                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JAN 28, 2009
                             No. 08-14469                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 05-00028-CR-T-N

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SHAWN DEMETRIUS CROSKEY,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________

                            (January 28, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Shawn Demetrius Croskey appeals from the district court’s judgment

revoking his supervised release. He argues that an eyewitness’s out-of-court

photographic identification of him as an armed robber was unreliable and violated

due process. For the reasons set forth below, we affirm.

                                          I.

      In February 2005, a federal grand jury returned a three-count indictment

against Croskey, charging him with assault of an individual in possession of U.S.

money or property with intent to rob that individual of such money or property, in

violation of 18 U.S.C. §§ 2114(a) and 2 (Count One); use of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two);

and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(Count Three). Croskey pled guilty to Count Three of the indictment, pursuant to a

written plea agreement. On August 1, 2005, the district court sentenced Croskey to

37 months’ imprisonment, to be followed by a 3-year period of supervised release.

The terms of the court’s supervised release, inter alia, prohibited Croskey from

committing another federal, state, or local crime and from possessing a firearm.

      Following Croskey’s release from custody, the probation officer petitioned

the district court to revoke Croskey’s supervised release. The probation officer

alleged that Croskey violated the above two conditions of his supervision based on



                                          2
the following conduct:

      On May 9, 2008, Shawn Croskey was arrested by the Montgomery
      Police Department and charged with Robbery 1st Degree. The victim
      advised that Croskey and another unknown subject forcibly entered
      her residence on or about April 25, 2008 through the rear door,
      produced a weapon, and demanded currency. The victim advised that
      both Croskey and the other subject produced handguns and repeatedly
      demanded currency and ordered her to turn off her home alarm.

      At the revocation hearing, Croskey denied the allegations in the petition and,

therefore, the government proceeded to present evidence supporting the

allegations. After setting out the elements of robbery under Alabama law, the

government called Detective Jason Brosius of the Montgomery Police Department,

who testified as follows. Based on his review of the reports filed in the case, at

approximately midnight on April 25, 2008, a man named Clem Hill was shot in the

shoulder at his residence in Montgomery, Alabama. Kavonda Hill, Clem’s wife,

was also at the residence and, although she was not shot, was a witness to the

events that transpired.

      In order to determine the identity of the two assailants, Brosius investigated

a vehicle that was abandoned, with the keys inside, outside of the residence. He

discovered that the vehicle belonged to a man named Shun Mathis, whose driver’s

license photograph did not match the physical description of either of the

offenders. Brosius then discovered that Croskey had received traffic citations in



                                           3
that vehicle over the past several months, including one from February 2008 and

two from the three days before the incident. Brosius looked at Croskey’s

photograph, found that he matched the general physical description of one of the

offenders, and placed him in a photographic lineup. The government introduced a

copy of the photographic lineup, which included six photographs, one of which

was a prior arrest photograph of Croskey.

       Brosius then spoke with Clem and Kavonda separately. Although Clem

could not identify either of the offenders, Kavonda, without hesitation,

immediately identified Croskey’s photograph and informed Brosius that she was

100% sure that he was one of the offenders. Based on Kavonda’s positive

identification of Croskey, Brosius obtained a warrant for Croskey’s arrest.

       On cross-examination, Brosius testified that the abandoned vehicle was

parked next door to the Hill residence. Kavonda told the responding officers that

she did not recognize the vehicle, and that it was parked in front of an abandoned

house. The car had keys in the ignition, and it was parked in a position that was

partially blocking traffic.

       The government called Kavonda, who testified as follows. On the night of

the incident, Kavonda was awake studying and her husband was asleep. After

hearing a “boom,” the burglary alarm went off, she heard a “pop,” and she heard



                                            4
her husband yell “run.” She ran to the front door but, before she could get there,

someone pointed a handgun at her and repeatedly told her to turn the alarm off.

The man was two feet away from her. Another man then came into the room,

pointed a gun at her, and told her to turn off the alarm. Kavonda told them that she

had a baby and pleaded with them not to kill her. She thought that her husband

was dead because she had heard a gunshot, and was scared that they were going to

kill her as well. One of the men responded that, if she wanted her baby, she needed

to turn the alarm off. The men demanded money, and Kavonda grabbed her purse

and told them that she had $100. The men became anxious because Kavonda had

not turned off the alarm, and Kavonda managed to escape out the front door and

run towards her neighbor’s house. She turned around and saw the men running

from the house in the opposite direction. When the police arrived, she described

the two individuals to the police.

        Kavonda identified Croskey in the courtroom as one of the assailants. She

testified that there was “no question in [her] mind, period” that Croskey was one of

the offenders, as she did not forget a face, was “wide awake” at the time, and had

no reason to accuse the man of anything because he was a stranger. She testified

that Croskey was the man who told her to turn the alarm off if she wanted her

baby.



