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86 F3d 1164 United States v. Brodala

86 F.3d 1164

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Doffice BRODALA, Defendant-Appellant.

No. 95-30307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1996.
Decided May 17, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Before: GOODWIN and SCHROEDER, Circuit Judges, ARMSTRONG,* District Judge.

2

MEMORANDUM**

3

The sole issue presented in this appeal is whether the district court erred by denying appellant's motion to suppress the in-court and out-of-court identifications of appellant made by four bank employees. Appellant argues that the show-up procedure used to obtain the initial out-of-court identifications was impermissibly suggestive. We find that the show-up procedure employed in this case was nearly identical to the procedure which we approved in United States v. Kessler, 692 F.2d 584 (9th Cir.1982). In light of our decision in Kessler, id., we hold that the identification procedure employed here was not "so impermissibly suggestive as to give rise to a substantial likelihood of mistaken identity." Id. at 585.

4

Having concluded that the show-up procedure employed in this case was proper, we need not decide whether the witnesses' identifications were reliable. See United States v. Bagley, 772 F.2d 482, 493 (9th Cir.1985).

5

AFFIRMED.

*

Honorable Saundra Brown Armstrong, United States District Judge for the Northern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3