                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 9 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-6059
 v.
                                                  (D.C. No. CR-01-104-C)
                                                     (W.D. Oklahoma)
 JACKIE CARL KNIGHT,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and HARTZ, Circuit Judges.


      Jackie Carl Knight (“Knight”) appeals his convictions of bank robbery and

brandishing a firearm during a robbery. He contends that the district court should

have suppressed identification evidence offered by four eyewitnesses because the

photographic lineup presented to the witnesses was impermissibly suggestive. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM the convictions.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
       On January 9, 2001, Commercial Federal Bank in Oklahoma City was

robbed at gunpoint by two men. (ROA, Vol. 2 at 29-30; Vol. 3 at 65-66.) One

man wore a ski mask, and the other wore a disguise consisting of a baseball cap,

dark glasses and a fake or dyed beard. (Id., Vol. 2 at 30; Vol. 3 at 65-66.) The

robbery, which lasted approximately one minute (Id., Vol. 2 at 42-43), was

witnessed by several bank employees (Id., Vol. 3 at 65-66, 98-99; Vol. 4 at 152-

55, 179-80) and recorded by the bank’s surveillance cameras (Def.’s App. at 56-

83).

       The first robber’s face was completely concealed by the ski mask, and the

employees were only able to give descriptions of his physique. (ROA, Vol. 3 at

66, Vol. 4 at 161-62.) The other robber, who wore the disguise, moved around

during the robbery, such that none of the employees could see his face for the

entire minute. (ROA, Vol. 3 at 92, 129; Vol. 4 at 167-68, 189-90.) Immediately

after the robbery, however, several employees described him and believed they

could identify him. (Id., Vol. 2 at 16-17.) For approximately a month following

the robbery, the FBI had no suspects in the case. (Id. at 6.)

       In February 2001, the FBI was contacted by a Wyoming DEA agent who

had received information relating to the bank robbery from a convict. (Id., Vol. 2

at 4-5; Vol. 4 at 198.) The convict, Walter Hei, reported that his fellow inmate,

Knight, had admitted committing a robbery in Oklahoma City and had related


                                         -2-
several details about the robbery. (Id., Vol. 2 at 5-6; Vol. 4 at 198.) After

confirming that the details of Hei’s story aligned with the facts of the Commercial

Federal Bank robbery, FBI agent Cloyce Choney had police officers assemble a

lineup of six photographs. (Id., Vol. 2 at 6; Vol. 4 at 199-200.) Knight’s

photograph was placed in the number 4 position. (Id., Vol. 2 at 8-9.) All of the

individuals in the lineup were white males of approximately the same age with

male pattern baldness and facial hair. (Id. at 8; Def.’s App. at 84.) All but one

wore glasses. (Def.’s App. at 84.)

        Choney presented the lineup to four bank employees—Amanda Remy,

Tricia Nelson, Sam Reid, and Jason Wilke. (ROA, Vol. 2 at 9, 12, 16-18.) All of

these employees had earlier reported that they might be able to identify the

disguised robber. (Id., Vol. 2 at 17.) Choney informed the employees that the

lineup did include an FBI suspect (Id., Vol. 2 at 9, 19-20; Vol. 4 at 212), but that

they should not identify any of the photographs unless they were “one hundred

percent” certain about their choice (Id., Vol. 2 at 10, 12, 46; Vol. 3 at 72, 78; Vol.

4 at 158, 196.). Remy, Reid, and Wilke did not recall whether they were told that

a suspect was in the lineup. (Id., Vol. 2 at 45, Vol. 3 at 77-78, 131; Vol. 4 at

196.)

        Remy viewed the lineup first and identified Knight as the bank robber who

wore the hat, glasses, and beard. She noted her identification by writing her


                                          -3-
initials on the back of Knight’s photograph. (Id., Vol. 2 at 10-11, 26; Vol. 3 at

107.) Nelson viewed the lineup second. She also identified Knight and wrote her

initials on the back of his photograph. (Id., Vol. 2 at 10-11, 26; Vol. 4 at 158-

59.) Both Remy and Nelson identified Knight as the robber very quickly and

expressed that they were certain about their selections. (Id., Vol. 2 at 10-12, 21,

23, 34; Vol. 3 at 107-08; Vol. 4 at 159.) Choney then took the lineup to another

location to show to Reid and Wilke. (Id., Vol. 2 at 12.) Each tentatively selected

Knight’s photograph (number 4), but were not completely certain. 1 (Id., Vol. 2 at

12-13, 24-25; Vol. 3 at 78-79; Vol. 4 at 183-84, 204, 212.) Because they were not

positive about their selections, Choney did not ask them to initial the back of the

photographs. (Id., Vol. 2 at 13; Vol. 4 at 204-05, 208.)

