                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 01-4048
RASHAD ALLEN TAYLOR,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
               Leonie M. Brinkema, District Judge.
                           (CR-00-161)

                        Submitted: July 31, 2001

                      Decided: September 17, 2001

 Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Joseph N. Bowman, Alexandria, Virginia, for Appellant. Kenneth E.
Melson, United States Attorney, Michael E. Rich, Assistant United
States Attorney, John T. Morton, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. TAYLOR
                              OPINION

PER CURIAM:

   Rashad Allen Taylor was found guilty of conspiracy to commit
armed bank robbery, in violation of 18 U.S.C.A. § 371 (West 2000),
after a retrial. On appeal, Taylor alleges that the district court erred
in permitting introduction of a photo array identification and an in-
court identification. He also argues that the district court violated his
Sixth Amendment right to a jury trial by accepting a partial verdict.
We affirm.

   Taylor appeals the district court’s denial of his motion to suppress
the identification that bank employees Degraw and Barnes made from
a photo array, arguing that the photo array shown to Degraw and
Barnes was impermissibly suggestive because Taylor’s photo had a
darker background then the others in the array and was the only photo
in which the subject was smiling with a slight head tilt. Taylor also
appeals the district court’s admission of Degraw’s in-court identifica-
tion of Taylor, contending that the suggestiveness of the photo array
impermissibly tainted the subsequent identification. In reviewing a
denial of a motion to suppress, this Court reviews the district court’s
factual findings for clear error and its legal conclusions de novo. See
United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997).

   Courts engage in a two-step analysis when a defendant challenges
an identification procedure. First, the defendant "must prove that the
identification procedure was impermissibly suggestive. Once this
threshold is crossed, the court then must determine whether the identi-
fication was nevertheless reliable under the totality of the circum-
stances." Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(citations omitted). If the court concludes that the confrontation pro-
cedure was not impermissibly suggestive, the inquiry ends. United
States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985); cf. Harker v.
Maryland, 800 F.2d 437, 444 (4th Cir. 1986) (ending analysis after
finding photographic array and show-up not impermissibly sugges-
tive). If, however, the court finds the identification impermissibly
suggestive, the court then determines whether under the totality of the
circumstances, "there is ‘a very substantial likelihood of irreparable
misidentification.’" Manson v. Brathwaite, 432 U.S. 98, 116 (1977)
                       UNITED STATES v. TAYLOR                        3
(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). The
factors the court may consider in measuring the reliability of the iden-
tification are: "[1] the opportunity of the witness to view the criminal
at the time of the crime, [2] the witness’ degree of attention, [3] the
accuracy of his prior description of the criminal, [4] the level of cer-
tainty demonstrated at the confrontation, and [5] the time between the
crime and the confrontation." Manson, 432 U.S. at 114.

   We have reviewed the record and conclude that, although the photo
array itself and the accompanying in-court identification were not
ideal, neither was impermissibly suggestive. The district court viewed
the original photographs in the array and found that the differences
between Taylor’s photo and the others included in the array were not
so significant as to make the array impermissibly suggestive. The six
photographs included in the array were all of black males with similar
features, so that no one photo was particularly unique. With respect
to the in-court identification, the district court found that Degraw had
ample opportunity to observe Taylor, and Degraw testified confi-
dently in her in-person, in-court identification. Moreover, cross-
examination brought any possible flaws to the attention of the jury,
and the weight and trustworthiness of Degraw’s and Barnes’ identifi-
cation testimony properly was left to the jury. Accordingly, we con-
clude the district court did not err by admitting the photo array or the
in-court identification testimony.

   Taylor next argues that he was denied his Sixth Amendment right
to a jury trial. He asserts that when the jury announced its verdict on
count one, it had not finished its deliberations, and there was a real
possibility that further deliberations would have resulted in a hung
jury on all counts.

   After four hours of deliberation, the jury sent a note asking, "[i]f
we are not unanimous, what verdicts do I write?" (J.A. at 425.) In
response, the district court instructed the jury as follows:

       The jury cannot reach a verdict unless it is unanimous; in
    other words, you cannot find the defendant guilty and you
    cannot find the defendant not guilty unless you are unani-
    mous in your decision. So you need to work as vigorously
    as you can as a jury to see whether or not without violence
4                      UNITED STATES v. TAYLOR
     to your individual judgments of the case you can reach a
     unanimous decision on any one or all four of the counts.

(J.A. at 428-29.) After retiring for another hour, the jury sent a second
note indicating that it was at an impasse as to counts two through
four. The district court called the jury back in and asked if there was
a unanimous verdict on count one. The foreperson stated that the jury
had reached a unanimous verdict with respect to count one but could
not reach a unanimous verdict on the remaining counts. The jury
unanimously found Taylor guilty of count one, and the judge polled
the jury and stated on the record that it "detected no hesitation or no
distress on the part of any of those jurors . . . ." (J.A. at 435.)

   The district court has the legal authority to take a partial verdict in
any criminal case involving multiple counts against a single defen-
dant. See, e.g., United States v. Benedict, 95 F.3d 17, 19 (8th Cir.
1996); United States v. Ross, 626 F.2d 77, 81 (9th Cir. 1980); United
States v. DeLaughter, 453 F.2d 908, 910 (5th Cir. 1972); United
States v. Barash, 412 F.2d 26, 31-32 (2nd Cir. 1969) (citing United
States v. Cotter, 60 F.2d 689, 690-91 (2nd Cir. 1932)). The actions
of the trial judge in context and under all the circumstances presented
must be reviewed to determine if a judge’s instructions and actions
had a coercive effect. Jenkins v. United States, 380 U.S. 445, 446
(1965). We conclude that when the jury notes and the district court’s
additional instructions are viewed in context, the district court’s han-
dling of the jury’s inquiries by giving the additional instructions and
calling in the jury for its verdict on the count it agreed upon did not
have a coercive effect upon the jury’s verdict. The second note indi-
cated a consensus on the first count, and therefore, it was not error to
ask the jury if it had reached a unanimous verdict on that count.

  Therefore, we affirm Taylor’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument
would not aid the decisional process.

                                                             AFFIRMED
