1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-28-1995

United States v Emanuele

Precedential or Non-Precedential:

Docket 94-3283

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Recommended Citation

"United States v Emanuele" (1995). 1995 Decisions. Paper 87.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/87
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _____________________ 

 No. 94-3283 

 _____________________ 

 United States of America, 

 

v. 

 Joseph Arthur Emanuele, 

 Appellant. 

 _____________________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. No. 94-cr-3) 

_____________________ 

 

 Argued January 31, 1995 

 Before: SCIRICA, ROTH, and SAROKIN, Circuit Judges

 (Filed March 28, l995) 

 _____________________ 

Thomas S. White 

Federal Public Defender 

Michael D. Bartko (argued) 

Karen S. Gerlach 

Assistant Federal Public Defenders 

415 Convention Tower, 960 Penn Ave. 

Pittsburgh, PA 15222 

 Attorneys for Appellant

Frederick W. Thieman 

United States Attorney 

Bonnie R. Schlueter 

Assistant United States Attorneys 

633 United States Post Office & 

Courthouse 

Pittsburgh, PA 15219 
John T. Bannon, Jr. (argued) 

General Litigation & Legal Advice 

Section, Criminal Division 

P.O. Box 887 Ben Franklin Station 

Washington, D.C. 20044 

 Attorneys for Appellee

____________________ 

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 other 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 135. 

 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 

photospread 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 case. 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 constitutional error was 

harmless. Foster v. California, 394 U.S. 440, 444 (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 (1990); Neil v. Biggers, 409 U.S. 188, 198-99 (1972). 

But see Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991) 

(standard is "'very substantial likelihood of irreparable 

misidentification'")(quoting Manson v. Brathwaite, 432 U.S. 98, 

116 (1977) and Simmons v. United States, 390 U.S. 377, 384 

(1968)), cert. denied, 112 S.Ct. 1679 (1992). A "suggestive and 

unnecessary identification procedure does not violate due process 

so long as the identification possesses sufficient aspects of 

reliability," for reliability is the "linchpin in determining the 

admissibility of identification testimony." Brathwaite, 432 U.S. 

at 106, 114. See also Reese, 946 F.2d at 258 (suggestive 

interaction that creates no risk of misidentification does not 

violate due process). 
 To determine reliability, we examine the identification 

procedure in light of the "totality of the circumstances." 

Riley, 973 F.2d at 228. These circumstances may include the 

witness' original opportunity to observe a defendant and the 

degree of attention during that observation; the accuracy of the 

initial description; the witness' degree of certainty when 

viewing a defendant or his image; and the length of time between 

the crime and the identification procedure. Biggers, 409 U.S. at 

199-200; Brathwaite, 432 U.S. at 114; Riley, 973 F.2d at 228; 

Reese, 946 F.2d at 258; Dowling, 855 F.2d at 117. 

 Several aspects of the reliability inquiry deserve comment. 

First, this court suggested in Reese that to determine 

reliability we may also consider other evidence of the 

defendant's guilt, Reese, 946 F.2d at 259, n.7, a principle we 

applied in Riley as well. 973 F.2d at 228. The suggestion is 

contrary to the Supreme Court's guidance in Brathwaite that other 

evidence indicating a defendant's guilt "plays no part in our 

analysis" of reliability. Brathwaite, 432 U.S. at 116. Justice 

Stevens emphasized the point in his Brathwaite concurrence, 

applauding the majority opinion which "carefully avoids this 

pitfall and correctly relies only on appropriate indicia of the 

reliability of the identification itself." Brathwaite, 432 U.S. 

at 118 and note (Stevens, J., concurring). We caution, 

therefore, that only factors relating to the reliability of the 

identification will be relevant to a due process analysis. 
Independent evidence of culpability will not cure a tainted 

identification procedure, nor will exculpatory information bar 

admission of reliable identification testimony. We will consider 

other evidence only to determine whether an error, if present, 

was harmless. Brathwaite, 432 U.S. at 118, note (Stevens, J. 

concurring). 

 Second, we note that the standard enunciated for reliability 

in Riley differs from that applied in Reese. Compare Riley, 973 

F.2d at 228 ("substantial risk of misidentification") with Reese, 

946 F.2d at 258, 262 ("very substantial likelihood of irreparable 

misidentification"). As in Riley, our phrasing of the standard 

in Stevens and Dowling omitted the requirement of irreparability. 

