                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0706n.06
                            Filed: October 3, 2007

                                           No. 06-3116

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT     FOR    THE
               v.                                        )         SOUTHERN DISTRICT OF
                                                         )         OHIO
OLIVER MCCOMB, JR.,                                      )
                                                         )
      Defendant-Appellant.                               )
__________________________________________               )



BEFORE: KEITH and GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Oliver McComb was convicted of six counts of Interference with Commerce by

Robbery, in violation of 18 U.S.C. § 1951, and four counts of Carrying a Firearm in Relation to a

Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). McComb appeals his convictions,

arguing that the government offered insufficient evidence that he affected interstate commerce and

that the district court erred in denying his motion to suppress a witness’s out-of-court photographic

identification of McComb. For the reasons set forth below, we disagree and affirm.

                                                 I.




       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 06-3116
United States v. McComb


        On May 10, 2004, a man entered the Family Dollar Store in Columbus, Ohio, and asked the

assistant manager, Cathy Jones, about a job application. After Jones directed the man to the front

counter, she went to the women’s restroom located in the back room of the store. When Jones exited

the restroom, the man confronted her and demanded that she give him the store’s money. The man

told Jones that he had a gun and did not want to shoot her. When Jones tried to escape, the man

grabbed her by her neck and attempted to steer her to the store’s office. Jones fought back and was

eventually able to run to the front of the store and screamed for the cashier to call the police. As the

man moved toward the front of the store, he yelled for everybody in the store to get down on the

floor because he had a gun and would shoot. The man then fled the store, and the police arrived

shortly thereafter.

        Two days later, on May 12, 2004, a man wearing a baseball cap entered the Payless Shoe

Store located on East Broad Street in Whitehall, Ohio, and approached the manager, Michelle

Sharrieff, about a pair of shoes the store had for sale. After Sharrieff responded with the requested

information, the man exited and re-entered the store several times throughout the day. After again

re-entering the Payless store, the man waited in line at the front counter as Sharrieff checked out

customers. After Sharrieff completed a sale with the last customer in line, she knelt down to drop

money into the store’s safe. The man walked behind the counter and removed the panic button

device that Sharrieff wore on her right hip. The man told Sharrieff to give him the money from the

safe. Sharrieff observed that the man was carrying a firearm and did as she was told. Sharrieff then

laid down on the store’s floor, and the man fled out the store’s front door.


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United States v. McComb


       One week later, on May 19, 2004, a man wearing a black baseball cap and sunglasses entered

the Payless Shoe Store on Morse Road in Columbus, Ohio, and approached a store clerk about a pair

of boy’s Spider Man shoes. The man instructed the clerk to get down behind the front desk and to

give him the contents of the cash register. After receiving the money, he left the store. A baseball

cap and pair of sunglasses matching the description of the pair worn by the store’s robber were later

found nearby.

       On May 21, 2004, a man wearing a baseball cap and glasses entered the Payless Shoe Store

on Cleveland Avenue in Columbus, Ohio, and asked the store’s assistant manager, Bethany Byler,

whether the store would soon be closing. The man then walked up to the front of the store, showed

Byler a gun, and instructed her to empty the cash register. Byler opened the register, and the man

picked up the cash drawer, set it out on the front counter, and grabbed all of its money. The man

then instructed Byler and the store’s other associate to lay on the floor for fifteen minutes and walked

out the door with approximately $221. A blue baseball hat matching the description of the hat worn

by the suspect was later recovered nearby.

       On June 2, 2004, a man wearing a baseball cap entered the Cross Country Inn located on

Sinclair Road in Columbus, Ohio, around 7:30 p.m. and asked the Inn’s employee, William Braun,

for a job application. After Braun told the man that he was out of applications, the man left the Inn.

Thirty seconds later, he re-entered. The man walked behind the check-in counter, pushed Braun

toward the drive-through window, and told Braun that he had a gun and was robbing the Inn. The

man opened and emptied the register, pushed Braun into the restroom, and shut the door before


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No. 06-3116
United States v. McComb


exiting the Inn. Police officers later discovered a white baseball hat with a teal bill nearby, matching

the description of the hat worn by the robber.

