United States of America v. Stanley Sanders

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1737
_____________
UNITED STATES OF AMERICA
v.
STANLEY SANDERS,
Appellant.
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cr-0173)
District Judge: Honorable Gene E.K. Pratter
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 18, 2008
Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.
(Filed: April 22, 2008)
_______________
OPINION OF THE COURT
_______________
_______________
*Honorable Arthur L. Alarcon, Senior Circuit Judge of the Ninth Circuit Court of
Appeals sitting by designation.

-- 1 of 12 --

2
JORDAN, Circuit Judge.
Stanley Sanders was convicted in the United States District Court for the Eastern
District of Pennsylvania of two counts of bank robbery in violation of 18 U.S.C.
§ 2113(a). He timely filed the present appeal, challenging, first, the District Court’s
denial of his pretrial motion to suppress out-of-court identifications made pursuant to an
allegedly suggestive photo array; second, the Court’s overruling of his objections to an
allegedly prejudicial remark by the prosecutor during closing argument; and, third, the
validity of his sentence in light of what the government has acknowledged was a mistake
in the calculation of his criminal history score. We will affirm the conviction, vacate the
sentence, and remand for resentencing.
I. Background
The robberies that Sanders was convicted of committing occurred in January and
February of 2006. According to testimony from the trial, which was evidently accepted
by the jury, on January 11, 2006, Sanders got into a teller line at the Sovereign Bank
branch at 2000 Market Street in Philadelphia, Pennsylvania. One of the bank tellers,
Christopher Stone, told Sanders he was entering the line at the wrong end. Sanders did
not go to the end of the line but instead waited for Stone to finish with a customer.
Sanders then walked up to Stone and handed him a note, which read, “100s, 50s only.
No dye packs. No alarm. No one hurt. Don’t do anything until I leave.” (Appendix
[“App.”] at 362.) Fingerprint analysis subsequently showed that the note had been

-- 2 of 12 --

3
handled by Sanders. After Stone read the note, he asked Sanders “if this was for real”
and Sanders said, “yeah.” (App. at 358.) In keeping with the training he had received,
Stone made a point of studying Sanders’s face. Stone gave Sanders money and then
watched through the bank’s windows as Sanders left the bank and walked around the
corner. Immediately after the robbery, Stone gave the police a detailed description of the
robber. Shortly thereafter, the police had Stone look at a suspect they had detained, and
Stone told them they had the wrong man.
On February 1, 2006, Sanders entered the Citizens Bank branch at 2001 Market
Street in Philadelphia. He waited in line, then approached teller Alexandra Scott and
handed her a note. It read, “20s plus 10s. No alarms. No dye packs. No one hurt. Don’t
do anything until I leave.” (App. at 395.) Like Stone, Scott had received training on how
to respond during a robbery. She studied Sanders’s face and hands as she put money in
an envelope and handed it to him. After the robbery, she gave police a detailed
description of the robber, including mention of a scar by the thumb of his right hand.
Given the similarity in the descriptions provided by the two tellers, and the nearly
identical language in the demand notes, law enforcement agents concluded that the
robberies were committed by the same person. Bank surveillance photographs from the
second robbery were particularly clear, one of them even showing the scar on the robber’s
hand. Agents thus decided to publish one of those photographs in a newspaper and to
request the public’s assistance in identifying the robber. A woman named Nancy Kincaid

-- 3 of 12 --

4
saw the photograph in the newspaper and immediately recognized the robber as Sanders,
whom she had seen weekly during the course of the previous year at a veterans center
where she worked. She contacted the FBI and provided information that led agents to
confirm with one of Sanders’s prior employers, Aluminum Shapes, that Sanders had a
scar on his right hand. Some of Kincaid’s co-workers at the veterans center and
supervisors from Aluminum Shapes also identified Sanders from bank surveillance
photographs.
Agents next obtained a close-up picture of Sanders from a computer database and,
using that and pictures of other men, created a photo array from which the victim tellers
identified Sanders. Sanders was arrested for the robberies and, following his failed
attempt to suppress the tellers’ out-of-court identifications, he was tried and convicted.