Stevens, 935 F.2d at 1391-92; Dowling, 855 F.2d at 117. We 

conclude that our most recent statement of the standard, that of 

Riley, like our phrasings in Stevens and Dowling, most accurately 

reflects Supreme Court precedent. Thus, we must decide whether 

there exists a "substantial risk of misidentification." 

 Third, previous courts, as the district court here, have 

wrestled with the degree of government complicity in a suggestive 

procedure that is necessary to implicate the due process clause. 

Where the alleged taint concerns the composition of a line-up or 

photospread, the government's involvement is clear; where the 

challenge concerns an encounter between witness and defendant on 

the street, in the courthouse, or at a prison, some courts have 

held that the government cannot be held responsible. See, e.g., 
Reese, 946 F.2d at 261 (procedure proper where no evidence that 

courthouse encounters "were deliberately arranged by the 

government"); Stevens, 935 F.2d at 1390 n.11 (quoting Wilson v. 

Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985)(defendant must "show 

that the government's agents arranged the confrontation or took 

some action during the confrontation which singled out the 

defendant")). 

 We hold that the government's intent may be one factor in 

determining the risk of misidentification, but it is not an 

essential element of defendant's burden of proof. A series of 

events that is suggestive and creates a substantial risk of 

misidentification is no less a due process violation, even absent 

evil intent on the part of the government. Stated differently, 

governmental intent is one of many factors in the totality of 

circumstances, but we expressly do not require defendant to 

establish the government's state of mind. On the other hand, 

evidence that the government intended and arranged such an 

encounter would be a substantial factor in the court's analysis. 

 B. Application

 At the suppression hearing the district court determined 

neither whether the courthouse encounter was unnecessarily 

suggestive nor whether there was a substantial risk of 

misidentification. To the extent it considered the courthouse 

encounter, the court focussed on the government's intent. See
App. at 72, 87-88.1 Regarding the risk of misidentification, the 

court made no findings as to the Biggers factors and in fact 

instructed counsel that Woessner should "testify only on the 

issue of what happened yesterday." App. at 90. At the close of 

the hearing the court held: 

 Okay. I'm going to allow Miss Woessner to testify and I'm 

going to deny the request for the lineup at this point, 

based on this witness' testimony that she has an independent 

basis of her identification of the defendant. 

App. at 138. 

 In essence, the district court relied on Woessner's 

testimony that notwithstanding the suggestive circumstances, she 

recognized the defendant.2 That testimony alone, even if 

believed by the trial court, would not be dispositive. Indeed, 

if Woessner did not so testify, the issue would not even arise. 

All of these instances are predicated upon a witness' insistence 

that an identification can be made notwithstanding suggestive 

circumstances, and there is frequently a good faith belief by the 

 

 1In its only writing on the topic, denying the motion for a 

new trial, the court concluded: 

 [A]n incident occurred which did not involve a deliberate 

attempt by the Government to obtain a suggestive 

identification by any witness . . . What occurred was an 

inadvertent and unplanned viewing . . . the Court finds that 

. . . this was not an identification procedure designed and 

manufactured by the Government to bolster the witnesses' 

testimony at trial . . . 

May 3, 1994 Order, App. at 683 (emphasis added). 

 

2The dissent quite properly refers us to this testimony. 
witness in such ability. However, the sincerity or truthfulness 

of the witness must be considered along with the other Biggers

factors in order to determine whether the risk of 

misidentification still exists, notwithstanding a witness' 

testimony to the contrary. The trial court failed to consider 

the "totality of the circumstances," such as in this case the 

inability of the witness to recognize defendant in a photospread 

despite a sufficient opportunity to observe the robber at close 

range. The court thus failed to apply the correct legal 

standard. Because the factual record is complete and 

uncontroverted, however, we need not remand for further factfinding. We will apply the appropriate standard to the 

undisputed facts. 

 We evaluate first whether the interaction was unnecessarily 

suggestive. It is undisputed that the two tellers were sitting 

outside the courtroom because the U.S. Attorney's receptionists 

had told them to be there, and that defendant was walked past 

them in handcuffs with a U.S. Marshal on each shoulder. 