      All of the witnesses were shown the lineup separately, and none knew if

another witness had selected one of the photographs until after their own

selection. (Id., Vol. 2 at 11, 13, 22-23, 33; Vol. 3 at 72, 107; Vol. 4 at 157-58,

177.) Agent Choney did not say anything to suggest which of the photographs

was the suspect. (Id., Vol. 4 at 202, 205.)




      1
       The testimony as to whether Reid and Wilke ultimately settled on number
4 is unclear. Both Reid and Wilke testified at trial that they had identified
number 4. (Id., Vol. 3 at 72; Vol. 4 at 183.) Agent Choney testified, however,
that Reid and Wilke were indecisive between numbers 2 and 4. (Id., Vol. 4 at
204, 211.)

                                         -4-
      Prior to trial, Knight moved to suppress these out-of-court identifications

and any in-court identifications that might be made by these witnesses. (Id., Vol.

1 at 14.) The district court denied the motion, concluding that there was

“absolutely nothing about this photo array that is suggestive.” (Id., Vol. 2 at 57.)

At trial, the out-of-court identifications were admitted and all four employees

made in-court identifications of Knight over his objections. (Id., Vol. 3 at 76,

109; Vol. 4 at 159-60, 185-85.)

      Knight contends that the admission of the witnesses’ in-court and out-of-

court identifications violated his Fifth Amendment due process rights. We review

the district court’s factual findings for clear error and review the determination of

whether the defendant’s due process rights were violated by the admission of the

evidence de novo. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994).

       To determine whether admission of a witness identification from a

photographic lineup violates a defendant’s due process rights, we apply a two-

prong test. First, we ask whether the photographic lineup was impermissibly

suggestive. United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir. 1999);

United States v. Smith, 156 F.3d 1046, 1050 (10th Cir. 1998); Sanchez, 24 F.3d at

1261-62. Factors used to determine whether a photograph array is impermissibly

suggestive include the size of the array, the manner of its presentation, and the

details of the photographs. Smith, 156 F.3d at 1050. Second, if the lineup was


                                         -5-
impermissibly suggestive, we ask whether the identification was nevertheless

reliable considering the totality of the circumstances. Sanchez, 24 F.3d at 1262.

      To determine whether a photographic lineup is impermissibly suggestive,

we first consider the size of the array. In this photograph lineup, the witnesses

were shown six photographs. The Tenth Circuit has held that “the number of

photographs in an array is not itself a substantive factor, but instead is a factor

that merely affects the weight given to other alleged problems or irregularities in

an array.” Sanchez, 72 F.3d at 1262. While there is no per se rule that a lineup

with only six photos is unconstitutional, this number is “sufficiently small to

weigh heavily in the balance of factors to be considered.” Smith, 156 F.3d at

1050 (quoting Sanchez, 72 F.3d at 1263). Thus, we must look to other factors to

see if the size of this lineup rendered it impermissibly suggestive.

      The second factor we consider is the manner in which the lineup was

presented to the witnesses. In this case, Knight argues that the manner of

presentation was suggestive in several ways: 1) Agent Choney told the witnesses

that a suspect was present in the lineup; 2) Agent Choney did not ascertain the

level of certainty of the witnesses making the identification; and 3) Agent Choney




                                          -6-
asked the witnesses who were certain about their identification to initial the back

of the photograph. 2

      The evidence shows that the manner in which Agent Choney presented the

lineup was not suggestive. Although he did tell the witnesses that a suspect was

present in the lineup, three of the witnesses did not remember being given that

information. Choney specifically instructed all of the witnesses that they were

under no obligation to make an identification and that they should not make an

identification unless they were one hundred percent certain. Furthermore,

informing a witness that a suspect is present in a lineup is merely one factor to

consider when deciding if a lineup is impermissibly suggestive and must be

considered in conjunction with other factors. Grubbs v. Hannigan, 982 F.2d

1483, 1490 (10th Cir. 1993) (informing witness that suspect was present in six-

person lineup was suggestive where four of the individuals in the lineup “had

facial characteristics noticeably dissimilar from those of the appellant” and one

individual had already been seen by the witness in a previous lineup). There is no

evidence in this case that this information influenced the witnesses’ identification

of Knight.


