        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2    United States v. Meyer                      No. 02-3582
    ELECTRONIC CITATION: 2004 FED App. 0055P (6th Cir.)
                File Name: 04a0055p.06                     ASSISTANT UNITED STATES ATTORNEY, Cleveland,
                                                           Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                               ROGERS, J., delivered the opinion of the court, in which
                                                           SUHRHEINRICH, J., joined. COLE, J. (pp. 12-17),
               FOR THE SIXTH CIRCUIT                       delivered a separate dissenting opinion.
                 _________________
                                                                               _________________
 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -                                                  OPINION
                                   -                                           _________________
                                   -  No. 02-3582
           v.                      -                          ROGERS, Circuit Judge. A jury convicted the defendant,
                                    >                      Robert Meyer, of postal robbery in violation of 18 U.S.C.
                                   ,
 ROBERT A. MEYER,                  -                       § 2114 and of using a firearm during a crime of violence in
         Defendant-Appellant. -                            violation of 18 U.S.C. § 924(c)(1). On appeal, Meyer argues
                                  N                        that the district court erred in denying his motion to suppress
                                                           any in-court identification by the victim, and he challenges
      Appeal from the United States District Court         the sufficiency of the evidence. We conclude (1) that the in-
     for the Northern District of Ohio at Cleveland.       court identification procedure devised by the district court
      No. 01-00085—Ann Aldrich, District Judge.            was not impermissibly suggestive, (2) that, even if the process
                                                           were impermissibly suggestive, the identification was
              Argued: September 19, 2003                   independently reliable, and (3) that a rational trier of fact
                                                           could have found the essential elements of the crimes beyond
         Decided and Filed: February 23, 2004              a reasonable doubt. Accordingly, we affirm the judgment of
                                                           the district court.
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
                   Judges.                                                      BACKGROUND
                  _________________                           On February 24, 1997, Jarmel M. Shaw, a postal employee,
                                                           was robbed at gunpoint. Shaw had completed his mail
                       COUNSEL                             collection route and had returned to the loading dock of the
                                                           Mansfield (Ohio) Main Post Office. As he moved his last
ARGUED: Charles E. Fleming, FEDERAL PUBLIC                 pickup, a basket of first class mail, to the back of the truck,
DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant.         the perpetrator opened the driver’s side door. He pointed a
Nancy L. Kelley, ASSISTANT UNITED STATES                   gun in Shaw’s face and demanded, “Give me the cash box,
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:         give me the cash box.” Shaw told the offender that he had
Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S              already taken the cashbox inside. The offender then directed
OFFICE, Cleveland, Ohio, for Appellant. Nancy L. Kelley,   Shaw to move to the back of the truck and entered the vehicle

                            1
No. 02-3582                     United States v. Meyer      3    4     United States v. Meyer                       No. 02-3582

and surveyed its contents. As the offender searched the truck    employee in violation of 18 U.S.C. § 2114 and using a
for the keys, Shaw opened the rear door and ran across the       firearm during a crime of violence in violation of 18 U.S.C.
loading dock into the post office. As he ran, Shaw heard a       § 924(c)(1). Prior to trial, Meyer moved to suppress any
single gun shot, but he was unharmed.                            pretrial or in-court identifications of Meyer by Shaw, arguing
                                                                 that the identification procedure used by Barrett was
   On May 30, 1997, Terry Barrett, the postal inspector          impermissibly suggestive and that this procedure would taint
investigating the robbery, presented Shaw with a photo           any subsequent in-court identification. The district court
lineup. Specifically, Shaw was shown six photographs, five       granted Meyer’s motion to suppress all pretrial
of individuals interviewed in connection with the                identifications, but it denied Meyer’s motion to suppress any
investigation and one of a postal employee. Meyer was not        in-court identification. It stated that it would devise a
yet a suspect, and his photograph was not included in the        procedure to minimize the effect of the tainted pretrial
lineup. Shaw did not identify anyone as the perpetrator.         identifications.