Defendant had not asked to leave the courtroom -- he was ordered 

out when the court granted the government's motion to have 

defendant shave. 

 In the face of these events, the government directs our 

attention to Reese, where we concluded that it was not 

impermissibly suggestive for a victim to glimpse defendant three 

times in and around a courthouse. 946 F.2d at 261-62. Our 
analysis in Reese cited to and relied on United States v. Domina, 

784 F.2d 1361, 1369-70 (9th Cir. 1986), cert. denied, 479 U.S. 

1038 (1987), a decision which held that it was not unduly 

suggestive for a victim to view a defendant leaving the courtroom 

during recess, because the defendant was not handcuffed, not

escorted by marshals, and not otherwise singled out. The 

circumstances here fit cleanly within the Domina exceptions cited 

in Reese, 946 F.2d at 261. 

 Nor are we persuaded by the government's invocation of two 

Eighth Circuit cases, United States v. Wade, 740 F.2d 625 (8th 

Cir. 1984), which we discussed in Reese, and United States v. 

Boykins, 966 F.2d 1240 (8th Cir. 1992), because each involve 

facts different from those here. Wade concerned a witness who, 

while looking into a courtroom from outside, was asked "in a 

nonleading fashion, shortly before she [took] the stand, whether 

she can identify a person." Wade, 740 F.2d at 628. The Eighth 

Circuit decided this was "the same question she will be asked 

while testifying" and was not impermissibly suggestive. Ibid. 

In Boykins, a witness recognized a defendant while walking to the 

courtroom and informed the prosecutor, who then accompanied the 

witness down the courthouse hallway to confirm the 

identification. Boykins, 966 F.2d at 1242. In Boykins the 

government did not single out the defendant. Furthermore, the 

failure of the witnesses in Wade and Boykins to identify a 

defendant in a previous photospread goes to the risk of 
misidentification, not the suggestiveness of the courthouse 

confrontation. 

 We conclude that the confrontation was caused by the 

government, albeit inadvertently, and that to walk a defendant -- 

in shackles and with a U.S. Marshal at each side -- before the 

key identification witnesses is impermissibly suggestive. 

 The more difficult question is whether this impermissibly 

suggestive confrontation created a "substantial likelihood of 

misidentification," in light of the totality of circumstances. 

Riley, 973 F.2d at 228. First, though we will consider the 

reliability of each teller's testimony separately, we note 

several Biggers factors common to both: the two tellers (a) had 

several minutes to observe the robber, (b) at close range, (c) in 

a well-lit space. We agree with the government that the 

unobstructed view of both tellers during the robberies would 

strengthen the reliability of their testimony. But this point 

also supports defendant's position. The tellers' protracted and 

clear view of the robber highlights Woessner's failure to select 

defendant's photo in the array and Hottel's choice of a different 

photo in the second array shown her. 

 Second, Woessner testified that she recognized defendant 

immediately upon seeing him in the hallway. We will assume that 

her testimony was truthful and sincere. 

 Third, in the courthouse the two tellers observed defendant 

together and immediately spoke to each other about his identity, 
prior to their testifying. This conversation may well have 

overwhelmed any doubts Hottel or Woessner retained after

observing defendant in the hallway, though given the indication 

that Hottel spoke to Woessner first, it is the reliability of 

Woessner's identification that is more impugned. Woessner 

testified: 

 Q Did Miss Hottel tell you that was him? 

 A Ah, not right away, only when he was down the hall she 

mentioned that. I mean, she spoke very softly and said that 

she, she was very upset because she didn't remember -- she 

didn't think she remembered what he looked like, but when 

she saw him she knew exactly that's who it was. 

 . . . 

 Q She didn't say that was him to you? 

 A I think we both looked at each other and we were kind 

of it's, it has to be him (witness nodding.) . . . 

App. at 134-35. 

 Finally, we consider a crucial difference between the 

circumstances of each teller's identification: the strength of 

the initial identification. As we noted in Reese, whether 

subsequent viewings create a substantial risk of 

misidentification may depend on the strength and propriety of the 

initial identification. 946 F.2d at 262-63. Upon viewing her 

first photospread, Hottel recognized defendant as the robber. 

