UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5220

TOY BURTRON MADDEN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CR-94-440-JFM)

Submitted: April 9, 1996

Decided: April 22, 1996

Before ERVIN, WILKINS, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Andrew Lee, III, Silver Spring, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Joyce K. McDonald, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Toy Burtron Madden appeals his conviction for two counts of bank
robbery in violation of 18 U.S.C.A. § 2113(a) (West Supp. 1996).
Madden contends, through counsel and in a pro se supplemental brief,
that the district court abused its discretion in denying his motion to
sever the two counts of bank robbery, the fingerprint evidence was
insufficient to sustain a conviction, the photographic array identifica-
tion procedures were impermissible, and he was denied the right to
counsel at the photographic identification. Finding no reversible error,
we affirm.

I

A jury convicted Madden of two counts of bank robbery by intimi-
dation in violation of 18 U.S.C.A. § 2113(a) for the December 16,
1992, and January 26, 1993, robberies of Maryland National Bank in
Baltimore. Madden moved to sever the two counts for trial on the
ground that permitting the jury to hear evidence of both crimes would
create prejudice because the jury would be aware of the evidence of
one crime while considering whether the Defendant was guilty of
another. The district court denied the motion.

During both the December 1992 and January 1993 robberies the
robber entered the bank wearing a hooded sweatshirt with the hood
up and sunglasses. On both occasions he handed the teller an ATM
envelope and a hold-up note. The hold-up notes were nearly identical
in language. Three eyewitnesses testified at trial, and all three stated
that they believed the robber that held up the bank in December was
the same person who held up the bank the following January. All
three identified Madden in court as the person who twice robbed the
bank. In addition, two of the three eyewitnesses picked Madden out
of a photographic array as the robber. The Government introduced the
December hold-up note with Madden's latent fingerprints on it. Testi-
mony was also presented demonstrating that Madden was not at work
on the day of the December robbery. An FBI agent testified regarding
the photographic identifications, and stated that the description one of

                    2
the witnesses gave regarding the robber's getaway vehicle fit the
description of Madden's truck.

II

While Fed. R. Crim. P. 14 allows for severance if a defendant will
suffer undue prejudice from joinder, the decision to sever is within the
discretion of the trial judge and will not be reversed absent an abuse
of discretion. United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.),
cert. denied, 505 U.S. 1228 (1992). Refusal to sever constitutes an
abuse of discretion only when the denial of severance deprives the
defendant of a fair trial and results in a miscarriage of justice. United
States v. Chorman, 910 F.2d 102, 114 (4th Cir. 1990). The burden is
upon Madden to make a particularized showing of prejudice from the
denial of severance. United States v. Clark, 928 F.2d 639, 645 (4th
Cir. 1991).

Madden's demonstration of prejudice included a claim at the sever-
ance hearing that if he elected to testify about one crime, and not the
other, he would be open to cross-examination in the other robbery.
Madden did not, however, state to the court that he would or planned
to testify regarding either robbery charge. Madden also claimed that
the second offense would be used to bolster the allegation that he
committed the first. He also stated that trying the two charges together
would be prejudicial because the jury might conclude that he was
guilty of one crime and also find him guilty of the other because of
his criminal disposition.

Madden's claims of prejudice are speculative at best. The two
charges of robbery involved the same bank within two months of each
other, same witnesses, similar hold-up notes, method of operation,
and manner of dress. The robber's manner of dress especially led the
witnesses to believe that the robber was the same person in both
occurrences. In United States v. Acker, 52 F.3d 509 (4th Cir. 1995),
this court held that denial of severance was proper when the Defen-
dant was alleged to have committed four robberies of different banks
spanning an eight month time period, and all robberies involved a
black female acting alone and wearing the same disguise at the time
of each robbery. Acker, 52 F.3d at 513-14. The district court did not
abuse its discretion in denying the severance motion.

                    3
III

Madden asserts that the fingerprint evidence is not enough to sus-
tain his conviction because the probative value of fingerprint evidence
on a movable object is highly questionable. On appeal, a jury verdict
will be upheld if substantial evidence supports it. Glasser v. United
States, 315 U.S. 60, 80 (1942). The inquiry on appeal is whether any
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt, viewing the evidence in the light most favorable to
the Government. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The fingerprint evidence, however, was but one of several evidenti-
ary showings linking Madden to the two robberies. In addition, the
Government offered photographs of the robber from the surveillance
camera in the bank, three eye-witnesses, a photograph of Madden's
truck which matched the description given by Bowling, and testimony
from Madden's employer stating that Madden was not at work on the
day of the December robbery. We find that there is substantial evi-
dence to support the jury's finding that Madden was guilty of both
bank robbery charges.

IV

Madden claims that the photographic array identification procedure
was impermissibly suggestive and that the right to counsel attached
at that time because it was a critical stage of the prosecution. In the
trial court, Madden did not move to suppress the photographic identi-
fications nor did he object to the photo identification taking place
without counsel.

Under Fed. R. Crim. P. 52(b), "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court." A plain error is a clear or obvious error.
The error must be prejudicial and the appellant must make a specific
showing of prejudice. The error should only be corrected if the error
"`seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings.'" United States v. Olano , 507 U.S. 725, ___, 61
U.S.L.W. 4421, 4424 (U.S. Apr. 26, 1993) (No. 91-1306) (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).

                     4
The standard in addressing photographic identification procedures
is whether "under all the circumstances of [the] case there is `a very
substantial likelihood of irreparable misidentification.'" Manson v.
Brathwaite, 432 U.S. 98, 116 (1977) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). Madden's claims of error regarding
the photographic array include that the array was shown to the wit-
nesses in March, one month after his arrest, and that the witnesses did
not have the opportunity to observe him during the robbery. Neither
of these claims impugn the integrity of the identification procedure.
Further, he claims that the arrays were impermissibly suggestive
because one witness, who could not pick Madden from a black-and-
white photo array containing an old picture, was later able to identify
Madden from a color array; Madden was the only person in both sets
of photos. Although this procedure was not ideal, we cannot say that
admission of the identification was plain error. Therefore, we find that
the photographic identification claims lack merit.

Madden's remaining claim, that he was denied the right to counsel
at the photographic identification, is without merit. The Sixth Amend-
ment does not guarantee the accused the right to have counsel present
when the government is presenting photographs to eyewitnesses for
identification purposes. United States v. Ash , 413 U.S. 300, 321
(1973). We therefore find that the denial of right to counsel at the
photographic identification does not constitute plain error.

V

Finding no error requiring reversal of the district court's judgment,
we affirm the conviction. We grant the Appellant's motion to file a
pro se supplemental brief and have addressed his claims in this deci-
sion. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

                    5