  On June 19, 2000, Barrett conducted a second photo lineup.        On March 25, 2002, Meyer’s jury trial began. Prior to
Since the May 1997 lineup, investigators had identified          Shaw’s testimony, the district court staged a lineup in an
Meyer as a suspect, and, to create a new lineup, Barrett         effort to minimize the taint of the pretrial identifications. The
simply replaced the photograph of the postal employee with       jurors were removed from the courtroom, and Meyer was
a photograph of Meyer taken in June 2000. The other five         placed in the jury box with seven men of similar age and
photographs remained the same. Shaw failed to make an            appearance. Shaw identified Meyer, and, during his
identification.                                                  testimony, he identified Meyer as the robber. Meyer objected
                                                                 to the identification during both the lineup and Shaw’s
   Believing that he had built a strong case against Meyer,      testimony.
Barrett was “perplexed” when Shaw failed to identify Meyer.
As Shaw prepared to leave, Barrett, “on a hunch,” displayed        The jury convicted Meyer of both counts. On April 14,
a second photograph of Meyer, which had been taken in 1997,      2002, Meyer filed a motion for judgment of acquittal, arguing
for Shaw. (Barrett did not show Shaw any other photographs       that the Government had not presented sufficient evidence to
at this time.) Barrett asked Shaw whether he recognized the      support a guilty verdict on either count, and a motion for a
man in the photograph, and Shaw immediately identified           new trial, arguing that the impermissibly suggestive pretrial
Meyer as the robber.                                             identifications tainted Meyer’s in-court identification. On
                                                                 May 3, 2002, the district court denied both motions. It found
   On August 10, 2000, Barrett conducted a third photo           that the Government had presented sufficient evidence to
lineup. The first five photographs in the lineup were the five   support the verdict, that the in-court identification procedure
pictures used in the prior lineups. However, the sixth           was not impermissibly suggestive, and that the in-court
photograph was the 1997 picture of Meyer, which Barrett had      identification was independently reliable. On May 20, 2002,
shown individually to Shaw after the June 2000 lineup. Shaw      Meyer filed a timely notice of appeal.
again identified Meyer as the robber.

  On February 21, 2001, the Government filed a two-count
indictment against Meyer, alleging robbery of a postal
No. 02-3582                       United States v. Meyer       5    6    United States v. Meyer                       No. 02-3582

                         ANALYSIS                                   attention at the time of the crime; (3) the accuracy of the
                                                                    witness’s prior description of the defendant; (4) the
     1. Motion to Suppress In-Court Identification                  witnesses’s level of certainty when identifying the defendant
                                                                    at the confrontation; and (5) the length of time between the
  In reviewing a district court’s ruling on a motion to             crime and the confrontation. Neil v. Biggers, 409 U.S. 188,
suppress, we apply the clearly erroneous standard to the            199-200 (1972); Ledbetter, 35 F.3d at 1071 (applying the
district court’s factual findings and the de novo standard to its   Biggers factors); Hill, 967 F.2d at 230 (same). If the
legal conclusions. United States v. Dotson, 49 F.3d 227, 229        defendant fails to show that the procedure was impermissibly
(6th Cir. 1995). Whether identification evidence was                suggestive, or if the totality of the circumstances indicates
“sufficiently reliable so as not to offend appellant’s rights       that the identification was otherwise reliable, admission of the
under the due process clause” is a question of law. Smith v.        identification testimony does not violate the defendant’s right
Perini, 723 F.2d 478, 481 (6th Cir. 1983).                          to due process.

  A conviction based on identification testimony violates the         Meyer contends that the district court erred in permitting
defendant’s constitutional right to due process whenever the        Shaw’s in-court identification. He argues that the pretrial
identification procedure is “so impermissibly suggestive as to      identifications in June 2000 and August 2000, which the
give rise to a very substantial likelihood of irreparable           district court deemed impermissibly suggestive, tainted
misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th         Shaw’s in-court identification. In fact, he charges that Postal
Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377,         Inspector Barrett’s suggestive behavior—the display of the
384 (1968)). A defendant is denied due process “only when           single photograph—was so flagrant that it rendered Shaw
the identification evidence is so unreliable that its               incapable of making an independent identification. No
introduction renders a trial unfair.” Smith, 723 F.2d at 482        procedure devised by the district court, he maintains, could
(quoting Summit v. Bordenkircher, 608 F.2d 247, 253 (6th            have eliminated the taint of Inspector Barrett’s misconduct.
Cir. 1979)). “As long as there is not a substantial likelihood
of misidentification, it is the function of the jury to determine     Meyer also contends that, under the Biggers analysis,
the ultimate weight to be given to the identification.” Id.; see    Shaw’s identification was not independently reliable. First,
also United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).      he insists that Shaw had limited opportunity to view the
                                                                    perpetrator, as, although the encounter lasted two to four
  This court has prescribed a two-step analysis for                 minutes, Shaw was able to view the perpetrator’s face for
determining the admissibility of identification evidence.           only “some fraction” of this time. Second, he questions
Ledbetter v. Edwards, 35 F.3d 1062, 1071-72 (6th Cir. 1994);        Shaw’s degree of attention, asserting that Shaw was distracted
Hill, 967 F.2d at 230. First, the defendant bears the burden of     by his concern for his safety. Third, he brands Shaw’s prior
proving that the identification procedure was impermissibly         description inaccurate, noting that, in his initial statement to
suggestive. Id. Second, if the defendant meets this burden,         investigators, Shaw described the perpetrator as a man in his
the court evaluates the totality of the circumstances to            twenties or thirties and did not mention gray hair or facial
determine whether the identification was nevertheless               hair. (At the time of the incident, Meyer was in his early
reliable. Id. The following factors guide the court’s               forties and, apparently, had gray hair and a mustache.)
reliability analysis: (1) the witness’s opportunity to view the     Fourth, he discounts the high degree of certainty evinced by
criminal at the time of the crime; (2) the witness’s degree of      Shaw at confrontation, dismissing it as a product of the earlier
No. 02-3582                      United States v. Meyer       7    8    United States v. Meyer                       No. 02-3582

