United States v. Alimamy Barrie ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4001
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALIMAMY BARRIE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
(8:14-cr-00006-PWG-1)
Submitted: September 30, 2015 Decided: November 23, 2015
Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Julie L. B. Johnson, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland; Christopher R. Healy, PERKINS COIE LLP,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Kelly O. Hayes, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alimamy Barrie appeals from his convictions and sentence
imposed for wire fraud and aggravated identity theft. He argues
that the district court erred in denying his motion in limine to
exclude an out of court identification of him by a witness, that
the court erred in permitting the Government to admit evidence
of Barrie’s prior fraud conviction and method of criminal
behavior, and that the court erred in calculating the amount of
intended loss under the Sentencing Guidelines. Finding no
error, we affirm.
Barrie argues that the out of court photo identification
that witness Greenfield made was not sufficiently reliable to
admit at trial. Barrie contends that Greenfield’s testimony was
inconsistent, Greenfield did not have sufficient opportunity to
observe Barrie at the residence, and that his testimony did not
elicit any articulated attention to detail to support the
identification, among other contentions.
When considering the denial of a suppression motion, this
court reviews de novo the district court’s legal conclusions,
and reviews its factual findings for clear error. 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
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likelihood of irreparable misidentification.” Id. (internal
quotation marks omitted). However, where, after considering the
totality of the circumstances, an identification is found to be
reliable, an unduly suggestive identification procedure will not
warrant exclusion of the identification. Id. Therefore, when
reviewing a district court’s order denying a defendant’s motion
to exclude an identification, this court first asks whether the
defendant demonstrated “that the photo identification procedure
was impermissibly suggestive” and then “whether the
identification was nevertheless reliable in the context of all
of the circumstances.” Id. at 389–90. Thus, this court may
uphold a district court’s denial of a motion to suppress if it
finds the identification reliable, without determining whether
the identification procedure was unduly suggestive. Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994).
“[A]dmission of the identification evidence is not error if
the evidence was nevertheless reliable under the totality of the
circumstances.” United States v. Greene, 704 F.3d 298, 308 (4th
Cir. 2013) (internal quotation marks omitted). The factors used
to determine whether an identification is reliable 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.
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Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
We conclude that the district court properly denied
Barrie’s motion to exclude Greenfield’s testimony and
identification. Because the Government does not contest the
district court’s finding that the photo identification was
impermissibly suggestive, we proceed directly to the
identification’s reliability and conclude that the totality of
the circumstances demonstrates that witness Greenfield’s
identification was nevertheless reliable.
Barrie was convicted of a prior offense of conspiracy to
commit wire and mail fraud. The Government sought to introduce
evidence of the crime because the prior conviction was
substantially similar to the charged conduct and was therefore
relevant and necessary to establish Barrie’s identity as the
perpetrator of the present offenses. Barrie contended that the
details of the prior fraud conviction were not similar enough to
permit inclusion under Federal Rule of Evidence 404(b). This
court reviews for abuse of discretion a district court’s
decision to submit prior bad acts evidence. United States v.
Williams, 740 F.3d 308, 314 (4th Cir. 2014). Generally, we will
not find that a district court “abused its discretion unless its
decision to admit evidence under Rule 404(b) was arbitrary and
irrational.” Id. (internal quotation marks omitted).
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Rule 404(b) “prohibits evidence of other crimes, wrongs, or
acts solely to prove a defendant’s bad character, but such
evidence . . . may be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” United
States v. Byers, 649 F.3d 197, 206 (4th Cir. 2011) (internal
quotation marks and brackets omitted). To be admissible under
Rule 404(b), the proffered “bad acts” evidence must be relevant
to an issue other than character, necessary to prove an element
of the crime charged, reliable, and its probative value must not
be substantially outweighed by its prejudicial nature. United
States v. Fuertes, ___ F.3d ___, ___ 2015 WL 4910113, *4 (4th
Cir. Aug. 18, 2015) (No. 13-4755). Under this standard, we
conclude that there was no abuse of discretion in the district
court’s decision to admit Barrie’s prior conviction.
Finally, Barrie argues that the district court erred in
applying a 16-level sentencing enhancement pursuant to U.S.
Sentencing Guidelines Manual § 2B1.1(b)(1)(I) (2014) by
calculating the intended loss of the fraud committed by Barrie
to exceed $1,000,000. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007). The court first reviews for
significant procedural error, and if the sentence is free from
such error, it then considers substantive reasonableness. Id.5
at 51. In assessing Guidelines calculations, the court reviews
factual findings for clear error, legal conclusions de novo, and
unpreserved arguments for plain error. United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012); see also United
States v. Otuya, 720 F.3d 183, 191 (4th Cir. 2013) (district
court’s calculation of loss amount reviewed for clear error),
cert. denied, 134 S. Ct. 1279 (2014). We will “find clear error
only if, on the entire evidence, [the court is] left with the
definite and firm conviction that a mistake has been committed.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks and citations omitted).
The mechanics of Barrie’s fraud scheme support the district
court’s determination that the intended loss was over
$1,000,000. Barrie admitted to knowing that the Fidelity
account held more than $1,000,000, calling it a “treasure” or
“paradise.” He admitted to ordering the checks for a Wells
Fargo account so that he could draw the funds out of the linked
account and that he and his associates had multiple ways to
drain the account. The prior conviction established Barrie and
his associates’ method to drain a retirement account and in this
case everything was in place to empty the victim’s account. The
victim fortuitously stopped the first scheduled wire transfer
before it occurred. The mechanics of Barrie’s fraudulent scheme
support the district court’s determination that the intended
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loss was over $1,000,000. We therefore conclude that the
district court’s determination of intended loss was not clear
error.
Accordingly, we affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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