UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5126

MARVIN JUNIOR KING,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5127

DORIAN EDQUADO CARTER,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Terrence W. Boyle, Chief District Judge.
(CR-94-21)

Submitted: October 31, 1997

Decided: January 15, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Farris A. Duncan, LANGSTON & DUNCAN, Goldsboro, North Car-
olina; Scott F. Wyatt, CHESHIRE, PARKER & MANNING, Raleigh,
North Carolina, for Appellants. Janice McKenzie Cole, United States
Attorney, Anthony S. Senft, Jr., Special Assistant United States Attor-
ney, Fort Bragg, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Marvin Junior King and Dorian Edquado Carter were convicted by
a jury of robbery at Fort Bragg, North Carolina, within the special
maritime and territorial jurisdiction of the United States, 18 U.S.C.A.
§ 2111 (West Supp. 1997), and aiding and abetting, 18 U.S.C. § 2
(1994). King was sentenced to a term of 87 months imprisonment.
Carter received a sentence of 72 months imprisonment. King and Car-
ter appeal their convictions, asserting that federal jurisdiction was not
proved, that the victim's out-of-court identification should have been
excluded as the fruit of an illegal arrest, and that the evidence was
insufficient to support their convictions. They also challenge the use
of a five-level sentence enhancement which applies if a firearm was
brandished, displayed, or possessed during the offense. See U.S.
SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(C) (1994).1 Appellants
also have requested leave to file pro se supplemental briefs raising
additional issues. After consideration of all the issues, we grant the
motion for leave to file supplemental briefs but affirm the convictions
and sentences.
_________________________________________________________________

1 King and Carter were sentenced in November 1994 and January 1995,
respectively.

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I.

On his way home from a club in the early hours of February 19,
1994, Army Staff Sergeant Marlon Greaves stopped for a traffic light
at an intersection on Fort Bragg. The car behind him bumped his car,
breaking his tail light. When Greaves pulled over and got out to
inspect the damage, he was approached by three men from the other
car, one of whom took a gun from his pocket and pointed it at
Greaves. The man with the gun then took a gold chain, a ring, and
$20 from Greaves while the other two men ransacked Greaves' car,
taking audio tapes and cassette disks, a radar detector, and an air
freshener. When Greaves was slow in taking off his ring, he was
jabbed in the shoulder with the gun. Greaves reported the incident to
the military police and described the robbers' car as a red Chevrolet
Lumina with a spoiler. The next night, two agents of the Army Crimi-
nal Investigation Division (CID) saw a car matching Greaves'
description in Fayetteville, North Carolina, which is adjacent to Fort
Bragg. They stopped the car and summoned the Fayetteville police.
The two occupants of the car were arrested and photographed at the
police station. That night, Greaves viewed a photographic line-up and
identified Carter as the man who held the gun on him and King as one
of the accomplices.2

King and Carter were charged with robbery, use of a firearm in a
crime of violence, 18 U.S.C.A. § 924(c) (West Supp. 1997), and aid-
ing and abetting. At their first trial, the jury acquitted them of the
§ 924(c) charge but could not reach a verdict on the robbery charge.
At their second trial, King and Carter were convicted of the robbery.

II.

King and Carter first allege that their convictions should be
reversed because the government failed to prove that the robbery
occurred in an area under federal jurisdiction. The indictment charged
that the defendants committed a robbery at Fort Bragg, North Caro-
lina, within the special maritime and territorial jurisdiction of the
United States. The government introduced evidence at trial which
_________________________________________________________________

2 The third man was not identified or prosecuted.

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established that the robbery took place at Fort Bragg but produced no
evidence that Fort Bragg was on federal land. We find no error. The
district courts have jurisdiction over offenses committed on military
bases. See 18 U.S.C. §§ 7(3), 3231 (1994); United States v.
MacDonald, 531 F.2d 196, 198 n.1 (4th Cir. 1976). A district court
may take judicial notice that the crime being prosecuted occurred
within federal jurisdiction. See United States v. Lavender, 602 F.2d
639, 641 (4th Cir. 1979); United States v. Blunt , 558 F.2d 1245, 1247
(6th Cir. 1977). Here, the district court implicitly took judicial notice
that Fort Bragg is within the territorial jurisdiction of the United
States by instructing the jury that, to convict, they must find "that the
robbery occurred within the territorial jurisdiction of the United
States, that is, on Ft. Bragg military base."

