Unpublished Disposition, 920 F.2d 937 (9th Cir. 1989)

MEMORANDUM^** 

Appellant John Louis Middleton appeals a jury conviction for bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). We affirm.

On the evening of November 15, 1989, Sherry Fairbanks was in a parking lot warming the engine of her pickup truck when she saw a black man run into a nearby, lighted alley. Noticing that he wore a ski mask, clutched a brown paper bag and a gun, and appeared to be "trying to hide," she watched him discard the gun, the ski mask, and his jacket beneath a van. She continued to watch as he hurriedly placed a baseball cap on his head and, clutching the brown paper bag, ran directly towards her, spotted her, stopped briefly and stared at her, and then dashed out of the alley. These events transpired in less than a minute. Soon thereafter, Fairbanks contacted a nearby policeman and relayed the above observations to him. She also told the officer that the man was black, with black hair, between six feet and six feet, three inches tall, and 180 to 200 pounds.

During the early investigation, within two hours of the robbery, officer Bert Pendergrass contacted Fairbanks, who agreed to accompany him to the scene of Middleton's arrest. On the way, Pendergrass explained to Fairbanks that the person being detained was only a suspect, that any identification she might make should be based solely on her prior observations in the alley. On arrival, Fairbanks saw Middleton sitting in a police cruiser, handcuffed. From her seat in a patrol car some 50 feet away, she watched as police officers assisted Middleton out of the vehicle and turned him around several times. As the patrol car drove away, Fairbanks observed Middleton from a closer distance of 25 feet. On the basis of his face, Fairbanks identified Middleton as the man in the alley.

In light of the fact that "in most cases it is unavoidable that a show-up at the scene of a crime will be suggestive of guilt to a certain degree," United States v. Kessler, 692 F.2d 584, 585 (1982), we have no trouble finding that the one-man show-up here was suggestive. The crucial question is whether this suggestive pretrial identification procedure tainted Fairbanks' in-court identification sufficient to deny Middleton due process of law. United States v. Barrett, 703 F.2d 1076, 1084 (9th Cir. 1983).

In this case, the interest protected by the due process clause is solely evidentiary; deterrence of reprehensible police conduct that "does not taint the reliability of a witness' identification evidence" is an irrelevant goal. United States v. Field, 625 F.2d 862, 868 (9th Cir. 1980); Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977). For this reason, the due process clause does not prohibit per se the needless or improper use of suggestive identification measures. United States v. Cook, 608 F.2d 1175, 1179 (9th Cir. 1979). Rather, it prohibits a jury from hearing unreliable eyewitness testimony. Barrett, 703 F.2d at 1085. The focus of our inquiry in this case must, therefore, be whether Fairbanks' identification of Middleton at the one-man show up was reliable. "At issue is whether the in-court identification [was] the product of observations at the time of the crime or impressions made during [the suggestive one-man show up]." United States v. Jarrad, 754 F.2d 1451, 1455 (9th Cir.), cert. denied, 474 U.S. 830 (1985).

To evaluate reliability, we review de novo the totality of the surrounding circumstances, United States v. Givens, 767 F.2d 574, 580 (9th Cir.), cert. denied, 474 U.S. 953 (1985); and we consider the following factors: Fairbanks' opportunity to view the man in the alley; her degree of attention; the accuracy of her prior description of the man as determined by the characteristics of the defendant Middleton identified at trial; the level of certainty she demonstrated at the confrontation; and the length of time between the crime and the confrontation. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972). We also consider "the presence and influence of other witnesses at the time of the prior identification, and the conduct on the part of the government agents tending to focus the witness's attention on the defendant." United States v. Crawford, 576 F.2d 794, 797 (9th Cir.), cert. denied, 439 U.S. 851 (1978) (footnote omitted).

Although Fairbanks viewed the man in the alley for a brief period of time, her proximity to him, as well as the lighting in the alley, were sufficient to enable her to identify attributes and objects significant in any suspect identification, including the suspect's race, hair color, height, weight, clothing, and the precise objects thrown under the van. That Fairbanks mistook the black bomber jacket for a blue windbreaker and the tennis shoes for leather gum-base shoes is insignificant. As Middleton concedes, Fairbanks identified Middleton with reasonable certainty at the show-up, which took place only two hours after the crime. Fairbanks was advised to make an independent identification of the suspect. No other witnesses were in the patrol car when Fairbanks made her identification. In light of the above, the fact that Middleton was handcuffed and surrounded by police officers at the confrontation does not throw Fairbanks' reliability into question.

We conclude that Fairbanks' in-court identification was based entirely on observations made at the time of the crime and was, therefore, not sufficiently tainted by the suggestive one-man show-up to deny Middleton due process of law.

At the FBI office, Special Agent Joe Hanlon had Middleton read an advisement of rights form aloud. Middleton then refused to talk further to any law enforcement officers. However, he did agree to give Agent Hanlon identification information. While Middleton gave his name, place and date of birth, residence, and present employment, Agent Hanlon compared his responses to identification cards contained in Middleton's wallet. The address Middleton gave differed from that on his driver's license, and Agent Hanlon brought this to his attention. The questioning lasted 7 to 8 minutes.

