US v. Jonathan Allen, No. 13-4801 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4801 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONATHAN RAY ALLEN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:11-cr-00192-RAJ-TEM-1) Submitted: June 23, 2014 Decided: June 27, 2014 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Gregory B. English, THE ENGLISH LAW FIRM, PLLC, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, William D. Muhr, Assistant United States Attorney, Kathleen Imbriglia, Third Year Law Student, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jonathan conspiracy §§ 2, to Ray Allen interfere 1951(a) (2012); with nine appeals commerce counts of his by convictions robbery, Hobbs Act 18 of U.S.C. robbery, 18 U.S.C. §§ 2, 1951(a); and nine counts of brandishing a firearm during a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (2012). He suppressed witnesses argues the and that the out-of-court precluded district court identifications these witnesses should made from by have several identifying him during trial because the photo arrays impermissibly highlighted him due to variations in the exposure of the photograph and the color of his shirt. After review of the record, we affirm. We review the district court s factual findings for clear error and its legal conclusion that the identifications were admissible de novo. United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007). Due process principles prohibit the admission at trial of an out-of-court identification obtained through procedures so impermissibly suggestive as to give rise to a very substantial misidentification. U.S. 377, 384 likelihood of irreparable Id. (quoting Simmons v. United States, 390 (1968)). If the identification procedure was unduly suggestive, the identification is admissible if it was nevertheless reliable circumstances. in the Id. at 389-90. 2 context of all of the Where a witness out-of-court photo identification is unreliable and inadmissible, court identification is also inadmissible. any in- Simmons, 390 U.S. at 383-84; see Saunders, 501 F.3d at 390. The record supports the district court s finding that any variation in appearance in the various photo arrays between Allen s photos and the others was insignificant and render the photo arrays themselves unduly suggestive. did not Moreover, the procedures used by police in displaying the arrays reinforce this conclusion. See United States v. Gray, 491 F.3d 138, 148 (4th (holding Cir. 2007) introduced during later this court proceedings may consider that evidence confirms the correctness of the district court s findings). Accordingly, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. AFFIRMED 3
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