                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10569

              Plaintiff - Appellee,              D.C. No. CR. 09-00678-JAT

  v.
                                                 MEMORANDUM *
STEPHEN ROSS RABOY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted October 12, 2011
                            San Francisco, California

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Appellant Stephen Ross Raboy (“Raboy”) seeks reversal of his jury

conviction for three bank robberies. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

       Raboy argues that the photographic lineup used by law enforcement violated



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
his due process rights because his picture was the only one showing a person with

a ponytail. Thus, he argues that the photo lineup was impermissibly suggestive

and tainted the subsequent in-court identification testimony.

      Even were the pre-trial identification procedure impermissibly suggestive,

the totality of the circumstances indicates that the eyewitness identifications of

Raboy had sufficient aspects of reliability. See United States v. Bagley, 772 F.2d

482, 492 (9th Cir. 1985) (“If under the totality of the circumstances the

identification is sufficiently reliable, identification testimony may properly be

allowed into evidence even if the identification was made pursuant to an

unnecessarily suggestive procedure.”); see also Manson v. Brathwaite, 432 U.S.

98, 106 (1977). All three bank robberies occurred during the daytime. The five

witnesses had ample opportunity to view Raboy, one-on-one, at close range, for the

entire duration of the respective robberies. Further, all of the witnesses provided

specific details about Raboy’s facial features and body type that were consistent

with Raboy’s overall appearance.

      The subsequent in-court identifications were also reliable. Four of the five

witnesses identified Raboy at trial without expressing hesitation, and there is no

evidence to suggest that the witnesses based their in-court identifications on

anything other than their independent memories or recollections of the incidents.


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      Finally, there was significant circumstantial evidence supporting the

conviction. This evidence includes DNA evidence linking Raboy to the robberies

and items seized from his residence such as two-way radios, a list of police and

medical scanner frequencies, and a note that read “Bomb. Big bills. No dye-no

GPS, no alarms, or else.” Thus, any potential error in admitting the testimony was

harmless beyond a reasonable doubt. See Neder v. United States, 527 U.S. 1, 15

(1999) (stating that constitutional error must be harmless beyond a reasonable

doubt).

AFFIRMED.




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