-- 4 of 12 --

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we exercise1
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We review the District Court’s decision to admit evidence, including identification
evidence, for “abuse of discretion, applying clear error review to its underlying factual
findings and plenary review to its conclusions drawn from such facts.” United States v.
Mathis, 264 F.3d 321, 331 (3d Cir. 2001).
As to the District Court’s decision to overrule defense counsel’s objection to the
prosecutor’s comment during closing argument, we review for abuse of discretion.
United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003) (“We review the District
Court’s ruling on any contemporaneous objections [to the prosecution’s closing remarks]
for abuse of discretion.”).
Finally, because the defendant did not raise before the District Court his argument
about a miscalculation under the Guidelines, we review that argument for plain error.
United States v. Wood, 486 F.3d 781, 790 (3d Cir. 2007). “Under the plain error
standard, a reviewing court may reverse an order or judgment of the district court ‘only if
[it] find[s] that (1) an error was committed; (2) the error was plain, that is, it is ‘clear’ and
‘obvious;’ and (3) the error ‘affected [the defendant's] substantial rights.’” Id. at 790 n.6
(citations omitted).
5
II. Discussion1
As earlier noted, we are presented with three arguments on appeal: first, that the
defense motion to suppress should have been granted because the photo array was unduly
suggestive; second, that the prosecutor made an improper comment during closing
arguments; and, third, that the District Court miscalculated the advisory sentence to which
Sanders was exposed under the United States Sentencing Guidelines.
A. The Out-of-Court Identifications
Sanders’s argument against the admission of the pretrial identifications focuses on
the photo array that the FBI constructed and the manner in which the array was
introduced to the tellers. The array itself includes a facial shot of Sanders, showing him
from just above the top of the shoulders to the top of his head. From the photograph, it

-- 5 of 12 --

6
appears, though one cannot be certain, that he is not wearing a shirt. The agents
assembled that photograph with seven other photographs of men who, like Sanders, are
African-American and have beards. Sanders is shown in the upper left-hand corner of a
two row display, with four photos in each row. Before displaying the array to Stone and
Scott, the victim tellers, agents spoke to each of them separately, showed them the bank
surveillance photographs, and discussed the robbery that each had experienced. Stone
and Scott were told that the robber may or may not be in the array and were further told
not to pick out a photograph unless they were sure it depicted the robber. Both
immediately and positively identified the photograph of Sanders as a depiction of the man
who robbed them.
At the pretrial suppression hearing, the District Court denied Sanders’s motion to
suppress, saying,
there was no intrusion on Mr. Sanders’ due process rights here ... . The
array is not unnecessarily suggestive; in fact, I think it could be said that
it’s not at all suggestive and, even if it were, it’s fairly clear based on the
testimony of the two witnesses that there was no risk of any
misidentification here at all because of their clearly explained opportunities
to observe and the degree of attention ... which they both gave the robber ...
. They appear to have been accurate, they certainly expressed no
uncertainty at all in terms of the identifications that they made.
(App. at 118-19.)
We agree with the District Court. We have a two-step process for determining
whether an out-of-court identification must be excluded:

-- 6 of 12 --

7
The first question is whether the initial identification procedure was
‘unnecessarily’ ... suggestive. This inquiry ... contains two component parts:
that concerning the suggestiveness of the identification, and that concerning
whether there was some good reason for the failure to resort to less
suggestive procedures. If a procedure is found ... unnecessarily suggestive,
the next question is whether the procedure ... gave rise to such a ‘substantial
likelihood of ... misidentification’ that admitting the identification would be
a denial of due process.
Mathis, 264 F.3d at 330 (alterations in original) (quoting United States v. Stevens, 935
F.2d 1380, 1389 (3d Cir. 1991)). Here, the inquiry ends with the first step, since neither
the array itself nor the manner in which it was presented to the witnesses was
unnecessarily suggestive.
Sanders complains that eight photos were too few to be fair, that his photo was in
too prominent a position within the array, and that his photo stood out because he was the
only one not wearing a shirt. None of those complaints, either singly or in combination,
leads us to believe the array was unnecessarily suggestive. The defendant cites no
evidence or authority for the proposition that eight photographs are too few to be fair. Cf.
United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003) (six photo array not unduly
suggestive). Nor do we believe that the placement of his photo in the upper left-hand
corner of the array would suggest it should be selected. Likewise, we are not prepared to
say that there is any logical connection between being bare-chested and being guilty.
Each photo shows a man with unique characteristics. That does not make unduly
suggestive the characteristics unique to Sanders’s photo. See Reese v. Fulcomer, 946
F.2d 247, 260 (3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. §

-- 7 of 12 --

8
2254(d) (“[P]hotographic displays have been held not unduly suggestive even when
certain characteristics of the defendant or his photograph are set apart from others.”).
The assertion that the procedure employed in displaying the array was
impermissible is also unpersuasive. We are satisfied that, even if the defense is correct in
asserting that discussion of the robberies and display of the bank surveillance photographs
were problematic (and we do not need in this case to decide whether that assertion is
correct), the totality of the circumstances militates against a holding that the procedure
employed was unduly suggestive. The agent who displayed the array showed all of the
pictures at once, cf. Lawrence, 349 F.3d at 115 (“[I]t appears to us that showing all of the
photographs at once can be a very fair way to proceed depending on all circumstances
surrounding the identification.”), and he specifically advised the victim tellers that the
array might not contain the picture of the perpetrator.
Finally, we should note that, even if there were something unnecessarily
suggestive in the array or the procedure employed in displaying it, Sanders has not carried
his burden of showing that there was “such a ‘substantial likelihood of ...
misidentification’ that admitting the identification[s] [was] a denial of due process.”
Mathis, 264 F.3d at 331 (citation omitted). The District Court did not err in concluding
that each teller’s out-of-court identification of Sanders was reliable, especially given each
teller’s opportunity to observe Sanders during the robbery, the degree of attention each

