*On August 14, 1996, defendant, acting pro se, filed a letter with the district court

which was construed as a Notice of Appeal. This notice was premature as judgment was not

entered against the defendant until May 5, 1997. However, we assigned case number

96-2176 to defendant’s notice of appeal. On May 14, 1997, after judgment had been

entered, defendant’s appointed counsel filed a timely notice of appeal and our court assigned

the case a second case number, 97-2168. On our own motion, on June 3, 1997, we ordered

these two appeals consolidated for all purposes. This order and judgment shall be the

disposition of both appeals.

**This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under terms and

conditions of 10th Cir. R. 36.3

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 11 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

QUANTIS HAWKINS,

Defendant-Appellant.

Nos. 96-2176 and 97-2168*

(D.C. No. CR-96-206-BB)

(D. New Mexico)

ORDER AND JUDGMENT**

Before BRORBY, HOLLOWAY and EBEL, Circuit Judges,

Defendant Quantis Hawkins was convicted by a jury on one count of bank robbery.

Defendant filed a motion for a new trial which was denied by the district court. Defendant
1The bank is insured by the FDIC. Id. at 132.

-2-

was then sentenced to a term of imprisonment of 51 months. Defendant appeals his

conviction and the denial of his motion for a new trial. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

I

On March 25, 1996, a lone robber, described as an African-American male in his early

twenties, wearing wrap-around sunglasses and a baseball cap, and carrying a gym bag,

robbed the Norwest Bank San Mateo Branch on Zuni Street in Albuquerque, New Mexico.

II R. at 35. The robbery occurred at about 10:10 a.m. Id. at 110.1

 The robbery lasted less

than five minutes. Both the Federal Bureau of Investigation and the City of Albuquerque

Police Department responded to the bank robbery. 

Lori Figura was designated as the FBI agent. Ms. Figura received information that

made defendant a suspect. She obtained a photograph of defendant, placed it in a photograph

array, and showed the array to one customer and two bank tellers who had been inside the

bank at the time of the robbery. Id. at 184-85. Both bank tellers identified defendant as the

robber. Id. at 185. The customer did not identify any of the individuals depicted in the photo

array as the robber. Id. at 45. Defendant was arrested the next day.

The trial commenced on July 30, 1996. The prosecution called eight witnesses: seven

who were present at the bank at the time of the robbery and FBI Agent Figura. All seven

eyewitnesses were within about three to fifteen feet of the robber during the robbery. Nearly
-3-

all of the witnesses estimated the bank robber’s height to be approximately between five feet

seven inches and six feet. Id. at 40; 60; 76; 114. Defendant is six feet four inches tall. No

witness described facial hair on the robber and several affirmatively remembered that the

robber was clean shaven. Id. at 61; 87; 101; 114. At the time of the robbery, defendant had

a mustache and sideburns.

Despite the inconsistencies in their description of the robber, three of the seven

witnesses identified defendant as the robber. Id. at 44 (Robert Chavez); id. at 98-99

(Raphael Martin); id. at 141-42 (Holly Revelles). Only two of the three witnesses

identifying defendant at trial had been presented with a pretrial identification photograph

array. One teller, Holly Roybal, testified that though she could not identify defendant as the

bank robber, she was “almost positive” that the tattoo on defendant’s neck was the same as

the tattoo on the robber. Id. at 168-69. The other three witnesses could not identify

defendant as the robber. Id. at 63 (Levi Scott); id. at 77 (Donna Burkholder); id. at 116

(Susan Moore). However, when questioned by the prosecutor, each testified that defendant

had physical characteristics similar to those of the robber. Id. at 64 (Levi Scott); id. at 78

(Donna Burkholder); id. at 116 (Susan Moore). Of these three, Susan Moore had previously

identified defendant as the robber in a photo spread conducted one week before trial. Id. at

117-18. Defendant’s counsel cross-examined each witness on the issue of defendant’s

identity. Id. at 51, 66, 81, 101, 121, 156, 176-77. 
2The preferred method of bringing a claim of ineffective counsel is by post-conviction

proceedings pursuant to 28 U.S.C. § 2255. A claim for relief under§ 2255 may afford an

opportunity for the district court to hold an evidentiary hearing. See Galloway, 56 F.3d at

-4-

The defendant did not testify at trial. He did present an alibi defense by the testimony

of two witnesses, Hawkins’s mother and stepfather. Both testified that Hawkins was at home

at the time of the robbery. His mother testified that he talked with her at approximately

10:00 a.m. that day and that he was still at home, just getting out of bed, when his parents

arrived about 10:20 a.m. II R. at 243-45, 259-260. 

