United States of America, Plaintiff-appellee, v. Charlie James Threatt, Defendant-appellant, 445 F.2d 625 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 445 F.2d 625 (5th Cir. 1971) July 7, 1971

Appeal from the United States District Court for the Northern District of Alabama; Clarence W. Algood, Judge.

Lawrence B. Sheffield, Jr., Birmingham, Ala., for appellant.

Charlie J. Threatt, pro se.

Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, Asst. U. S. Atty., Birmingham, Ala., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.


The single issue in this appeal from a bank robbery conviction is whether the trial court erred in denying defendant's motion to suppress evidence concerning a witness' identification of defendant in a lineup and subsequently in court. There was no error. The trial judge followed the procedures which in United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970), we suggested district judges employ in applying the principles of Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Also a suggestion of Simmons itself was followed — i.e., that not all the eyewitnesses view the photographs prior to lineup. Here there were two eyewitnesses, only one viewed the photographs, they observed the lineup separately, and each identified defendant in the lineup.

We have examined the photographs, and we do not agree with the contention of defendant that the pictures are, in and of themselves, so impermissibly suggestive of defendant that the trial court was in error.



Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 499