      2
        Knight relies on a research report promulgated by the Department of
Justice for the proposition that these aspects of Choney’s conduct were improper.
This report, Eyewitness Evidence: A Guide for Law Enforcement (U.S. Dep’t of
Justice ed., Oct. 1999), merely presents guidelines and is not binding on this
court, as Knight concedes. (Aplt. Br. at 16.)

                                        -7-
      Choney’s steps to ascertain the witnesses’ degrees of certainty also

indicates that the lineup was not suggestive. There was no need for Choney to

interrogate Remy and Nelson, who did identify Knight conclusively, about their

degrees of certainty because he had told them at the outset not to make an

identification unless they were completely certain and because they showed no

hesitation in selecting a photograph. Choney discussed with Reid and Wilke their

levels of certainty and concluded that their identifications were not firm enough

to record.

      Finally, all of the witnesses viewed the lineup separately. Prior to making

an identification, none of the witnesses knew if any other witness had made an

identification or which photograph they had identified. Although Remy viewed

the lineup first and put her initials on the back of Knight’s photograph, no other

witness saw those initials until after making his or her own selection. Choney

made no statement to any of the witnesses regarding which photograph to pick or

the need to make an identification.

      Based on this evidence, we determine that the photographic lineup was not

presented in a suggestive manner, and this factor weighs in favor of admitting the

evidence.

      The third factor we consider is the details of the photographs. This factor

weighs heavily in favor of admitting the evidence. The lineup consisted of six


                                         -8-
white men, all approximately the same age, all with white or grey facial hair, all

balding, and most of whom are wearing glasses. There is nothing about any of

these photographs that causes one or two to stand out from the rest. They are all

the same size, with similar backgrounds, and similarly dressed suspects. No

person who had not seen Knight could possibly select him as the suspect from

among these remarkably similar photographs. See Wiseman, 172 F.3d at 1209

(admission of photographic lineup evidence was unconstitutional where

defendant’s photograph “shows [him] with very prominent dark circles under his

eyes and with an extremely unnatural chalk-white pallor, while the skin tones in

the photos of the other five persons in the array look quite natural”); Sanchez, 24

F.3d at 1263 (admission of photographic lineup evidence was constitutional even

though there were “enough irregularities to raise some concern”); Grubbs, 982

F.2d at 1490 (admission of photographic lineup evidence was unconstitutional

where four of the individuals “had facial characteristics noticeably dissimilar

from those of the appellant” and one individual had already been seen by the

witness in a previous lineup).

      Knight argues that the photographs of number 2 and number 4 were so

similar that the witnesses would have been prompted to choose one of those two.

This argument is simply not supported by the lineup. All of the photographs in




                                         -9-
this lineup are remarkably similar, and numbers 2 and 4 are no more similar than

any of the others. As the district court stated,

      I’ve never seen a photographic array that I think is more fair than this one,
      that is less tainted, not suggestive in any way. It’s not just 2 and 4 who
      look alike, but all six of these men look alike. In fact, I couldn’t have
      picked out Mr. Knight from these six until I looked at him again and looked
      quite carefully from all six of them.


(ROA, Vol. 2 at 57.)

      If a lineup consisted of two photos that dramatically resembled each other,

and four photos that were completely different from those two, perhaps a witness

would be prompted to choose one of the two that resembled each other. That is

not the case here. Furthermore, two of the witnesses conclusively identified (and

two tentatively identified) Knight despite the fact that the other lineup photos so

closely resembled his. This bolsters the credibility of the identification, rather

than diminishing it.

      Although Appellant argues that the Eyewitness Evidence guidelines caution

against “using fillers who . . . closely resemble the suspect,” the purpose of this

guideline is to avoid creating a situation where “a person familiar with the suspect

might find it difficult to distinguish the suspect from the fillers.” (Def.’s App. at

39.) Despite the resemblance of Knight to the other fillers, two eyewitnesses

were nevertheless able to identify him with complete certainty.



                                         - 10 -
      Because we conclude that the photographic lineup was not impermissibly

suggestive, we do not need to reach the second prong of the test—whether the

identifications were nevertheless reliable. Sanchez, 24 F.3d at 1262 (“These two

prongs must be analyzed separately, and it is only necessary to reach the second

prong if the court first determines that the array was impermissibly suggestive.”).

      Admission of the out-of-court identifications in this case did not violate

Knight’s due process rights. When out-of-court identifications by witnesses are

admissible, in-court identifications made by those same witnesses are also

admissible. Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir. 1995).

      For these reasons, we AFFIRM appellant’s convictions.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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