After the verdict of guilty and entry of judgment of conviction and sentence, this

appeal followed.

II

Defendant raises two issues on appeal. First, he directly appeals the district court’s

denial of his motion for a new trial. The basis for his request for a new trial is a claim of

ineffective counsel. Second, defendant contends the district court erred in permitting the

in-court identifications in violation of his due process rights.

A

Defendant’s Claim of Ineffective Counsel

Defendant appeals the district court’s denial of his motion for a new trial based on a

claim of ineffective counsel. However, such claims should be presented in collateral

proceedings, not on direct appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc); United States v. Jackson, 88 F.3d 845, 846 (10th Cir. 1996).2
1240 n.1.

-5-

Ineffectiveness of counsel claims that are asserted on direct appeal are presumptively

dismissible, and “virtually all will be dismissed.” Galloway, 56 F.3d at 1240. 

In Galloway, we reasoned that the resolution of a claim of ineffective counsel requires

a developed factual record. Id. The district court is the forum appropriate for such

development. Id. The facts here are not so extraordinary that we find need to depart from

our adherence to the Galloway rule. See Jackson, 88 F.3d at 847. The record here has not

been adequately developed by the district court prior to appeal for us to determine the merits

of the claim of ineffective counsel. Compare United States v. Gallegos, 108 F.3d 1272, 1280

(10th Cir. 1997)(defendant asserted conflict of interest argument at trial and in post-trial

motion, which the district court, upon weighing the merits of the claim, denied in its

post-trial order). 

We dismiss defendant’s claim of ineffectiveness of counsel without prejudice.

B

Defendant’s Claim That In-Court Identifications Were the Product of Questioning

So Impermissibly Suggestive As to Violate Due Process.

Defendant does not raise sufficiency of the evidence as an issue in this case. Instead,

defendant contends that all of the in-court identifications were the product of questioning so

impermissibly suggestive as to violate due process. It is a recognized ground of attack on a

conviction that confrontation and interrogation were so unnecessarily suggestive and
-6-

conductive to irreparable mistaken identification that the defendant was denied due process

of law. Stovall v. Denno, 388 U.S. 293, 301-02 (1967). Such a claimed violation of due

process depends on the totality of the circumstances surrounding it. Id. at 302. Because the

defendant did not object to the in-court identification at trial here, we review for plain error.

See United States v. Lonedog, 929 F.2d 568, 570 (10th Cir. 1991). For plain error to be

present, the error must be obvious or otherwise seriously affect the fairness, integrity or

public reputation of judicial proceedings. United States v. Simmonds, 931 F.2d 685, 687

(10th Cir. 1991).

Three of the witnesses, Moore, Revelles and Roybal, were shown a pretrial photo

array by FBI Agent Figura. Defendant does not challenge any pretrial identification

procedures as violative of his due process rights. The government contends that because

defendant failed to challenge the validity of the pretrial identifications, the subsequent

in-court identification cannot violate the defendant’s due process rights. Romero v. Tansy,

46 F.3d 1024, 1032 (10th Cir. 1995). “Any suggestiveness in the courtroom identification

procedure is a matter for the jury to consider in weighing the persuasiveness of the witness’

testimony.” Id.

We believe the proper analysis here is to examine the record to determine “whether

the in-court identification procedure was so suggestive that it denied defendant due process

of law.” United States v. Kimball, 73 F.3d 269, 273 (10th Cir. 1995); United States v.

Robertson, 19 F.3d 1318, 1323 (10th Cir. 1994); United States v. Aigbevbolle, 772 F.2d
3We summarize critical portions of the identification testimony in the appendix

following this order and judgment.

