United States v. Donald Black

Ninth Circuit

United States v. Donald Black

456 F.2d 1103, 1972 U.S. App. LEXIS 10804

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 13, 1972

Docket71-2407

StatusPublished

Cited by2 cases

This text of 456 F.2d 1103 (United States v. Donald Black) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Donald Black, 456 F.2d 1103, 1972 U.S. App. LEXIS 10804 (9th Cir. 1972).

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Opinion

PER CURIAM:

Appellant was convicted of violating 18 U.S.C. § 2113(a), robbery of a national bank.

Appellant moved to exclude the testimony of a witness identifying him as the robber on the ground that in a pretrial display of photographs shown to the witness, appellant’s photographs were unfairly emphasized. The district court held a hearing on the motion out of the presence of the jury, and denied the motion. Appellant contends that the use of the testimony deprived him of a fair trial under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968).

Appellant’s claim “must be evaluated in light of the totality of surrounding circumstances.” Id. at 383, 88 S.Ct. at 970. There were “irregularities” in the photographic identification procedure, as the district court recognized. However, we are satisfied on the basis of the evidence submitted at the hearing that the procedure was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384, 88 S.Ct. at 971.

The witness in question was the teller from whom the money was taken. She had ample opportunity to inspect the robber closely. She looked at only two of the seven photographs before picking one of appellant. Her in-court identification was positive, and, according to the witness, was not based upon the photographs but upon her independent recollection of appellant’s features. Another witness who had not seen the photographs also positively identified appellant at trial. Appellant’s fingerprints were found on the note handed to the teller during the robbery. Appellant asked the assistance of another witness in counting a “bunch of money” immedi *1105 ately after the robbery, and refused to tell the witness where it came from, saying that if he did the witness “might call the police on him.”

Affirmed.

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PER CURIAM:

Appellant was convicted of violating 18 U.S.C. § 2113(a), robbery of a national bank.

Appellant moved to exclude the testimony of a witness identifying him as the robber on the ground that in a pretrial display of photographs shown to the witness, appellant’s photographs were unfairly emphasized. The district court held a hearing on the motion out of the presence of the jury, and denied the motion. Appellant contends that the use of the testimony deprived him of a fair trial under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968).

Appellant’s claim “must be evaluated in light of the totality of surrounding circumstances.” Id. at 383, 88 S.Ct. at 970. There were “irregularities” in the photographic identification procedure, as the district court recognized. However, we are satisfied on the basis of the evidence submitted at the hearing that the procedure was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384, 88 S.Ct. at 971.

The witness in question was the teller from whom the money was taken. She had ample opportunity to inspect the robber closely. She looked at only two of the seven photographs before picking one of appellant. Her in-court identification was positive, and, according to the witness, was not based upon the photographs but upon her independent recollection of appellant’s features. Another witness who had not seen the photographs also positively identified appellant at trial. Appellant’s fingerprints were found on the note handed to the teller during the robbery. Appellant asked the assistance of another witness in counting a “bunch of money” immedi *1105 ately after the robbery, and refused to tell the witness where it came from, saying that if he did the witness “might call the police on him.”

Affirmed.

United States of America, Plintiff-Appellee v. Raymond Bennie Baxter, United States of America v. Rodolfo Gomez Marrufo, United States of America v. Charles Thomas Ward, United States of America v. Milton Norris Beasley, United States of America v. Antonio Orzco Rico, United States of America v. Estaban Gonzalez Catarino, United States of America v. Thomas Rodriquez, United States of America v. Cleveland Pipkins, Hernandez Cases. Group I Appeals

492 F.2d 150 (Ninth Circuit, 1974)

United States v. Baxter

492 F.2d 150 (Ninth Circuit, 1973)

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456 F.2d 1103, 1972 U.S. App. LEXIS 10804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donald-black-ca9-1972.

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