       The last robbery occurred on June 11, 2004, when a man wearing a baseball cap and

sunglasses entered the First America Cash Advance location on East Broad Street in Columbus,

Ohio. The man filled out an application until the store’s other customers exited. He then

approached employee Kenyatta Harris, pulled a gun from his waistband that had been hidden by his

shirt, and told Harris to open the register. Harris gave the man $3,000 as he pointed his gun at her.

The man then ordered Harris to lie on the floor before he exited.

       During the criminal investigation into these robberies, Jones, Sharrieff, Byler, Braun, and

Harris all identified defendant Oliver McComb from a photographic array as the person who robbed

their respective business. McComb was arrested in connection with the robberies, and later indicted

on six counts of Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951 (“the

Hobbs Act”), and four counts of Carrying a Firearm in Relation to a Crime of Violence, in violation

of 18 U.S.C. § 924(c)(1)(A)(ii). Prior to trial, McComb filed a motion to suppress Sharrieff’s

identification of McComb. After a hearing and oral argument on McComb’s motion, the district

court denied the motion.

       At trial, Jones, Sharrieff, Byler, and Harris each identified McComb as the assailant. In

addition, the government offered evidence that DNA removed from the hats discovered near the

Cross Country Inn, the Payless Shoe Store on Cleveland Avenue, and the Payless Shoe Store on

Morse Road following the robberies matched DNA taken from McComb. McComb was convicted


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No. 06-3116
United States v. McComb


on all ten counts of the indictment. With regard to the six counts of Interference with Commerce

by Robbery, in violation of 18 U.S.C. § 1951, the district court sentenced McComb to a term of 210

months of imprisonment to be served concurrently. The court then sentenced McComb to a term of

300 months of incarceration for each of the four counts of Carrying a Firearm in Relation to a Crime

of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), to be served consecutively to each other

and consecutive to the sentence imposed on the § 1951 counts, for a total term of 1,410 months of

incarceration. McComb now timely appeals.

                                                 II.

       McComb argues primarily that the government failed to offer sufficient evidence that the

robberies affected interstate commerce. The government contends that because McComb did not

renew a Rule 29 motion at the close of all evidence, he has waived his challenge to the sufficiency

of the evidence and that our review is limited to determining whether McComb’s conviction amounts

to a “manifest miscarriage of justice.” In the alternative, the government argues that the evidence

at trial was sufficient to demonstrate a de minimis connection to interstate commerce, as required by

the Hobbs Act.

       We agree that McComb has waived his challenge to the sufficiency of the evidence and

conclude that McComb’s conviction did not result in a manifest miscarriage of justice. We have

held repeatedly that

       [t]his Court will not consider challenges to the sufficiency of the evidence if the
       defendant failed to make a Rule 29 motion for judgment of acquittal at the end of the
       prosecution’s case-in-chief and at the close of the evidence. Failure to make the
       required motions constitutes a waiver of objections to the sufficiency of the evidence.

                                                -5-
No. 06-3116
United States v. McComb


United States v. Chance, 306 F.3d 356, 368-69 (6th Cir. 2002) (internal citation omitted) (citing

United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir. 1993)). At the close of the government’s

case, McComb moved for a directed verdict with regard to the first (count ten) and fifth (count

seven) robberies. The district court denied the motion. At the close of all evidence, McComb

moved for a directed verdict with regard to the third robbery (count three). The district court denied

the motion. Thus, McComb failed to make and renew a Rule 29 motion with respect to any

particular count and has waived his challenge to the sufficiency of the evidence. United States v.

Price, 134 F.3d 340, 350 (6th Cir. 1998).

       Because McComb failed to make a Rule 29 motion at the end of the government’s case-in-

chief and at the close of all evidence, our “review is limited to determining whether there was a

manifest miscarriage of justice. A miscarriage of justice exists only if the record is devoid of

evidence pointing to guilt.” Id. at 350 (internal citations and quotations omitted).1 We find no such

miscarriage of justice present here. At trial, the government offered evidence of a common modus

operandi connecting the robberies and in-court identifications on the first, second, fourth, and sixth

robberies. In addition, the government offered evidence that DNA removed from the hats discovered

near the Cross Country Inn, the Payless Shoe Store on Cleveland Avenue, and the Payless Shoe Store

on Morse Road following the robberies matched DNA taken from McComb. Moreover, although

on appeal McComb states that “the record is devoid of any evidence pointing to McComb’s guilt,”


       1
        At oral argument, counsel for McComb conceded that McComb had failed to preserve his
challenge to the interstate commerce requirement, and that the “manifest miscarriage of justice”
standard is the appropriate level of review before this court.