-7-

652, 653 (10th Cir. 1985). A defendant is denied due process of law when an impermissibly

suggestive identification leads to a substantial likelihood of irreparable misidentification.

Manson v. Brathwaite, 432 U.S. 98, 116 (1977); Aigbevbolle, 772 F.2d at 653. Our decision

in Romero should not be taken to mean that an in-court identification is always

constitutionally valid if a defendant fails to challenge a pretrial identification. Instead, our

analysis as to impermissible suggestiveness of an in-court identification is identical, whether

it concerns a witness who had a pretrial opportunity to identify defendant, or a witness who

identifies the defendant for the first time at trial.

Turning to the in-court identifications here, for purposes of defendant’s due process

claim we hold that the district court did not commit plain error by allowing the in-court

identifications because we do not view the prosecutor’s conduct as impermissibly

suggestive.3

 The prosecutor asked each witness if he or she recognized the bank robber in

the courtroom. Some of the witnesses were able to identify defendant and others could not.

The prosecutor then inquired if defendant had characteristics similar to the characteristics of

the bank robber. While the procedure was not a reassuring model to support a conviction in

a criminal case, the prosecutor’s questioning was not so impermissibly suggestive as to lead

to a substantial likelihood of misidentification. Manson, 432 U.S. at 116. The prosecutor’s

inability to exact precise identifications gave defendant the opportunity to attack the
-8-

reliability of each witness’ identification testimony on cross-examination. See Kimball, 73

F.3d at 273; Romero, 46 F.3d at 1032 (“Any suggestiveness surrounding the courtroom

identification was a matter to be considered by the jury in weighing the reliability of [the

witness’] identification testimony.”). Defendant’s counsel cross-examined each witness on

the identification. 

Defendant’s principal argument is that the prosecutor goaded the witnesses into

testifying that defendant resembled the bank robber even though all of the witnesses had

some difficulty identifying defendant as the robber. An identification is not unreliable

because it is phrased in uncertain terms. United States v. Peoples, 748 F.2d 934, 936 (4th

Cir. 1984), cert. denied, 471 U.S. 1067 (1985). We have previously held that there is no

deprivation of due process rights by requiring a defendant to wear a cap and dark glasses

worn by the bank robber for purposes of identification. Robertson, 19 F.3d at 1322-23; see

also Burnett v. Collins, 982 F.2d 922, 927 (5th Cir. 1993)(compelling defendant to provide

voice exemplar does not violate Fifth Amendment privilege against self-incrimination);

United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir. 1987)(district court did not

commit error in granting prosecutor’s request to have prisoner try on a jacket and hold up a

pair of pants to facilitate identification). Here defendant was required to rise and state his

name, address and age for a witness to make a voice comparison, II R. at 142-144; defense

counsel did not object.
4We note that defense counsel may tactically decide not to request such procedures.

See Matthews, 20 F.3d at 547 (“counsel may well deem it preferable not to chance

bolstering the in-court identification of his client in any way, permitting counsel to argue to

the jury that the in-court identification was inherently weak.”).

-9-

That defendant was only one of two African-Americans in the courtroom for most of

the trial is not reversible error. See United States v. Davis, 103 F.3d 660, 670 (8th Cir.

1997), cert. denied, 117 S. Ct. 2424 (1997). If defendant had concern with the racial

composition of the courtroom, defendant could have requested the district court to reduce the

inherent suggestiveness of the in-court identifications by facilitating other seating

arrangements, ordering in-court lineups, and/or altering the racial composition of the

courtroom. Robertson, 19 F.3d at 1323; United States v. Matthews, 20 F.3d 538, 547

(2d Cir. 1994).4

We are persuaded that, considering the totality of the circumstances, the

identifications were “reliable even though the confrontation procedure was suggestive.”

Neil, 409 U.S. at 199; see also Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989). Each

witness on identification of defendant had an opportunity to view the defendant at the time

of the crime. See id. at 712. Although there was a time gap from the robbery on March 25,

1996, until trial on July 30, 1996, and the witnesses all had some inconsistencies as to

defendant’s identity as the robber, these factors do not require a reversal here. See id.

