     Case: 13-10247      Document: 00512534371         Page: 1    Date Filed: 02/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 13-10247                               FILED
                                  Summary Calendar                     February 17, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MONTRAY LORENZO CATO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-194-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Montray Lorenzo Cato was convicted of robbing two separate branches
of the First Convenience Bank on June 13, 2012, and July 28, 2012,
respectively. See 18 U.S.C. § 2113(a). He now appeals.
       Cato argues that the district court violated his due process rights when,
in response to the Government’s request that the jury be able to see his face, it
seated him near the jury instead of having him stand in front of the jury for a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 13-10247

short time. He contends that the arrangement prevented the jury from seeing
his face. Cato did not challenge the decision in the district court. Accordingly,
we will review the district court’s actions for plain error only. See Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Fields, 483 F.3d 313,
340 (5th Cir. 2007). To prevail on plain-error review, Cato must show that an
error occurred, that the error was clear or obvious, and that the error affected
his substantial rights. See Puckett, 556 U.S. at 135. If those factors are
established, we have the discretion to correct the forfeited error, but our
discretion should not be exercised unless the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. See id.
      The record confirms that the jury did not have an opportunity to clearly
see Cato’s face. However, nothing indicates that the jury’s view was obstructed
as a result of the seating arrangement. Rather, Cato intentionally hid his face
throughout the trial. Cato has not shown plain error.
      Cato next argues that the district court violated his due process rights
by admitting an impermissibly suggestive in-court identification and by
clarifying and noting for the record that the witness had identified Cato as the
perpetrator of the June robbery. As Cato did not challenge those actions in the
district court, plain error review applies. Fields, 483 F.3d at 340. The in-court
identification may have been suggestive. See United States v. Rogers, 126 F.3d
655, 658 (5th Cir. 1997).          However, the district court did not err in its
admission.         There     was    no   “substantial   likelihood   of   irreparable
misidentification” in Cato’s case. Nor did the district court err when it clarified
and noted for the record that the witness identification of Cato. Its comments
did not stray from neutrality. See United States v. Lankford, 196 F.3d 563, 573
(5th Cir. 1999).




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                                 No. 13-10247

      Finally, Cato argues that the evidence was insufficient to support his
conviction of the July robbery. We review the sufficiency of the evidence to
determine “whether, viewing all the evidence in the light most favorable to the
verdict and drawing all reasonable inferences from the evidence in support of
the verdict, a rational trier of fact could have found that the evidence
establishe[d] the essential elements of the offense beyond a reasonable doubt.”
United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). Cato contends
that the Government failed to establish that he was the perpetrator of the July
robbery. He was, however, identified at trial as the perpetrator of the June
robbery. The clothes of the perpetrator of the July robbery, as well as Cato’s
clothing when he was arrested the next month and the clothes in his car at
that time, were substantially similar to those Cato wore in the June robbery.
In both robberies, the perpetrator wore a heavy black coat and a black hat with
sunglasses perched on the visor; he covered his face during the offense by
pretending to talk on a cell phone, distracted the teller by making reference to
a money order, demanded money by passing the teller a note, and retrieved the
note before exiting the building. “[A] number of common features of lesser
uniqueness, although insufficient to generate a strong inference of identity if
considered separately, may be of significant probative value when considered
together.” United States v. Myers, 550 F.3d 1036, 1045 (5th Cir. 1977).        A
review of the record shows that there was sufficient evidence for the jury to
find beyond a reasonable doubt that Cato committed the July offense. See
Ferguson, 211 F.3d at 882.
      AFFIRMED.




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