-- 8 of 12 --

More specifically, Sanders argues that the prosecutor’s statement constitutes2
misconduct that diluted the requirement of proof beyond a reasonable doubt and that,
therefore, the error is “structural” and “requires reversal without reference to the harmless
error doctrine.” (Appellant’s Br. at 29, citing Sullivan v. Louisiana, 508 U.S. 275, 279
9
paid, the accuracy of their descriptions, and the level of certainty each displayed in
identifying Sanders.
B. The Prosecutor’s Rebuttal Argument
In closing argument, defense counsel used an analogy to explain the concept of
reasonable doubt. He asked the jurors to think of themselves contemplating a medical
operation that would forever change their lives, that might in fact be fatal. If the jurors
thought they would “hesitate and pause” before deciding whether to proceed, they would
be experiencing a reasonable doubt, he said. (App. at 649-50.) Not surprisingly, the
prosecutor, in rebuttal, sought to blunt the effect of that pause-before-you-die
hypothetical. She said the burden of proof “is not beyond all doubt, it’s reasonable doubt,
the level of doubt beyond which everyone has ever been convicted in Federal court.”
(App. at 654-55.) At that point, defense counsel said, “objection” and the Court
responded, “overruled.” Nothing more was said about the prosecutor’s statement. The
Court gave a standard instruction on the meaning of “reasonable doubt,” and no
exceptions were taken to the charge.
Because of the somewhat awkward concluding clause of the quoted sentence from
the prosecution’s rebuttal, Sanders argues that the standard of reasonable doubt was
hopelessly compromised in this case and that the government introduced extra-record2

-- 9 of 12 --

(1993).)
10
information about other convictions. Merely to state the argument, however, is to see it
as out of proportion to the infraction, if infraction it was. The prosecutor’s rebuttal would
surely have been better if she had not mentioned “everyone [who] has ever been
convicted in Federal court.” But that brief stumble was entirely innocuous, both in intent
and effect.
The prosecutor’s pointing out that “reasonable doubt” is not an impossible
standard did not denigrate the standard’s importance. The rebuttal argument can fairly be
viewed as nothing more than an innocent and acceptable effort to respond to the
somewhat extreme hypothetical posed by the defense. The contention that extra-record
information about other convictions was put before the jury is even less persuasive. No
reasonable juror could have thought that the government was urging that Sanders be
convicted because other people, throughout history, have also been convicted of crimes.
There was no prosecutorial misconduct here, and there was no prejudice. Cf. United
States v. Brown, 254 F.3d 454, 465 (3d Cir. 2001) (“As a general rule, in assessing
whether an ambiguous prosecutorial remark should be construed as an improper comment
... , appellate courts should not strain to reach the one interpretation which ascribes
improper motives to the prosecutor.” (internal quotation marks and citation omitted)).

-- 10 of 12 --

11
C. The Miscalculation of the Guidelines Range
Both parties agree that the District Court erred in calculating the applicable
Guidelines range. Sanders argues, and the government does not dispute, that the
presentence report erroneously assigned a criminal history point for a conviction that
should not have been counted because the sentence associated with it was imposed more
than ten years before the offenses for which Sanders was convicted in this case. See
U.S.S.G. § 4A1.2(e)(2) & (3) (“Any other prior sentence that was imposed within ten
years of the defendant's commencement of the instant offense is counted. ... Any prior
sentence not within the time periods specified above is not counted.”). The District Court
followed the Guidelines miscalculation set forth in the presentence report, which meant
that Sanders was assigned to Criminal History Category VI when he should have been in
Category V. This affected his advisory sentencing range under the Guidelines, and there
is no indication of what the sentence would have been but for the error. We must
therefore remand for resentencing. See United States v. Langford, 516 F.3d 205, 216 (3d
Cir. 2008) (holding that a miscalculation of the Guidelines range constitutes harmful error
unless the record “show[s] that the sentencing judge would have imposed the same
sentence under a correct Guidelines range”).

-- 11 of 12 --

12
III. Conclusion
Accordingly, we will affirm the defendant’s conviction but remand for
resentencing, to include a corrected calculation of the advisory sentencing range under the
Guidelines.

-- 12 of 12 --