(underestimation of height and errors in not reporting tattoos to police not sufficient to make

in-court identifications unreliable). 
-10-

The claim of ineffectiveness of counsel is DISMISSED WITHOUT PREJUDICE;

otherwise, the judgment of the district court is AFFIRMED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge
i

APPENDIX

We summarize below testimony of several government witnesses:

Holly Revelles

Holly Revelles testified she was an employee of Norwest Bank for about two years

as a teller. II R. at 124. She first started October 19, 1994, and started working at the

San Mateo Branch on Zuni Street in November 1994. She was working there on March 25,

1996.

She was helping a customer at about 10:10 that morning who was at her window.

She was interrupted by a gentleman who said, “Excuse me.” Id. at 127. She told him he

would need to wait because she was with a customer. This man seemed to hesitate and then

came forward and said, “Excuse me,” again. Id. at 128. Then he told her: “No, I don’t think

you understand. This is a bank robbery.”

Ms. Revelles identified in a photograph, Government Exhibit 1, the man who said it

was a robbery. Id. at 129. He was a gentleman with a baseball cap and a plaid shirt behind

her customer. The surveillance photograph said 9:20 a.m. Id. at 129. The fourth

photograph in Government Exhibit 1 showed the man handing her the backpack, and this

was when he instructed Revelles to put all of the money in the bag. The photo showed

Ms. Revelles as the teller. Id. at 130. She did not see a gun and the robber never said

anything about a gun. Id. at 131. She put almost $3,000 in the bag. Ms. Revelles said the

bank is insured by the FDIC. Id. at 132.

Ms. Revelles wears glasses and had them on at the time. Id. at 134. She was

approximately three feet from the robber and said she did get a good look at him. Id. at 135.

He was African-American, in his early twenties, and about 5'7" or 5'8" tall. Id. at 136. She

said that if she had told an FBI agent the robber was 6'1" that would be the height. Id. at

137. He was average in build. She did not see any facial hair.

Ms. Revelles testified she thought she would recognize the person who robbed her

about five months ago. Id. at 139. She was asked then to look around the room and she

identified a man at the counsel table. The prosecutor asked permission to have defendant

Hawkins rise, which was permitted. Ms. Revelles looked at him and then said: “Yes, I

would say that is him.” This was because of his features and skin tone, and his whole

appearance. Id. at 140. She did not see any distinctive tattoos on the robber. She said that

the man who stood was “in the same height category” as the robber. Id. at 141. Defendant

Hawkins had the same build as the robber and he had the same skin tone as the person who
ii

robbed her. Id. at 141-42. The prosecutor asked: “Are you sure that Mr. Hawkins is the

robber, Ms. Revelles?” She replied, “Yes, I am.” Id. at 142. She said this was because of

his whole physical appearance and that “he looks like the person that robbed me.” Id. at

142.

The prosecutor asked whether there was anything distinctive about the robber’s

voice, and Ms. Revelles said his tone was “very nice, very cordial . . . the man who came in

just had a pleasant voice.” Id. at 143. The prosecutor asked if the court would instruct

defendant Hawkins to state his name, address and age, and with no objection by defense

counsel, Hawkins did so. The prosecutor then asked about the voice, and Ms. Revelles said,

“It strikes a memory in my mind of the voice that I heard when I was robbed. It is a familiar

voice.” Id. at 144. She concluded: “I am confident that this voice is similar to the man that

robbed me on that day . . . I would say it was the same voice.” Id. at 145.

Looking at a photograph of defendant, Revelles said she recognized him. She saw

there was a mustache on the picture, but said she did not recall seeing one the day of the

robbery. Id. at 146.

On cross-examination, Revelles said that the subject who committed the robbery

could have had a mustache. Id. at 148. Revelles testified that her recollection at trial was

the robber was 5'6" to 5'7", but he could have been 6'1". Her “recollection had diminished

over the period of time.” Id. at 151. Revelles said that looking at Hawkins, he was the same

height as the robber. Id. at 152. Revelles admitted that in his photo in Government

Exhibit 1, the subject was clean-shaven and with no mustache. Id. at 156. 