                                          5
      The government called Detective Alix Payne, a robbery detective with the

Montgomery Police Department. He was in his office when a patrol unit

responded to the incident at the Hill residence. Clem informed the responding

officers that two unknown men kicked in the rear door of the residence and that

one of them shot him while he was lying in bed. Payne then went to the scene and

spoke with Kavonda, who was “in a right state of mind,” but was angry that the

men had kicked in her door and shot her husband. Kavonda told him that she

could identify the assailants. There was a vehicle seized near the residence, which

was partially blocking the roadway. Although the car was not running, there were

keys in the ignition, the “ignition was flipped to on,” and the CD player was

playing.

      Defense counsel did not put on any testimony, but he argued that the

photographic lineup was impermissibly suggestive. Although counsel recognized

that Kavonda “emphatically” identified Croskey in court, he argued that this was

the result of her preliminary identification. Thus, counsel argued that the

government had not proven by a preponderance of the evidence that Croskey

committed the offense.

      The court asked whether the fact that Croskey had recently been driving the

car that was abandoned outside of the residence reinforced Kavonda’s



                                          6
identification. Defense counsel admitted that this coincidence was “peculiar” and

constituted circumstantial evidence, but submitted that it did not establish that

Croskey committed the offense by a preponderance of the evidence. The

government argued that it had proven beyond a reasonable doubt, a higher standard

of proof than required, that Croskey committed first degree robbery. The

government emphasized that Croskey had recently driven the abandoned car and

that Kavonda unequivocally identified him as one of the assailants. Defense

counsel replied that the fact that the assailants ran away by foot when they were

not being pursued showed that they had no connection with the abandoned car.

      The court reconvened the following day and, after summarizing the

allegations in the petition and the testimony from the hearing, concluded that the

government had shown beyond a reasonable doubt that Croskey was one of the

assailants for two reasons:

      First, the Court credits and finds reliable Mrs. Hill’s identification of
      Croskey as one of the perpetrators; second, that Croskey was on the
      scene of the crime is supported by circumstantial evidence that on
      April 21, 2005, Croskey drove the car that was seized the night of the
      robbery on April 25, with the keys still in the ignition, with the
      ignition turned on, and with the CD player playing. The second piece
      of evidence reinforces Mrs. Hill’s identification.

Thus, the court found Croskey guilty of the charges in the petition because he had

committed robbery under Alabama law and knowingly possessed a firearm.



                                           7
Accordingly, the court revoked Croskey’s supervised release and sentenced him to

24 months’ imprisonment. Croskey appealed from the judgment.

                                           II.

      “We review the district court’s conclusion that appellant violated the terms

of his supervised release for abuse of discretion.” United States v. Copeland, 20

F.3d 412, 413 (11th Cir. 1994). The district court may revoke a defendant’s term

of supervised release if the court “finds by a preponderance of the evidence that the

defendant violated a condition of supervised release . . . .” 18 U.S.C. § 3583(e)(3).

                                          III.

      In this case, Kavonda unequivocally identified Croskey in the courtroom as

one of the offenders. Indeed, defense counsel acknowledged that Kavonda’s in-

court identification was “emphatic.” In this respect, the district court found

Kavonda’s identification to be credible, a determination that we ordinarily do not

review on appeal. Copeland, 20 F.3d at 413 (“Although the appellant provided

contrary evidence, the district court credited the officer’s testimony. The credibility

of a witness is in the province of the factfinder and this court will not ordinarily

review the factfinder’s determination of credibility.”). Not only does Croskey fail

to explain why Kavonda’s in-court identification was incredible on appeal, but he

correctly acknowledged at the revocation hearing that the traffic citations linking



                                           8
him to the abandoned car outside the residence constituted circumstantial evidence

of his involvement in the robbery. Thus, the district court correctly found that this

circumstantial evidence bolstered Kavonda’s identification.

       The evidence above – Kavonda’s in-court identification and the

circumstantial evidence linking Croskey to the robbery – was sufficient for the

court to conclude that Croskey violated the terms of his supervision. For this

reason, it is unnecessary to address Croskey’s contention that Kavonda’s out-of-

court identification was unreliable and violated due process.1 See United States v.

Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (concluding that, although the court

violated the defendant’s due process rights by relying on hearsay, this error was

“harmless because the properly considered evidence overwhelmingly demonstrated

that Frazier breached the terms of his supervised release”). Accordingly, we

affirm.

       AFFIRMED.




       1
          Despite doing so in the district court, Croskey does not argue on appeal that any error in
connection with Kavonda’s photographic identification tainted her subsequent in-court
identification. Therefore, he has abandoned any such contention on appeal. United States v.
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (arguments not raised on appeal are abandoned).
In any event, we note that we have considered Croskey’s arguments challenging the photographic
lineup, and they are not persuasive.

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