MEMORANDUM*

John Arthur Martinez appeals his conviction, following a jury trial, of robbery of a federally insured savings and loan institution in violation of 18 U.S.C. Sec. 2113(a). Martinez asserts that the evidence was insufficient to support his conviction. He challenges an in-court identification on the ground that it was the product of a suggestive photospread, and he challenges the district court's denial of a request by the jury to view Martinez up close. We affirm.

* On September 16, 1988, a hispanic male approached teller Melissa Graham at Coast Savings & Loan in Mission Viejo, California. He asked Graham for change for a $50 bill and placed the bill on the counter. Graham asked how he would like the change and he told her to open the cash drawer. He leaned over to look in the drawer, and said, "this is a robbery, it is no joke, I mean it, I'll blow you away." Graham gave the man the money from her drawer and he exited the bank.

Graham described the robber as a male hispanic, in his thirties, approximately 5'5", 180 lbs., stocky build, with short orangish dyed hair, a round face, dark full moustache extending to about the corners of his mouth, hairy eyebrows, and acne on his face. She also stated that the robber had a hispanic accent. The robber was wearing smoky brown sunglasses, a light brown suit with thin pinstripes, a blue shirt, and a blue tie.

Shortly thereafter, bank surveillance photographs of the robber were circulated in various law enforcement agencies. In early November 1988, Henry Garcia, a federal probation officer in Orange County, California, noticed that the surveillance photograph depicted a person who looked like one of his parolees. Garcia informed the FBI that the bank robber looked like his parolee, the defendant Johnny Martinez.

On January 6, 1989, Graham, the victim/teller, was shown a photographic spread consisting of six males, including Martinez in position number two. Graham stated, "It is number two, I'm positive." She stated that number 2 had the same chin, neck, and overall appearance as the robber. A second teller at the savings and loan and also a witness to the robbery, Kathleen N. Pickard, was shown the photospread. She chose the person in position number 3 as the robber.

On February 27, 1989, Martinez was arraigned on a one count indictment of unarmed robbery in violation of 18 U.S.C. Sec. 243(a). Martinez entered a not guilty plea. Thereafter, Martinez filed pretrial motions to suppress the photospread identification and to preclude any in-court line-up. The district court originally denied the motions on the ground that the photospread was not suggestive.

On May 2, 1989, Martinez renewed his motions at a status conference and the district court modified the earlier ruling in light of Pickard's identification and the fact that Garcia could not positively identify Martinez from the surveillance photograph. The district court ordered the government to administer a live line-up at the Orange County Jail the day following the status conference. At the live line-up Graham again identified Martinez as the robber.

At trial, the district court allowed into evidence testimony from Graham concerning the original photospread and the live line-up. Graham also gave testimony regarding her observations during the robbery and made an in-court identification of Martinez as the robber. The government also presented the testimony of Garcia and FBI agent William J. Tidyman.

Martinez offered the testimony of his sister, his girlfriend, and Pickard, the second teller. His sister stated that Martinez did not have orangish hair around the time of the robbery and that he did not have a hispanic accent. His girlfriend testified that she was with Martinez constantly around the time of the robbery. However, on cross-examination the government attacked the credibility of Martinez' girlfriend by establishing that she had been convicted of signing a false name on a credit card, presenting false identification to a peace officer, and using a controlled substance. Finally, Pickard confirmed that she had identified another man as the robber.

During deliberations the jury sent out a note asking to see Martinez up close. The district court, over defendant's objections, denied the request on the ground that Martinez has changed his appearance since the time of the robbery. The jury found Martinez guilty as charged. He timely appealed and this court has jurisdiction under 28 U.S.C. Sec. 1291.

Martinez argues that the evidence presented was insufficient to support his conviction. In deciding this claim, we examine the evidence in the light most favorable to the government and determine whether a reasonable jury could have found the essential elements of this crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Mirabelles, 724 F.2d 1374, 1377 (9th Cir.1984). The conviction in this case hinges on a determination of the reliability of Graham's identification of Martinez as the man who robbed the bank.

Martinez offered testimony at trial that conflicted with Graham's identification of Martinez as the robber. However, unless the procedures leading to an eyewitness identification are "so defective as to make the identification constitutionally inadmissible as a matter of law," the reliability of the admitted testimony, "like the credibility of other parts of the prosecution's case, is a matter for the jury." Foster v. California, 394 U.S. 440, 442-443 n. 2 (1969).