suggestive procedures. Fifth, he claims that the length of time    perpetrator demanded the keys to the truck. Shaw
between the crime and the in-court identification—more than        “continue[d] to look at [the perpetrator] to determine if there
five years—weighs strongly against a finding of reliability.       would be an opportunity . . . to get away” before escaping
                                                                   through the back of the truck. That Shaw could not see the
   We conclude that the district court did not err in permitting   perpetrator’s face for some fraction of the incident hardly
the in-court identification. First, we agree with its conclusion   undermines the conclusion that, for Biggers purposes, Shaw
that the in-court identification procedure was not                 had an excellent opportunity to view the perpetrator.
impermissibly suggestive. Meyer does not argue that the
procedure used at the in-court lineup on March 25, 2002, was         The second and fourth Biggers factors also dictate a finding
itself suggestive; instead, he contends that Inspector Barrett’s   of reliability. Regarding the second factor, Shaw testified that
display of the single photograph of Meyer at the June 19,          he focused his attention on the perpetrator throughout the
2000 photo lineup was so suggestive that it rendered Shaw          incident, first conducting a dialogue with the perpetrator and
forever incapable of making an independent identification of       then studying him as he looked for an opportunity to escape.
the perpetrator. However, as the district court properly           Contrary to Meyer’s assertion, Shaw’s concern for his safety
concluded, the facts indicate that Shaw’s in-court                 did not distract his attention; if anything, it heightened his
identification of Meyer stemmed from his recollection of the       degree of attention as Shaw watched the perpetrator for an
incident rather than any recollection of the photograph shown      opportunity to escape. Finally, regarding the fourth factor,
to him by Inspector Barrett. Approximately a year and a half       Shaw identified Meyer quickly and confidently during the in-
elapsed between the last photo lineup and Shaw’s in-court          court lineup, and, as discussed supra, Shaw’s assurance did
identification of Meyer. Meyer’s appearance at the time of         not appear to stem from his recollection of the photographs
the in-court lineup differed noticeably from his appearance in     used in the impermissibly suggestive lineups.
the photograph, and the in-court lineup was comprised of
Meyer and seven men of similar age and appearance. In                 As the district court concluded, the third and fifth Biggers
short, the identification process devised by the district court    factors cut in Meyer’s favor. Regarding the third factor, the
ensured that Shaw’s in-court identification of Meyer was not       district court identified some minor discrepancies between
tainted by Inspector Barrett’s earlier display of the              Shaw’s initial description of the perpetrator and Meyer’s
photograph.                                                        actual appearance.         For example, Shaw placed the
                                                                   perpetrator’s age at twenties to thirties, whereas Meyer was in
   Second, we agree with the district court’s conclusion that,     his early forties at the time of the incident. Regarding the
even if the procedure were impermissibly suggestive, the in-       fifth factor, Shaw made his in-court identification more than
court identification was independently reliable. The first,        five years after the crime. However, given the weight of the
second, and fourth of the Biggers factors weigh heavily in         other factors, the district court properly concluded that, under
favor of reliability. Regarding the first factor, during the       the totality of the circumstances, Shaw’s identification was
incident, which lasted between two and four minutes, Shaw          independently reliable.
observed the perpetrator at close range. The perpetrator
opened the driver’s side door of Shaw’s postal truck, placed
a gun “in [his] face,” and demanded, “Give me the cash box.”
A conversation ensued, as Shaw denied having a cash box,
the perpetrator directed him to the back of the truck, and the
No. 02-3582                           United States v. Meyer           9    10       United States v. Meyer                            No. 02-3582

