               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 17-1168
                      ___________________________

                           United States of America

                      lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                             Reginald L. Shumpert

                    lllllllllllllllllllll Defendant - Appellant

                           ------------------------------

                          The Innocence Project, Inc.

               lllllllllllllllllllllAmicus on Behalf of Appellant(s)
                                     ____________

                   Appeal from United States District Court
             for the Eastern District of Missouri - Cape Girardeau
                                ____________

                         Submitted: January 12, 2018
                            Filed: May 4, 2018
                              ____________

Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.
       After a bench trial, Reginald L. Shumpert was convicted of bank robbery, in
violation of 18 U.S.C. § 2113(a). He appeals, arguing that the district court1 erred in
failing to suppress an in-court identification. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

       On May 9, 2014, around 9:30 a.m., a man entered the Bank of Missouri in Cape
Girardeau. Approaching teller Tasha Schusler, he put a note in front of her. It said
she had five minutes to give him all the money from her drawer, or he would detonate
a bomb strapped to his chest and also a bomb at a school. He stood two feet from her.
She noted he was wearing bib overalls, a long-sleeved shirt, and a wig. He was about
six feet four inches tall, 190 to 200 pounds, had a broad nose, several gold teeth, a
large tattoo on his left hand of a triangle with an image and writing, and a large tattoo
on his right hand. Reading the note, Schusler looked at him. He told her to “think
about the kids.” She gave him the money in her drawer. He placed a device with
pipes, wires, a blinking light, and a switch on the counter, and left. Schusler called
911.

       Meanwhile, an employee of a nearby business noticed a “goldish brown” car
with a Texas license plate in the parking lot. A coworker later identified the car as
a Ford Crown Victoria with a rough, non-factory paint job. The coworker saw the
driver’s arm, believing it belonged to a black male.

      Kristie Hamilton, Shumpert’s former girlfriend living in Texas, owned a gold
Ford Crown Victoria. It was stolen in 2013, returning with a brown-gold paint job.
The car was stolen again. While stolen, she received Missouri parking violations for
it. Hamilton knew that Shumpert had relatives in Missouri. She was familiar with



      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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his hand tattoos. One depicted a triangle with an eye and the words “No Play”
underneath it. The other, a stack of cash with the words “All Work” underneath it.

       On the day of the robbery, a driver noticed a man and woman by a car in a hotel
parking lot. It appeared he was assaulting her. The driver called 911, telling the
operator the car was a Crown Victoria with a specific Texas license plate number.
The number matched that of the stolen car. Police arrived, finding only the woman
in the parking lot. She said Shumpert was her assailant. Later, seeing a photo from
the robbery, she recognized as Shumpert’s the dreadlocks wig, shoes, overalls, and
tattoos. She called the tip line to report her suspicions that Shumpert was the robber.

      At trial, Schusler identified Shumpert as the man who robbed her. The
government had him stand in front of her, asking if he was the man who robbed her.
Shumpert’s counsel did not object. At the end of cross-examination, Shumpert’s
counsel had him again stand in front of her, asking her about specific identifying
characteristics.

      The district court found Shumpert guilty. He argues that the district court erred
by allowing and admitting the in-court identification. He believes it was so
suggestive and unreliable as to violate due process.

       “An error by the trial court, even one affecting a constitutional right, is
forfeited—that is, not preserved for appeal—‘by the failure to make timely assertion
of the right.’” United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc),
quoting United States v. Olano, 507 U.S. 725, 731 (1993). “Errors not properly
preserved are reviewed only for plain error.” Id. Under plain error, “[t]here must be
an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’” Olano, 507 U.S. at
732 (second alteration in original). This court has the discretion to decide whether
“to correct the forfeited error,” and does so only when “the error ‘seriously affect[s]



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the fairness, integrity or public reputation of judicial proceedings.’” Id. at 732
(alteration in original), quoting United States v. Young, 470 U.S. 1, 15 (1985).

       Shumpert specifically believes that the district court should have conducted a
reliability analysis under Neil v. Biggers, 409 U.S. 188, 198 (1972). This review
requires a two-part test. United States v. Rundell, 858 F.2d 425, 426 (8th Cir. 1988);
Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir. 1984) (en banc). First, whether the
confrontation was “impermissibly suggestive.” Graham, 728 F.2d at 1541, quoting
Simmons v. United States, 390 U.S. 377, 384 (1968). Then, considering “the totality
of the circumstances,” whether “the suggestive confrontation created ‘a very
substantial likelihood of irreparable misidentification.’” Id., quoting Manson v.
Brathwaite, 432 U.S. 98, 116 (1977). In determining reliability, a court considers the
five factors in Biggers: (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 witness’s level of certainty at the
confrontation, and (5) the length of time between the crime and the confrontation.
Biggers, 409 U.S. at 199-200. Against these factors, a court weighs “the corrupting
effect of the suggestive identification.” Manson, 432 U.S. at 114.

       Even if the district court erred in not conducting a reliability analysis under
Biggers, Shumpert’s arguments fail because the error is not plain under current law.
The courts are divided whether a reliability analysis is required to admit an in-court
identification. Compare United States v. Thomas, 849 F.3d 906, 911 (10th Cir.
2017) (reliability analysis of in-court identifications required “only after the
defendant establishes improper police conduct”), and United States v. Whatley, 719
F.3d 1206, 1216 (11th Cir. 2013) (same), with Lee v. Foster, 750 F.3d 687, 691-92
(7th Cir. 2014) (relying on Biggers to conduct a reliability analysis of an in-court
identification), and United States v. Greene, 704 F.3d 298, 308 (4th Cir. 2013)
(same). Cf. United States v. Correa-Osorio, 784 F.3d 11, 19-20 (1st Cir. 2015)
(declining to decide whether Perry or Biggers requires a reliability analysis for in-

                                         -4-
court identifications, while reaching the same result under either). See generally
Perry v. New Hampshire, 565 U.S. 228, 241 (2012) (requiring a reliability analysis
of identifications “only after the defendant establishes improper police conduct”).

      The district court did not plainly err in admitting the in-court identification.

                                    *******

      The judgment is affirmed.
                     ______________________________




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