Next, King and Carter contend that the out-of-court identification
should have been suppressed as the fruit of an illegal arrest. They
argue that the CID agents were without authority to stop their car in
Fayetteville, off the military base. Because this issue was not raised
at trial, our review is for plain error only. See United States v. Olano,
507 U.S. 725 (1993). Plain error requires an error that is clear or obvi-
ous, that affects substantial rights, i.e., is prejudicial to the defendant,
and that seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id. at 732. As a general rule, military person-
nel are prohibited from direct participation in civilian law enforce-
ment activity. See 10 U.S.C. § 375 (1994); United States v. Kahn, 35
F.3d 426, 431 (9th Cir. 1994). However, even if a Fourth Amendment
violation occurred because the CID agents lacked authority to make
a traffic stop off the military base, and even if suppression of the out-
of-court identification would have been the proper remedy,3 it is not
_________________________________________________________________
3 It is not certain that suppression of Greaves' out-of-court identifica-
tion of King and Carter would have been necessary, given the prompt
arrival of the Fayetteville police and the apparent probable cause to
arrest. Evidence that would not have been discovered but for official mis-
conduct may be admitted if the causal connection between the illegal
conduct and the acquisition of the evidence is so attenuated to purge the
evidence of the primary taint. See Brown v. Illinois, 422 U.S. 590 (1975)
(test includes time between illegality and acquisition of evidence, pres-
ence of intervening circumstances, and purpose and flagrancy of official
misconduct).

                    4
plain that King and Carter were prejudiced by its admission because
Greaves also identified King and Carter in the courtroom. To the
extent that their argument is intended to encompass Greaves' in-court
identification, we also find no plain error. A witness' in-court identifi-
cation of a defendant subsequent to a photographic lineup obtained
pursuant to an illegal arrest may be admissible, provided that neither
the witness' presence to testify, his knowledge of and ability to recon-
struct the criminal incident and identify the defendant, nor his ability
to observe the defendant in the courtroom, resulted from exploitation
of the Fourth Amendment violation. See United States v. Crews, 445
U.S. 463, 471 (1980). In this case, we cannot say that any of the fac-
tors necessary for exclusion of the in-court identification were plainly
present.

The remaining issues do not warrant extended discussion. We find
that the evidence was sufficient for a reasonable jury to conclude that
something "of value" was taken from Greaves. See 18 U.S.C.A.
§ 2111. During Carter's sentencing, based on the trial testimony, the
district court found as a fact that Carter carried a firearm during the
robbery, rather than a weapon which merely appeared to be a firearm.
In the absence of any evidence to the contrary, a five-level enhance-
ment for both defendants under USSG § 2B3.1(b)(2)(C) was not
clearly erroneous.

At sentencing, King and Carter each filed an affidavit alleging
errors and lack of cooperation on the part of their attorneys and assert-
ing that they could produce new evidence (pictures of skid marks and
accident debris) to prove that the collision with Greaves' car did not
take place on Fort Bragg. The district court treated the affidavits as
new trial motions and subsequently denied the motions, finding that
the motions were untimely except for the claims of new evidence and
that no new evidence had in fact been produced. We review the dis-
trict court's decision for abuse of discretion. See United States v.
Campbell, 977 F.2d 854, 860 (4th Cir. 1992). A new trial may be
granted on the basis of newly discovered evidence if new evidence
has come to light which was not previously known to the defendant
despite due diligence on his part. See United States v. Custis, 988 F.2d
1355, 1359 (4th Cir. 1993), aff'd, 511 U.S. 485 (1994). The evidence
must be material, not merely cumulative or impeaching, and of such
a quality that a new trial would probably result in an acquittal. Id. The

                     5
district court did not abuse its discretion in finding that King and Car-
ter failed to meet this test. The new evidence they had allegedly just
discovered could have been produced earlier than three months after
their second trial and would have merely impeached Greaves' testi-
mony and the testimony of the CID agent who confirmed that the
intersection where Greaves was hit and robbed was on Fort Bragg.

The additional issues raised by King and Carter in two pro se sup-
plemental briefs are also without merit. Although King and Carter
were acquitted of the § 924(c) count in the first trial, the court could
consider the evidence that a firearm was displayed during the robbery
as relevant conduct for sentencing purposes without violating double
jeopardy. See USSG § 1B1.3(a)(1); United States v. Romulus, 949
F.2d 713, 716-17 (4th Cir. 1991). There is no Sixth Amendment right
to have the defendant's counsel present at a photographic identifica-
tion. See Moore v. Illinois, 434 U.S. 220, 226-27 & n.3 (1977). King
and Carter allege that blacks were systematically excluded from the
jury venire for their second trial when the trial judge scheduled the
trial in a different county with a lower black population. However, the
federal rules provide that a defendant may be tried at any place within
the district where the offense was committed. See Fed. R. Crim. P. 18.
Moreover, King and Carter waived the issue by failing to raise it in
a timely manner at trial. See United States v. Webster, 639 F.2d 174,
180 (4th Cir. 1981). Finally, the district court did not err in failing to
hold an evidentiary hearing on their claims of ineffective assistance
because such claims are better decided on collateral review unless the
record conclusively demonstrates that the defendant's counsel did not
provide effective assistance. See United States v. DeFusco, 949 F.2d
114, 120-21 (4th Cir. 1991).

We therefore affirm the convictions and sentences. The motion for
leave to file supplemental briefs is granted. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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