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No. 06-3116
United States v. McComb


he makes no developed argument on this point and fails to explain how his convictions evince a

manifest miscarriage of justice. Thus, we conclude that McComb’s convictions have not resulted

in a “manifest miscarriage of justice.”

                                                 III.

       Even if McComb had preserved his challenge to the sufficiency of the evidence concerning

the nexus with interstate commerce, his argument must fail. Where a defendant has properly

preserved his challenge to the sufficiency of the evidence offered against him at trial, we determine

“whether after reviewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (internal citations and quotations omitted).

       The Hobbs Act penalizes any person who “obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce, by robbery or extortion or attempts or

conspires so to do, or commits or threatens physical violence to any person or property in furtherance

of a plan or purpose to do anything in violation” of the Act. 18 U.S.C. § 1951 (a). In order to prevail

under the Hobbs Act, “the Government must prove two elements: (1) interference with interstate

commerce (2) in the course of a substantive criminal act.” United States v. Ostrander, 411 F.3d 684,

691 (6th Cir. 2005). As McComb concedes, the law of this Circuit has required only a showing of

a de minimis connection with interstate commerce to satisfy the Hobbs Act. See United States v.

Davis, 473 F.3d 680, 681-82 (6th Cir. 2007) (holding that de minimis standard survives Gonzales

v. Raich, 545 U.S. 1 (2005)). Although robbing an individual of money alone may not have a de


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No. 06-3116
United States v. McComb


minimis effect on interstate commerce, robbing a business that is engaged in interstate commerce

will. Wang, 222 F.3d at 240; see also United States v. Taniguchi, 49 F. App’x 506, 513 (6th Cir.

2002) (unpublished). Moreover, where the victim of a robbery is a business, the government

traditionally satisfies the de minimis standard under the “depletion of assets” theory, in which the

government “presents evidence that a business is either actively engaged in interstate commerce or

customarily purchases items in interstate commerce, and had its assets depleted by the robbery,

thereby curtailing the business’ potential as a purchaser of such goods.” United States v. Turner, 272

F.3d 380, 385 n.2 (6th Cir. 2001) (quoting United States v. Peterson, 236 F.3d 848, 854 (7th Cir.

2001)).

          McComb’s claim that the government failed to offer sufficient evidence of a connection with

interstate commerce with respect to each robbery clearly lacks merit with respect to robberies one,

two, four, five, and six. Cathy Jones, the assistant manager at the Family Dollar store, testified that

Family Dollar receives goods from out-of-state and that many of its items sold are manufactured

outside of the country. This testimony is sufficient to satisfy the de minimis standard under the

“depletion of assets theory.” United States v. Turner, 272 F.3d 380, 385 n.2 (6th Cir. 2001).

Michelle Sharrieff, the manager of the Payless Shoe Store on East Broad Street in Columbus,

testified at trial that the products sold in Payless are manufactured in China, and that the money

stolen from the store would typically have been sent back to Payless headquarters to buy more goods.

Bethany Byler, the assistant manager of the Payless Shoe Store on Cleveland Street in Columbus,

likewise testified that its goods come from China and other out-of-state manufacturers, and that its


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No. 06-3116
United States v. McComb


goods travel in interstate commerce to arrive at the store. This testimony satisfies the de minimis

standard. See e.g., United States v. Wiley, 132 F. App’x 635, 641 (6th Cir. 2005) (unpublished)

(noting that victim sold Nokia phones that were manufactured overseas). William Braun, an

employee at the Cross Country Inn, testified that it receives travelers from throughout the country

and that it provides toiletries that are manufactured out-of-state and shipped to the hotel through

interstate commerce. This also satisfies the de minimis standard. Id. at 641 (concluding that

interstate commerce requirement is met where victim hotel received guests from throughout the

country).

