                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 18 2000
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 98-5066
 JACKIE LYNN MARTIN,                                     (D.C. No. 97-CR-4-H)
                                                             (N.D. Okla.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BALDOCK, McKAY, and BRORBY, Circuit Judges.


       Defendant Jackie Lynn Martin was indicted on one count of armed bank robbery in

violation of 18 U.S.C. § 2113(a) & (d); three counts of interference with commerce by

threats or violence in violation of 18 U.S.C. § 1951; two counts of using a firearm during

commission of a crime of violence in violation of 18 U.S.C. § 924(c), and two counts of

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). A jury

convicted Defendant on all eight counts of the indictment, and the district court sentenced

him to fifty years imprisonment.



       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Defendant appeals his convictions and sentence. Defendant claims (1) the district

court improperly denied his motion to suppress identification evidence based on unduly

suggestive procedures, (2) the Government improperly charged him with two counts of

possessing a firearm under § 922(g) based on one continuous uninterrupted possession of

the same firearm, and (3) the district court improperly denied his request to represent

himself at sentencing. Our jurisdiction arises under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291. We discuss the facts only as necessary to our analysis of the issues raised. We

affirm in part, vacate in part, and remand for further proceedings.

                                             I.

       The indictment against Defendant arose from the robberies of four Tulsa,

Oklahoma businesses over a five-day period in December 1996–the robbery of a dry

cleaning business on December 17, the robbery of a grocery store on December 19, the

robbery of a gas station on December 19, and the robbery of a bank on December 21. The

Tulsa police apprehended Defendant on December 31, 1996. During a lineup on January

6, 1997, three witnesses identified Defendant as the man who committed the robberies.

Rodney Cleavelin, the owner of the dry cleaning business; Josh Davis, an employee of the

grocery store; and Thelma Lantz, a sales clerk at the gas station, each identified

Defendant. A few days prior to the lineup, both Cleavelin and Davis had tentatively

identified Defendant in a photo array. A grand jury subsequently indicted Defendant. All

three witnesses, along with Terri Hunter, a bank customer at the time of the bank robbery,


                                             2
identified Defendant at trial.

       Defendant moved to suppress all evidence of Cleavelin’s and Davis’

identifications, contending that a newspaper article appearing in the Tulsa World three

days prior to the police lineup, but following the photo array, tainted the witnesses’

identifications in violation of his due process rights. The article named Defendant as a

suspect in the robberies, described him by weight, height, and hair color, and included his

picture. The district court denied Defendant’s motion. Because Defendant “failed to

establish a nexus between the photograph and the article and the subsequent line-up

procedure,” the court held Defendant had “not met his burden of proving that the

procedure employed was impermissibly suggestive.” We review de novo the ultimate

question of whether identification procedures and testimony violated due process. Grubbs

v. Hannigan, 982 F.2d 1483, 1489 n.5 (10th Cir. 1993).

       A defendant has the initial burden of proving that an identification procedure was

impermissibly suggestive. See United States v. Wade, 388 U.S. 218, 240 n.31 (1967).

If defendant meets this burden, the burden shifts to the Government to prove by clear

and convincing evidence that the identification was reliable independent of the suggestive

procedure. See id. at 240. “Even if an identification procedure is suggestive,

the introduction of the identification evidence does not necessarily violate a defendant’s

due process rights. The central inquiry is whether under the totality of the circumstances

the identification was reliable.” Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989)


                                              3
(internal citations and quotations omitted).

       The Supreme Court has set forth five factors for lower courts to consider when

evaluating the reliability of identification procedures: (1) the opportunity of the witness to

view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the

accuracy of the witness’ prior description of the criminal; (4) the level of certainty

demonstrated by the witness at the confrontation; and (5) the length of time between the

crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). The court

must balance these factors against the “corruptive effect” of the identification procedures

to determine whether the identification testimony should be suppressed. Manson v.

Brathwaite, 432 U.S. 98, 114 (1977). Assuming without deciding that Defendant met

his initial burden of showing the lineup was impermissibly suggestive as a result of the

newspaper article, we conclude that the identification procedure did not create a “very

substantial likelihood of . . . misidentification.” Neil, 409 U.S. at 198. In other words,

the witnesses’ respective identifications of Defendant were reliable considering the

totality of the circumstances.

       Rodney Cleavelin, owner of the dry cleaning business, testified that he had not

seen the article at the time he identified Defendant from the lineup. Cleavelin, however,

had discussed the article with one of his employees and had heard some of his customers

mention the article. Cleavelin could not remember the specifics of the conversations.

