United States of America v. Robert A. Meyer

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0055P (6th Cir.)
File Name: 04a0055p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. MEYER,
Defendant-Appellant.
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No. 02-3582
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00085—Ann Aldrich, District Judge.
Argued: September 19, 2003
Decided and Filed: February 23, 2004
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Charles E. Fleming, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant.
Nancy L. Kelley, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF:
Charles E. Fleming, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cleveland, Ohio, for Appellant. Nancy L. Kelley,
2 United States v. Meyer No. 02-3582
ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which
SUHRHEINRICH, J., joined. COLE, J. (pp. 12-17),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. A jury convicted the defendant,
Robert Meyer, of postal robbery in violation of 18 U.S.C.
§ 2114 and of using a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c)(1). On appeal, Meyer argues
that the district court erred in denying his motion to suppress
any in-court identification by the victim, and he challenges
the sufficiency of the evidence. We conclude (1) that the in-
court identification procedure devised by the district court
was not impermissibly suggestive, (2) that, even if the process
were impermissibly suggestive, the identification was
independently reliable, and (3) that a rational trier of fact
could have found the essential elements of the crimes beyond
a reasonable doubt. Accordingly, we affirm the judgment of
the district court.
BACKGROUND
On February 24, 1997, Jarmel M. Shaw, a postal employee,
was robbed at gunpoint. Shaw had completed his mail
collection route and had returned to the loading dock of the
Mansfield (Ohio) Main Post Office. As he moved his last
pickup, a basket of first class mail, to the back of the truck,
the perpetrator opened the driver’s side door. He pointed a
gun in Shaw’s face and demanded, “Give me the cash box,
give me the cash box.” Shaw told the offender that he had
already taken the cashbox inside. The offender then directed
Shaw to move to the back of the truck and entered the vehicle

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No. 02-3582 United States v. Meyer 3
and surveyed its contents. As the offender searched the truck
for the keys, Shaw opened the rear door and ran across the
loading dock into the post office. As he ran, Shaw heard a
single gun shot, but he was unharmed.
On May 30, 1997, Terry Barrett, the postal inspector
investigating the robbery, presented Shaw with a photo
lineup. Specifically, Shaw was shown six photographs, five
of individuals interviewed in connection with the
investigation and one of a postal employee. Meyer was not
yet a suspect, and his photograph was not included in the
lineup. Shaw did not identify anyone as the perpetrator.
On June 19, 2000, Barrett conducted a second photo lineup.
Since the May 1997 lineup, investigators had identified
Meyer as a suspect, and, to create a new lineup, Barrett
simply replaced the photograph of the postal employee with
a photograph of Meyer taken in June 2000. The other five
photographs remained the same. Shaw failed to make an
identification.
Believing that he had built a strong case against Meyer,
Barrett was “perplexed” when Shaw failed to identify Meyer.
As Shaw prepared to leave, Barrett, “on a hunch,” displayed
a second photograph of Meyer, which had been taken in 1997,
for Shaw. (Barrett did not show Shaw any other photographs
at this time.) Barrett asked Shaw whether he recognized the
man in the photograph, and Shaw immediately identified
Meyer as the robber.
On August 10, 2000, Barrett conducted a third photo
lineup. The first five photographs in the lineup were the five
pictures used in the prior lineups. However, the sixth
photograph was the 1997 picture of Meyer, which Barrett had
shown individually to Shaw after the June 2000 lineup. Shaw
again identified Meyer as the robber.
On February 21, 2001, the Government filed a two-count
indictment against Meyer, alleging robbery of a postal
4 United States v. Meyer No. 02-3582
employee in violation of 18 U.S.C. § 2114 and using a
firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1). Prior to trial, Meyer moved to suppress any
pretrial or in-court identifications of Meyer by Shaw, arguing
that the identification procedure used by Barrett was
impermissibly suggestive and that this procedure would taint
any subsequent in-court identification. The district court
granted Meyer’s motion to suppress all pretrial
identifications, but it denied Meyer’s motion to suppress any
in-court identification. It stated that it would devise a
procedure to minimize the effect of the tainted pretrial
identifications.
