United States of America, Plaintiff-appellee, v. Donald Black, Defendant-appellant, 456 F.2d 1103 (9th Cir. 1972)

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" immediately 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.