                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4684


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LAMONT VAN HARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:11-cr-00240-1)


Submitted:   February 28, 2013            Decided:   March 28, 2013


Before MOTZ, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


L. Thompson Price, HOLROYD & YOST, Charleston, West Virginia,
for Appellant.    R. Booth Goodwin II, United States Attorney,
Joshua C. Hanks, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Lamont Van Harris appeals from his conviction after a

jury trial for being a felon in possession of a firearm, in

violation      of     18      U.S.C.      § 922(g)(1)          (2006).          The    Government

presented evidence that the Defendant shot Travis Bush with a

9mm handgun.         On appeal, the Defendant argues that the district

court erred in denying his motion to exclude the identification

of him by the victim, that there was insufficient evidence to

support his conviction, and that the district court erred in

denying his motion for a new trial based on juror bias.                                      Finding

no error, we affirm.

              The Defendant appeals the district court’s denial of

his    motion       in     limine       to     suppress        Travis        Bush’s     pre-trial

identification of him as the man who shot him on September 17,

2011, and preclude him from identifying the Defendant in court.

He argues that the photo array used by police six days after the

shooting      was    impermissibly            suggestive           because    Bush     admittedly

saw    the    same       photograph          used       in   the    photo     array     on     local

television news coverage of the incident, which also indicated

that    the    Defendant          had     been      arrested        for   the      crime.        The

Defendant’s argument on appeal is conclusory and states only

that    the    use       of   the    photo       in      the   array      was      impermissibly

suggestive      and        that     the      identification           procedure        created    a

substantial         likelihood       of      misidentification.               He      also    flatly

                                                    2
asserts        that     Bush’s      pre-trial           identification             was     not

sufficiently reliable to permit an in-court identification.

            This       court     reviews         de    novo        a    district     court’s

admission of an eyewitness identification.                              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 likelihood of

irreparable misidentification.’”                  Id. (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)).                       No due process violation

occurs    if    the     “identification          was    sufficiently         reliable       to

preclude       the     substantial     likelihood             of       misidentification.”

United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997).

            The defendant bears the burden of proof in challenging

the admissibility of an out-of-court identification.                           See id. at

441.      First, the defendant must show that the identification

procedure was impermissibly suggestive.                        Saunders, 501 F.3d at

389.     If the defendant is successful, the court must consider

“whether    the       identification       was    nevertheless           reliable    in    the

context of all of the circumstances.”                          Id. at 389-90.             If a

witness’s out-of-court photo identification is unreliable and,

therefore,      inadmissible,       any     in-court          identification        is    also

inadmissible.         Simmons, 390 U.S. at 383-84.



                                            3
               On appeal, this court may uphold a district court’s

denial of a motion to suppress an out-of-court identification,

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).    In

assessing         the    reliability       of    an        out-of-court         identification,

this court examines:

       (1) the witness’s opportunity to view the suspect at
       the time of the crime; (2) the witness’s degree of
       attention at the time; (3) the accuracy of the
       witness’s initial description of the suspect; (4) the
       witness’s   level   of    certainty  in   making   the
       identification; and (5) the length of time between the
       crime and the identification.

Saunders, 501 F.3d at 391.

               Considering these five factors, the totality of the

circumstances            renders     the        identification            reliable.           Bush

identified         his    shooter    within       an       hour    of    the     shooting.      He

observed the Defendant at the time he was shot holding a pistol

and saw him outside the West Dunbar Mart, where he was shot,

just       prior    to     the   incident.               Bush     was    familiar      with   the

Defendant from prior incidents.                          Bush was able to describe the

Defendant’s             physical         characteristics                and      provided      the

Defendant’s first name and address.                          His description pointed to

a    specific       individual      and    not       a    group    of     possible     suspects.

When reviewing the photos in the array, Bush stated that he

casually recognized two men in the photo array but identified

                                                 4
the Defendant’s photo as “the guy that shot me right there.”

The    six    days     that       elapsed         between    the       shooting      and     Bush’s

identification         was       not   sufficiently         lengthy       to    undermine         its

reliability.         As the district court noted, there were also other

factors       supporting         the    reliability         of    Bush’s       identification.

Another eyewitness identified the Defendant, Bush knew facts not

released       to    the     media,      and       police    found       and       arrested       the

Defendant at the address that Bush provided.                                 In consideration

of    these    facts,       we    conclude         that    the    court      did    not     err    in

denying the motion to suppress the out-of-court identification

and in permitting an in-court identification.

               We    also     discern        no     error    in    the       district      court’s

decision to deny the Defendant’s Fed. R. Crim. P. 29 motion

based   on     the     sufficiency           of    the    evidence      against       him.        The

Defendant      argues       that       the    Government         had    to    prove     that      the

Defendant       shot       Bush    because         the    only     physical         evidence      of

possession      of     a    firearm      introduced         at     trial      was    five     shell

casings found at the scene.                   The Defendant cites witness Jessica

Boyce’s testimony that she recognized the Defendant as being a

customer of the West Dunbar Mart, but that she did not see him

at the store that day and only caught a glimpse of the shooter.

The Defendant also questions the veracity of Bush’s testimony

identifying the Defendant as the shooter because they were not

known to socialize together, Bush did not know the Defendant’s

                                                   5
last name until after the shooting, and there was no motive to

shoot Bush in the daylight in a public place.

               We review the denial of a Rule 29 motion de novo.                      See

United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).

