United States of America, Appellee, v. James David Sartain, Appellant, 422 F.2d 387 (9th Cir. 1970)

Appellant, James David Sartain (hereinafter Sartain), was convicted in the United States District Court for the Central District of California following a trial by jury for bank robbery in violation of 18 U.S.C.A. § 2113, subsecs. (a), (d). A timely appeal was taken to this court which has jurisdiction pursuant to 28 U.S.C.A. §§ 1291 and 1294(4).

The sole issue on appeal is whether the trial court improperly denied Sartain's motion to strike the testimony of identification witnesses under the authority of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Two Government witnesses were shown pictures of Sartain prior to the time of trial but subsequent to the time counsel had been appointed. Both witnesses made positive in-court identification. Each was cross-examined and neither wavered in his identification. There was no evidence that the showing of the photographs had any causal connection with the witnesses' ability to identify Sartain at the trial.

The cross-examination by Sartain's counsel merely established the fact that the witnesses had seen photographs of Sartain prior to trial. Counsel did not try to determine the manner in which the photographs were shown or if their showing had any relation to the in-court testimony. From the information which was elicited, the identification procedure was not shown to be so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

The trial court properly denied Sartain's motion to strike. United States v. Stinson, 422 F.2d 356 (9 Cir., Dec. 29, 1969); United States v. Conway, 415 F.2d 158 (3d Cir. 1969).

Affirmed.