679 F2d 136 United States v. R Casper

679 F.2d 136

UNITED STATES of America, Appellee,
v.
James R. CASPER, Appellant.

No. 81-2448.

United States Court of Appeals,
Eighth Circuit.

Submitted May 20, 1982.
Decided May 26, 1982.

Neal J. Shapiro, Bernick & Shapiro, Chartered, Minneapolis, Minn., for appellant.

James M. Rosenbaum, U. S. Atty., Janice M. Symchych, Asst. U. S. Atty., D.Minn., Minneapolis, Minn., for appellee.

William A. Grunewald, Legal Intern.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and BECKER,* Senior District Judge.

PER CURIAM.

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1

James Robert Casper was charged on September 18, 1981, with robbing a federally insured bank in violation of 18 U.S.C. § 2113(a). Casper filed a number of pretrial motions, including one to suppress in-court identifications of the defendant by two bank tellers. His motions were denied. Casper was convicted by a jury on November 4, 1981, and was sentenced to fifteen years imprisonment.

2

Casper appeals his conviction on two grounds. He first argues that the tellers' in-court identifications were unconstitutionally tainted by a previous photographic display. Shortly after the robbery occurred, two of the bank's tellers were shown a photograph taken by the bank's surveillance equipment showing the robbery being committed by a man matching the description previously given by one of the tellers. Both tellers positively identified the man in the photograph as the one who robbed the bank. We find no merit in appellant's contention that this photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The district court, therefore, properly refused to suppress the tellers' in-court identifications of the defendant.

3

Casper's second contention is that the jury instruction used at trial regarding intent impermissibly shifted the burden of proof to the defendant. We do not agree, and further note that this Court has recently approved the use of the same instruction at issue. See United States v. Ming Sen Shiue, 650 F.2d 919, 924 (8th Cir. 1981).

4

Affirmed.

*

The Honorable WILLIAM H. BECKER, United States Senior District Judge, Western District of Missouri, sitting by designation