A review of the evidence presented establishes that if Graham's identification of Martinez is admissible, there was sufficient evidence before the jury to support Martinez' conviction. The central issue before this court therefore is whether the district court erred in admitting Graham's identification of Martinez.

We review the constitutionality of pretrial identification procedures de novo. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.1985), cert. denied, 475 U.S. 1023; United States v. Love, 746 F.2d 477 (9th Cir.1984). Where a pretrial identification procedure is challenged, we apply a two-step analysis. We first determine whether the procedure was "so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." United States v. Givens, 767 F.2d 574, 581 (9th Cir.), cert. denied, 474 U.S. 953 (1985) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). If we determine that the procedure was impermissibly suggestive, evidence of the resulting identification is inadmissible unless the court finds that the identification was "nonetheless reliable." Manson v. Brathwaite, 432 U.S. 98, 107 (1977); Givens, 767 F.2d at 581.

Martinez' argument that the photospread is impermissibly suggestive is limited to an assertion that the photospread itself is suggestive. He does not assert that his identification resulted from any improper influences that may have been present during the administration of the photospread. He asserts rather that the photospread was unduly suggestive because the photographs used did not look enough like him. According to Martinez, only two of the six photographs used were of men with round faces. He also asserts that his photograph is the only one in which the mustache reaches to the corners of the mouth.

In its initial pretrial ruling, the district court determined that the photospread was not unduly suggestive. At the May 1989 status conference, however, the district court apparently modified its initial determination and ordered a live line-up. It is unclear from the transcript of the May status conference whether the district court intended to reverse its earlier ruling that the photospread was not unduly suggestive.

The district court was troubled by the fact that Pickard identified the person in the third picture as the robber and the fact that Garcia was unable to definitely identify Martinez from the surveillance photo. In ordering the live lineup, the district court stated that only two of the six photos in the photospread were possible photos of the robber in light of the description given by Graham. The district court concluded its ruling at the status conference by stating that in the court's judgment the identification was not fair.

We may examine independently the photographs used in an identification to determine whether they were suggestive. United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir.1983); United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir.1980), cert. denied, Montellano v. United States, 450 U.S. 1043 (1981). An examination of the copy of the photospread that was provided by appellant indicates that the photospread is not unduly suggestive. In United States v. Barron, we stated that "[i]t would be unduly burdensome to require police to find five or six very similar individuals for a lineup." 575 F.2d 752, 755 (9th 1978); see also, United States v. Collins, 559 F.2d 561 (9th Cir.), cert. denied, 434 U.S. 907 (1977) (photospread not suggestive despite variances in age, hair style and facial hair). Thus, the original ruling of the district court that the photospread is not unduly suggestive was correct.1

"A suggestive pretrial photographic identification procedure may taint subsequent in-court identifications to the extent that a defendant is denied due process of law." United States v. Love, 746 F.2d 477, 478 (9th Cir.1984) (citing United States v. Field, 625 F.2d 862, 865 (9th Cir.1980)). Here, however, the photospread was not unduly suggestive. The district court therefore correctly admitted testimony regarding the pretrial identification and correctly allowed an in-court identification of Martinez.

The final issue raised by Martinez is whether the district court erred in denying the jury's request to view Martinez up close. We review a trial court's admission of evidence for abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir.1986), cert. denied, 479 U.S. 1104 (1978). The manner in which in-court identification is accomplished is also within the discretion of the trial court. United States v. Satterfield, 572 F.2d 687, 690 (9th Cir.), cert. denied, 439 U.S. 840 (1978). Unless the procedure used is " 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to amount to a denial of due process of law," we will not question the decision of the trial judge. United States v. Williams, 436 F.2d 1166, 1169 (9th Cir.1970), cert. denied, 402 U.S. 912 (1971) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967); United States v. Domina, 784 F.2d 1361, 1369 (9th Cir.1986), cert. denied, 479 U.S. 1038 (1987).

In the present case, the trial judge considered the probative value of a close-up viewing by the jury in deciding to deny the jury's request. He determined that the robber wore sunglasses and had dyed hair, and stated:

The fact [is] that this defendant no longer looks the way he did, if he's the person. We will never get him back to a comparison between the person who did the robbery, if he's different, and this defendant.

It's undisputed that he no longer looks like that. So, if we put this defendant closer to the jury, so that they are led to the beliefs that they are making a comparison that is closer to the one that the witness made between the person she saw in the photograph, it is exactly wrong. It's not closer. It's less close[ ].

