Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

MEMORANDUM^** 

Peter Beierle appeals his twenty-five year sentence for armed bank robbery because of an in-court identification procedure that he alleges was unnecessarily suggestive and denied him due process. We utilize a two-step inquiry to review the in-court identification procedure. We first inquire whether the procedure was so "impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." If so, we then discern whether it was "nonetheless reliable." United States v. Givens, 767 F.2d 574, 581 (9th Cir.), cert. denied, 474 U.S. 953 (1985).

* In-court identification of a defendant seated at the defense table is inherently suggestive. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987). However, at least two factors reduced the suggestiveness in this case. First, the prosecution provided the defendant with a plaid shirt to conceal his jail attire. Second, the witness did not know she would be called into court to identify anyone.

Moreover, this certainly is not a case in which the appellant's guilt or innocence hangs entirely on the in-court identification. See Domina, 784 F.2d at 1369 (In-court identification procedures should be as "lacking in inherent suggestiveness as possible" when the defendant's guilt or innocence is dependent solely on the reliability of the witness's in-court identification.). Indeed, an abundance of other evidence linked appellant to the crime, including bank surveillance photographs, other eyewitnesses, a confession to a similar crime, and a mask and a weapon found in appellant's possession.¹ 

II

In any event, any suggestiveness inherent in the in-court identification was overcome by the sufficient indicia of reliability surrounding the witness's testimony. United States v. Monks, 774 F.2d 945, 956 (9th Cir. 1985). The five factors to consider in assessing reliability are (1) the opportunity of the witness to view the criminal at the time of the crime (2) the witness's degree of attention (3) the accuracy of the witness's prior description of the criminal (4) the level of certainty demonstrated by the witness at the confrontation (5) and the length of time between the crime and the confrontation. Id.

The witness had a good opportunity to view the robber, whom she saw in the bank and then directly in front of her car. She was able to view the robber without his mask for approximately 30-60 seconds. The witness testified that she was paying close attention to "get a look at him, to see which direction he was going and report it to the police." (ER 46). The original description she gave to an FBI agent accurately matched the photograph that she later identified in a photospread. (ER 49).

The witness's level of certainty in the photospread identification admittedly was somewhat equivocal, as she identified two men whom she "had seen somewhere before." However, the witness testified that fifteen minutes later, after further thought, she was certain that the first man she had picked out, Beierle, was the robber. She did not report this to the police until four months later, as she was reluctant to get further involved.

This court previously has acknowledged that a complete failure to identify a suspect in a photospread does not make a later in-court identification unreliable when other indicators of reliability are present, such as a long opportunity to view, attentiveness, and a detailed and fairly accurate description. United States v. Valenzuela, 722 F.2d 1431, 1433 (9th Cir. 1983). If a complete failure to identify a defendant in a photospread does not destroy the reliability of a witness's identification, then neither should an equivocal identification, when the witness actually identifies the defendant.

Although two months passed between the bank robbery and the photospread identification, the witness's subsequent in-court identification was not invalid. This court has considered witness identifications ten months after an initial observation of a crime to be reliable. See Valenzuela, 722 F.2d at 1433.

III

We conclude that the in-court identification was not so suggestive to create a "substantial likelihood of irreparable misidentification" in deprivation of appellant's right to due process. Accordingly, we AFFIRM.