                 2. Sufficiency of the Evidence                               We are unpersuaded by Meyer’s dissection of the
                                                                            Government’s case. The Government was not obligated to
  The district court also properly denied Meyer’s motion for                proffer physical evidence, and it presented substantial
judgment of acquittal. We review de novo a district court’s                 evidence connecting Meyer to the crimes. For example, as
denial of such a motion. United States v. Humphrey, 279                     discussed supra, Shaw identified Meyer as the perpetrator.
F.3d 372, 378 (6th Cir. 2002). We must determine “whether,                  Sherri Dawn Goodwin, Meyer’s former girlfriend, testified
after reviewing the evidence in the light most favorable to the             (1) that she lent Meyer her red Jeep Cherokee, which had
prosecution, any rational trier of fact could have found the                West Virginia plates, on the day of the crimes (Shaw testified
essential elements of the crime beyond a reasonable doubt.”                 that he had observed a red Jeep Cherokee with out-of-state
Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)                   plates in the vicinity of the robbery), (2) that Meyer returned
(emphasis in original)). We do not “weigh the evidence,                     with blood on his clothes and glass in his face (the window of
consider the credibility of witnesses or substitute our                     Shaw’s postal truck had been shattered), and (3) that later in
judgment for that of the jury.” United States v. Hilliard, 11               the evening Meyer told her that he had robbed a postal truck
F.3d 618, 620 (6th Cir. 1993) (citing United States v. Evans,               and that his gun accidently went off during the robbery.
883 F.2d 496, 501 (6th Cir. 1989)). “Circumstantial evidence                Sandra Waddell, a roommate of Meyer at the time, testified
alone is sufficient to sustain a conviction and such evidence               that Meyer was bleeding and excited on the night of the
need not ‘remove every reasonable hypothesis except that of                 robbery, and told others at the residence to “cool it” when
guilt.’” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.               they began discussing news reports of the crimes. Jack
1989) (quoting United States v. Stone, 748 F.2d 361, 363 (6th               Osborne, an acquaintance of Meyer, testified that, on the
Cir. 1984)).                                                                night of the robbery, Meyer told him that he had shot a black
                                                                            man.2
   Meyer argues that the Government did not present
sufficient evidence for the jury to find, beyond a reasonable                  In sum, viewing the evidence in the light most favorable to
doubt, that he—rather than someone else—robbed Shaw. He                     the prosecution, Jackson, 443 U.S. at 319, we conclude that
notes that the Government did not present any physical                      a rational trier of fact could have found the essential elements
evidence—e.g., finger prints or bullet fragments—connecting                 of the crimes—including Meyer’s identity as the
him to the crimes. He observes that, although press releases                perpetrator—beyond a reasonable doubt.
issued by the United States Postal Service at the time of the
crimes reported that a padlock had been taken, Postal
Inspector Barrett had no knowledge of the missing padlock,
which was never found. Finally, he stresses that a witness
informed Barrett that Patrick Hicks, an acquaintance of
Meyer, had admitted to the crimes.1
                                                                            to avenge his refusal to send her money. H owever, as M eyer
                                                                            acknow ledges, it is the jury’s province to assess the credibility of
                                                                            witnesses. United States v. Burns, 298 F.3d 523, 534 -35 (6th Cir. 2002).
    1
      Meyer also impugns the credib ility of two government witnesses,           2
Jarmal Shaw and Sheri Dawn Goodwin. He asserts that Shaw’s initial                Significantly, both Good win and Osborne testified that Meyer stated
description of the perpetrator differed significantly from his actual       that he had shot at a black man. T he me dia had not repo rted the victim’s
appearance. He insinuates that Goodw in, his former girlfriend, testified   race.
No. 02-3582                   United States v. Meyer   11   12    United States v. Meyer                       No. 02-3582

                    CONCLUSION                                                  _________________

  For the reasons stated above, we AFFIRM the judgment of                           DISSENT
the district court.                                                             _________________

                                                              R. GUY COLE, JR., Circuit Judge, dissenting. Because I
                                                            believe: (1) that the in-court identification procedure was
                                                            impermissibly suggestive; and (2) that the totality of the
                                                            circumstances, using the five-part analysis set forth in
                                                            Biggers, clearly demonstrates that the identification was not
                                                            independently reliable, I respectfully dissent.

