Unpublished Disposition, 921 F.2d 282 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1987)

No. 88-5030.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and NELSON, Circuit Judges, and CARROLL**  District Judge.

MEMORANDUM*** 

Charles Ray Nelson (Nelson) appeals his conviction, following jury trial, for breaking into a post office (Count I), in violation of 18 U.S.C. § 2115; theft of government property in excess of $100 (Count 2) in violation of 18 U.S.C. § 641; assault with intent to rob and robbery of a person in lawful charge of Postal Money (Count 3), in violation of 18 U.S.C. § 2114; robbery of a postal carrier (Count 4), in violation of 18 U.S.C. § 2114; Mail theft (Count 5), in violation of 18 U.S.C. § 1708; and possession of a firearm during the robbery of a mail carrier (Count 6), in violation of 18 U.S.C. § 924(c) (1).

Counts 1-3 relate to the burglary of a post office which occurred on August 22, 1986 and subsequent events concerning that robbery. Counts 4-6 involve the robbery of a postal carrier at gun point on July 6, 1987. The events related to all counts occurred in the Watts area of Los Angeles.

Nelson contends that the district court erred by refusing to grant his motion to sever the charges arising from the burglary of the post office (Counts 1-3) and those arising from the robbery of the postal carrier (Counts 4-6).

Defendant also claims that the trial court erred in refusing to grant his motion to suppress a pretrial identification associated with Counts 4-6.

Motion to Sever

Standard of Review

A district court's denial of a Fed. R. Crim. P. 14 motion to sever charges is reviewed for abuse of discretion. United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987); United States v. Lewis, 787 F.2d 1318, 1320, amended, 798 F.2d 1250 (9th Cir. 1986). The test for abuse of discretion is whether joinder was so " 'manifestly prejudicial' " that it overcomes the dominant concern with judicial economy such that the district court should have exercised its discretion and severed the counts. Johnson, 820 F.2d at 1070 (1986).

Severance

Nelson filed a pre-trial motion pursuant to Fed. R. Crim. P. 14 (Relief from Prejudicial Joinder) to sever the trial of various counts. The thrust of the defendant's motion was that although initial joinder was proper under Fed.R.Crim.P 8(a), the relative difference in strength of the government's evidence respecting the two incidents required severance. The trial court denied the motion finding "no prejudice under the cases to try all counts at one time". Tr. Nov. 23, 1987, p. 5.

Nelson did not renew his severance motion at the close of the government's evidence. Accordingly, he is precluded from raising the severance issue on appeal. United States v. Yarbrough, 852 F.2d 1522, 1531 (9th Cir.) cert. denied, 488 U.S. 866 (1988) ("A motion for severance must be made both before trial and at the close of the prosecutor's case-in-chief to preserve the issue on appeal. [citations omitted]. Otherwise, the motion is considered waived on appeal.").

Pretrial Identification

Standard of Review

This Court reviews the constitutionality of a pretrial identification procedure de novo. United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987).

Evidence of Lineup Identification

We easily conclude from a de novo review of the video tape of the six person lineup that it was not impermissibly suggestive.

The fact that one or two persons in the lineup were not of identical height, weight or hair style as the defendant does not destroy the reliability of defendant's identification. Johnson, 820 F.2d at 1073; United States v. Robertson, 606 F.2d 853, 857 (9th Cir. 1979) (photospread). The individuals in the lineup were remarkably similar in general appearance, voice and demeanor. There was nothing about defendant's appearance that caused him to stand-out in any way from the others. See United States v. Monks, 774 F.2d 945, 946 (9th Cir. 1985) (photo lineup properly admitted even though defendant "very dissimalar" to others in lineup). Each person in the lineup was viewed in four positions; each walked across a platform twice, and spoke several identical phrases.

Viewing the totality of the circumstances, we conclude that the lineup identification was properly admitted into evidence.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

The Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3