United States v. Gregory Richard Barker

Defendant Gregory Richard Barker appeals his convictions on three counts of bank robbery under 18 U.S.C. § 2113 (a) (1992). He claims that the prosecutor acted improperly in having a prosecution witness view a photo of a lineup after Barker had been indicted when Barker’s counsel was not present and when Barker was not given notice of the identification before trial. He also asserts that the district court abused its discretion in allowing the audio playback of testimony during jury deliberations. We affirm.

I

Barker contends that the district court should have granted his motion for a mistrial on the ground that his Sixth Amendment rights were violated when a prosecution witness, Tomory, was shown a photograph of a lineup and made a positive identification of Barker. The post-indictment identification occurred when neither Barker nor his attorney were present and had no notice that the identification might occur. Tomory had been unable to pick Barker out of a live lineup previously.

The district court’s denial of the motion for a mistrial is reviewed for abuse of discretion. United States v. Homick, 964 F.2d 899, 906 (9th Cir.1992).

The Sixth Amendment gives defendants the…