United States of America, Plaintiff-appellee, v. Kenneth Irvin Counce, Defendant-appellant, 967 F.2d 592 (9th Cir. 1992)

MEMORANDUM^** 

Kenneth Irvin Counce appeals his conviction, following a jury trial for three counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and three counts of knowingly using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Counce contends that he was denied due process of law because bank employees' identification testimony was tainted by an unduly suggestive pretrial photospread. He also contends that he received ineffective assistance of counsel during his trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Counce contends that the pretrial photospread was unduly suggestive and improperly tainted the bank employees' in-court identification. We disagree.

It is unclear in this circuit whether a district court's conclusion that a pretrial photospread was not unduly suggestive is reviewed de novo or for clear error. United States v. Nash, 946 F.2d 679, 681 (9th Cir. 1991). Except for United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989) (abuse of discretion), we have reviewed out-of-court identification procedures de novo. It is not necessary to resolve this issue on the present appeal, however, because the result would be the same under either standard. See Nash, 946 F.2d at 681.

"To determine whether an out-of-court identification procedure is so impermissibly suggestive as to taint subsequent identification testimony in deprivation of the defendant's due process rights, we examine the totality of the surrounding circumstances." Id. (citing United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985), cert. denied, (1986)). "If we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends." Bagley, 772 F.2d at 492. Moreover, a photospread is not necessarily suggestive because of variances in the photographs. See United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir. 1983) (photospread not suggestive despite the fact the defendant was the only one wearing tinted glasses and suspect had been described as wearing dark glasses); United States v. Collins, 559 F.2d 561, 563 (9th Cir.) (photospread not suggestive despite variances in age, hair style and facial hair), cert. denied, 434 U.S. 907 (1977); see also United States v. Barron, 575 F.2d 752, 755 (9th Cir. 1978) (" [i]t would be unduly burdensome to require police to find five or six very similar individuals for a lineup").

Here, Counce was convicted of robbing three banks: (1) California First Bank in Santa Monica, California on March 30, 1988; (2) Community Bank in Chatsworth, California on December 7, 1988; and (3) Hawthorne Savings and Loan ("Hawthorne Savings") in Torrance, California on March 28, 1989. Despite the fact that the robber wore a hat and sunglasses in each robbery, the bank employees were able to provide a fairly consistent description of him to Federal Bureau of Investigation ("FBI") agents. Generally, they described him as a light/medium complexion African-American male in his late twenties to early thirties, 6' to 6'3" tall, with a husky/stocky build, short black hair, and weighing 180 to 220 pounds. Only one of the bank employees described the robber's face as round (ER at 58). FBI agents showed eleven bank employees a six-person African-American male photospread and nine positively identified Counce as the robber.

Counce contends that the bank employees identified him because his photograph allegedly was the only one showing a "round face" and "light complexion" among the six photos. This contention lacks merit. We have examined the photospread and find that the shape of his face was not so unique to limit the choice to him. Moreover, only one of the nine witnesses, who positively identified him from the photospread, had described his face as "round" to the FBI. Accordingly, because Counce has not shown a substantial likelihood that the photospread resulted in a misidentification, the district court properly rejected the claim. See Bagley, 772 F.2d at 492.¹ 

Counce contends that he was denied effective assistance of counsel by his trial counsel's failure to move for mistrial or request a new jury panel after an alternate juror informed the court that he had overheard a witness identify the defendant prior to jury selection. We decline to reach the merits of this contention.

"As a general rule, we will not review challenges to the effectiveness of defense counsel on direct appeal. Such an issue is more appropriately reserved for habeas corpus proceedings, where facts outside the record, but necessary to the disposition of the claim, may be fully developed." United States v. Laughlin, 933 F.2d 786, 788 (9th Cir. 1991) (citations omitted). The record lacks facts necessary to properly address his claim on direct appeal. See id at 789.² 

We decline to review the effectiveness of Counce's trial counsel on direct appeal. The district court's finding regarding the pretrial photospread identification is affirmed.

AFFIRMED.