UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4375

TARUS D. OWENS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-97-150)

Submitted: January 29, 1999

Decided: February 24, 1999

Before ERVIN and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Otis Kennedy Forbes, III, FINE, FINE, LEGUM & FINE, Virginia
Beach, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Harvey L. Bryant, III, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Tarus D. Owens was convicted of assault with intent to commit
murder, robbery, use of a firearm during and in relation to a crime of
violence, possession of ammunition by a fugitive, and attempted mur-
der. He received life imprisonment and a consecutive sentence of
three hundred months' imprisonment. On appeal, Owens alleges that
the district court erred in denying: (1) his motion to strike count eight
of the indictment because the underlying offense, based on the Assim-
ilative Crimes Act, had already been charged in other counts or could
have been charged as a violation of 18 U.S.C. § 1113 (1994); (2) his
motion in limine and motion to suppress testimony and evidence
relating to a pre-trial identification; (3) his motion for new counsel
and appointed counsel's motion to withdraw as counsel. We affirm
Owens's convictions and sentence.

The evidence at trial disclosed that at approximately 1:30 a.m. on
August 23, 1997, a black male held at gun point and demanded
money from Yeoman First Class Todd Wilson, who was walking
back to his ship on a naval base. The assailant pointed the gun
approximately four inches from Wilson's face for approximately nine
seconds. When Wilson reached for his wallet, the assailant fired the
gun. The bullet entered Wilson's right eye. Wilson, lying uncon-
scious, was discovered five hours later. His wallet was not found at
the scene. Although Wilson survived the assault, he lost his right eye,
suffered brain damage which limits his vision in the left eye, and is
paralyzed in his left arm and leg.

The evidence at trial disclosed that in late July or early August
1997, Tarus Owens began living with a friend, Curtis McDonald, on
the naval base. Owens arrived carrying a pistol, and did not have a
job or money up until the time of the shooting. During the course of
an unrelated investigation, McDonald informed investigators that

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Owens told him that he robbed and shot someone near the club in the
early morning hours of August 23rd. McDonald further stated that he
saw Owens with a gun a few hours before the shooting and with
money after the shooting.

Officers presented a photographic line-up to Wilson in a hospital
room. The police used six different photographs of males of the same
race with similar skin tone, facial hair and hair styles, and approxi-
mately the same age as Owens. There was no suggestion by the agent
conducting the photographic line-up that a suspect was among those
photographed. Without hesitation, Wilson identified Owens from the
photographs as the assailant.

After a three day trial, a jury convicted Owens of assault with
intent to commit murder, robbery, two counts of the use of a firearm
in a crime of violence, possession of ammunition by a fugitive, and
attempted capital murder, assimilating §§ 18.2-31.4, -25 of the Code
of Virginia. The court sentenced Owens to life imprisonment and a
three hundred months' consecutive sentence.

On appeal, Owens first alleges that the district court erred in deny-
ing his motion to strike count eight of the indictment which charged
attempted capital murder under Va. Code Ann. § 18.2-31.4, -25
(Michie 1996 Replacement Volume). Owens argues that the Govern-
ment should have been precluded from charging him with attempted
capital murder under the Assimilative Crimes Act because counts one
and three, alleging federal violations, together cover the specific con-
duct he allegedly committed in shooting and robbing Wilson. Count
one charged Owens with assault with intent to commit murder in vio-
lation of 18 U.S.C. § 113(a) (1994) and count three charged him with
robbery in violation of 18 U.S.C. § 2111 (1994). Owens further posits
that Congress through federal law already proscribes by statute the
criminal activity alleged here and, therefore, resort to Virginia law
was improper. Specifically, Owens maintains that the Government, in
the alternative, could have charged him with attempted murder in vio-
lation of 18 U.S.C. § 1113 (1994), obviating the need to rely upon
state law to punish the criminal activity alleged here.

We note that jurisdictional issues may be raised at anytime during
a criminal proceeding and that a district court's jurisdiction over a

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criminal offense is a question of law that is reviewed de novo. See
Fed. R. Crim. P. 12(b)(2); United States v. Walczak, 783 F.2d 852,
854 (9th Cir. 1986). A state statute may not be incorporated through
the ACA if Congress has passed a federal law that punishes the same
crime. See United States v. Fox, 60 F.3d 181, 183 (4th Cir. 1995).
However, the use of the ACA is proper even when the conduct vio-
lates both state and federal law, so long as the precise act prohibited
by the state statute is not specifically prohibited by federal law. See
United States v. Minger, 976 F.2d 185, 189 (4th Cir. 1992). The pur-
pose of this is to afford those citizens on federal land the same protec-
tion as those not on federal land and to allow laws with different
purposes to have their full and intended effects. See id. at 187; Fox,
60 F.3d at 185 (use of ACA appropriate since federal law and state
law serve different purposes).

