                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 8 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1238
                                                  (D.C. No. 99-CR-291-WM)
    MARVIN JOSE GONZALES,                                 (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.



         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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Marvin Jose Gonzales appeals from the jury’s verdict finding

him guilty of four counts of bank robbery and one count of attempted bank



*
      This order and judgment is not binding precedent, except under the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.
robbery in violation of 18 U.S.C. § 2113(a). Gonzales was sentenced to seventy

months’ imprisonment on each count to be served concurrently followed by three

years of supervised release on each count also to be served concurrently.

      On appeal, counsel argues that the district court (1) erred in denying

Gonzales’ motion to suppress the out-of-court identifications and in permitting

witnesses to make in-court identifications after viewing the suggestive photo

array, and (2) abused its discretion in allowing photographs of defendant which

were twelve years old into evidence as their probative value was outweighed by

the danger of unfair prejudice . Gonzales has filed a pro se brief in which he

argues that he was denied due process because he did not attend his pretrial

suppression hearing. He contends that one witness committed perjury, that his

right to a speedy trial was violated, and the identifications were unreliable.

Finally, Gonzales argues that he received ineffective assistance of trial counsel.

      Counsel contends that the out-of-court identifications should not have been

admitted because the photo arrays were unduly suggestive. To determine the

constitutionality of a photo array, we examine any factual findings made by the

district court for clear error, while reviewing de novo “the ultimate question” of

whether the array infringed upon the defendant’s due process rights.    United

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




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       Due process requires that we examine first, “whether the photo array was

impermissibly suggestive, and if it is found to be so, then [we] must decide

whether the identifications were nevertheless reliable in view of the totality of the

circumstances.”    Id. at 1261-62. To determine whether the photo array was

impermissibly suggestive, we examine “the size of the array, the manner of its

presentation by the officers, and the details of the photographs themselves.”          Id.

at 1262 . Here, the photo array consisted of six photographs displayed on a single

sheet. The use of six photos in an array is not per se unconstitutional.        Id. It is,

however, a factor affecting the weight we give to other alleged irregularities.         Id.

       [W] hen a relatively low number of photographs are used in an array,
       minor differences such as background color can make a picture stand
       out, and can act to repeatedly draw a witness’s eyes to that picture.
       Common sense dictates that slight irregularities are more likely to
       “jump out” at a witness reviewing a single sheet of paper with only
       six photographs on it than at a witness reviewing a large mug book
       containing hundreds of photographs. . . . The lower the number of
       photographs used by officers in a photo array, the closer the array
       must be scrutinized for suggestive irregularities.

Id. at 1262-63.

       Defendant’s counsel contends several details of the photographs comprising

the array constitute suggestive irregularities. She claims that only one of the

photographs, defendant’s, clearly shows an Hispanic. She states that while two

others might be considered Hispanic, they have longer hair than the others and

one has a mustache “increasing the chances that he would be eliminated simply by


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being different from the others in the array.” Appellant’s Br. at 10. Counsel

contends defendant’s is the only photograph that “even remotely resembles”

the victims’ descriptions of the robber and is the only one with a grainy dark

appearance. Id.

       We have examined the photo array for similarities and differences in each

of the photographs, bearing in mind the overall size of the array and the manner

of presentation. The purported differences emphasized by defendant are not as

significant as defendant proposes. No characteristics are present in defendant’s

photograph that would draw a witness’ eye to his picture, or make it stand out

from the others.

       Further, the officers presented the photographs in a neutral fashion. The

witnesses were not told that defendant’s photo might be included in the array and

they even testified that they did not necessarily believe the robber’s photograph

would be in the array.   Cf. , Grubbs v. Hannigan , 982 F.2d 1483, 1490 (10th Cir.

1993) (holding that photo array was unnecessarily suggestive where, among other

factors, witness was told police had identified a suspect). The photo array is not

unconstitutionally suggestive. Having determined the photo array was not

impermissibly suggestive, we need not proceed to the second step of the

due-process analysis.




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       Defendant asserts the victims’ in-court identifications should not have been

permitted because they had previously viewed the photo array and their

identifications were not otherwise reliable. “Whether identification procedures

are violative of due process is a legal question reviewed de novo.”       United States

v. Brown , 200 F.3d 700, 707 (10th Cir. 1999),      cert. denied , 120 S. Ct. 1213

(2000) and 120 S. Ct. 1706 (2000). “The admission of in-court identification

testimony violates due process only when, under the totality of the circumstances,

it was tainted by unnecessarily suggestive pretrial identification procedures

creating a very substantial likelihood of misidentification.”     Id. (quotation

omitted). In evaluating identification testimony, we consider “the opportunity of

the witness to view the criminal at the time of the crime, the witness’ degree of

attention, the accuracy of the witness’ prior description of the criminal, the level

of certainty demonstrated by the witness at the confrontation, and the length of

time between the crime and the confrontation.”        Id. (quoting Neil v. Biggers ,

409 U.S. 188, 199-200 (1972)).

       Defendant contends that the witnesses did not see the bank robber for very

long, and they were nervous and frightened during the robbery. In fact, one

witness fainted after it. Defendant further notes that the identifications were

made nine or ten months after some of the robberies.