Susan Denise Moore

Ms. Moore testified that she had been a bank teller at the Norwest Bank Branch on

San Mateo and Zuni Streets for some six months. She was working there on March 25,

1996. Id. at 109-110. At about 10:10 a.m. she was serving as a teller along with Holly

Revelles and Holly Roybal. She was shown Government Exhibit 1, a composite and the

fourth photograph in the series showed the three tellers and a person who robbed the bank.

Id. at 111. Moore was about two feet away from the point where the robbery took place.

Moore heard the robber say, “Give me the money.” But she did not see a gun or any

weapon. Id. at 112. Moore saw Revelles put the money in the bag, and then the robber ran

out the door. Id. at 112.

Moore got a “fairly good look at [the robber].” Id. at 113. The robber was average

in height, not taller than 6', and about 135 lbs. in weight. He was clean-shaven. Id. at 114.
iii

Ms. Moore was asked to look around the courtroom and whether anyone looked like

the person who robbed the bank. She replied: “I can’t say for sure.” Id. at 116. Defendant

was asked to rise, to which there was no objection. Moore was asked about similarities or

dissimilarities to the bank robber. She said his skin tone was the same: “He was good

looking. He wasn’t scruffy, about the same height, same build. I couldn’t say for sure that

that would be him.” Id. at 116. She did not see any distinctive tattoos on the robber. Id. at

117.

She testified that she had picked out photo number five on Government Exhibit 4

“because of the skin tone and the good looking characteristics.” Id. at 118. She was asked

about facial hair and she said she was sure there was none “on the sides,” but she did not

remember about a mustache. Id. at 119. On cross-examination she testified she had been

shown a photo lineup with six pictures on it. There was no suggestion made that the person

was in the photo lineup. Id. at 122. She did pick defendant Hawkins out on the photo

lineup because of his complexion and color. Id. at 122. She said she was asked whether

from looking at defendant Hawkins she could say he was the bank robber, and she replied:

“No, not for sure.” Id. at 123.

Holly Roybal

Holly Roybal had been employed at the Norwest Bank for ten months in the branch

at San Mateo on Zuni Street. A man came up to the teller next to her, Holly Revelles, and,

after a couple of minutes, said: “This is a robbery.” Id. at 162. In Government Exhibit No.

1, Roybal recognized herself and saw the person who ultimately robbed the bank. Id. at 163.

The man said: “This is a robbery.” And then he leaned on the counter. Id. at 164. She got

a good look at his face. He had a black hat and black sunglasses on. Id. at 165.

The robber was an African-American, probably 5'10" or 6' in height. Id. at 166. Ms.

Roybal saw a tattoo on the right side of his neck. Id. at 167. She said to the police that the

tattoo looked “like a grapevine or a picket fence.” Id. at 167. Looking at a photograph,

Government Exhibit No. 3, Roybal testified that she was almost positive it was the same

tattoo she saw on the bank robber. Id. at 169.

She was asked to look around the courtroom, and replied that she could not say from

the glasses and hat she remembered that the robber appeared to be there. She said, “I don’t

think it would be fair to point him out.” Id. at 170. She was asked about the defendant’s

relative build, which compared to the robber. She said he did fit the size, height and weight

of the robber but that she still could not say Hawkins was the robber: “I just don’t think that

is fair, I am sorry.” Id. at 173. On cross-examination, Ms. Roybal said she did not

remember the robber having any facial hair at all. Id. at 176. She remembered the tattoo
iv

looking like “a grapevine.” Id. at 176. On redirect, she was shown a photo in Government

Exhibit 3, and had no doubt it was the same tattoo she saw on the bank robber. Id. at 178.

Lori Figura

The government called Lori Figura as a witness for the prosecution. She testified she

is an FBI agent. II R. at 179. Ms. Figura is assigned to the Violent Crimes Reactive Squad,

which encompasses bank robberies. Id. at 180. She responded to the bank robbery at the

Norwest Bank on March 25th of 1996. She said that she arrived at the bank at approximately

11:00 or shortly after 11:00, and was accompanied by other FBI agents; she thinks that there

were three. Id. at 181. Then another joined, so that there were five agents in all.