                                                              The majority correctly sets out the two-step analysis that
                                                            must be undertaken when determining the admissibility of an
                                                            identification, and also correctly notes the five Biggers factors
                                                            that we are to consider in the second step of the analysis.
                                                            However, I believe that the majority’s application of the test
                                                            to the facts of the present case is flawed.

                                                                                           I.

                                                               First, we must consider whether the in-court identification
                                                            procedure was impermissibly suggestive. I believe that it
                                                            was. The district court made clear that the pre-trial
                                                            photographic identifications were undoubtedly impermissibly
                                                            suggestive.     If we accept that the pre-trial photo
                                                            identifications were impermissibly suggestive, as I think it is
                                                            clear we must, the question becomes whether there is a
                                                            principled basis for concluding that the in-court identification
                                                            is not.

                                                              I am unable to find any principled distinction between the
                                                            two. In stating that the in-court identification was not
                                                            impermissibly suggestive, the majority essentially notes two
                                                            factors which indicate that the identification was based on
                                                            Shaw’s recollection of the incident rather than on a
                                                            recollection of the photographs. First, approximately a year
                                                            and a half had elapsed between the last photo lineup and the
                                                            in-court identification. Second, Meyer’s appearance at the
No. 02-3582                       United States v. Meyer       13    14    United States v. Meyer                        No. 02-3582

time of the in-court lineup differed from his appearance in the        Thus, the majority offers no legitimate rationale for
photograph, and the district court’s lineup included Meyer           distinguishing the in-court lineup from the pre-trial lineups
and seven men of similar age and general appearance. In              with regard to the impermissibly suggestive nature of the
actuality, neither of these reasons, independently or taken          identification. Because the photo lineups were improper, the
together, support the notion that the in-court identification        in-court identification was therefore impermissibly suggestive
was somehow unaffected by the prior taint.                           as well. Thus, our focus should turn to applying the Biggers
                                                                     factors to determine whether the identification nevertheless
   While a year and a half had in fact elapsed from the last         was independently reliable.
photo lineup to the in-court identification, over five years had
elapsed since the commission of the crime. It seems logical                                         II.
to conclude that, while the taint of the suggestive photo
lineups had dissipated with time, Shaw’s ability to recognize           The first Biggers factor is the opportunity of the witness to
the robber from the day of the crime itself had dissipated to an     view the perpetrator at the time of the crime. While the
even greater degree. Indeed, it might more likely be                 majority finds that this factor weighs heavily in favor of
presumed that, because of the lengthy amount of time that had        reliability, my view, like the district court, is that this factor
elapsed between the offense itself and the in-court                  weighs only slightly in favor of reliability. While there is
identification, Shaw was all the more likely to have lost his        little question that the witness did have some opportunity to
recollection of the event itself, and therefore replaced his         view the assailant, the encounter was not especially long, and
memory of the perpetrator’s appearance with images from the          for a substantial portion of the time Shaw was not in a
more recently viewed photographs.                                    position to observe the robber’s face.

    Additionally, the fact that Meyer’s appearance in court             The district court additionally found that the second
differed from his appearance in the prior photograph, and that       Biggers factor, the witness’s degree of attention, “cuts only
the in-court staged lineup included seven other men of               slightly in favor of admissibility.” As the district court noted,
approximately the same appearance hardly leads to the                Shaw’s testimony indicated that he may have been focused as
inference the majority suggests. Meyer argues that the in-           much on the gun itself as on the gunman’s face, and he was
court identification was tainted by the improper photo arrays.       somewhat preoccupied in his search for a way to escape the
The fact that Shaw was able to pick out the very gentleman           truck. Thus, I agree that this factor weighs slightly, at best, in
improperly shown to him from photographs does nothing to             favor of reliability.
demonstrate that the taint from these photographs was no
longer present. Moreover, if Meyer’s appearance indeed                 The majority implies that the third factor, the accuracy of
differed substantially from his appearance in the photograph,        the witness’s prior description, cut slightly against reliability.
it is safe to assume that his appearance also differed at least as   However, as the district court found, this factor was not
substantially from his appearance at the time of the crime.          nearly as tentative as the majority indicates. In fact, the
The majority fails to note how the nature of this lineup             district court stated that the Biggers factor weighed strongly
assuages concerns that Shaw was identifying the man he saw           against reliability. At the time of the crime, Meyer was in his
in the improperly suggestive photo arrays rather than the            early forties. The February 24, 1997, interview report
perpetrator of the crime.                                            indicates that Shaw described the suspect as a white male in
                                                                     his early thirties, and Shaw testified at the suppression
No. 02-3582                       United States v. Meyer      15    16    United States v. Meyer                        No. 02-3582