       Kenyatta Harris, an employee at First American Cash Advance, testified that First American

is a nationwide company that cashes checks and provides short-term loans and cash advances. Harris

explained that, in order to receive a cash advance, customers provide two forms of identification,

their most recent pay stub, and their most recent bank statement. Harris testified further that First

American holds checks for cash, that those checks are usually drawn on nationwide banks such as

Bank One or U.S. Bank, and that the cash stolen was used in the course of First American’s business

to provide change for its customers. This evidence is sufficient to demonstrate a de minimis effect

on interstate commerce. See United States v. Nutall, 180 F.3d 182, 186-87 (5th Cir. 1999) (holding

that robbery of nationwide check-cashing company affected interstate commerce in violation of

Hobbs Act).

       Whether the de minimis standard was met with regard to the robbery of the Payless Shoe

Store on Morse Road is a closer question. With respect to this third robbery, McComb argues that


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No. 06-3116
United States v. McComb


the government failed to meet its burden because no witness from the Morse Road store testified

regarding that store’s connection to interstate commerce. The government contends that the

testimony offered by the employees at the other Payless locations is sufficient to satisfy the de

minimis standard. We agree with the government.

       Although no employee from the Morse Road location testified about the store’s connection

to interstate commerce, Michelle Sharrieff’s testimony on this point is applicable to all of the Payless

Shoe Stores at issue:

       Q:      And how long have you worked for Payless?

       A:      Six years.

                                                 ***

       Q:      What is your present job?

       A:      Manager.

       Q:      And how long have you been at the store where you are currently employed?

       A:      A little over two years.

                                                   ***

       Q:      Ms. Sharrieff, you have worked for Payless for a long time, six years?

       A:      Yes.

       Q:      Are you familiar with how they acquire their products, where they come
               from?

       A:      Basically, yes.

       Q:      Where do they come from?

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No. 06-3116
United States v. McComb



       A:      Where do they come from?

       Q:      Yes. Are they made here in the United States or made overseas?

       A:      Overseas, China.

The first section of Sharrieff’s testimony makes it clear that she has worked at multiple Payless

locations; although she has worked for the company for six years, she had only been at the Broad

Street location for two of those years. Sharrieff’s testimony concerning Payless’s acquisition of its

goods is based on her knowledge acquired during her six years of employment with Payless –

Sharrieff was not asked how and from where the Broad Street location acquires its products, but

rather how and from where the Payless Shoe Store company purchases its goods. Sharrieff’s

testimony is therefore equally applicable to both the Broad Street and Morse Road locations, and we

conclude that her testimony is a sufficient basis upon which a rational juror could conclude that

McComb’s robbery of the Payless Shoe Store on Morse Road had a de minimis effect on interstate

commerce.

                                                 IV.

       Next, McComb challenges his convictions for carrying a firearm during a crime of violence,

in violation of 18 U.S.C. § 924(c), arguing that there was insufficient evidence to prove his use of

a firearm was in relation to an offense that affected interstate commerce. As McComb conceded at

oral argument, his claim is predicated on the assumption that there was insufficient proof of an effect

on interstate commerce in connection with his Hobbs Act convictions; he offers no additional

argument or evidence besides that raised in the section of his brief devoted to his Hobbs Act

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No. 06-3116
United States v. McComb


convictions. Because the government demonstrated a de minimis effect on interstate commerce with

respect to McComb’s Hobbs Act convictions, McComb’s convictions pursuant to 18 U.S.C. § 924(c)

are affirmed.

       We likewise conclude that McComb’s argument that the Hobbs Act, 18 U.S.C. § 1951, is

unconstitutional as applied to him must fail. This argument similarly relies on the misplaced

assumption that the government failed to establish a de minimis effect on interstate commerce. In

the section of his brief devoted to this argument, McComb merely reiterates his contention that the

government failed to prove a de minimis effect on interstate commerce. Because we conclude that

the government satisfied the interstate commerce nexus, and McComb has offered no additional

argument that the Hobbs Act is otherwise unconstitutional, we reject McComb’s claim that the Act

is unconstitutional as applied to him.

                                                 V.