When Ms. Figura and her fellow FBI agents got there at 11:00, Albuquerque Police

Department officers were already there, three of them. II R. at 181. Ms. Figura was the case

agent on this bank robbery. The Albuquerque Police Department and the FBI attempted to

locate the robber, searching the neighborhood. Id. at 183. The neighborhood search was

not successful.

Agent Figura received information making the defendant Hawkins a suspect and she

then obtained a photograph of Mr. Hawkins. She put it in a photo spread with five other

photographs. Id. at 184-85. She then took the photo spread over to the Norwest Bank to

show the two tellers, Holly Revelles and Holly Roybal. They identified position number five

as the suspect, the position in which the photo of Mr. Hawkins was placed in the photo

spread. This was on the day of the robbery. Id. at 185. Agent Figura then prepared an

affidavit for an arrest warrant for defendant Hawkins. Agent Figura was then asked and

identified Mr. Hawkins as sitting at the defense table. She said he was in position number

five on the photo spread. Id. at 186. The arrest of Mr. Hawkins occurred the next day,

March 26, about 4:25 p.m. Id. at 186. Agent Figura also prepared a search warrant for the

residence at which Mr. Hawkins lived with his parents at 1516 Williams. Other members

of the FBI executed the search warrant. Id. at 186. 

The search began at 4:40 p.m. after the defendant’s arrest in the neighborhood around

his house where he was found a block away. Id. at 187. Agent Figura identified in her

testimony Exhibit 5, which was one of the photographs from the office where defendant was

photographed and processed the day after the bank robbery. Id. at 188. Exhibit 3 was

identified as a photo of defendant taken of the right side of defendant’s neck. Id. at 188.

Ms. Figura also received four photographs from the bank’s surveillance camera which are

represented in Government Ex. 1. Id. at 189. The counter was “dusted” for latent or

unknown fingerprints. One that was found did not match Mr. Hawkins’s print. II R. at 192.
v

At the house on Williams Street, the agents searched defendant’s room and his

possessions and the rest of the residence. Id. at 193. Searching throughout the entire house,

nothing was found that related back to either the money or items of clothing identified in the

videotape or a Jansport Bag. Id. at 193. The same was true of the residence of the girlfriend

of defendant Hawkins. Nothing was found that would support what he was wearing or what

he had taken from the bank. Id. at 194.

Hawkins was taken back to the FBI office and was given his Miranda warnings from

a form. Hawkins waived his rights and gave a statement to Agent Figura. Id. at 194. This

was at approximately 4:45 or 4:50 p.m., when Hawkins began talking with the agents.

Agent Tresder asked the questions, and they talked with Hawkins for approximately 45 or

50 minutes. They asked Hawkins whether he had robbed the bank the day before, and he

said he did not. Id. at 196-97. He said he had awakened around 10:00 that day, when his

mother called him. Hawkins walked around the neighborhood for a while and then went to

his friend’s house around noon time. 

On cross-examination, Agent Figura said they found about $137 at defendant’s

residence, but there were no $50 bills. Id. at 201. None of the bait money was found there.

A shirt that was seized was found not to be the correct shirt that defendant had warned. Id.

at 201. From the consensual search at the house of defendant’s girlfriend, no evidence was

seized. II R. at 202. So far as Agent Figura knew, defendant did not own any vehicle. Id.

The agents searched everywhere that they knew of where defendant might have stored any

money. Id.

The day Mr. Hawkins was arrested, he had a mustache. Id. at 203. The mustache on

defendant was about the same when Agent Figura saw him the day after the robbery as it

appeared in the courtroom. Id. Figura was asked to examine Government Ex. 2 and said

that this photo looked the way defendant did. His sideburns, mustache and everything were

a little cleaner, but almost the same as in the courtroom. Figura said the mustache was

clearly visible. Id. at 204. Agent Figura said that if she noted “clean-shaven,” that indicated

that the person interviewed did not specifically mention facial hair. Id. at 206. The photo

identified as Government Ex. 2 was one taken a few months earlier, at least. Id. at 206-07.