                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           DEC 15 2009

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-50171

              Plaintiff - Appellant,             D.C. No. 08-CR-03681-BTM-2

  v.
                                                 MEMORANDUM *
RANDALL CARY GEIGER,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                          Submitted December 10, 2009**
                               Pasadena, California

Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.

       The government appeals from the district court’s order suppressing material

witness identifications of appellee Randall Cary Geiger. We have interlocutory

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
jurisdiction over an appeal from an order suppressing evidence under 18 U.S.C. §

3731. We reverse and remand for further proceedings.

      Geiger was arrested at a border checkpoint after agents discovered three

illegal aliens concealed inside a jet ski towed by a truck; Geiger was in the front

passenger seat. The material witnesses separately identified Geiger later that night

in a photographic lineup. Two of the three identified Geiger again during

depositions two months later. In granting Geiger’s motion to suppress the

identifications, the district court found the circumstances surrounding the lineup

were impermissibly suggestive. The district court also suppressed the subsequent

deposition identifications as tainted.

      We review de novo whether a pretrial identification procedure is so

suggestive as to violate a defendant’s right to due process. United States v.

Montgomery, 150 F.3d 983, 992 (9th Cir. 1998). A pretrial identification is subject

to suppression if the procedure used was impermissibly suggestive and gives rise

to a substantial likelihood of irreparable misidentification. United States v. Bagley,

772 F.2d 482, 492 (9th Cir. 1985). Viewing the totality of the circumstances, we

do not find the identification procedures were impermissibly suggestive.

      The material witnesses first observed Geiger in the load house, where Geiger

asked them whether they wanted to use the restroom, and then again while they


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were being concealed in the jet ski. As they were removed from the jet ski by

Border Patrol agents, the material witnesses saw Geiger in handcuffs and wearing

the same “San Diego” sweatshirt he wore at the load house. The district court

found the circumstances were unduly suggestive because “San Diego” was visible

on Geiger’s sweatshirt in the photographic lineup, and the material witnesses had

just seen him in the same sweatshirt and handcuffed at the detention center. We

disagree. The identifications are not rendered suggestive because the material

witnesses saw Geiger in handcuffs and in custody. United States v. Jones, 84 F.3d

1206, 1210 (9th Cir. 1996); Bagley, 772 F.2d at 493-94; United States v. Kessler,

692 F.2d 584, (9th Cir. 1982). The material witnesses’ identifications of Geiger

during the photographic lineups and in their deposition testimony were based on

their direct contact with Geiger in the load house and their observations of him by

the jet ski while they were being concealed. Accordingly, the district court erred in

granting Geiger’s motion to suppress.

      In addition, the record establishes the material witnesses’ identifications of

Geiger were reliable under the factors set forth in Neil v. Biggers, 409 U.S. 188,

199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The material witnesses had an

opportunity to closely observe Geiger in the load house and to speak with him

about using the restroom, and observed him again while they were loaded into the


                                          3
jet ski. Their identifications were reasonably accurate and independently

consistent. No substantial likelihood of misidentification is reflected in the record.

Suppression of the photographic and deposition identifications was error.

      REVERSED AND REMANDED.




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