       Finally, McComb argues that the district court erred in denying his motion to suppress the

out-of-court identification made by Sharrieff. McComb contends that the photo array presented to

Sharrieff was impermissibly suggestive because McComb’s face is shown in front of a green-colored

background while the other faces are in front of a blue background, and because only McComb’s

picture shows both rows of his teeth. The government responds that these differences in McComb’s

photo do not make it suggestive and that, in any event, the totality of the circumstances surrounding

Sharrieff’s identification supports the district court’s conclusion. We agree with the district court




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No. 06-3116
United States v. McComb


that McComb’s photo is not impermissibly suggestive, and affirm its denial of McComb’s motion

to suppress.

       The Due Process Clause requires that a conviction based on photograph identification

testimony be set aside if “the photographic identification procedure was so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United

States, 390 U.S. 377, 384 (1968). “A defendant is denied due process ‘only when the identification

evidence is so unreliable that its introduction renders a trial unfair.’” United States v. Meyer, 359

F.3d 820, 825 (6th Cir. 2004) (quoting Smith v. Perini, 723 F.2d 478, 482 (6th Cir. 1983)). The

defendant bears the burden of demonstrating that the pretrial identification was impermissibly

suggestive, United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992), and we review for clear error

the denial of a motion to suppress identification. United States v. Beverly, 369 F.3d 516, 538 (6th

Cir. 2004).

       We employ a two-step analysis to address a challenge to a witness photograph identification.

Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994). First, the court determines whether the

pretrial identification was unduly suggestive.2 Id. at 1070-71. This is a fact-specific determination,

and the court may consider “the size of the [photographic] array, the manner of its presentation by

the officers, and the details of the photographs themselves.” United States v. Sanchez, 24 F.3d 1259,



       2
        Both parties use the phrase “impermissibly suggestive” rather than “unduly suggestive.”
This court appears to use the terms “unduly suggestive” and “impermissibly suggestive”
interchangeably. See, e.g., Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2005) (using both
phrases); Grayer v. McKee, 149 F. App’x 435 (6th Cir. 2005) (unpublished) (same).

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No. 06-3116
United States v. McComb


1262 (10th Cir. 1994). If the defendant establishes that the identification was unduly suggestive, the

court then determines whether the totality of the circumstances surrounding the identification

indicates that the identification was nonetheless reliable. The Supreme Court has listed the

following factors to weigh in considering the reliability of the witness’s identification: “1) the

witness’s opportunity to view the criminal at the time of the crime; 2) the witness’s degree of

attention; 3) the accuracy of the witness’s prior description of the criminal; 4) the level of certainty

demonstrated at the confrontation; and 5) the time between the crime and the confrontation.”

Beverly, 369 F.3d at 539 (citing Neil v. Biggers, 409 U.S. 188, 198-200 (1972)).

       The district court held a hearing on McComb’s motion on December 6, 2004. The court first

heard testimony from Detective Dan Kelso from the Whitehall Police Department, who conducted

the pretrial identification with Sharrieff. Detective Kelso explained why McComb’s picture

contained a green background in the identification array:

       Q:      Could you explain to the Court what process you went through in an attempt
               to put this photo spread together?

                                                 ***

       A:      We normally do photo arrays in a couple of a [sic] different ways. One is
               through BMV photos. I found out that Mr. McComb did not have a BMV
               photo due to it had been many years since he had an ID or license through
               Ohio.

               The other one is through mug shots that we have taken. I checked with the
               Franklin County Sheriff’s Department and they didn’t have a picture. We at
               the Whitehall Police Department didn’t have a current picture. And I went
               to Columbus and found out that they had an extremely old picture of Mr.
               McComb that was – it was entered in their system in 1996, but I was told it
               was probably taken years prior to that.

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No. 06-3116
United States v. McComb



                                              ***

      Q:     Let me show you what has been marked as Government’s Exhibit 9-E. Is this
             the photograph that you are talking about?

      A:     Yes, that’s it. Upon seeing that and realizing how old it was, I realized right
             then that one was insufficient.

                                              ***

      Q:     Now, as of right now, you haven’t been able to come up with a picture; is that
             right?

      A:     At this point I wasn’t able to come up with a picture until I got on the Prison
             Offender Website, and I was able to locate a relatively current photo of Mr.
             McComb. I contacted the Adult Parole Authority, which told me that was the
             only picture they also had of him. So, at this point in time, it was the only
             picture I could find.

