Submitted: January 12, 2018
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
bench trial, Reginald L. Shumpert was convicted of bank
robbery, in violation of 18 U.S.C. § 2113(a). He
appeals, arguing that the district court erred in failing
to suppress an in-court identification. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
9, 2014, around 9:30 a.m., a man entered the Bank of Missouri
in Cape Girardeau. Approaching teller Tasha Schusler, he put
a note in front of her. It said she had five minutes to give
him all the money from her drawer, or he would detonate a
bomb strapped to his chest and also a bomb at a school. He
stood two feet from her. She noted he was wearing bib
overalls, a long-sleeved shirt, and a wig. He was about six
feet four inches tall, 190 to 200 pounds, had a broad nose,
several gold teeth, a large tattoo on his left hand of a
triangle with an image and writing, and a large tattoo on his
right hand. Reading the note, Schusler looked at him. He told
her to "think about the kids." She gave him the
money in her drawer. He placed a device with pipes, wires, a
blinking light, and a switch on the counter, and left.
Schusler called 911.
an employee of a nearby business noticed a "goldish
brown" car with a Texas license plate in the parking
lot. A coworker later identified the car as a Ford Crown
Victoria with a rough, non-factory paint job. The coworker
saw the driver's arm, believing it belonged to a black
Hamilton, Shumpert's former girlfriend living in Texas,
owned a gold Ford Crown Victoria. It was stolen in 2013,
returning with a brown-gold paint job. The car was stolen
again. While stolen, she received Missouri parking violations
for it. Hamilton knew that Shumpert had relatives in
Missouri. She was familiar with his hand tattoos. One
depicted a triangle with an eye and the words "No
Play" underneath it. The other, a stack of cash with the
words "All Work" underneath it.
day of the robbery, a driver noticed a man and woman by a car
in a hotel parking lot. It appeared he was assaulting her.
The driver called 911, telling the operator the car was a
Crown Victoria with a specific Texas license plate number.
The number matched that of the stolen car. Police arrived,
finding only the woman in the parking lot. She said Shumpert
was her assailant. Later, seeing a photo from the robbery,
she recognized as Shumpert's the dreadlocks wig, shoes,
overalls, and tattoos. She called the tip line to report her
suspicions that Shumpert was the robber.
trial, Schusler identified Shumpert as the man who robbed
her. The government had him stand in front of her, asking if
he was the man who robbed her. Shumpert's counsel did not
object. At the end of cross-examination, Shumpert's
counsel had him again stand in front of her, asking her about
specific identifying characteristics.
district court found Shumpert guilty. He argues that the
district court erred by allowing and admitting the in-court
identification. He believes it was so suggestive and
unreliable as to violate due process.
error by the trial court, even one affecting a constitutional
right, is forfeited-that is, not preserved for appeal-'by
the failure to make timely assertion of the right.'"
United States v. Pirani, 406 F.3d 543, 549 (8th Cir.
2005) (en banc), quoting United States v. Olano, 507
U.S. 725, 731 (1993). "Errors not properly preserved are
reviewed only for plain error." Id. Under plain
error, "[t]here must be an 'error' that is
'plain' and that 'affect[s] substantial
rights.'" Olano, 507 U.S. at 732 (second
alteration in original). This court has the discretion to
decide whether "to correct the forfeited error, "
and does so only when "the error 'seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.'" Id. at 732
(alteration in original), quoting United States v.
Young, 470 U.S. 1, 15 (1985).
specifically believes that the district court should have
conducted a reliability analysis under Neil v.
Biggers, 409 U.S. 188, 198 (1972). This review requires
a two-part test. United States v. Rundell, 858 F.2d
425, 426 (8th Cir. 1988); Graham v. Solem, 728 F.2d
1533, 1541 (8th Cir. 1984) (en banc). First, whether the
confrontation was "impermissibly suggestive."
Graham, 728 F.2d at 1541, quoting Simmons v.
United States, 390 U.S. 377, 384 (1968). Then,
considering "the totality of the circumstances, "
whether "the suggestive confrontation created 'a
very substantial likelihood of irreparable
misidentification.'" Id., quoting
Manson v. Brathwaite, 432 U.S. 98, 116 (1977). In
determining reliability, a court considers the five factors
in Biggers: (1) the witness's opportunity to
view the criminal at the time of the crime, (2) the
witness's degree of attention, (3) the accuracy of the
witness's prior description of the criminal, (4) the
witness's level of certainty at the confrontation, and
(5) the length of time between the crime and the
confrontation. Biggers, 409 U.S. at 199-200. Against
these factors, a court weighs "the corrupting effect of
the suggestive identification." Manson, 432
U.S. at 114.
the district court erred in not conducting a reliability
analysis under Biggers, Shumpert's arguments
fail because the error is not plain under current law. The
courts are divided whether a reliability analysis is required
to admit an in-court identification. Compare United
States v. Thomas, 849 F.3d 906, 911 (10th Cir. 2017)
(reliability analysis of in-court identifications required
"only after the defendant establishes improper police
conduct"), and United States v. Whatley, 719
F.3d 1206, 1216 (11th Cir. 2013) (same), with Lee v.
Foster, 750 F.3d 687, 691-92 (7th Cir. 2014) (relying on
Biggers to conduct a reliability analysis of an
in-court identification), and United States v.
Greene, 704 F.3d 298, 308 (4th Cir. 2013) (same).
Cf. United States v. Correa-Osorio, 784 F.3d 11,
19-20 (1st Cir. 2015) (declining to decide whether
Perry or Biggers requires a reliability
analysis for in- court identifications, ...