On March 25, 2002, Meyer’s jury trial began. Prior to
Shaw’s testimony, the district court staged a lineup in an
effort to minimize the taint of the pretrial identifications. The
jurors were removed from the courtroom, and Meyer was
placed in the jury box with seven men of similar age and
appearance. Shaw identified Meyer, and, during his
testimony, he identified Meyer as the robber. Meyer objected
to the identification during both the lineup and Shaw’s
testimony.
The jury convicted Meyer of both counts. On April 14,
2002, Meyer filed a motion for judgment of acquittal, arguing
that the Government had not presented sufficient evidence to
support a guilty verdict on either count, and a motion for a
new trial, arguing that the impermissibly suggestive pretrial
identifications tainted Meyer’s in-court identification. On
May 3, 2002, the district court denied both motions. It found
that the Government had presented sufficient evidence to
support the verdict, that the in-court identification procedure
was not impermissibly suggestive, and that the in-court
identification was independently reliable. On May 20, 2002,
Meyer filed a timely notice of appeal.

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No. 02-3582 United States v. Meyer 5
ANALYSIS
1. Motion to Suppress In-Court Identification
In reviewing a district court’s ruling on a motion to
suppress, we apply the clearly erroneous standard to the
district court’s factual findings and the de novo standard to its
legal conclusions. United States v. Dotson, 49 F.3d 227, 229
(6th Cir. 1995). Whether identification evidence was
“sufficiently reliable so as not to offend appellant’s rights
under the due process clause” is a question of law. Smith v.
Perini, 723 F.2d 478, 481 (6th Cir. 1983).
A conviction based on identification testimony violates the
defendant’s constitutional right to due process whenever the
identification procedure is “so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th
Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377,
384 (1968)). A defendant is denied due process “only when
the identification evidence is so unreliable that its
introduction renders a trial unfair.” Smith, 723 F.2d at 482
(quoting Summit v. Bordenkircher, 608 F.2d 247, 253 (6th
Cir. 1979)). “As long as there is not a substantial likelihood
of misidentification, it is the function of the jury to determine
the ultimate weight to be given to the identification.” Id.; see
also United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).
This court has prescribed a two-step analysis for
determining the admissibility of identification evidence.
Ledbetter v. Edwards, 35 F.3d 1062, 1071-72 (6th Cir. 1994);
Hill, 967 F.2d at 230. First, the defendant bears the burden of
proving that the identification procedure was impermissibly
suggestive. Id. Second, if the defendant meets this burden,
the court evaluates the totality of the circumstances to
determine whether the identification was nevertheless
reliable. Id. The following factors guide the court’s
reliability analysis: (1) the witness’s opportunity to view the
criminal at the time of the crime; (2) the witness’s degree of
6 United States v. Meyer No. 02-3582
attention at the time of the crime; (3) the accuracy of the
witness’s prior description of the defendant; (4) the
witnesses’s level of certainty when identifying the defendant
at the confrontation; and (5) the length of time between the
crime and the confrontation. Neil v. Biggers, 409 U.S. 188,
199-200 (1972); Ledbetter, 35 F.3d at 1071 (applying the
Biggers factors); Hill, 967 F.2d at 230 (same). If the
defendant fails to show that the procedure was impermissibly
suggestive, or if the totality of the circumstances indicates
that the identification was otherwise reliable, admission of the
identification testimony does not violate the defendant’s right
to due process.
Meyer contends that the district court erred in permitting
Shaw’s in-court identification. He argues that the pretrial
identifications in June 2000 and August 2000, which the
district court deemed impermissibly suggestive, tainted
Shaw’s in-court identification. In fact, he charges that Postal
Inspector Barrett’s suggestive behavior—the display of the
single photograph—was so flagrant that it rendered Shaw
incapable of making an independent identification. No
procedure devised by the district court, he maintains, could
have eliminated the taint of Inspector Barrett’s misconduct.