Section 18.2-31.4 of the Code of Virginia punishes"the willful,
deliberate, and premeditated killing of any person in the commission
of robbery or attempted robbery." Section 18.2-25 of the Code of Vir-
ginia provides that an attempt to commit such an offense is punish-
able as a Class 2 felony. There is no question that the underlying
criminal activity committed here is prohibited by both federal and
state laws. The more pertinent question, for purposes of the applica-
bility of the ACA, is rather whether the precise act prohibited by the
state statute, here the attempted killing of any person in the commis-
sion of robbery or attempted robbery, is specifically prohibited by
federal law. Because conviction for assault with intent to commit
murder under 18 U.S.C. § 113(a) does not require robbery or an
attempted robbery and conviction for robbery under 18 U.S.C. § 2111
does not require killing or attempted killing of another person, the
precise act prohibited by §§ 18.2-31.4, -25 of the Code of Virginia is
not specifically prohibited by either of the federal statutes under
which Owens was charged in other counts.

We find equally unavailing Owens' argument that application of
the ACA was unnecessary because the Government could have
charged him with attempted murder under 18 U.S.C.§ 1111. Section
1111, however, does not require that the attempted murder be com-
mitted during the commission of a robbery or attempted robbery.
Accordingly, we do not find that this statute, or any other federal
criminal statute, specifically prohibits the precise conduct prohibited

                     4
under the Virginia criminal statutes in question. Because the ACA
was properly applied to Owens, the district court did not err in deny-
ing Owens' motion to strike count eight of the indictment.

Owens next claims that the court erred in denying defense coun-
sel's motions to withdraw as counsel. The denial of a motion to sub-
stitute counsel is reviewed under an abuse of discretion standard. See
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). To deter-
mine whether the district court abused its discretion we consider three
factors: (1) the timeliness of the motion; (2) the adequacy of the
court's inquiry into the defendant's complaint; and (3) whether a total
breakdown in attorney/client communication had developed such that
it prevented the attorney from putting forth an adequate defense. See
id.

After approximately two months of representation and less than a
month from trial, defense counsel moved to withdraw based on a let-
ter written by Owens. Owens wished to have another attorney, appar-
ently because he was not satisfied with defense counsel's service. By
this time, defense counsel had filed several motions on Owens' behalf
and interviewed a key witness. Defense counsel did not state that he
was unable to prepare because of a lack of communication with
Owens. Under such circumstances, we find that the court did not
abuse its discretion in denying this motion to withdraw.

Three days prior to a hearing on the motion to suppress the photo-
graphic identification and just over a week away from the trial,
Owens terminated discussions with defense counsel. Defense counsel,
accordingly, again moved to withdraw as counsel on the day of the
hearing on the motion to suppress the identification. When addressed
by the court, Owens simply maintained that defense counsel presented
him with a plea Owens considered unacceptable and therefore thought
that counsel's representation was not adequate. The court denied the
motion, holding that another attorney could not reasonably be pre-
pared by the trial date, and that Owens was not entitled to counsel of
his choice. Other than bare allegations, Owens has not shown how the
alleged lack of communication between him and defense counsel pre-
vented him from receiving an adequate defense. Under these circum-
stances, we find no abuse of discretion.

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Last, Owens contends that the court erred in denying his motion to
suppress the photographic identification conducted in Wilson's hospi-
tal room. Findings of fact made by a district court in ruling on a
motion to suppress are reviewed for clear error, but the ultimate sup-
pression decision is reviewed de novo. See United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). A court must engage in a two-step
inquiry in determining whether identification testimony is admissible.
See United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996).
First, the defendant must establish that the identification procedure
was impermissibly suggestive. See Manson v. Brathwaite, 432 U.S.
98, 110 (1977). Second, even if the procedure is found to be unduly
suggestive, the in-court identification is valid if it was reliable. Id. at
114.

We may proceed directly to the reliability of the identification
without determining whether the defendant has met the threshold
requirement of suggestiveness. See Holdren v. Legursky, 16 F.3d 57,
61-62 (4th Cir. 1994). In evaluating the reliability of the identifica-
tion, we consider: (1) the witness's opportunity to view the perpetra-
tor at the time of the crime; (2) the witness's degree of attention at
the time of the offense; (3) the accuracy of the witness's prior descrip-
tion of the perpetrator; (4) the witness's level of certainty when iden-
tifying the defendant as the perpetrator at the time of the
confrontation; and (5) the length of time between the crime and the
confrontation. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

Because we find the identification reliable under Biggers, we do
not address the question of the alleged suggestiveness of the pre-trial
line-up. Owens primarily contends on appeal that the district court
ignored Wilson's medical condition and its effect on the reliability of
Wilson's identification of Owens. Wilson observed his assailant at
close range on the day of the offense. Furthermore, he unequivocally
chose Owens' picture from the group of photos presented to him. The
trial court heard significant testimony from medical care professionals
with specific knowledge as to Wilson's cognitive and visual abilities.
In light of all the evidence presented, we find no error in the trial
court's conclusion that Wilson's pre-trial identification of Owens was
reliable and admissible.

Accordingly, we affirm Owens' conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are

                     6
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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