Her slight qualification -- not being "one hundred percent sure" 

-- does not significantly diminish the import of that 

identification, nor does her subsequent selection of the 
photograph of another person in a second array. In contrast, 

having scrutinized an array that included his photograph, 

Woessner failed to identify defendant as the robber. All the 

photospreads were viewed close in time to the respective 

robberies. 

 Thus, we face a situation in which the one eye-witness who 

would be able to identify the Waterworks robber and place 

defendant at the scene of the crime, could not, despite her 

opportunity to observe, recognize him in a photo array. That 

failure, coupled with the highly suggestive viewing of the 

defendant in conditions reeking of criminality, bolstered by the 

comments of another witness, render the in-court identification 

unreliable. The reaction "it has to be him" greatly diminishes 

the reliability of Woessner's identification and renders manifest 

the impact of her viewing defendant. In effect, the viewing 

communicated to the witness that the defendant was the robber, 

and there was no reliable evidence that she would have so 

concluded or testified absent that viewing. 

 Under such suspect circumstances, there clearly was a 

substantial risk of misidentification.3 It was thus an abuse of 

 

 

3Even were we to require proof that the risk of 

misidentification by Woessner was irreparable, Reese, 946 F.2d at 

258, 262, our conclusion would be no different. Had the district 

court granted defendant's request for a line-up, the risk could 

perhaps have been "repaired," but under the facts of this case, 

the denial of the motion for a line-up for Woessner was an abuse 

of discretion. See United States v. Sebetich, 776 F.2d 412, 420-

21 (3d Cir. 1985) (line-up or similar procedure should "be 

employed whenever necessary to ensure the accuracy and 
discretion to admit Woessner's in-court identification testimony, 

in violation of defendant's right to due process. As to Hottel, 

we conclude that her identification was reliable, and thus the 

admission of her testimony was not an abuse of discretion. 

 C. Harmless error analysis

 We must determine whether the admission of Woessner's 

identification testimony, which we have determined to be a 

constitutional error, was harmless. Foster, 394 U.S. at 444. We 

inquire whether the government has shown "beyond a reasonable 

doubt that the error complained of did not contribute to the 

verdict obtained." Chapman v. California, 386 U.S. 18, 24 

(1967). "To say that an error did not contribute to the verdict 

is . . . to find that error unimportant in relation to everything 

else the jury considered on the issue in question, as revealed in 

the record." Yates v. Evatt, 500 U.S. 391, 403 (1991). See also

United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994). 

Because we recognize the risk that Woessner's testimony about the 

Waterworks robbery may have had a spill-over effect on the 

Millvale robbery verdict, we will consider its impact on both 

convictions. 

 1. Waterworks conviction

 

reliability of identifications"), cert. denied, 484 U.S. 1017 

(1988). Woessner's observation of defendant from the stand has 

destroyed the curative capacity of a line-up, and to remand for a 

line-up at this juncture would neither assist the court in 

determining the reliability of Woessner's testimony nor vindicate 

defendant's constitutional rights. 
 Apart from the contested surveillance photographs, there is 

no physical evidence linking defendant to the Waterworks robbery. 

The government refers us to evidence that defendant had an 

expensive drug addiction and unexplained income, as well as his 

post-arrest comment to another inmate that he would "beat the 

case." The government also relies on testimony of three persons, 

each of whom knew defendant, that he was the person in the 

Waterworks surveillance photographs. Of the government's three 

witnesses, one testified he had seen defendant only two or three 

times; the second was an admitted drug user on probation for a 

prior drug conviction; and the third was a convicted drug 

offender with pending charges for drug and prostitution offenses. 

App. at 166, 180, 191-93. 

 In his defense, defendant's mother and two friends testified 

that he was not the person in the surveillance photographs. App. 

at 344-45, 350, 362. Defendant also introduced expert testimony 

from a surgeon who had compared the dimensions of defendant's 

face to those of the robber in the surveillance photographs and 

concluded that he was "100 percent certain that they are not the 

same two people." App. at 407-08. In rebuttal, two government 

experts testified that the calculations made by defendant's 

expert were unreliable. 

