UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4654

DONALD LAWTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-98-140)

Submitted: January 26, 1999

Decided: May 13, 1999

Before MICHAEL and TRAXLER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James Wyda, Acting Federal Public Defender, Daniel W. Stiller,
Assistant Federal Public Defender, Lauren E. Case, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Hollis Raphael
Weisman, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Donald Lawton appeals the district court's order affirming his jury
conviction and resulting sentence for fourth degree burglary. Lawton
consented to trial before a magistrate. Finding no error, we affirm.

On January 29, 1998 at about 11:30 a.m., Lin-Sien Lum, an
employee of the National Institute of Standards and Technologies
("NIST") in Gaithersburg, Maryland, left her office and heard an
unusual noise in a neighboring office. Lum observed a man searching
through desk drawers in the office and asked him if she could help
him. He then walked past her out of the office and exited through a
nearby stairwell. Lum called the NIST police to report the stranger
and described him as a black male with medium build, medium
height, short hair, and wearing a dark jacket with a white Nike
emblem. Lum also stated that the man was carrying a USA Today
newspaper and keys. Finally, Lum testified that at the time of her
encounter with the man, the lights were on, the window blinds were
up and that the office was "fairly bright." Although she could not say
how long the encounter lasted, she testified that"it was long enough
to have . . . one or two sentence[s]." Moments later, a second NIST
employee, Barbara Uglik, was walking towards her office when she
saw a man exiting it. The man told her that he left some papers on
her chair. After exchanging a few words with the man, Uglik entered
her office and noticed that there were no papers on her chair. She also
discovered her purse was open and a checkbook and some cash were
missing. Uglik called the police and gave a description of the man
similar to Lum's, including the dark jacket with a white Nike emblem
and noting that he was carrying a newspaper.

NIST police apprehended Lawton approximately one hour after
Lum and Uglik reported the incidents. Officer Dwayne Damuth
showed Uglik a photo identification card taken from Lawton, and

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Uglik indicated that the man in the picture was the man coming out
of her office. Uglik also identified Lawton in person at the guard's
office. Officer Damuth also showed the identification card to Lum,
who stated she was "pretty certain" that the photo was of the individ-
ual she confronted earlier.

Lawton was charged with fourth degree burglary under Maryland
law as assimilated under 18 U.S.C. § 13, and he consented to trial
before a magistrate judge. Lawton filed a pre-trial motion to suppress
identification testimony claiming that the pre-trial identifications were
impermissibly suggestive and unreliable. The magistrate judge denied
the motion after a hearing, and the jury convicted Lawton. At trial,
evidence was admitted concerning the pre-trial identifications, and
Lum and Uglik also identified Lawton in court. The court sentenced
Lawton to one year imprisonment, and Lawton appealed his convic-
tion to the district court, which affirmed.

Lawton asserts on appeal that his due process rights were violated
when the court admitted in-court identification testimony based on
impermissibly suggestive and unreliable photographic identifications.
In determining whether identification testimony is admissible, the
defendant must first establish that the identification procedure was
impermissibly suggestive. See Manson v. Brathwaite, 432 U.S. 98,
110 (1977). Second, if the procedure was unnecessarily suggestive,
the in-court identification is valid if it was reliable under the totality
of the circumstances. See id. at 114. In evaluating the reliability of the
identification, the court must consider: (1) the witness's opportunity
to view the perpetrator at the time of the crime; (2) the witness's
degree of attention at the time of the offense; (3) the accuracy of the
witness's prior description of the perpetrator; (4) the witness's level
of certainty when identifying the defendant as the perpetrator at the
time of the confrontation; and (5) the length of time between the
crime and the confrontation. See Neil v. Biggers , 409 U.S. 188, 199-
200 (1972).

We agree with the district court that the identifications of Lawton
based on one photograph rather than a photographic line-up may be
unnecessarily suggestive. See Simmons v. United States, 390 U.S.
377, 383-84 (1968). Nonetheless, we conclude that the identifications
were reliable under the totality of the circumstances. Both Lum and

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Uglik viewed Lawton face to face in a well-lit office for at least ten
to fifteen seconds. Lum testified that as Lawton walked past her, he
looked at her and she was able to make a mental image of him
because she was concentrating on him. Uglik was able to recall the
conversation Lawton had with her on his way out of her office. Also,
both Lum and Uglik provided detailed descriptions of Lawton's phys-
ical appearance and the clothing he was wearing. Their descriptions
were consistent with Lawton's actual appearance when he was appre-
hended. Further, only a short period of time had passed between the
crime and the two witnesses' identification of Lawton. We therefore
conclude that the court did not err in admitting the pre-trial and in-
court identifications.

Finally, Lawton asserts that the magistrate judge erred by failing to
give Lawton's requested jury instruction concerning misidentifica-
tion. A district court's denial of a requested jury instruction "consti-
tutes reversible error only if the instruction: (1) was correct; (2) was
not substantially covered by the court's charge to the jury; and (3)
dealt with some point in the trial so important that failure to give the
requested instruction seriously impaired the defendant's ability to
conduct his defense." United States v. Lewis , 53 F.3d 29, 32 (4th Cir.
1995).

While Lawton's requested instruction was a correct statement of
the law, he fails to establish that his requested instruction was not
substantially covered by the magistrate judge's jury instruction.
Though a cautionary instruction is necessary in some cases involving
a "strong likelihood of misidentification," see United States v. Brooks,
928 F.2d 1403, 1407-08 (4th Cir. 1991), the instruction given by the
magistrate judge essentially followed the model instruction we
endorsed in United States v. Holley, 502 F.2d 273, 277-78 (4th Cir.
1974). In addition, the court's refusal of Lawton's instruction did not
seriously impair his ability to conduct his defense. We therefore find
no error in the magistrate judge's refusal to give the specific instruc-
tion requested by Lawton.

Accordingly, we affirm Lawton'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

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