Prior to publication of the newspaper article, Cleavelin had tentatively identified


                                               4
Defendant from a police photo array.1 Cleavelin indicated at that time he was 75%

certain that Defendant was the robber. At trial, Cleavelin testified that after his business

had closed for the evening, Defendant knocked on the front glass window. Defendant

wore a blue pullover sweatshirt with the hood drawn over his head. Cleavelin originally

described Defendant as balding, but attributed his misdescription to the fact that

Defendant’s hair was grey and in disarray at the time of the robbery. Defendant informed

Cleavelin that he needed his pants for work the next day. Cleavelin let Defendant inside

and directed him to remove his hood. Defendant removed his hood and pulled a gun. At

that point, Defendant robbed Cleavelin. Cleavelin stated he had a good opportunity to

view Defendant in well-lit conditions. Cleavelin further testified he was certain beyond

a reasonable doubt that Defendant was the robber.

       Josh Davis, the grocery store employee, stated he had seen and read the

newspaper article prior to identifying Defendant in the lineup. Davis further stated that

his identification of Defendant at the lineup was based on his recollection of the man he



       1
         The pictures in the array were “booking photos” of six men. Each photo
revealed an identification number and date. The remaining information on the photos had
been redacted. The date on Defendant’s photo was 2-27-96. The respective dates on the
other photos were 9-6-95, 3-9-95, 10-27-92, 10-9-92, and 11-17-91. Defendant claims
the dates on the photos made the array impermissibly suggestive because the robberies
occurred in 1996 and the only photo with a 1996 date was his own. Because the robberies
occurred in December 1996 and Defendant’s photo shows a date of February 1996, ten
months earlier, we find nothing suggestive about the photos’ dates. We do note, however,
that such information is easily redacted and should be to avoid any appearance of
impropriety.

                                              5
saw during the robbery, not on the article and photo in the newspaper. Davis noticed the

defined wrinkles on the robber’s face which stuck in his mind. Davis, however,

originally misdescribed Defendant as dark complected but not black. Like the other

robberies, Davis noted the robber wore a blue hooded sweatshirt wrapped tightly around

his face and displayed a gun. Perhaps most importantly, Davis had identified Defendant

in the photo array of six men with similar appearance prior to the article’s publication. At

trial, Davis testified he was 99% sure that Defendant was the robber.

       Given the totality of these circumstances, we do not believe the newspaper article,

although poorly timed, created a likelihood of Defendant’s misidentification. The indicia

of independent reliability reflected in the record overcome any suggestiveness of the

identification procedures. The only witness identification subject to serious attack was

that of Josh Davis, the grocery story employee. The evidence surrounding Cleavelin’s

and Davis’ identification of Defendant however, establishes no “substantial likelihood” of

misidentification. Neil, 409 U.S. at 198.

       In any event, any error in admitting Davis’ identification testimony was harmless

beyond a reasonable doubt. See Evans v. Lock, 193 F.3d 1000, 1002-03 (8th Cir. 1999)

(improper identification testimony subject to harmless error analysis); United States v.

Ciak, 102 F.3d 38, 42-43 (2d Cir. 1996) (same); United States v. Watkins, 741 F.2d 692,

695-96 (5th Cir. 1984) (same); Marshall v. United States, 436 F.2d 155, 158-61 (D.C. Cir.

1970) (same). See generally Neder v. United States, 527 U.S. 1 (1999) (discussing


                                             6
harmless error analysis in context of constitutional error).

       Thelma Lantz, the sales clerk at the gasoline station, indicated she had not seen the

article at the time she identified Defendant from the lineup. Lantz identified Defendant

after hearing each man repeat phrases the robber stated to her during the robbery.

Accordingly, the article in no way tainted Lantz identification of Defendant at the lineup.

At trial, she testified that Defendant entered the station wearing a jacket with the hood

drawn tightly around his face showing his mouth and nose.

       Terri Hunter, the bank customer, did not participate in the photo array or lineup. At

trial, however, she positively identified Defendant as the bank robber. She stated that

Defendant wore a blue hooded sweatshirt tied tightly around his head and fled in a light

colored Ford Taurus. Witnesses to the grocery store and gas station robberies also

testified that Defendant fled in a Ford Taurus. Shortly after the bank robbery, police

officers located the Ford Taurus in a K-Mart parking lot. A friend of Defendant’s

testified that he picked Defendant up at the K-Mart the same day.

       In each of the four robberies, Defendant wore a hooded sweatshirt or jacket drawn

tightly around his face and wielded a gun. His method of operation was the same in each

robbery. The robberies occurred in close proximity. In the grocery store, gas station, and

bank robberies, Defendant was seen fleeing in a light colored Ford Taurus. Perhaps most

importantly, during commission of the grocery store robbery which Josh Davis witnessed,

the robber smashed a glass window causing him to bleed. DNA taken from blood drops


                                              7
at the scene matched the DNA in Defendant’s blood. Similarly, DNA taken from blood

stains on a jacket located in the Ford Taurus matched the DNA in Defendant’s blood.

Accordingly, the identification procedures and testimony in this case did not violate

Defendant’s due process rights despite Davis’ having seen the newspaper article prior to

identifying Defendant in the lineup.

                                              II.