 Woessner's testimony was crucial evidence on the robber's 

identity, the only issue at trial, and we cannot conclude that 

her testimony was "unimportant in relation to everything else the 
jury considered" on the issue. Yates, 500 U.S at 403. A 

conviction should not be permitted to stand under such 

circumstances, and accordingly, we conclude that the error was 

not harmless. 

 Heeding the advice of Justice Black in his Foster dissent, 

we will clarify the proceedings to follow. Foster, 394 U.S. at 

445 (Black, J. dissenting) (where appellate court vacates 

conviction for unconstitutional admission of identification 

testimony, court should specify which testimony by witness is 

barred at retrial). First, because the hearings on defendant's 

motions to suppress and for a new trial elicited all the relevant 

facts and left nothing in dispute, another hearing on the 

reliability of Woessner's identification testimony is 

unnecessary. Second, on remand for a new trial, the district 

court is directed to exclude in-court and out-of-court 

identification testimony by Woessner. To admit evidence of 

Woessner's recognition of defendant in the courthouse hallway 

would violate the due process clause for the same reasons as did 

admission of the in-court identification testimony. Third, 

subject to any other objections not herein considered, we do not 

limit the ability of the government or defendant to question 

Woessner on other aspects of the case, including the robbery 

itself, her initial description, and her failure to select 

defendant's photograph from the array. 

 2. Millvale conviction
 As to the identity of the Millvale robber, Woessner's 

testimony was not directly relevant: she identified the 

Waterworks robber and said nothing about the Millvale robbery. 

The court recognizes, however, that there is a slight risk that 

Woessner's identification of defendant tended to buttress that of 

Hottel. However, we are satisfied that such risk is minimal and 

the error harmless because of the other evidence supporting 

defendant's conviction for the Millvale robbery. In addition to 

the same circumstantial evidence of defendant's drug addiction, 

unexplained income, and jailhouse statements, there was properly 

admitted in-court identification testimony by Hottel and evidence 

that she had recognized defendant in the first photo-array. That 

identification testimony, as stated previously, was supported by 

her opportunity to observe the robber. 

 We conclude that Woessner's identification was unimportant 

in relation to all else the jury considered on the issue of the 

Millvale robber's identity, and hence the admission of Woessner's 

testimony was harmless error in that conviction. 

III. 

 Over defendant's objection that it would violate due process 

and Fed.R.Evid. 403, the district court ordered the defendant to 

shave and to stand before the jury wearing a pair of glasses that 

resembled those worn by the robber and that were supplied by the 

government. Rule 403 provides: "Although relevant, evidence may 
be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice . . . or misleading the jury." 

 In other cases, defendants have unsuccessfully invoked the 

Fifth Amendment privilege against self-incrimination to challenge 

motions requiring them to shave or put on clothing. See Holt v. 

United States, 218 U.S. 245, 252-53 (1910) (order to wear 

blouse); United States v. Valenzuela, 722 F.2d 1431, 1433 (9th 

Cir. 1983) (order to shave); United States v. Lamb, 575 F.2d 

1310, 1316 (10th Cir.) (order to shave), cert. denied, 439 U.S. 

854 (1978). 

 Here, defendant raises a due process objection to the 

orders. Some courtroom practices so deprive a defendant of his 

Sixth Amendment right to a fair trial that they implicate the due 

process clause. See Estelle v. Williams, 425 U.S. 501, 505-06 

(1976)(compelling defendant to appear in prison uniform 

unconstitutional). Others, however, while seemingly prejudicial, 

may comport with the Sixth Amendment in particular circumstances. 

There is nothing inherently prejudicial in the orders requiring 

defendant to shave and wear glasses in this case, nor has 

defendant demonstrated that they so prejudiced him as to deny his 

constitutional right to a fair trial. Indeed, the court informed 

the jury before defendant put on the glasses that they were 

supplied by the government and had not been discovered with 

defendant or any of his belongings. 
 Defendant also contends that the orders to shave and wear 

glasses violated Rule 403, in that the court failed to weigh 

their probative and prejudicial values. "As a general rule, we 

exercise great restraint in reviewing a district court's ruling 

on the admissibility of evidence under Rule 403." Government of 

the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 

1993). However, where an objection raises Rule 403 and a court 

fails to record its balancing analysis, we may review the record 

and need not defer to the trial court. Ibid.