      Q:     And how did you put [the photo identification array] together, then?

      A:     What I did was that I got on the website and simply starting typing in last
             names and going through hundreds of pictures, looking for sufficient people
             to also put in the array.

      Q:     Did you try to match them up to weight, height and size and everything like
             that?

      A:     Yeah, you know, generally. Obviously, the race being the same. You know,
             we wanted general weight and height, so that there was nothing completely
             different about the person.

      Q:     Now, the background photographic color of Mr. McComb is a little bit off
             from the rest; is that correct?

      A:     Yes. There is a couple of them that are a little bit different.

      Q:     At least two or three are a little bit different from each other?


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No. 06-3116
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       A:     Right.

       Q:     Now, did you feel confident when you went and put this together, were you
              confident that it was something that you felt could be used as an
              identification tool?

       A:     Oh, absolutely. I mean, in going through the website there, I was finding all
              kinds of different backgrounds. So, I couldn’t choose – I even found ones
              with red backgrounds. So, I wasn’t able to actually pick the background. It
              wasn’t up to me. I was concerned with the faces in the pictures.

       Detective Kelso then described his meeting with Sharrieff, which occurred on June 11, nearly

one month after the robbery:

       Q:     Now, based on that, putting [the photo identification array] together, did you
              call in Michelle Sharrieff to view the photo lineup?

       A:      I actually met her at the store to view it.

                                                ***

       Q:     This is Exhibit 9-C. Could you please explain to the Court what I have just
              handed you?

       A:     This is a standard form that the Whitehall Police Department read[s] prior to
              showing any photo array to a victim or witness.

       Q:     And would you please read off there what you read to the lady before you
              showed her the pictures?

       A:     Yes. I said, “I’m going to show you a group of photographs. Please take
              your time to examine all the photographs carefully. If you recognize any of
              the photographs, please explain why. You do not have to select anyone from
              these photos. Please keep in mind that hair styles, beards and mustaches are
              easily changed. Photographs do not always depict the true complexion of a
              person, meaning the complexion may be lighter or darker, depending upon
              the lighting present at the time the photo was taken. Please do not discuss
              with other witnesses whether you recognize anyone in these photographs.”


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No. 06-3116
United States v. McComb


       Q:     And did you read that to Ms. Sharrieff?

       A:     Yes, I did.

Kelso then testified that Sharrieff identified McComb immediately as the man who robbed her.

       Next, Sharrieff testified and explained that she recognized McComb because he had exited

and re-entered the Payless Shoe Store several times on May 12, 2004:

       Q:     Okay. Now, when this person first came into your store and walked around,
              did he ever leave the store?

       A:     Occasionally, but then he came back off and on.

       Q:     Did you have more than one conversation with him?

       A:     Yes, I did because when he came back again, I mentioned that – I just made
              a comment, you’re back again. You know, if it was any other customer who
              didn’t find anything the first time around, they would usually come back.
              And I just said, oh, you’re back again. You know, just a normal comment.

       Q:     Did he tell you where he was going or where he had been, things like that?

       A:     He mentioned that – well, I mean, he had come back a few times throughout
              the day.

                                             ***

              The last time I talked to him, he was – you know, when I mentioned
              that he came back, when I said the comment to him that he was
              coming back, he was waiting on his wife or daughter, they had went
              to Petland. We have a Petland store that is a couple of doors away
              from my store. And he was waiting on them until they got done to
              whatever, looking around the store.




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No. 06-3116
United States v. McComb


Sharrieff then discussed her pretrial identification of McComb on June 11, corroborating Detective

Kelso’s account that Kelso explained that she did not need to identify any person, and that she did

not feel pressured to identify a suspect.

       On cross-examination, Sharrieff denied that the green background on McComb’s picture

drew her attention to him:

       Q:      So, Oliver McComb’s picture has a green background and Oliver McComb’s
               picture is the only picture of any of the six individuals with both lower and
               upper teeth showing?

       A:      Correct.

       Q:      It kind of draws your attention to him at least immediately, would you agree?

       A:      Not at first.