Meyer also contends that, under the Biggers analysis,
Shaw’s identification was not independently reliable. First,
he insists that Shaw had limited opportunity to view the
perpetrator, as, although the encounter lasted two to four
minutes, Shaw was able to view the perpetrator’s face for
only “some fraction” of this time. Second, he questions
Shaw’s degree of attention, asserting that Shaw was distracted
by his concern for his safety. Third, he brands Shaw’s prior
description inaccurate, noting that, in his initial statement to
investigators, Shaw described the perpetrator as a man in his
twenties or thirties and did not mention gray hair or facial
hair. (At the time of the incident, Meyer was in his early
forties and, apparently, had gray hair and a mustache.)
Fourth, he discounts the high degree of certainty evinced by
Shaw at confrontation, dismissing it as a product of the earlier

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No. 02-3582 United States v. Meyer 7
suggestive procedures. Fifth, he claims that the length of time
between the crime and the in-court identification—more than
five years—weighs strongly against a finding of reliability.
We conclude that the district court did not err in permitting
the in-court identification. First, we agree with its conclusion
that the in-court identification procedure was not
impermissibly suggestive. Meyer does not argue that the
procedure used at the in-court lineup on March 25, 2002, was
itself suggestive; instead, he contends that Inspector Barrett’s
display of the single photograph of Meyer at the June 19,
2000 photo lineup was so suggestive that it rendered Shaw
forever incapable of making an independent identification of
the perpetrator. However, as the district court properly
concluded, the facts indicate that Shaw’s in-court
identification of Meyer stemmed from his recollection of the
incident rather than any recollection of the photograph shown
to him by Inspector Barrett. Approximately a year and a half
elapsed between the last photo lineup and Shaw’s in-court
identification of Meyer. Meyer’s appearance at the time of
the in-court lineup differed noticeably from his appearance in
the photograph, and the in-court lineup was comprised of
Meyer and seven men of similar age and appearance. In
short, the identification process devised by the district court
ensured that Shaw’s in-court identification of Meyer was not
tainted by Inspector Barrett’s earlier display of the
photograph.
Second, we agree with the district court’s conclusion that,
even if the procedure were impermissibly suggestive, the in-
court identification was independently reliable. The first,
second, and fourth of the Biggers factors weigh heavily in
favor of reliability. Regarding the first factor, during the
incident, which lasted between two and four minutes, Shaw
observed the perpetrator at close range. The perpetrator
opened the driver’s side door of Shaw’s postal truck, placed
a gun “in [his] face,” and demanded, “Give me the cash box.”
A conversation ensued, as Shaw denied having a cash box,
the perpetrator directed him to the back of the truck, and the
8 United States v. Meyer No. 02-3582
perpetrator demanded the keys to the truck. Shaw
“continue[d] to look at [the perpetrator] to determine if there
would be an opportunity . . . to get away” before escaping
through the back of the truck. That Shaw could not see the
perpetrator’s face for some fraction of the incident hardly
undermines the conclusion that, for Biggers purposes, Shaw
had an excellent opportunity to view the perpetrator.
The second and fourth Biggers factors also dictate a finding
of reliability. Regarding the second factor, Shaw testified that
he focused his attention on the perpetrator throughout the
incident, first conducting a dialogue with the perpetrator and
then studying him as he looked for an opportunity to escape.
Contrary to Meyer’s assertion, Shaw’s concern for his safety
did not distract his attention; if anything, it heightened his
degree of attention as Shaw watched the perpetrator for an
opportunity to escape. Finally, regarding the fourth factor,
Shaw identified Meyer quickly and confidently during the in-
court lineup, and, as discussed supra, Shaw’s assurance did
not appear to stem from his recollection of the photographs
used in the impermissibly suggestive lineups.
As the district court concluded, the third and fifth Biggers
factors cut in Meyer’s favor. Regarding the third factor, the
district court identified some minor discrepancies between
Shaw’s initial description of the perpetrator and Meyer’s
actual appearance. For example, Shaw placed the
perpetrator’s age at twenties to thirties, whereas Meyer was in
his early forties at the time of the incident. Regarding the
fifth factor, Shaw made his in-court identification more than
five years after the crime. However, given the weight of the
other factors, the district court properly concluded that, under
the totality of the circumstances, Shaw’s identification was
independently reliable.