 Before deciding the motions, the district court held a 

hearing and determined: 

 The burden is simply to establish substantial similarity of 

circumstances, and I think the government has done that 

here, and I think it's clear the government has done that 

from my observations of the photographs, from the testimony 

of the [FBI] Agent, and from the offer of the defense 

witness. And I think there's enough similarity and 

substantial particulars to grant the government's motion 

 . . . 

App. at 38. 

 Though the court did not record an analysis balancing the 

probative and prejudicial value of the proposed orders, we have 

reviewed the record and will affirm the orders. The Waterworks 

surveillance photographs showed a robber wearing glasses, and 

photographs taken eight days after the robbery, when defendant 

was arrested, depicted him with a slight moustache, one the court 

described as not "comparable" to the one he had at the pre-trial 

hearing. App. at 37. There was also evidence that defendant had 

worn similar glasses before. Thus, there was substantial 
probative value to having defendant shave and put on glasses. 

Defendant offered no evidence demonstrating prejudice regarding 

the order requiring him to shave, and the court informed the jury 

that the glasses were provided by the government and were not 

found with defendant. We conclude that the probative value of 

the twin orders outweighed any prejudice and Rule 403 was not 

violated. 

IV. 

 For the foregoing reasons, we affirm the judgment of 

conviction on the Millvale robbery count, vacate the judgment of 

conviction on the Waterworks robbery count, and remand for a new 

trial on the Waterworks count consistent with the foregoing 

decision. 

 __________________ 

United States v. Joseph Emanuele

No. 94-3283 

ROTH, Circuit Judge, concurring in part and dissenting in part:

 I respectfully dissent from that portion of the 

majority's opinion which reverses the defendant's conviction on 
the Waterworks bank robbery count. I do not agree with the 

majority's review of the evidence of Lorraine Woessner's 

encounter with the defendant in the courthouse hallway. I am 

concerned that the majority in its citation of the facts focusses 

on facts which support its conclusion that the identification of 

the defendant by Lorraine Woessner was impermissibly suggestive, 

rather than looking at the whole picture. Such a limited focus 

does support the majority's ultimate determination that the 

circumstances of the hallway viewing created a "substantial risk 

of misidentification." However, I conclude that a broader review 

of Woessner's voir dire testimony is required and that review 

supports the conclusion arrived at by the district court. 

 My reading of the record convinces me that, when the 

evidence is viewed completely and in context, it will uphold the 

district judge's decision to permit Lorraine Woessner to identify 

Emanuele in the courtroom, without holding a prior line-up. 

Before permitting Woessner to testify or to identify the 

defendant, the district court had Woessner examined on voir dire 

concerning the hallway encounter. I will set out Woessner's 

examination more completely so that its full scope can be 

appreciated. I begin my discussion with relevant portions of her 

direct examination: 

 Q At some time did you see someone come out of the 

courtroom? 

 A Yes, we did, um hum. 
 Q Could you describe to the Court exactly what 

happened? 

 A Well, we were sitting there and we were, I guess we 

were waiting to be called in as the witness and three 

men came out, and we both were kind of startled, and I 

recognized him right away and, um, didn't say anything. 

And he was down the hall, and pretty far down the hall 

when we said to each other, it's him. 

 Q So now, if I get this straight, when he first came 

out of the courtroom did anybody say anything to you 

prior to your having recognized him?

 A No. 

 Q Now, why did you recognize him? What was your basis 

for recognizing him? 

 A I think it was like his eyes, only it was -- because 

-- it was his eyes. 

 Q Now, at the time -- so, and what were you basing 

that, that rec-- that recognition on, on your 

recollection of what occurred on the December 1, 1993? 

 A Well, because when it happened, he came in and 

stood, not behind my customer that I was waiting on, 

just about two feet onto the side of him and he just -- 

he had his glasses on and he just starred [sic] at me. 

I mean, it just like -- I, I mean, I'll never forget 

it. 

 Q How long was he in front of you? 

 A I would say -- I was finishing up with my customer. 

I would say like about three or four minutes. 

 Q Now, the government has previously shown to you a 

series of pictures; correct? 

 A Um hum. 

 Q And if I could show you what's been marked as 

Government Exhibits 4 through 9 for purposes of trial, 

will you look at these for a moment? 
 Now, you've looked at those previously, right? 