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       The witnesses testified that they saw defendant in good light, generally

straight on for anywhere from ten to fifteen seconds to three or four minutes.

Their view was not obstructed and was at close proximity. No witness hesitated

in identifying defendant at trial.

       The victims’ identifications of defendant at trial occurred in the presence

of the jury and the victims were fully and fairly cross-examined.      See Brown ,

200 F.3d at 707.     They were questioned as to the length of time they viewed the

bank robber, their mental state during the robbery, the effect of any disguises the

robber had donned on their identification of defendant. They were also

questioned as to any inconsistencies between their descriptions of the robber

immediately after the event and their later descriptions. We must conclude

that the identification procedure did not create a “very substantial likelihood

of . . . misidentification.”   Neil , 409 U.S. at 198 (quotation omitted).

       Counsel argues that the district court abused its discretion in allowing

photographs of defendant which were twelve years old into evidence as their

probative value was outweighed by the danger of unfair prejudice       . The bank

robber had appeared in various disguises such as wearing glasses and with

a mustache during the commission of the robberies. The government sought to

have the jury view defendant with different characteristics without asking him to

assume the characteristics during the trial. The photographs were subject to


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cross examination due to their ages. The district court did not abuse its discretion

in permitting these photographs to be presented to the jury.

      In his pro se brief, defendant argues that he was denied due process

because he did not attend his pretrial suppression hearing as he was out on bond

and received no notification of it. The record belies this assertion. At the

hearing, counsel stated that she was appearing “on behalf of Mr. Gonzales, who

is present here in court today.” Rec. Vol. 2, at 2.

      Gonzales also argues that one witness, his nephew Dean Gonzales,

committed perjury. Dean, a police officer for the Denver Police Department,

testified that he identified the photograph in a wanted poster as his uncle.

Gonzales states that Dean’s father originally gave the same testimony that the

wanted poster portrayed defendant, but he later recanted. Gonzales also

maintains that he did not go shooting with his family after his father’s funeral

as Dean testified.

      As Dean testified at trial and defendant had the opportunity to

cross-examine him, the jury was able to evaluate his credibility. Judging the

credibility of witnesses is a function of the jury, which we will not second-guess

on appeal. See United States v. Guidry , 199 F.3d 1150, 1156 (10th Cir. 1999).

      Gonzales posits that his right to a speedy trial was violated because he was

not taken before a judge until five days after his arrest and was not charged until


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seven days after his arrest. Once again the record belies this assertion. The

docket sheet shows that Mr. Gonzales was arrested September 7, 1999. He made

his first appearance before a magistrate judge later that same day.         See County of

Riverside v. McLaughlin , 500 U.S. 44, 56 (1991) (probable cause hearing should

generally be held within forty-eight hours of arrest). No error occurred.

       If defendant is proposing that his statutory right to a speedy trial was

violated because more than seventy days elapsed between his first appearance and

the start of his trial, see 18 U.S.C. § 3161(c)(1),    1
                                                           our review of the record before

us and our computation of excludable days shows no violation.             See 18 U.S.C.

§ 3161(h) (identifying excludable dates);      see also United States v. Lugo , 170 F.3d

996, 1001 (10th Cir. 1999).

       Gonzales maintains that the identifications were unreliable because the

bank surveillance photos do not resemble him. Further, he cannot run or ride

a bike due to his physical impairment. Gonzales also notes that he could not be

identified because the robber wore disguises. These issues are all ones of

credibility for the jury which we will not question.          See Guidry , 199 F.3d at 1156.




1
      Section 3161(c)(1) provides that a defendant’s trial “shall commence within
seventy days from the filing date of the . . . indictment, or from the date the
defendant has appeared before a judicial officer of the court in which such charge
is pending, whichever date last occurs.”

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       Finally, Gonzales argues that he received ineffective assistance of counsel.

“Ineffective assistance of counsel claims should be brought in collateral

proceedings[; those] brought on direct appeal are presumptively dismissible, and

virtually all will be dismissed.”   United States v. Galloway , 56 F.3d 1239, 1240

(10th Cir. 1995). The record for this claim has not been adequately developed

by the district court at this time to enable us to address it on direct appeal.

See United States v. Gallegos , 108 F.3d 1272, 1280 (10th Cir. 1997).

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED. Defendant’s motion to supplement the record on appeal

with the wanted flyer and photographic array is GRANTED.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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