United States v. Donald Black

Appellant was convicted of violating 18 U.S.C. § 2113 (a), robbery of a national bank.

Appellant moved to exclude the testimony of a witness identifying him as the robber on the ground that in a pretrial display of photographs shown to the witness, appellant’s photographs were unfairly emphasized. The district court held a hearing on the motion out of the presence of the jury, and denied the motion. Appellant contends that the use of the testimony deprived him of a fair trial under Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L. Ed.2d 1247 (1968).

Appellant’s claim “must be evaluated in light of the totality of surrounding circumstances.” Id. at 383 , 88 S.Ct. at 970 . There were “irregularities” in the photographic identification procedure, as the district court recognized. However, we are satisfied on the basis of the evidence submitted at the hearing that the procedure was not “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384 , 88 S.Ct. at 971 .

The witness in question was the teller from whom the money was taken. She had ample opportunity to inspect the robber closely. She looked at only…