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No. 02-3582 United States v. Meyer 9
1Meyer also impugns the credib ility of two government witnesses,
Jarmal Shaw and Sheri Dawn Goodwin. He asserts that Shaw’s initial
description of the perpetrator differed significantly from his actual
appearance. He insinuates that Goodw in, his former girlfriend, testified
2. Sufficiency of the Evidence
The district court also properly denied Meyer’s motion for
judgment of acquittal. We review de novo a district court’s
denial of such a motion. United States v. Humphrey, 279
F.3d 372, 378 (6th Cir. 2002). We must determine “whether,
after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original)). We do not “weigh the evidence,
consider the credibility of witnesses or substitute our
judgment for that of the jury.” United States v. Hilliard, 11
F.3d 618, 620 (6th Cir. 1993) (citing United States v. Evans,
883 F.2d 496, 501 (6th Cir. 1989)). “Circumstantial evidence
alone is sufficient to sustain a conviction and such evidence
need not ‘remove every reasonable hypothesis except that of
guilt.’” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.
1989) (quoting United States v. Stone, 748 F.2d 361, 363 (6th
Cir. 1984)).
Meyer argues that the Government did not present
sufficient evidence for the jury to find, beyond a reasonable
doubt, that he—rather than someone else—robbed Shaw. He
notes that the Government did not present any physical
evidence—e.g., finger prints or bullet fragments—connecting
him to the crimes. He observes that, although press releases
issued by the United States Postal Service at the time of the
crimes reported that a padlock had been taken, Postal
Inspector Barrett had no knowledge of the missing padlock,
which was never found. Finally, he stresses that a witness
informed Barrett that Patrick Hicks, an acquaintance of
Meyer, had admitted to the crimes.1
10 United States v. Meyer No. 02-3582
to avenge his refusal to send her money. H owever, as M eyer
acknow ledges, it is the jury’s province to assess the credibility of
witnesses. United States v. Burns, 298 F.3d 523, 534 -35 (6th Cir. 2002).
2Significantly, both Good win and Osborne testified that Meyer stated
that he had shot at a black man. T he me dia had not reported the victim’s
race.
We are unpersuaded by Meyer’s dissection of the
Government’s case. The Government was not obligated to
proffer physical evidence, and it presented substantial
evidence connecting Meyer to the crimes. For example, as
discussed supra, Shaw identified Meyer as the perpetrator.
Sherri Dawn Goodwin, Meyer’s former girlfriend, testified
(1) that she lent Meyer her red Jeep Cherokee, which had
West Virginia plates, on the day of the crimes (Shaw testified
that he had observed a red Jeep Cherokee with out-of-state
plates in the vicinity of the robbery), (2) that Meyer returned
with blood on his clothes and glass in his face (the window of
Shaw’s postal truck had been shattered), and (3) that later in
the evening Meyer told her that he had robbed a postal truck
and that his gun accidently went off during the robbery.
Sandra Waddell, a roommate of Meyer at the time, testified
that Meyer was bleeding and excited on the night of the
robbery, and told others at the residence to “cool it” when
they began discussing news reports of the crimes. Jack
Osborne, an acquaintance of Meyer, testified that, on the
night of the robbery, Meyer told him that he had shot a black
man.2
In sum, viewing the evidence in the light most favorable to
the prosecution, Jackson, 443 U.S. at 319, we conclude that
a rational trier of fact could have found the essential elements
of the crimes—including Meyer’s identity as the
perpetrator—beyond a reasonable doubt.

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No. 02-3582 United States v. Meyer 11
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of
the district court.
12 United States v. Meyer No. 02-3582
_________________
DISSENT
_________________
R. GUY COLE, JR., Circuit Judge, dissenting. Because I
believe: (1) that the in-court identification procedure was
impermissibly suggestive; and (2) that the totality of the
circumstances, using the five-part analysis set forth in
Biggers, clearly demonstrates that the identification was not
independently reliable, I respectfully dissent.
The majority correctly sets out the two-step analysis that
must be undertaken when determining the admissibility of an
identification, and also correctly notes the five Biggers factors
that we are to consider in the second step of the analysis.
However, I believe that the majority’s application of the test
to the facts of the present case is flawed.
