Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

MEMORANDUM^** 

A jury convicted Peter Joshua Rosenberg of bank robbery in violation of 18 U.S.C. § 2113(a) (1988). He was sentenced to 240 months of imprisonment and 3 years of supervised release. Rosenberg appeals his conviction and sentence. He argues the district court erred by (1) denying his motion to suppress eyewitness identification testimony, (2) refusing to depart downward from the applicable guideline range, and (3) denying his motion for a new trial. We affirm.

DISCUSSION

Rosenberg argues the eyewitness testimony was based on pretrial identification procedures that created a substantial likelihood of misidentification. As a result, he contends, his constitutional right to due process was violated. See Simmons v. United States, 390 U.S. 377, 384 (1968). We review the constitutionality of pretrial identification procedures de novo. United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984).

We use a two-part inquiry to determine whether the admission of the identification testimony violated Rosenberg's due process rights. If, under the totality of the circumstances the procedures were not unnecessarily suggestive, the due process inquiry ends. Neil v. Biggers, 409 U.S. 188, 198 (1972); United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). If the procedures were unnecessarily suggestive, the testimony may still be admitted if sufficiently reliable to outweigh the corruptive effect of the suggestive procedure. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

No evidence suggests that the photographic display shown to the two bank tellers was suggestive. The display contained a number of photographs of individuals with similar characteristics. There was no indication that one of the photographs might be of Rosenberg. There was nothing suggestive about this procedure. Thus, we need not analyze further the reliability of the identification testimony given by the bank tellers.

Rosenberg also challenges identification testimony by Rosenberg's girlfriend and by the owner of the getaway car. The testimony of each of these witnesses was based on a single bank surveillance photograph taken during the robbery. We have held that such identification testimony based upon a surveillance photograph is not impermissibly suggestive. United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir. 1980), cert. denied, 450 U.S. 1043 (1981); United States v. Stubblefield, 621 F.2d 980, 983 (9th Cir. 1980).

Finally, Rosenberg argues the court should have excluded testimony by a witness who identified a car as the getaway car used in the robbery. This argument is meritless. There is nothing to suggest that this procedure created a risk of misidentification of Rosenberg.

We conclude that the district court did not err in denying Rosenberg's suppression motion.

Rosenberg contends that the district court erred by refusing to depart downward from the guideline range. We lack jurisdiction to review the merits of this argument. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990) (court lacks jurisdiction to review district court's discretionary refusal to depart downward); United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990) (same).

More than three months after trial, Rosenberg moved for a new trial based upon newly discovered evidence. The decision whether to grant a new trial is within the district court's discretion. United States v. Krasny, 607 F.2d 840, 845 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980). Rosenberg carries a "significant burden" to show that the district court abused its discretion. United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976), cert. denied, 429 U.S. 1111 (1977).

To prevail on a motion for a new trial on the ground of newly discovered evidence, (1) the evidence must actually be "newly discovered," (2) the failure to discover the evidence prior to trial must not have resulted from a lack of due diligence, (3) the evidence must be material and not merely impeaching or cumulative, and (4) the newly discovered evidence must be such that it would probably result in an acquittal. Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), cert. denied, 360 U.S. 919 (1959); United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981).

Rosenberg's "newly discovered" evidence is primarily testimony that may show bias on the part of government witnesses or inconsistencies in their trial testimony. At trial, Rosenberg questioned the credibility of these witnesses through cross-examination. Even assuming that Rosenberg's proposed evidence challenging the testimony of government witnesses is newly discovered, at best this evidence would be cumulative and impeaching.

As to the remaining evidence on which Rosenberg bases his new trial motion, he has failed to show that such evidence is newly discovered. And as to all of the evidence which Rosenberg argues entitles him to a new trial, there is no showing that any or all of it would probably result in an acquittal.

We conclude that the district court did not abuse its discretion in denying Rosenberg's motion for a new trial.

AFFIRMED.