The questions themselves were intended to elicit information sufficient to contact Middleton at a later date and were similar to those asked an arrestee in every investigation conducted by Agent Hanlon. No photograph or fingerprints were taken at the time of the interview. The only record of the interview appeared in the form of notes placed on a standard FBI report form called a "302 report." It was later discovered that, during the interview, Middleton had provided Agent Hanlon with incriminating information connecting him to an apartment complex named on a business card that was found in the discarded jacket of the black man spotted near the crime scene by witness Fairbanks.

Middleton contends that the trial court erred in admitting the incriminating information, because that information was elicited during a custodial interrogation, in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Whether custodial questioning constitutes impermissible interrogation presents a question of fact, which we review for clear error. See United States v. Poole, 806 F.2d 853 (9th Cir. 1986), amending in part, 794 F.2d 462 (9th Cir. 1986).

In Miranda, the Supreme Court held that the Fifth and Fourteenth Amendments' proscription against compelled self-incrimination required that any interrogation of a suspect in custody must be preceded by specific warnings. Once the suspect invokes his Miranda protections, the government cannot use any evidence obtained through custodial interrogation unless the suspect knowingly waives his rights. See Miranda, 384 U.S. at 479. Miranda refers to questioning, "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). It is not conclusive of permissible questioning that a particular "question is 'objective' or ... not asked in an attempt to elicit evidence of crime." United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). However, " [o]rdinarily, the routine gathering of background biographical data will not constitute interrogation." Id. Because such questions are "reasonably related to the police's administrative concerns," they "fall outside the protections of Miranda." Pennsylvania v. Muniz, 110 S. Ct. 2638, 2650 (1990). The issue here is whether the questioning qualifies for the Miranda "booking" exception. Our most recent decisions on this issue show that it does.

In United States v. Booth, a police officer elicited incriminating responses from an arrested robbery suspect, in answer to a pre-Miranda request for his name, age and place of residence. In holding that the questions did not run afoul of Innis, we noted that they were unrelated to the crime, and the defendant was not "particularly susceptible" to that line of inquiry. 669 F.2d at 1238. In the present case, Agent Hanlon's questions had nothing to do with the events surrounding the robbery; and there is no evidence that Middleton was anymore likely to incriminate himself in response to the questions than the average suspect under similar circumstances.

By contrast, in United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir. 1983), the defendant relayed his alien status to an INS criminal investigator, in response to a direct question, during a "routine" custodial visit ten days after his arrest. Prior to the visit, the investigator had access to the defendant's booking information and knew that one of the charges was possession of a firearm by an alien. We held that the questioning did not fall within Miranda 's booking exception, because the questioning--which directly related to the facts of the crime with which the defendant was charged, see United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir.), cert. denied, 473 U.S. 913 (1985)--was reasonably likely to elicit an incriminating response. Central to our reasoning was the fact that a booking had already occurred, and the INS had access to the information obtained. Also, we noted that the questioning occurred well after the suspect was confined. See Mata-Abundiz, 717 F.2d at 1280. In the case before us, Middleton had not been booked; and the interview took place soon after Middleton arrived at the FBI office. Moreover, at the time of the interview, Agent Hanlon was unaware that agents had recovered the incriminating business. He, therefore, had no reason to know that asking Middleton his residence might elicit an incriminating response.

Finally, in United States v. Poole, 794 F.2d 462 (9th Cir. 1986), amend, reh'g denied, 806 F.2d 853 (9th Cir. 1986), an FBI agent conducted a prolonged post-Miranda interview with a bank robbery suspect, at the close of which the suspect gave a false name in answer to several routine booking inquiries. The inquiries came after the agent showed the suspect surveillance photos of his alleged participation in the robberies, and told the suspect that he was suspected of committing other similar crimes. We held that the routine questioning came in the context of a "coercive and accusatory interview" conducted by an FBI agent "for investigatory purposes," in violation of Innis. See 794 F.2d at 467. In this case, no coercive or accusatory conduct preceded the routine questioning. In fact, the only conduct preceding the interview was Middleton's agreement to answer the identification questions.

We reject Middleton's suggestion that intent to seek incriminating evidence exists here, simply because "in a robbery situation where the suspect [wears] a mask, the perpetrator's identity [will] be a major issue." Under Middleton's logic, it is hard to imagine when questions of identification could ever be asked in these cases.

Agent Hanlon might well have believed and hoped that, in the course of the brief, routine interview, Middleton would reveal information that would later prove incriminating. Unfortunately for Middleton, however, " [o]fficers do not interrogate a suspect simply by hoping that he will incriminate himself." Arizona v. Mauro, 481 U.S. 520, 529 (1987). Middleton was not interrogated in violation of Miranda.

Middleton asserts that he was denied effective assistance of counsel in violation of the sixth amendment, because his counsel failed to object to the in-court identification by witness Fairbanks. The government refutes Middleton's contention that no objection was made to the trial court.

Because we hold that Fairbanks' in-court identification was properly allowed, Middleton cannot claim the necessary prejudice for establishing a sixth amendment violation, even if his lawyer failed to object. See Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir. 1990).

AFFIRMED.