       Defendant next contends for the first time on appeal that his continuous and

uninterrupted possession of a single firearm constitutes only one offense under 18 U.S.C.

§ 922(g), and thus his multiple convictions under § 922(g) constitute plain error. See Fed.

R. Crim. P. 52(b). The Government charged Defendant with two separate violations of §

922(g).2 Count three of the indictment charged Defendant with unlawfully possessing a

firearm, a 9 mm Jennings, Model 59, Serial No. 753014, on December 17, 1996, the date

of the dry cleaning robbery. Count six of the indictment charged Defendant with

unlawfully possessing the same firearm on December 19, 1996, the date of the grocery

store robbery.

       The Government concedes that Defendant is guilty of only one violation of


       2
           18 U.S.C. § 922(g) provides in relevant part:

         (g) It shall be unlawful for any person–
               (1) who has been convicted in any court of, a crime punishable by
             imprisonment for a term exceeding one year;
                                             ...
       to . . . possess in or affecting commerce, any firearm . . . .

                                              8
§ 922(g), and thus his multiple § 922(g) convictions cannot stand. See United States v.

Horodner, 993 F.2d 191, 193-94 (9th Cir. 1993) (uninterrupted possession of handgun

spanning separate dates constitutes only one § 922(g) offense); United States v. Jones,

533 F.2d 1387, 1389-92 (6th Cir. 1976) (same); cf. United States v. McIntosh, 124 F.3d

1330, 1336 (10th Cir. 1997) (criminal counts based upon same criminal behavior are

improper because they allow multiple punishments for a single criminal offense;

imposition of multiple sentences for same criminal behavior constitutes plain error).

Accordingly, Defendant’s conviction and sentence on the second § 922(g) charge, i.e.,

count six of the indictment, are vacated.

                                             III.

       Defendant lastly contends that the district court abused its discretion when it

refused to recognize his constitutional right to self representation at sentencing. See

United States v. Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995) (denial of right to self

representation reviewed for an abuse of discretion). A criminal defendant has a right

under the Sixth Amendment to waive counsel and represent himself so long as he does

so clearly and unequivocally in a knowing, intelligent, and timely manner. See Faretta

v. California, 422 U.S. 806, 835 (1975) (a defendant “should be made aware of the

dangers and disadvantages of self-representation so that the record will establish that

he knows what he is doing and his choice is made with open eyes.”) (internal

quotations omitted).


                                              9
       At his initial sentencing hearing, Defendant informed the court when given an

opportunity to speak that he wished to dismiss defense counsel and proceed pro se: “I

would like to, if the Court would please, to dismiss my counsel at this time and proceed

pro se.” While the district court permitted Defendant to explain his dissatisfaction with

defense counsel at length, the court never expressly ruled on Defendant’s request to

proceed pro se. Instead, the court sentenced Defendant to life imprisonment.

       On remand,3 Defendant again asked to dismiss defense counsel at the outset of the

sentencing hearing. When the district court asked if Defendant had any objection to the

presentence investigation report, Defendant responded: “I would like to object to it

because I’m trying to get Mr. Hughes [defense counsel] released off my case, as I have

stated numerous times.” At least three additional times prior to sentencing, Defendant

expressed a desire to dismiss defense counsel. Never did the district court expressly rule

on Defendant’s repeated requests. Instead, the court sentenced Defendant to fifty years

imprisonment.

       Based upon the record before us, we conclude that Defendant at resentencing



       3
         On June 13, 1997, the district court initially sentenced Defendant to seven life
sentences on counts one and three through eight of the indictment, plus five years
imprisonment on count two. The court enhanced Defendant’s sentences pursuant to
18 U.S.C. § 3559(c). We subsequently dismissed Defendant’s original appeal and
remanded to the district court for a decision on Defendant’s timely motion to correct
sentence under Fed. R. Crim. P. 35(c). United States v. Martin, No. 97-5117, 1998 WL
39229 at *1 (10th Cir. 1998) (unpublished decision). On remand, the district court
sentenced Defendant to fifty years imprisonment.

                                            10
asserted his desire to dismiss defense counsel and represent himself in a clear,

unequivocal, and timely manner. Once Defendant made his request to the district court,

the court should have inquired into whether Defendant’s requested waiver of counsel at

sentencing was knowing and intelligent. See United States v. McKinley, 58 F.3d 1475,

1481 (10th Cir. 1995). The district court, however, never addressed Defendant’s

competency to waive his right to counsel. See Godinez v. Moran, 509 U.S. 389, 399

(1993) (“[T]he competence that is required of a defendant seeking to waive his right to

counsel is the competence to waive the right, not the competence to represent himself.”)

(emphasis in original). Accordingly, we remand this matter to the district court for a

hearing on Defendant’s competency to waive his right to counsel at sentencing, and for

possible resentencing if the district court finds Defendant competent to waive that right.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

                                          Entered for the Court,



                                          Bobby R. Baldock
                                          Circuit Judge




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