January 3, 2013 4th Circuit published opinions

United States v Greene

Greene was tried for bank robbery and use of a weapon. At his trial, a bank teller was asked to look at Greene and share any similarities between him and the person who robbed the bank. The trial court did not give a charge on eyewitness identification. Greene was convicted on all counts. The panel affirmed. It held that the questioning had been unduly suggestive as it placed pressure on the witness to come up with similarities. Under the relevant factors, the in court identification was not reliable as the time of observation was sort, the teller did give much attention to the perpetrator as she got under the counter due to fear and had a gun pointed at her twice, her prior descriptions were accurate but the seventeen month gap between the event and the identification was significant. However, under plain error review, Greene’s challenge was rejected. Calling it a close question, the panel held that accomplice testimony subjected to “piercing” cross examination, photographic evidence of scaring on the perpetrator’s hand which was similar to scarring on Greene’s hand and sunglasses seized at Greene’s home which were strikingly similar to those worn by the perpetrator were a sufficient basis, independent from the similarity testimony, to sustain the conviction and thus the panel refused to exercise its discretion to grant relief. The panel also held the refusal to give the jury instruction was not error. The panel used this opinion in several places to note the controversy about the reliability of eyewitness testimony currently in the literature and at the appellate level.

United States v Min

Federal agents created a sting involving a nonexistent safe house warehousing cocaine. Min and several others agreed to rob the safe house in exchange for drugs and money expected to be found. As these men gathered to go to the house, they were arrested and several firearms were discovered in their vehicle. One man gave a statement implicating himself and the others. The statement was introduced at trial with names of other defendants replaced with neutral terms like “another person.” The jury form contained an error and, without consulting defense counsel, the trial court replaced it with a correct version. The jury convicted four defendants on three counts and two on two counts. The panel affirmed. It first held that by using the neutral terms, the government sufficiently sanitized the statement and its admission was proper. It next held that just as conspiracies which are rendered impossible by unknown acts of others, conspiracies which are impossible to start with can be prosecuted as the evil prohibited by Congress is the agreement not any overt act. Based on this holding, the panel found the statement, testimony of the officer who spoke with a conspirator over the phone and the act of arriving with weapons to rob the house were sufficient to sustain the convictions. The testimony from the phone conversations and statement were sufficient to sustain the drug conspiracy convictions. Finally, while concerned about how the trial court went about it, replacing the wrong form with the correct form was proper and not a ground for reversal.

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