April 9, 1993     UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1855

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      JUAN C. GUZMAN-RIVERA,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. H ctor M. Laffitte, U.S. District Judge]
                                                       

                                           

                              Before

                    Torruella, Selya and Cyr,

                         Circuit Judges.
                                       

                                           

     Roxana C. Matienzo-Carri n for appellant.
                               
     Jos  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with
                             
whom Daniel  F. L pez-Romo, United States Attorney,  was on brief
                          
for appellee.

                                           

                          April 9, 1993
                                           

          TORRUELLA, Circuit  Judge.   Appellant Juan  C. Guzm n-
                                   

Rivera  and  two  co-defendants  were  charged  with  aiding  and

abetting  each other  in  the assault  and  battery of  a  postal

contractor  and robbing  him  of mail,1  unlawful possession  and

retention  of  United  States  treasury  checks,2  and use  of  a

firearm in  the commission of  these crimes.3   The co-defendants

never went to trial.  One was declared incompetent, and the other

accepted   a  plea  bargain.    Appellant  now  argues  that  the

government offered  unreliable evidence of  appellant's identity,

and that  the evidence against him was  therefore insufficient to

support his convictions.  Because we find that the district court

properly admitted the disputed evidence, and that a rational jury

could find appellant  guilty beyond a reasonable doubt, we affirm

the verdict.

                            BACKGROUND
                                      

          Government   witness   Ramos-Cotto,  a   mail  carrier,

testified  to  the  following.    On  August  2,  1991,  two  men

approached him while he was  distributing mail.  One of  the men,

later identified as appellant, pointed a .38 caliber revolver  at

Ramos-Cotto's neck, and threatened to kill him if he moved.  In a

violent exchange, appellant took the keys to the mail vehicle and

the  mail that was in Ramos-Cotto's hand.  Finally, appellant and

the other man pulled Ramos-Cotto across the street, and appellant

said "start running downhill  or I'll kill you."   While running,

                    

1  18 U.S.C.    2, 2114.

2  18 U.S.C.    2, 510(b).

3  18 U.S.C.   924(c)(1).

Ramos-Cotto heard the car leave.  

          After  the  incident,  Ramos-Cotto  saw  and recognized

appellant on  two separate  occasions while distributing  mail on

the same route.   Approximately two  weeks later, upon  receiving

confidential  information  that  appellant  might  be  in certain

places, Ramos-Cotto  and four postal investigators  went to these

locations to look for  him.  After passing by  approximately five

of  the  suggested  locations,  Ramos-Cotto  identified appellant

talking   to  three  other  people  in  a  grocery  store.    The

investigators arrested appellant and one other individual.

          The  government also introduced  evidence that when the

police  found  the mail  car, four  hundred  pieces of  mail were

missing, including  a  number  of social  security  checks.    In

addition, after  the robbery,  the Dominican Republic's  national

police apprehended  one of  the co-defendants attempting  to cash

social security checks bearing a San Juan address.

          Appellant argues that we should  reverse his conviction

for  two  reasons:    (1)  the  government's  evidence  regarding

appellant's identity was unreliable, and thus, the district court

should  not have  admitted  it; and  (2)  there was  insufficient

evidence to sustain appellant's convictions.  

                            DISCUSSION
                                      

          Appellant's first  argument is a due  process argument.

A district court deprives a defendant of due process by admitting

evidence of an identification  that has proven "'so impermissibly

suggestive  as to give rise  to a very  substantial likelihood of

                               -3-

irreparable misidentification.'"   United States v.  Bouthot, 878
                                                            

F.2d  1506,  1514 (1st  Cir.  1989)  (quoting Simmons  v.  United
                                                                 

States, 390 U.S. 377, 384 (1968)).  Under the first prong of this
      

test,  appellant  must  show  impermissible  suggestion   by  law

enforcement  officials.  See United  States v. Gray,  958 F.2d 9,
                                                   

13-14 (1st Cir. 1992); Bouthot, 878 F.2d at 1514.
                              

          Appellant asks us to  infer that the identification was

unduly suggestive for four reasons:  (1) the search for appellant

occurred  one month  after the  robbery and  after co-defendants'

arrests; (2) the investigators  arrested a second individual with

appellant who was later  released; (3) the investigation revealed

no fingerprints belonging to appellant; and (4) Ramos-Cotto never

described appellant at the  time of the robbery.   These are  all

good arguments  that  trial counsel  made to  the jury  regarding

Ramos-Cotto's  credibility.    Although   the  record  offers  no

explanation for  these circumstances, we cannot  draw the sizable

inference that appellant seeks. 

          The   record  evidence   shows   that  upon   receiving

confidential information regarding  appellant's whereabouts,  the

postal   investigators  brought  Ramos-Cotto  to  at  least  five

different  public locations to look for him.  (Transcript of Jury

Trial  at 38-39).  After visiting the fifth location, they passed

a grocery  store where Ramos-Cotto saw  and identified appellant.

