US v. Alimamy Barrie
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cr-00006-PWG-1 Copies to all parties and the district court/agency. .. [15-4001]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Paul W. Grimm, District Judge.
September 30, 2015
November 23, 2015
Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Alimamy Barrie appeals from his convictions and sentence
imposed for wire fraud and aggravated identity theft.
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
behavior, and that the court erred in calculating the amount of
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
identification, among other contentions.
When considering the denial of a suppression motion, this
court reviews de novo the district court’s legal conclusions,
States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).
impermissibly suggestive as to give rise to a very substantial
quotation marks omitted).
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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.
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
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.
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
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
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
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Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Because the Government does not contest the
identification’s reliability and conclude that the totality of
identification was nevertheless reliable.
Barrie was convicted of a prior offense of conspiracy to
commit wire and mail fraud.
The Government sought to introduce
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).
decision to submit prior bad acts evidence.
Williams, 740 F.3d 308, 314 (4th Cir. 2014).
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
Id. (internal quotation marks omitted).
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Rule 404(b) “prohibits evidence of other crimes, wrongs, or
evidence . . . may be admissible for other purposes, such as
knowledge, identity, or absence of mistake or accident.”
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.
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
calculating the intended loss of the fraud committed by Barrie
to exceed $1,000,000.
We review a sentence for reasonableness,
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.
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In assessing Guidelines calculations, the court reviews
factual findings for clear error, legal conclusions de novo, and
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
account held more than $1,000,000, calling it a “treasure” or
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.
victim fortuitously stopped the first scheduled wire transfer
before it occurred.
The mechanics of Barrie’s fraudulent scheme
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district court’s determination of intended loss was not clear
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.
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