US v. Alimamy Barrie
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cr-00006-PWG-1 Copies to all parties and the district court/agency. [999704669].. [15-4001]
Appeal: 15-4001
Doc: 31
Filed: 11/23/2015
Pg: 1 of 7
UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
Appeal: 15-4001
Doc: 31
Filed: 11/23/2015
Pg: 2 of 7
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).
process
principles
out-of-court
prohibit
identification
the
admission
obtained
at
through
trial
“Due
of
an
procedures
so
impermissibly suggestive as to give rise to a very substantial
2
Appeal: 15-4001
Doc: 31
likelihood
of
Filed: 11/23/2015
irreparable
quotation marks omitted).
Pg: 3 of 7
misidentification.”
Id.
(internal
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.
3
Appeal: 15-4001
Doc: 31
Filed: 11/23/2015
Pg: 4 of 7
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
We
conclude
Barrie’s
motion
identification.
district
that
to
district
exclude
court
properly
Greenfield’s
denied
testimony
and
Because the Government does not contest the
court’s
impermissibly
the
finding
that
suggestive,
the
we
photo
identification
directly
proceed
was
the
to
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.
evidence
of
the
crime
The Government sought to introduce
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).
court
reviews
for
abuse
of
discretion
a
decision to submit prior bad acts evidence.
Williams, 740 F.3d 308, 314 (4th Cir. 2014).
district
This
court’s
United States v.
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).
4
Appeal: 15-4001
Doc: 31
Filed: 11/23/2015
Pg: 5 of 7
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,
knowledge, identity, or absence of mistake or accident.”
plan,
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
Sentencing
16-level
sentencing
Guidelines
enhancement
Manual
pursuant
§ 2B1.1(b)(1)(I)
to
(2014)
U.S.
by
calculating the intended loss of the fraud committed by Barrie
to exceed $1,000,000.
applying
an
abuse
of
We review a sentence for reasonableness,
discretion
States, 552 U.S. 38, 46 (2007).
standard.
Gall
v.
United
The court first reviews for
significant procedural error, and if the sentence is free from
such error, it then considers substantive reasonableness.
5
Id.
Appeal: 15-4001
at 51.
Doc: 31
Filed: 11/23/2015
Pg: 6 of 7
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
$1,000,000.
Barrie
that
the
admitted
to
intended
knowing
loss
that
the
was
over
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.
support
the
district
The mechanics of Barrie’s fraudulent scheme
court’s
determination
6
that
the
intended
Appeal: 15-4001
loss
Doc: 31
was
over
Filed: 11/23/2015
$1,000,000.
Pg: 7 of 7
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
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?