Id.  They then passed by  a second time so that Ramos-Cotto could
  

identify  him again.   Id.  The record  exhibits no evidence that
                         

the  investigators  controlled  or  manipulated  the  people that

                               -4-

Ramos-Cotto  would encounter  during this search.   Nor  does the

record reveal that the  investigators indicated to Ramos-Cotto in

any way that they believed appellant was the perpetrator.  Ramos-

Cotto testified that he  was at all times since  the robbery able

to identify appellant  as his assailant.  Id. at  39-40.  Indeed,
                                            

he  testified  that  he  identified  appellant  on  two  previous

occasions without the investigators,  and that he promptly called

one of the  investigators after the second sighting.   Id. at 37-
                                                         

40, 62.  Based on these facts, we can find no undue suggestion by

law-enforcement officials.

          Since  we do not  find the identification impermissibly

suggestive, we need not reach the likelihood of misidentification

prong of the test.  See Gray, 958 F.2d at 14.  Even if we were to
                            

reach  that issue,  however, it  would not  significantly bolster

appellant's  argument.  Under the second prong, we consider:  (1)

the witness' opportunity to view the  defendant during the crime;

(2) the  witness' degree of  attention at the time  of the crime;

(3)  the accuracy  of  the witness'  prior  description; (4)  the

witness' level  of certainty when identifying the  suspect at the

confrontation; and (5) the  length of time between the  crime and

the confrontation.  United States v. Alexander, 868 F.2d 492, 495
                                              

(1st Cir.), cert. denied, 493 U.S. 979 (1989).  
                        

          In the present case, three of the  five factors support

the  reliability  of the  identification.   Ramos-Cotto testified

that  he  stood right  next  to  appellant, almost  face-to-face,

during the robbery and thus had a significant opportunity to view

                               -5-

him.   (Transcript  of Jury  Trial at  39-40).   Additionally, he

testified that  he specifically  focused on appellant  during the

incident while appellant pointed a  gun at him, and that he  knew

at  all relevant times that he could identify appellant, which he

did twice before the final confrontation.  While Ramos-Cotto gave

no  prior description of appellant  and waited a  month until the

final confrontation,  the totality of the  circumstances does not

mandate a finding of unreliability.  As such, we are unwilling to

usurp  the determination  from the  jury.   See United  States v.
                                                              

Turner, 892 F.2d 11, 14 (1st Cir. 1989) (identification  evidence
      

should be withheld from jury only in extraordinary cases).

          Appellant's second argument challenges  the sufficiency

of the evidence against him.  To  overturn  a  jury's  conviction

based  on insufficient evidence,  we must  find that  no rational

jury  could conclude  beyond  a reasonable  doubt that  appellant

committed the crimes charged.   United States v. Maraj,  947 F.2d
                                                      

520,  522-23 (1st Cir.  1991).  In  doing so, we  must review the

record  in the light most favorable to the government and resolve

all credibility issues in favor of the verdict.  United States v.
                                                              

Angiulo, 897 F.2d 1169,  1197 (1st Cir.), cert. denied,  498 U.S.
                                                      

845 (1990).

          Reading  the  record  in   this  light,  we  find  that

sufficient  evidence existed to  convict appellant.   The bulk of

appellant's sufficiency argument concerns the  reliability of the

testimony  identifying appellant  as the  perpetrator.   As noted

above,  Ramos-Cotto testified that he  had plenty of  time to see

                               -6-

appellant at the time of the crime and twice thereafter.  He also

testified that  he concentrated  on appellant during  the robbery

because appellant had the gun.  (Transcript of Jury Trial at 54).

Ramos-Cotto looked for appellant  in five public locations before

finding  him  at  the  grocery   store.    Appellant  had   ample

opportunity  to  cross-examine   Ramos  Cotto  with   respect  to

appellant's identity.  In  fact, the trial transcript  reveals at

least  twenty pages of cross-examination  on this very  issue.  A

jury   could  rationally   choose   to   rely  on   Ramos-Cotto's

identification.  We find no error in the ultimate verdict on this

ground.

          Appellant's other  sufficiency argument fails  as well.

Appellant  argues that  the government  failed to  show  that the

social security checks confiscated from  appellant's co-defendant

were  the checks  that  appellant allegedly  stole.   Appellant's

argument  fails  because  Ramos-Cotto  testified  that  the  four

disputed checks were among  those taken during the robbery.   Id.
                                                                

at 41-42.  He  further testified that he recognized  them because

they displayed his mail distribution route number and the date of

the robbery, and  he recognized  the names of  the addressees  as

individuals who  receive mail  on his  route.  Id.  at 41.   This
                                                 

evidence  was  sufficient to  show  that  the confiscated  social

security checks were taken during the robbery at issue.

          Finally, after reviewing the remaining  elements of the

charges,   we  find   that  the   evidence  presented   at  trial

sufficiently supported  appellant's convictions.   We affirm  the

                               -7-

verdict.

          Affirmed.
                  

                               -8-
