United States v. Jonathan Allen , 576 F. App'x 281 ( 2014 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Ray Allen appeals his convictions of
conspiracy to interfere with commerce by robbery, 18 U.S.C.
§§ 2, 1951(a) (2012); nine counts of Hobbs Act 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 argues that the district court should have
suppressed the out-of-court identifications made by several
witnesses and precluded these witnesses from 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 likelihood of irreparable
misidentification.’” Id. (quoting Simmons v. United States, 390
U.S. 377, 384 (1968)). If the identification procedure was
unduly suggestive, the identification is admissible if it “was
nevertheless reliable in the context of all of the
circumstances.” Id. at 389-90. Where a witness’ out-of-court
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photo identification is unreliable and inadmissible, any in-
court identification is also inadmissible. 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 did not
render the photo arrays themselves unduly suggestive. Moreover,
the procedures used by police in displaying the arrays reinforce
this conclusion. See United States v. Gray, 491 F.3d 138, 148
(4th Cir. 2007) (holding this court may consider evidence
introduced during later proceedings that 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
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