

594, 601 (9th Cir. 2002). We review for an abuse of discretion the district

court’s decision to admit lay opinion testimony. United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). 

UNITED STATES v. BECK 99
Beck’s objections, and directed Glover to testify but to conceal from the jury his status as Beck’s probation officer.

Glover testified that he had a “professional relationship” with

Beck, and that he believed Beck was the person shown in the

bank surveillance photo. 

Federal Rule of Evidence 403 provides that relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Beck argues that the district court should

have excluded Glover’s testimony because testimony from a

law enforcement officer may be prejudicial. See, e.g., United

States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977). We

reject Beck’s argument because Glover merely testified that

he had a “professional relationship” with Beck, and not that

he was a law enforcement officer. Cf. United States v. Henderson, 241 F.3d 638, 651 (9th Cir. 2001) (observing that

“there is no per se rule against [officer testimony identifying

a defendant in surveillance photographs]”). We hold that the

district court did not abuse its discretion in admitting Glover’s

lay testimony and properly balanced competing considerations of evidentiary need and danger of unfair prejudice by

allowing Glover to testify and by directing Glover to conceal

his status as Beck’s probation officer. 

[5] Federal Rule of Evidence 701 provides that a nonexpert witness’s testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness, [and] (b)

helpful to a clear understanding of the witness’ testimony or

the determination of a fact in issue.” We have held that a lay

witness may give an opinion regarding the identity of a person

depicted in a photograph if that witness has had “sufficient

contact with the defendant to achieve a level of familiarity

that renders the lay opinion helpful,” United States v. Henderson, 68 F.3d 323, 326 (9th Cir. 1995), though we have not

100 UNITED STATES v. BECK
provided clear guidance as to the extent of contact sufficient

to render lay opinion testimony rationally based and helpful

to the jury.4 Several of our sister circuits, however, have articulated standards by which to assess whether a lay witness’s

4We have taken a case-by-case approach in deciding whether a lay opinion witness had sufficient contact with the defendant to render the witness’s testimony helpful within the meaning of Rule 701: 

In Henderson, we held that there was no abuse of discretion when a lay

witness testified to the defendant’s identity in surveillance photographs

and had known the defendant for more than four years, and had seen him

more than 100 times. 241 F.3d at 650-51. 

In United States v. Holmes, 229 F.3d 782, 788-89 (9th Cir. 2000), we

held that there was no abuse of discretion where a lay witness had met the

defendant six times for at least thirty minutes each time. 

In United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), we

held that the district court erred in admitting the lay opinion identification

testimony of a police officer who identified the defendant in robbery surveillance photographs. The police officer had never met the defendant

before the robbery; his knowledge was based on review of photographs of

the defendant and the description of witnesses who knew the defendant.

Id. We reasoned that the police officer’s level of familiarity with the

defendant’s appearance fell short of that required by Ninth Circuit case

law and Rule 701’s requirement of helpfulness. Id.

In United States v. Brannon, 616 F.2d 413 (9th Cir. 1980), we held that

the district court did not abuse its discretion in admitting the testimony of

four lay witnesses who identified the defendant as the person depicted in

robbery surveillance photographs. Two of the witnesses had not met the

defendant before the robbery. Id. at 417. We did not address explicitly

whether and why the testimony was “rationally based” or “helpful.” 

In Butcher, we held admissible the lay opinion identification testimony

of two police officers and a probation officer who identified the defendant

as the culprit depicted in bank surveillance photographs. 557 F.2d at 670.

The witnesses had varying levels of prior contacts with the defendant: the

first officer had known the defendant for one and a half years and had met

the defendant about three times for a total of two and a half hours; the second officer had known the defendant for five months and had observed the

defendant for between two and three hours; the probation officer had

known the defendant for just over one year, and had met the defendant

about twelve times with each meeting lasting between fifteen and thirty

minutes. Id. at 667 n.3. 

UNITED STATES v. BECK 101
testimony is rationally based and helpful to a jury. See, e.g.,

United States v. Pierce, 136 F.3d 770, 774-75 (11th Cir.

1998); United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir.

1995); United States v. Allen, 787 F.2d 933, 935-36 (4th Cir.

1986), vacated on other grounds by 479 U.S. 1077 (1987);

United States v. Jackson, 688 F.2d 1121, 1124-26 (7th Cir.

1982). 

[6] We hold that a lay witness’s testimony is rationally

based within the meaning of Rule 701 where it is “based upon

personal observation and recollection of concrete facts.”

Allen, 787 F.2d at 935 (internal quotation marks omitted). As

have the Fourth and Seventh Circuits, we conclude that the

extent of a witness’s opportunity to observe the defendant

goes to the weight of the testimony, not to its admissibility.

Id. at 936; Jackson, 688 F.2d at 1125; see also Fed. R. Evid.

