US v. Darrell Harris, No. 14-4295 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4295 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRELL LAMONT HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:13-cr-00116-REP-1) Submitted: November 25, 2014 Decided: December 2, 2014 Before MOTZ, KING, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Valencia D. Roberts, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Olivia L. Norman, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Darrell Lamont Harris of interference with commerce by robbery, in (2012) (Hobbs Act robbery). violation of 18 U.S.C. § 1951 On appeal, Harris contends that the district court erred in denying his motion for a judgment of acquittal under Fed. R. presented insufficient Crim. P. evidence 29, to because sustain the his Government conviction. Finding no error, we affirm. We review de novo challenges to the sufficiency of evidence and a district court’s denial judgment of acquittal under Rule 29. 430 F.3d 681, 693 (4th Cir. 2005). of a motion for a United States v. Alerre, “The jury’s verdict must be upheld on appeal if there is substantial evidence in the record to support it, where substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014) (emphasis and internal quotation marks omitted). In evaluating conviction, we whether must substantial “view[] the evidence evidence and supports the a reasonable inferences to be drawn therefrom in the light most favorable to the Government.” To Id. (internal quotation marks omitted). obtain a conviction under the Hobbs Act, the Government must prove “(1) the underlying robbery or extortion 2 crime, and (2) an effect on interstate commerce.” United States v. Strayhorn, 743 F.3d 917, 922 (4th Cir.) (internal quotation marks omitted), cert. denied, 134 S.Ct. 2689 (2014). Act defines robbery as “the unlawful taking or The Hobbs obtaining of personal property from the person . . . by means of actual or threatened force, or violence, or fear of injury, . . . to his person or property obtaining.” . . . at the time 18 U.S.C. § 1951(b)(1). of the taking or Harris concedes that the Government presented sufficient evidence that a robbery occurred and that the perpetrator violated the Hobbs Act. He argues, however, that the Government presented insufficient evidence to permit the jury to conclude beyond a reasonable doubt that he committed the robbery. Specifically, Harris contends that (1) the eyewitness identifications were unreliable; (2) the evidence of a BB gun recovered from his girlfriend’s residence did not clearly link recovered him from his to the crime; girlfriend’s and (3) blue residence, latex allegedly gloves matching gloves worn by the robber, are so commonplace that they do not support the conviction. It is well settled that “the identification of a criminal actor by one person is itself evidence sufficient to go to the jury and support a guilty verdict.” Holley, 502 eyewitnesses F.2d 273, selected 274 (4th Harris from 3 Cir. a United States v. 1974). photographic Here, two lineup and positively identified Harris during their in-court testimony. Although not contesting the admissibility of testimony regarding the identifications, surrounding the Harris contends photographic lineup that the circumstances identifications were so suggestive that the eyewitness identifications were insufficient to establish his identity as the robber. very substantial likelihood of “In the absence of a irreparable misidentification, [eyewitness identification] evidence is for the jury to weigh.” Fowler v. Joyner, 753 F.3d 446, 454 (4th Cir. 2014) (internal quotation marks likelihood of and ellipsis omitted). misidentification, the In factors determining a court the should consider include: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Here, both eyewitnesses had ample opportunity to view the robber. Although the robber wore a mask during the robbery, one of the eyewitnesses observed the robber before he pulled the mask over his distinguishing face facial and the features other through eyewitness cutouts in observed the mask. Further, both eyewitnesses provided an accurate description of the robber, in line with the descriptions 4 provided by other eyewitnesses and generally matching a description of Harris. Additionally, both eyewitnesses testified that they were certain Harris was the coconspirator Finally, after robber. placed although the The Harris Harris’s robbery, both testimony at the federal of scene trial eyewitnesses Harris’s of the occurred picked alleged robbery. two out Harris years of a lineup within two days of the robbery and confronted Harris in state court proceedings within months of the robbery. Thus, under the Biggers factors, the eyewitness identification did not produce a “very substantial likelihood of irreparable misidentification.” Any weakness in the eyewitness identifications were ones for the jury to weigh when determining whether Harris was the robber. gun and The contentions Harris advances regarding the BB the latex gloves do not undermine sufficiency of the Government’s evidence. the overall See United States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010) (observing where some evidence provided jury with sufficient basis to conclude defendant was perpetrator, alleged weaknesses in other evidence tying defendant evidence to claim). offense Thus, cannot the sustain district court insufficiency did not err of in denying Harris’s Rule 29 motion. Accordingly, dispense with oral we affirm argument Harris’s because 5 the conviction. facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6