 A Um hum. 

 Q And you weren't able to identify anybody? 

 A Huh ah.4

 Q And you still can't? 

 A I can identify him, but I mean -- 

 Q You can't identify him from the picture? 

 A Huh ah. 

 Q But you can identify the person that you saw in the 

hallway? 

 A Um hum. 

App. at 128-130 (emphasis added). 

 Further information was then developed on the defense's 

cross-examination of Lorraine Woessner on voir dire: 

 Q And from the doors in the courtroom there's like a 

hallway leading to the hallway where you were sitting? 

In this hallway, there's a hallway that goes down? 

 A Yes. 

 Q So, it -- like you were sitting like at the end of a 

"T" almost, so that you could see the courtroom doors? 

 A We could see the courtroom doors. 

 Q Okay. And there's, I don't know, 20 feet or some -- 

approximately something like that from where you were 

sitting to the courtroom doors? 

 A Yes. 

 

 

4I interpret "um hum" as "yes" and "huh ah" as "no." 
 Q And you and Miss Hottel were talking about what? 

 A We were just talking about things that we were 

previously through. We had gone through Integra 

training and we had gone through that. 

 Q I see. Now, the courtroom doors open and three men 

walk out? 

 A Yes. 

 Q The gentleman in the middle has his arms behind his 

back? 

 A Yes. 

 Q And he has one man on each side? 

 A Yes. 

 Q Did the men on each side have like their hand on his 

arm or? 

 A I didn't notice that. 

 Q Didn't notice that? 

 A Huh ah. 

 Q You did notice, though, that the man in the middle 

had his hands behind his back? 

 A Yes. 

 Q And you did notice at some time that he was 

handcuffed? 

 A After he was down the hall. 

 Q You could see when he was going down the hall that 

he was handcuffed? 

 A Um hum. 
 Q But you knew he was being escorted; he was in the 

middle from two guys that were escorting him out of the 

courtroom? 

 A Yes. 

 Q Did Miss Hottel tell you that was him? 

 A Ah, not right away, only when he was down the hall 

she mentioned that. I mean, she spoke very softly and 

said that she, she was very upset because she didn't 

remember -- she didn't think she remembered what he 

looked like, but when she saw him she knew exactly 

that's who it was. 

 Q After the person was taken down the hallway? 

 A Yes. 

 Q You and Miss Hottel said that it was him. You 

turned to each other? 

 A No, not really. 

 Q No? 

 A Huh ah. 

 Q Did you discuss the person that came out? 

 A No, no. 

 Q Didn't say that was him? 

 A Huh ah. 

 Q She didn't say that was him to you? 

 A I think we both looked at each other and we were 

kind of it's, it has to be him (witness nodding.) 

 Q But, it has to be him? 

 A Um hum. 

 Q Because he was handcuffed or? 
 A Well, no, not because he was handcuffed, because 

from, from his personal appearance. 

. . . 

 Q After this happened. 

 Did you discuss with Miss Hottel the eyes? 

 A No. 

 Q She didn't tell you that? 

 A Well, she, she thought it was his eyes, and I, I 

mean, I agreed with her. 

 Q You agreed with her? 

 A Right. 

 Q But Miss Hottel did mention something about the 

eyes? 

 A Um hum. 

 Q Did she bring up the eyes first or did you? 

 A I don't really remember that. 

 Q The two of you, though, did have a conversation 

about the eyes on the person that was escorted out of 

the courtroom? 

 A Well, we didn't have a conversation. 

 Q You just said it was the eyes? 

 A Right. 

App. at 133-136. 

 Based on this voir dire examination of Lorraine 

Woessner, the district judge decided that she would allow 

Woessner to testify and would deny the defense motion for a 
lineup because the judge found that Woessner had "an independent 

basis for her identification of the defendant." App. at 138. 

From my review of this testimony, I do not find this factual 

determination by the district judge to be clearly erroneous. See

United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991) 

(district court's refusal to suppress documents reviewed for 

clear error as to the underlying facts). 

 In reviewing such a factual determination by the 

district court, we do not have to agree with the conclusion 

arrived at by the district judge (although I am prepared to do 

so). We must instead determine whether the district judge's 

conclusion is supported by the evidence. See e.g. Cooper v. 

