US v. Jonathan Allen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00192-RAJ-TEM-1 Copies to all parties and the district court/agency. [999384796].. [13-4801]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jonathan
conspiracy
§§ 2,

to

Ray

Allen

interfere

1951(a)

(2012);

with

nine

appeals
commerce

counts

of

his
by

convictions

robbery,

Hobbs

Act

18

of

U.S.C.

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

suppressed
witnesses

argues

the
and

that

the

out-of-court
precluded

district

court

identifications

these

witnesses

should

made

from

by

have

several

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

misidentification.’”
U.S.

377,

384

likelihood

of

irreparable

Id. (quoting Simmons v. United States, 390

(1968)).

If

the

identification

procedure

was

unduly suggestive, the identification is admissible if it “was
nevertheless

reliable

circumstances.”

in

the

Id. at 389-90.
2

context

of

all

of

the

Where a witness’ out-of-court

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photo

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identification

is

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unreliable

and

inadmissible,

court identification is also inadmissible.

any

in-

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

render the photo arrays themselves unduly suggestive.

did

not

Moreover,

the procedures used by police in displaying the arrays reinforce
this conclusion.

See United States v. Gray, 491 F.3d 138, 148

(4th

(holding

Cir.

2007)

introduced

during

later

this

court

proceedings

may

consider

that

evidence

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

3