When a Rule 29 motion was based on a claim of insufficient

evidence,      the   jury’s     verdict   must       be   sustained     “if   there   is

substantial      evidence,      taking    the    view     most    favorable    to     the

Government, to support it.”              United States v. Abu Ali, 528 F.3d

210, 244 (4th Cir. 2008) (internal quotation marks and citations

omitted).       Substantial evidence is “evidence that a reasonable

finder    of    fact   could     accept    as    adequate        and    sufficient    to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”        United States v. King, 628 F.3d 693, 700 (4th Cir.

2011) (internal quotation marks omitted).

               In resolving issues of substantial evidence, the court

does   not     reweigh    the    evidence       or   reassess     the    factfinder’s

determination of witness credibility, and it must assume that

the jury resolved all contradictions in testimony in favor of

the Government.          See United States v. Roe, 606 F.3d 180, 186

(4th Cir. 2010).         Thus, a defendant challenging the sufficiency

of the evidence faces a heavy burden.                       See United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                      We conclude that

the    Government      produced     sufficient        evidence     to    support      the

jury’s conviction for being a felon in possession of a firearm.

                                           6
The Defendant stipulated that he had been convicted of a felony.

Uncontradicted         testimony          of    ATF    Special      Agent       Todd    Willard

established       an     interstate            nexus.        Lastly,        two        witnesses

testified that the Defendant possessed a firearm at the time he

shot Bush.

               Finally,    the       Defendant         contends      that       the    district

court erred in denying his motion for a new trial under Fed. R.

Crim. P. 33 based on juror bias.                        The Defendant’s girlfriend,

Doreen    Motley,      testified          at   trial.       During       voir    dire,    juror

number    11    stated    that       she       was    familiar    with      Motley’s      aunt.

After trial, the Defendant submitted an affidavit from Motley.

In the affidavit, Motley averred that her aunt “was not fond of”

the     Defendant,      her        aunt    had       knowledge      of    the     Defendant’s

criminal history, and her aunt was a friend of juror number 11.

The Defendant argues that juror number 11’s failure to fully

disclose her acquaintance with Motley’s aunt and the juror’s

potential knowledge of the aunt’s impression that she did not

like the Defendant and that the Defendant had a criminal record

deprived him of his right to a fair and impartial jury under the

Sixth    Amendment.           He    concedes         that   there    is     no    information

whether the aunt’s dislike of the Defendant was known to juror

number 11 or whether the juror knew of the Defendant’s criminal

record through the juror’s association with the aunt.                                   However,

he claims the acquaintance of the juror with the Defendant is

                                                 7
presumptively prejudicial and violates the right to an impartial

jury.

            The Government contends that the district court did

not   err   in    finding     that    Motley’s        affidavit    enumerating   her

aunt’s knowledge of the Defendant was ambiguous and insufficient

to establish that the interests of justice required a new trial.

Balancing the ambiguity of what juror number 11 actually knew

with her answer to the court’s inquiry of whether she would be

able to decide the case solely on the facts and the law and her

forthrightness      in   acknowledging          the   association    with   Motley’s

aunt at voir dire, the Government argues that the record is

insufficient to demonstrate that the court erred in denying the

motion for a new trial.

            The Sixth Amendment guarantees the right to a “trial[]

by an impartial jury.”             U.S. Const. amend. VI.            “The right to

trial by an impartial jury ‘guarantees . . . a fair trial by a

panel of impartial, indifferent jurors.’”                   Robinson v. Polk, 438

F.3d 350, 359 (4th Cir. 2006) (quoting Irvin v. Dowd, 366 U.S.

717, 722 (1961)).

            The    analysis     of    the       Defendant’s     juror   bias   claim

begins    with    the    Supreme     Court’s      holding     in   McDonough   Power

Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), “that to obtain

a   new   trial    [on    a   juror    bias      claim],    a   party   must   first

demonstrate that a juror failed to answer honestly a material

                                            8
question on voir dire, and then further show that a correct

response would have provided a valid basis for a challenge for

cause.”       Id. at 556; Jones v. Cooper, 311 F.3d 306, 310 (4th

Cir.    2002)      (recognizing         the     applicability         of    the       McDonough

standard      to   federal        criminal      proceedings).              We   believe         the

district court properly found that juror number 11 forthrightly

answered the question during voir dire that she knew Motley’s

aunt    and    that      the    Defendant,      therefore,         was    not    entitled        to

relief under McDonough.

              We have held, however, that a defendant’s “[f]ailure

to   satisfy       the    requirements          of    McDonough      does       not    end      the

court’s inquiry . . . when the petitioner also asserts a general

Sixth    Amendment        claim    challenging            the   partiality       of    a    juror

based upon additional circumstances occurring outside the voir

dire.”        Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.

1998).         A defendant         is    not        automatically         entitled         to    an

evidentiary hearing.              However, post-trial, the movant has the

opportunity        to     demonstrate         actual       bias,    or     in     exceptional

circumstances,           that   the     facts       are   such     that    bias       is   to    be

inferred, in order to grant a new trial.                            Id. at 363 (quoting

McDonough, 464 U.S. at 556-57).

              We agree with the district court.                            The Defendant’s

motion for a new trial argues that juror number 11 may have

known that Motley’s aunt did not like the Defendant and may have

                                                9
known of the Defendant’s criminal history and therefore may have

held a bias against the Defendant.                 This depiction is purely

conjectural,    and   the   Defendant         proffered   nothing     to   suggest

otherwise.     Motley’s affidavit does not demonstrate what juror

number 11 knew, but alleged what she may have known.                   Given the

speculative nature of the Defendant’s allegations, we conclude

that the district court did not err in denying the motion for a

new trial.

           We therefore affirm the judgment.                  We dispense 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




                                         10