       After listening to testimony from Detective Kelso and Sharrieff, and considering the parties’

oral arguments, the court denied McComb’s motion, explaining:

       Well, the contention is that the photo array presented to the witness was unduly
       suggestive, and counsel has articulated two arguments in support of that contention.
       The first is the different color of the background of the photograph with the
       defendant. And I have looked at this photo array twice now, and I had the same
       impression each time I look at it. All of the photographs are presented with a pastel
       background. I find nothing particularly striking about the background of Mr.
       McComb’s photograph. It’s essentially the same hue, if you will, as all of the others.

       The contention is that it is green. But it is not markedly greener than some of the
       others, and there is nothing about the background that makes his photo stand out. I
       am applying my own subjective standard in looking at it, but I don’t know what else
       I can do but to look at it, and it certainly doesn’t jump out at me that there is any
       difference.

       The other argument is that his photograph is the only one that displays upper and
       lower teeth and that somehow makes it suggestive, but I don’t really follow that

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        argument. I don’t know why it would make it suggestive to have both the upper and
        lower teeth showing. There are teeth showing in two of the other photos, although
        not the lower. One of the gentlemen has a broad smile just like Mr. McComb. All
        of his upper teeth, which are quite prominent, are displayed.

        And there is no indication here that the witness’ identification was somehow based
        upon the appearance of teeth being displayed. She didn’t testify that this individual
        who came in the store on four occasions and ultimately robbed her prominently
        displayed his teeth. So, I don’t know why the appearance of teeth would be
        suggestive of anything.

        The district court did not clearly err in ruling that the photo identification array was not

unduly suggestive. A darker hue or different colored background does not “in [itself] create an

impermissible suggestion that the defendant is the offender.” United States v. Burdeau, 168 F.3d

352, 358 (9th Cir. 1999) (denying challenge to pretrial identification where defendant’s “picture was

placed in the center of the array, was darker than the rest, and was the only one in which the eyes

were closed.”); see also United States v. Mathis, 264 F.3d 321, 333 (3d Cir. 2001) (holding that

“slightly darker” background of defendant’s picture “did not significantly contribute to the array’s

unnecessary suggestiveness”). Detective Kelso provided a reasonable explanation why McComb’s

picture differed from the other pictures used in the array, and Sharrieff gave no indication that either

McComb’s teeth or the color of the background drew her attention to the picture. Therefore, we

agree with the district court that McComb’s photograph was not unduly suggestive and affirm the

denial of McComb’s motion to suppress.

        Moreover, even if we were to conclude that McComb’s photo was unduly suggestive, the

totality of the circumstances indicates that Sharrieff’s identification was sufficiently reliable to pass

due process muster. First, Sharrieff testified that at the time of the robbery, McComb was standing

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United States v. McComb


at a distance of three to four feet from her face. Second, Sharrieff testified that she remembered

McComb because he exited and re-entered the store several times throughout the day and that she

had conversed with him multiple times before the robbery began. Third, Sharrieff testified that on

the day of the robbery, McComb was wearing a “brownish-tan tee-shirt, dark-colored pants and . . . a

ball cap” and was approximately six feet tall. McComb does not argue on appeal, nor did he argue

before the district judge at the suppression hearing, that Sharrieff’s description was mistaken.

Fourth, Sharrieff testified that when she made the pretrial identification of McComb, she was asked

to give a percentage indicating how sure she was that the person she selected was the robber;

Sharrieff replied that she was 90 percent sure. Finally, Sharrieff identified McComb in the photo

array nearly one month after the robbery occurred. We have held previously that a one month gap

between the criminal incident and an identification is a Biggers factor in favor of reliability. Grayer,

149 F. App’x at 439; United States v. Ford, 72 F. App’x 342, 345, 348 (6th Cir. 2003)

(unpublished). Furthermore, Sharrieff’s identification of McComb is supported by evidence

indicating that McComb’s fingerprints were found on the panic device that he grabbed from

Sharrieff’s hip during the robbery.

        Because the photo used to identify McComb was not unduly suggestive and all of the Biggers

factors indicate that Sharrieff’s pre-trial identification was reliable, we affirm the district court’s

denial of McComb’s motion to suppress.

                                                  VI.

        For the reasons set forth above, we affirm McComb’s convictions.


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