                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4290



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


EDDIE GAMBLE,

                Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00192-NCT)


Submitted:   June 30, 2008                 Decided:   August 18, 2008


Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Following a jury trial, Eddie Gamble was convicted on one

count of bank robbery, in violation of 18 U.S.C. § 2113(a) (2000).

The district court sentenced Gamble to 240 months’ imprisonment.

Gamble timely appealed.

             Gamble first contends that the district court erred by

failing to suppress the branch manager’s in-court identification of

him,    claiming     that    the     witness       was   unduly    influenced       by   a

photograph of Gamble and a video of Gamble’s capture.                           Courts

engage in a two-step analysis to determine the admissibility of the

identification testimony. First, the defendant must establish that

the identification was impermissibly suggestive, i.e., that “a

positive identification is likely to result from factors other than

the witness’s own recollection of the crime.”                     Satcher v. Pruett,

126 F.3d 561, 566 (4th Cir. 1997).              If the court concludes that the

confrontation       procedure      was    not   impermissibly       suggestive,       the

inquiry ends.       United States v. Bagley, 772 F.2d 482, 492 (9th Cir.

1985); cf. Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994)
(holding     that    court    may     proceed      directly    to       reliability      of

identification       without    determining          whether   defendant       has    met

threshold     requirement       of       suggestiveness).         If,    however,     the

defendant makes this showing, the court then must determine whether

the identification was nevertheless reliable under the totality of

the circumstances.          Satcher, 126 F.3d at 566.              The Supreme Court

has    set   out    five    factors      to   be    considered      in    deciding    the

reliability of identification testimony: “[1] the opportunity of


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the witness to view the criminal at the time of the crime, [2] the

witness’   degree   of    attention,   [3]    the   accuracy   of   his   prior

description   of    the    criminal,    [4]    the    level    of   certainty

demonstrated at the confrontation, and [5] the time between the

crime and the confrontation.”      Manson v. Brathwaite, 432 U.S. 98,

114 (1977); United States v. Murray, 65 F.3d 1161, 1169 n.6 (4th

Cir. 1995).

           In this case, the district court determined that there

was no impermissibly suggestive pretrial identification.                    The

branch manager testified that, during the robbery, he was able to

get a clear look at the robber’s face when he handed over the

money, noting the “distinct lines on his face.”           He stated that he

was “trained to look at specifics.”          As the district court noted,

this witness followed the robber as he fled the bank, observing the

suspect drop items and then reach down to pick them up, and head to

a white van with his face unobstructed.          He watched the robber get

into the van and drive away.      We find that the district court did

not abuse its discretion by concluding that the branch manager had

a sufficient opportunity to identify Gamble during the robbery and

that his later viewing of a photograph and video footage was not

impermissibly suggestive.

           Even if the court had bypassed the analysis of the

suggestiveness of the photograph and video footage, Holdren, 16
F.3d at 61, under the totality of the circumstances, the branch

manager’s testimony was reliable.             He not only was in close

proximity to the suspect and therefore had a good opportunity to


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view the suspect at the time of the robbery, but also utilized his

training to “look at specifics” and put forth significant effort to

observe the robber and his getaway vehicle.              The detail and

accuracy of the branch manager’s description enabled the police to

readily identify Gamble’s white van by the red, white, and blue

“save our troops” decals on the back.         Furthermore, the witness

testified that he prepared a written statement on the day of the

robbery in which he declared, “I feel very certain that I can

identify the robber.”    Under the totality of the circumstances, we

conclude that the district court did not abuse its discretion by

concluding that the branch manager’s in-court identification of

Gamble was reliable.

          Gamble also argues that a videotape of his capture was

unfairly prejudicial.    This fifty-second footage, extracted from

news coverage, includes a clip of police vehicles closing in on the

site where Gamble’s van was stopped, an aerial view of police

officers and a dog finding Gamble hiding under heavy brush, and

ends with a close-up shot of Gamble being loaded into an ambulance.

Although Gamble’s identity is not readily discernible from the

aerial view, the canine handler who participated in Gamble’s

apprehension testified at trial and identified himself, his canine,

and Gamble in the portion of the clip showing officers and a dog

closing in on the suspect.

          Under   Fed.   R.   Evid.   403,   relevant   evidence   may   be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading


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the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence. Review of a district

court’s determination of the admissibility of evidence is for abuse

of discretion.    United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997).    We find that the district court did not abuse its

discretion in admitting the photograph.

           First, contrary to Gamble’s claim that the videotape had

no probative value, the evidence was relevant. Gamble claimed that

he had been kidnaped and did not drive the van during the high

speed police chase and that he was wheelchair-bound.             Although

Gamble’s face is clearly visible only in the footage of his

placement in the ambulance, the canine officer involved in Gamble’s

arrest   positively   identified    Gamble   in   the   aerial   footage.

Furthermore, the clip supports the Government’s evidence, presented

through police officers’ testimony, that Gamble led them on a high

speed chase after the robbery and hid in a wooded area where he was

flushed out by a police dog.

           Gamble claims that the footage was unfairly prejudicial

and served only to sensationalize the Government’s evidence.          We

have noted that “[p]rejudice, as used in Rule 403, refers to

evidence that has an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional

one.”    United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997)
(internal quotation marks omitted). We conclude that the videotape

did not pose a legitimate risk of arousing the emotions of the

jurors to the point of creating a genuine danger that the case


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would   be   decided   based   upon    their   emotional   reaction    to   it.

Although the jury exhibited an interest in the footage, this

interest, contrary to Gamble’s argument, does not indicate that the

video’s probative value was outweighed by any prejudicial effect.

The district court did not abuse its discretion in admitting the

videotape.    Moreover, even assuming arguendo that the introduction

of the videotape constituted an abuse of discretion, any error was

harmless in light of the overwhelming evidence against Gamble.

             Accordingly, we affirm Gamble’s conviction.        We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                      AFFIRMED




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