701 advisory committee’s note (indicating that direct and

cross-examination of a lay witness testifying as to his or her

opinion is relied upon to verify the accuracy of the testimony). 

[7] Our precedent provides that lay witness testimony is

permissible where the witness has had “sufficient contact with

the defendant to achieve a level of familiarity that renders the

lay opinion helpful.” Henderson, 241 F.3d at 650. In accord

with the decisions of our sister circuits, we hold that whether

a lay opinion is helpful depends on a totality of the circumstances including the witness’s “[f]amiliarity with the defendant’s appearance at the time the crime was committed,”

Jackman, 48 F.3d at 5, the witness’s familiarity with the

defendant’s customary manner of dress, insofar as such information related to the clothing of the person depicted in the

surveillance photograph, see Pierce, 136 F.3d at 774, whether

the defendant disguised his or her appearance during the

offense or altered his or her appearance before trial, id. at 775,

and whether the witness knew the defendant over time and in

a variety of circumstances, such that the witness’s lay identification testimony offered to the jury “a perspective it could not

102 UNITED STATES v. BECK
acquire in its limited exposure” to the defendant, Allen, 787

F.2d at 936. 

The absence of any single factor will not render testimony

inadmissible because cross-examination exists to highlight

potential weaknesses in lay opinion testimony. See, e.g., Jackman, 48 F.3d at 5. Also, the governing standard under Federal

Rule of Evidence 701(b) assesses whether the lay witness

identification testimony is potentially “helpful to . . . the

determination of a fact in issue,” in the totality of the circumstances, see Pierce, 136 F.3d at 774-75 (holding that the

admissibility of lay witness identification testimony “turns on

a number of factors”), and this assessment does not hinge on

the presence of any particular factor. 

[8] Here, Glover had met with Beck four times in a twomonth period, for a total of more than seventy minutes.

Glover had sufficient contacts with Beck so that Glover’s perception of the person in the bank surveillance photo was helpful to a clear understanding of the determination of a fact in

issue, that is, the identity of the person in the bank surveillance photo. We hold that the district court did not err in

determining that Glover’s lay opinion identification testimony

was rationally based and helpful to the trier of fact, and the

district court did not abuse its discretion in admitting Glover’s

testimony.5

5At the hearing on the motion in limine, Glover stated that he knew that

someone thought that Beck was depicted in the surveillance photograph

before the photograph was shown to him. However, Glover stated at trial

that he had viewed the photograph and formed an opinion concerning its

depiction of Beck before he was advised that Beck had been identified in

the photograph by another person. Beck contends that his Sixth Amendment right to cross examination was violated by the combination of Glover’s change of testimony at trial, compared to his prior testimony at the in

limine evidentiary hearing, and the district court’s procedure of concealing

from the jury Glover’s status as Beck’s probation officer. Alleged violations of the Sixth Amendment’s Confrontation Clause are reviewed de

novo. Lilly v. Virginia, 527 U.S. 116, 136-37 (1999). We reject Beck’s

UNITED STATES v. BECK 103
C

Beck contends that the district court erred in admitting the

government’s rebuttal testimony from Agent Whipple regarding the procedures Whipple used in creating the photospread.6

There is no dispute that Beck introduced at trial Dr. Daniel

Reisberg’s expert testimony concerning alleged deficiencies

in the photospread regarding its methodology and use. Beck

“opened the door” to the government’s rebuttal testimony by

raising, in Dr. Reisberg’s testimony, the specific issue of

whether the methodology used by Whipple made the photospread inappropriately suggestive. We hold that the district

court did not abuse its discretion in admitting rebuttal testimony from Agent Whipple.

III

The district court did not err in admitting the in-court identification testimony of Green because the pretrial identification procedures were not so impermissibly suggestive as to

give rise to a very substantial likelihood of irreparable misidentification. Neither did the district court abuse its discretion in admitting the lay opinion identification testimony of

Glover because Glover’s testimony was rationally based and

helpful to the determination of a fact in issue. Likewise, the

district court did not abuse its discretion in allowing Agent

constitutional argument because Beck elicited cross-examination testimony from Glover acknowledging that Glover’s testimony at trial differed

from that at the evidentiary hearing; this issue goes to weight of testimony

and does not amount to a Sixth Amendment Confrontation Clause violation. 

6We review for an abuse of discretion a district court’s admission of

rebuttal evidence. United States v. Antonakeas, 255 F.3d 714, 724 (9th

Cir. 2001). 

104 UNITED STATES v. BECK
Whipple’s rebuttal testimony to rehabilitate the methodology

of the FBI’s photospread procedures.7

AFFIRMED.

7Because the district court did not err on any of the grounds asserted by

Beck, we also reject Beck’s contention that the cumulative effect of the

alleged errors of the district court denied him a fair trial. 

UNITED STATES v. BECK 105