United States v. Carr

Pretrial identification testimony is admissible as evidence if the procedure was not impermissibly suggestive and a jury could weigh any delay in testimony under the totality of circumstances.

Edwin Carr, Damien Anderson, and Mark Franklin were each indicted for charges related to the bank robbery of Vons Federal Credit Union in February, 2008. Eyewitness accounts and surveillance video determined that the men arrived at the bank in a car, one dressed a FedEx uniform. During the robbery one of the men got into a shoving match with a teller. The men then fled the bank, discharging firearms as they were being pursued. During trial, the jury heard evidence in which Larita Fields, an eyewitness, was interviewed by Agent Taglioretti of the FBI eighteen months after the robbery. During the interview, Fields identified Carr, Anderson, and Franklin as participants in the robbery. All three were found guilty on all accounts. However, "the courts sentencing comments made it apparent that the court considered Carr to be the robber who wore the FedEx uniform, and Franklin, the robber who waited in the red or maroon Buick, to be the architect of the robbery because he had a history of working at Vons.” The defendants appealed, arguing the district court erred in allowing Fields pretrial identification. They also argued the evidence was insufficient to support many charges. On appeal, the panel held that the district court did not err by admitting an eyewitness’s pretrial identification testimony. It determined that the identification procedure was not impermissibly suggestive and that despite the eighteen month delay in testimony, the jury could weigh the testimony under the totality of the circumstances. The panel upheld the charges of forced accompaniment. It also upheld the district courts determination that a firearms charge did not apply to Franklin, however it noted that the district court’s explanation was inconsistent with its oral explanation. Therefore the district court is AFFIRMED in part, REVERSED in part, and REMANDED.