hearing that he originally believed that the suspect may have          Finally, the length of time between the crime and the
been in his twenties. As the district court also noted, Shaw        confrontation, the fifth Biggers factor, weighs heavily against
described the suspect as having brown hair, but the 1998            reliability. Despite the fact that the majority finds that this
photo of Meyer depicted a man whose hair did not match that         factor cuts only slightly in Meyer’s favor, I believe that this
description. Furthermore, Shaw’s description of the gunman          factor weighs immensely against reliability–to an almost
did not mention facial hair, but Meyer has a mustache in each       dispositive degree. In fact, in Biggers itself, the Supreme
of the subsequent photos. While Meyer’s facial hair certainly       Court noted that a lapse of seven months between the date of
could have grown in the interim, there was no indication that       the crime and the time of the confrontation would be “a
this was the case. I therefore agree with the district court that   seriously negative factor in most cases.” 409 U.S. at 201. If
this factor should weigh heavily against reliability.               a seven-month lapse is generally a “seriously negative factor,”
                                                                    a five-year lapse must be considered exponentially more
   The fourth Biggers factor is the level of certainty              negative.
demonstrated by the witness. The district court found that the
fourth Biggers is the only one in which the analysis differs          In considering the totality of the circumstances, the district
from the pre-trial identification to the in-court identification.   court further supported the decision to suppress the pre-trial
According to the district court, this shift in the fourth factor    identifications as follows:
was sufficient to tip the scale in favor of reliability. With
regard to the out-of-court identification, the district court         [The district court] also finds relevant the fact that Shaw
noted that Shaw testified that he was very certain of the             failed to identify Meyer in the second photo lineup. It is
identification, but took this certainty “with a grain of salt,”       true that Meyer’s appearance in that photograph, which
mindful that he was shown the photo under extremely                   was taken in 2000, is quite different from his appearance
suggestive circumstances. However, because I believe that             in the photograph Shaw eventually positively identified,
the in-court identification was also impermissibly suggestive,        which was taken in 1998. Even so, Shaw’s initial failure
I think the certainty with which Shaw identified Meyer in             to identify Meyer suggests that his opportunity to view
court should be viewed with a similar degree of skepticism.           the gunman at the time of the crime and his degree of
                                                                      attention to the gunman’s appearance. . .were perhaps not
   In addressing the fourth Biggers factor, the majority notes        as great as his testimony would otherwise suggest. If the
that “Shaw’s assurance did not appear to stem from his                gunman’s face were truly as emblazoned in Shaw’s
recollection of the photographs used in the impermissibly             memory as he believes it to be, it is unlikely that he
suggestive lineups.” But the majority provides no basis for           would not recognize Meyer after studying the second
this assertion. Indeed, I question what Shaw could have               photo lineup.
done–short of saying, “That’s the guy I saw in the picture!”–
to make his assurance “appear to stem from his recollection           I agree fully with this analysis by the district court, and note
of the photographs.” I am unable to see any logical basis to        that this assessment is equally applicable to the in-court
support the notion that Shaw’s assurance was based on his           identification.
recollection of the incident rather than his recollection of the
tainted photo lineups.                                                 Thus, the first, second, and fourth Biggers factors cut only
                                                                    slightly, if at all, in favor of reliability. The third and fifth
                                                                    factors, in contrast, weigh strongly against reliability.
No. 02-3582                      United States v. Meyer     17

Accordingly, it is my view that the in-court identification was
impermissibly suggestive, not independently reliable, and
should have been suppressed.

                             III.

   A conviction based on an identification that is so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification violates the
defendant’s constitutional right to due process. See Thigpen
v. Cory, 804 F.2d 893, 895 (6th Cir. 1986). I, therefore,
would find that Meyer’s right to due process has been
violated, and would remand the case to the district court for
a new trial untainted by an impermissibly suggestive and
unreliable identification. Accordingly, we need not reach the
second issue in this case, the denial of Shaw’s motion for
judgment of acquittal. In this regard, I simply wish to note
my agreement with the majority that, with Shaw’s
identification admitted as evidence, a rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.

                             IV.

  In sum, I would reverse the district court’s denial of
Meyer’s motion to suppress and remand the case to the
district court for a new trial.