I.
First, we must consider whether the in-court identification
procedure was impermissibly suggestive. I believe that it
was. The district court made clear that the pre-trial
photographic identifications were undoubtedly impermissibly
suggestive. If we accept that the pre-trial photo
identifications were impermissibly suggestive, as I think it is
clear we must, the question becomes whether there is a
principled basis for concluding that the in-court identification
is not.
I am unable to find any principled distinction between the
two. In stating that the in-court identification was not
impermissibly suggestive, the majority essentially notes two
factors which indicate that the identification was based on
Shaw’s recollection of the incident rather than on a
recollection of the photographs. First, approximately a year
and a half had elapsed between the last photo lineup and the
in-court identification. Second, Meyer’s appearance at the

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No. 02-3582 United States v. Meyer 13
time of the in-court lineup differed from his appearance in the
photograph, and the district court’s lineup included Meyer
and seven men of similar age and general appearance. In
actuality, neither of these reasons, independently or taken
together, support the notion that the in-court identification
was somehow unaffected by the prior taint.
While a year and a half had in fact elapsed from the last
photo lineup to the in-court identification, over five years had
elapsed since the commission of the crime. It seems logical
to conclude that, while the taint of the suggestive photo
lineups had dissipated with time, Shaw’s ability to recognize
the robber from the day of the crime itself had dissipated to an
even greater degree. Indeed, it might more likely be
presumed that, because of the lengthy amount of time that had
elapsed between the offense itself and the in-court
identification, Shaw was all the more likely to have lost his
recollection of the event itself, and therefore replaced his
memory of the perpetrator’s appearance with images from the
more recently viewed photographs.
Additionally, the fact that Meyer’s appearance in court
differed from his appearance in the prior photograph, and that
the in-court staged lineup included seven other men of
approximately the same appearance hardly leads to the
inference the majority suggests. Meyer argues that the in-
court identification was tainted by the improper photo arrays.
The fact that Shaw was able to pick out the very gentleman
improperly shown to him from photographs does nothing to
demonstrate that the taint from these photographs was no
longer present. Moreover, if Meyer’s appearance indeed
differed substantially from his appearance in the photograph,
it is safe to assume that his appearance also differed at least as
substantially from his appearance at the time of the crime.
The majority fails to note how the nature of this lineup
assuages concerns that Shaw was identifying the man he saw
in the improperly suggestive photo arrays rather than the
perpetrator of the crime.
14 United States v. Meyer No. 02-3582
Thus, the majority offers no legitimate rationale for
distinguishing the in-court lineup from the pre-trial lineups
with regard to the impermissibly suggestive nature of the
identification. Because the photo lineups were improper, the
in-court identification was therefore impermissibly suggestive
as well. Thus, our focus should turn to applying the Biggers
factors to determine whether the identification nevertheless
was independently reliable.
II.
The first Biggers factor is the opportunity of the witness to
view the perpetrator at the time of the crime. While the
majority finds that this factor weighs heavily in favor of
reliability, my view, like the district court, is that this factor
weighs only slightly in favor of reliability. While there is
little question that the witness did have some opportunity to
view the assailant, the encounter was not especially long, and
for a substantial portion of the time Shaw was not in a
position to observe the robber’s face.
The district court additionally found that the second
Biggers factor, the witness’s degree of attention, “cuts only
slightly in favor of admissibility.” As the district court noted,
Shaw’s testimony indicated that he may have been focused as
much on the gun itself as on the gunman’s face, and he was
somewhat preoccupied in his search for a way to escape the
truck. Thus, I agree that this factor weighs slightly, at best, in
favor of reliability.
The majority implies that the third factor, the accuracy of
the witness’s prior description, cut slightly against reliability.