Tard, 855 F.2d 125, 126 (3d cir. 1988) (for clear error "our 

standard of review is whether there is sufficient evidence in the 

record to support [the district court's] findings). Clearly here 

there is sufficient evidence. Lorraine Woessner testified that 

she recognized the defendant "right away" as he came out of the 

courtroom -- before he passed her so that she could see the 

handcuffs and before Martha Hottel said anything about his 

identity. The district judge was present to hear the testimony 

and to weigh credibility. I find it inappropriate for us to 

completely disregard the judge's credibility determination -- as, 

it would seem, we must if we do not accept Lorraine Woessner's 
testimony that she recognized the defendant "right away" as he 

emerged from the courtroom.5

 In view of the credence which the district judge had to 

give to Lorraine Woessner's statement that she recognized 

Emanuele "right away,"6 what weight must I give to the fact that, 

after Emanuele had walked past her, Woessner could see that his 

hands were cuffed behind him? In view of the immediate 

recognition, I do not find Woessner's subsequent observation of 

the handcuffs to be unduly suggestive -- just as the majority 

does not find unduly suggestive the fact that Martha Hottel saw 

the handcuffs also. 

 This then brings me to the issue of the propriety of 

the standard followed by the district court: Was there "an 

independent basis" for the identification; i.e., is Woessner's 

immediate recognition of Emanuele, a sufficient ground to support 

the denial of the defense's motion for a lineup. I conclude that 

"an independent basis" for an identification is consistent with 

an identification which possesses sufficient aspects of 

reliability; that Woessner's testimony of immediate recognition 

of the defendant eliminates the "substantial risk of 

 

 

5As the majority acknowledges, because there was no apparent 

government complicity in the way in which the confrontation came 

about, I do not have to factor the element of evil government 

intent into my consideration. 

 

6The district judge could not have arrived at the decision 

she did if she had not believed Woessner on this point. 
misidentification" which could be engendered by such an 

encounter. If Woessner recognized Emanuele immediately in the 

corridor, I easily infer that she would have recognized him 

immediately in the courtroom had the corridor encounter not 

occurred. Lorraine Woessner testified on voir dire that, at the 

bank, she observed the defendant for three or four minutes as he 

stood about two feet from the side of the customer she was 

waiting on; that she recognized the defendant immediately when he 

came out of the courtroom, before she could see his hands cuffed 

behind him; that she recognized him in the hallway from his eyes; 

and that the photograph of defendant, which she could not 

identify as the defendant when it was shown to her by the F.B.I., 

she again in the courtroom, after the hallway encounter, could 

not identify as the defendant. 

 For all the above reasons, I believe that the district 

court did not err when it permitted Lorraine Woessner to make a 

courtroom identification of the defendant. I am, therefore, of 

the opinion that defendant's conviction on the Waterworks bank 

robbery count should be affirmed.7

 

 

7Because I would affirm the district court's admission of 

Woessner's in-court identification of the defendant, I do not 

need to go on to harmless error. However, were that necessary, I 

would find any error to be harmless. The surveillance photos, 

taken at the Waterworks bank, are independent corroboration of 

defendant's involvement. They were identified, as being of 

defendant, by a disinterested witness, who had recently repaired 

Emanuele's car for him, and by a woman who had given him a 

temporary place to stay. The "interest" of the witnesses, such 

as defendant's mother and his girl friend, who could not identify 
 

the bank photos, was made evident to the jurors, who also saw the 

photos. 

 Moreover, defendant's "expert witness," the plastic surgeon 

who testified from a comparison of photographs that the bank 

photos were not of Emanuele, admitted that he knew little about 

photography. The photographs he compared with the bank photos 

were taken with a different camera and different film; the image 

was captured at a different location on the surface of the camera 

lens, while Emanuele was standing still. App. at 444-46. As the 

prosecution's photography expert testified, the slow film and 

poor lens in the bank camera could "smear" a moving figure on the 

film so that the image was distorted. App. at 465-67. In 

addition, the defense expert made his measurements from points, 

such as the eyebrows, which may move according to the subject's 

expression, e.g., a frown or a smile. I raise my own eyebrows at 

this type of expertise.