The district court's decision to deny the jury's request to view Martinez up close was not an abuse of discretion.

AFFIRMED.

I respectfully dissent because of the district court's denial of the jury's request of a close view of Martinez. Martinez's conviction is dependent entirely on identification by an eye witness. There is not one other scintilla of evidence linking Martinez to the robbery. In this type of case, if the witness is mistaken the wrong person may be convicted, and, as a result, there is the greatest danger of a miscarriage of justice.

Three and one half months after the crime, Melissa Graham, the teller who was robbed, identified Martinez from a photographic spread. A second teller who witnessed the robbery identified a different suspect as the robber.

Graham described the robber as having acne on his face. Martinez does not have acne, but has some brown moles. During deliberation, the jury sent a note requesting to see the defendant up close. The court suggested that having the accused face the jury up close might be unfair to the defendant, and initially both counsel agreed. The court noted, however, that Martinez felt differently about it. After a short consultation, Martinez' attorney advised the court that the defendant wanted to comply with the jury's request.

The court denied the request for the reason that the defendant's appearance had changed. "The testimony is clear, his hair was a different color. He wore clothing to disguise his appearance. He wore sunglasses." Yet Graham's identification was based on a picture of a man without yellow hair or sunglasses, who was wearing different clothing. If the court believed that the sunglasses presented a problem, and I do not believe they did, he could have ordered Martinez to wear similar glasses. The jury was certainly competent to consider the obvious fact that at the time of the offense, the robber had yellow hair and was wearing different clothes. In fact, the hair and sunglasses could have been considered by the jury without a close-up view. In all likelihood, it was Graham's observation that the robber had acne that prompted the jury's request. They most likely wanted to see whether Martinez' moles could have been mistaken for acne by one seeing him as close as the teller.

In United States v. Bay, 762 F.2d 1314 (9th Cir.1984), the defendant accused of bank robbery asked to be permitted to show to the jury the tattoos on the backs of his hands. Counsel wanted to argue that the failure of eyewitnesses to notice or mention the tattoos raised a reasonable doubt about their identifications of Bay. The trial court denied the request unless Bay took the witness stand and subjected himself to cross-examination. We held that, "[w]hether Ms. Savin's [the bank teller's] failure to notice such tattoos on the robber's hands undercuts her identification of Bay as the robber is a question for the jury to decide, but we cannot conclude that the error was harmless beyond a reasonable doubt." Id. at 1316.

Similarly, in Martinez' case, it was a question for the jury to decide whether Graham's description of acne instead of moles undercut her identification. When Martinez concurred in the request, there was no valid reason for denial of the close-up view. Indeed, such a denial was found to be reversible error in the strikingly similar case of United States v. Rabb, 453 F.2d 1012 (3d Cir.1971). Rabb was convicted of bank robbery solely on the basis of the identification testimony of three witnesses. After the jury deliberated for a couple of hours, it requested a reading of some forty pages from the testimony of two of the witnesses. The judge denied the request. On appeal, the court stated:

Normally, a request by the jury to have a portion of the transcript read back to them lies within the broad discretion of the trial judge.

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In the instant case ... the eyewitness testimony of the three witnesses identifying appellant was the only evidence linking him to the crime.... Thus, the testimony which the jury asked to have read to them was absolutely crucial to their determination of appellant's guilt or innocence.

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In [this case], the evidence was identification evidence. Courts must scrutinize this type of evidence especially carefully; juries must do the same.

Id. at 1014-15 (citations omitted) (emphasis in original). Here, the case for compliance with the jury's request was even more compelling. While reading forty pages of transcript necessarily would take some time, which nevertheless the Rabb court rejected as a justification for the district court's denial, a close-up view of Martinez would have taken only minutes. See United States v. Rabb, 454 F.2d 726, 727 (3d Cir.1972) (after Rabb's reversal, his co-defendant, Phillips, appealed the same jury request issue; the court found that although Phillips' case for reversal was not as strong given the additional fingerprint evidence upon which his conviction rested, the identification evidence was "nevertheless crucial" mandating reversal for him also).

Although the trial judge otherwise showed great sensitivity to the problems encountered when guilt is solely dependent on eye witness identification, it was an abuse of discretion to deny the juror's request. Because the identification was the entire basis for finding Martinez guilty, the error was far from harmless and requires reversal and a remand for a new trial.