However, as the district court found, this factor was not
nearly as tentative as the majority indicates. In fact, the
district court stated that the Biggers factor weighed strongly
against reliability. At the time of the crime, Meyer was in his
early forties. The February 24, 1997, interview report
indicates that Shaw described the suspect as a white male in
his early thirties, and Shaw testified at the suppression

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No. 02-3582 United States v. Meyer 15
hearing that he originally believed that the suspect may have
been in his twenties. As the district court also noted, Shaw
described the suspect as having brown hair, but the 1998
photo of Meyer depicted a man whose hair did not match that
description. Furthermore, Shaw’s description of the gunman
did not mention facial hair, but Meyer has a mustache in each
of the subsequent photos. While Meyer’s facial hair certainly
could have grown in the interim, there was no indication that
this was the case. I therefore agree with the district court that
this factor should weigh heavily against reliability.
The fourth Biggers factor is the level of certainty
demonstrated by the witness. The district court found that the
fourth Biggers is the only one in which the analysis differs
from the pre-trial identification to the in-court identification.
According to the district court, this shift in the fourth factor
was sufficient to tip the scale in favor of reliability. With
regard to the out-of-court identification, the district court
noted that Shaw testified that he was very certain of the
identification, but took this certainty “with a grain of salt,”
mindful that he was shown the photo under extremely
suggestive circumstances. However, because I believe that
the in-court identification was also impermissibly suggestive,
I think the certainty with which Shaw identified Meyer in
court should be viewed with a similar degree of skepticism.
In addressing the fourth Biggers factor, the majority notes
that “Shaw’s assurance did not appear to stem from his
recollection of the photographs used in the impermissibly
suggestive lineups.” But the majority provides no basis for
this assertion. Indeed, I question what Shaw could have
done–short of saying, “That’s the guy I saw in the picture!”–
to make his assurance “appear to stem from his recollection
of the photographs.” I am unable to see any logical basis to
support the notion that Shaw’s assurance was based on his
recollection of the incident rather than his recollection of the
tainted photo lineups.
16 United States v. Meyer No. 02-3582
Finally, the length of time between the crime and the
confrontation, the fifth Biggers factor, weighs heavily against
reliability. Despite the fact that the majority finds that this
factor cuts only slightly in Meyer’s favor, I believe that this
factor weighs immensely against reliability–to an almost
dispositive degree. In fact, in Biggers itself, the Supreme
Court noted that a lapse of seven months between the date of
the crime and the time of the confrontation would be “a
seriously negative factor in most cases.” 409 U.S. at 201. If
a seven-month lapse is generally a “seriously negative factor,”
a five-year lapse must be considered exponentially more
negative.
In considering the totality of the circumstances, the district
court further supported the decision to suppress the pre-trial
identifications as follows:
[The district court] also finds relevant the fact that Shaw
failed to identify Meyer in the second photo lineup. It is
true that Meyer’s appearance in that photograph, which
was taken in 2000, is quite different from his appearance
in the photograph Shaw eventually positively identified,
which was taken in 1998. Even so, Shaw’s initial failure
to identify Meyer suggests that his opportunity to view
the gunman at the time of the crime and his degree of
attention to the gunman’s appearance. . .were perhaps not
as great as his testimony would otherwise suggest. If the
gunman’s face were truly as emblazoned in Shaw’s
memory as he believes it to be, it is unlikely that he
would not recognize Meyer after studying the second
photo lineup.
I agree fully with this analysis by the district court, and note
that this assessment is equally applicable to the in-court
identification.
Thus, the first, second, and fourth Biggers factors cut only
slightly, if at all, in favor of reliability. The third and fifth
factors, in contrast, weigh strongly against reliability.

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No. 02-3582 United States v. Meyer 17
Accordingly, it is my view that the in-court identification was
impermissibly suggestive, not independently reliable, and
should have been suppressed.
III.
A conviction based on an identification that is so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification violates the
defendant’s constitutional right to due process. See Thigpen
v. Cory, 804 F.2d 893, 895 (6th Cir. 1986). I, therefore,
would find that Meyer’s right to due process has been
violated, and would remand the case to the district court for
a new trial untainted by an impermissibly suggestive and
unreliable identification. Accordingly, we need not reach the
second issue in this case, the denial of Shaw’s motion for
judgment of acquittal. In this regard, I simply wish to note
my agreement with the majority that, with Shaw’s
identification admitted as evidence, a rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.
IV.
In sum, I would reverse the district court’s denial of
Meyer’s motion to suppress and remand the case to the
district court for a new trial.

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