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May 14, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Defendant Adewale Adeniyi, who is charged in the above-captioned indictment with conspiring and participating in scheme to defraud people of money by enticing them to pay advance fees in exchange for a promised returns of sums of money, moves for an order suppressing evidence resulting from three witnesses identifications of Mr. Adeniyi. The identifications, which Defendant asserts were unduly suggestive, were made on the basis of photo arrays in December 2001 and January 2002. In his initial motion papers, Defendant argued that the photo arrays were unduly suggestive because Defendant's skin color allegedly appears lighter than that of the five other individuals depicted in the array; in his reply papers Defendant further argued that Defendant, unlike the other individuals, appears bald in the array and that a hearing on the issues of suggestiveness and reliability is appropriate because the Government's response to the motion was insufficient to negate entirely any possibility that the photo arrays were conducted in an unduly suggestive manner.

Following a conference with the Court, the parties submitted additional letter briefs on the question of whether a hearing is necessary. The Government's supplemental papers included an affidavit from the Secret Service Special Agent who selected the photographs included in the array, distributed it to other Secret Service field officers for presentation to alleged victims. The affidavit attests to the circumstances of preparation of the array and to the agent's communications with the field officers and the victims. In response to the Court's direction, the Government provided the original photo arrays to the Court for in camera inspection. The Court having considered carefully all of the parties submissions and arguments, as well as the photographic arrays shown to the witnesses, Defendant's motion is denied for the following reasons.

Evidence of a pre-trial identification must be excluded if "the procedure that produced the identification is `so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.'" United States v. Bautista, 23 F.3d 726, 729 (2d Cir.) cert. denied, 513 U.S. 862 (1994) (citations omitted). Exclusion of the identification is warranted only if it was both produced through an unnecessarily suggestive procedure and unreliable." Id. (emphasis original). The determination as to whether exclusion is warranted is undertaken in a two-step process. The Court first examines whether the identification procedure utilized was unduly suggestive. If the procedure is found to have been unnecessarily suggestive, "the issue becomes whether the identification possesses sufficient aspects of reliability." United States v. Bubar, 567 F.2d 192, 197 (2d Cir. 1977) (citation omitted).

In general, a pretrial photographic identification procedure used by law enforcement officials violates due process if the procedure `is so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.' . . . When the number of photographs shown has not been so small as to make the presentation itself unfairly suggestive, . . . and there is nothing suggestive in the officials' manner of presentation, the principal question is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to `suggest to an identifying witness that [that person] was more likely to be the culprit.'
It is not required, however, that all of the photographs in the array be uniform with respect to a given characteristic.
Jarrett v. Headly, 802 F.2d 34, 40-41 (2d Cir. 1986) (citations omitted). "Even if there are some physical differences, a photo-array . . . will not be suggestive as long as the other pictures . . . sufficiently resembled the defendant `to allay any concern that the witnesses might have been unfairly influenced in their selection of him by any of the noted physical differences between him and the others.'" United States v. Padilla, No. S1 94 Cr. 313 (CSH), 1994 WL 681812, *6 (S.D.N.Y. December 5, 1994) (citation omitted). The Court has, accordingly, reviewed carefully the photo array used in this case, with particular attention to the allegedly distinctive features cited by the defense.

In the instant case, the photographic array displayed to the three witnesses consisted of six photographs of Black men. Six is not an impermissibly small number of photographs for use in an identification array. See United States v. Bennett, 409 F.2d 888, 898-99 (2d Cir.), cert. denied, 396 U.S. 852 (1969). The Court has examined carefully each of the photographs included in the array and concludes, contrary to Defendant's assertion, that Defendant's photograph is not so distinctive a component of the array as to suggest unnecessarily that Defendant must be the suspect. Although the skin tone of Defendant appears slightly different from that of at least four of the other men in the array, the degree of difference is not large, and could as easily be the product of different photographic or image quality as of as true difference in skin tone, as the clarity and color quality of the images vary somewhat within the array. This array is thus very different from that described, and found unnecessarily suggestive, in United States v. Fernandez, 456 F.2d 638, 641 (2d Cir. 1972), where the defendant was the only Black man depicted in the six-photograph array who had extremely light skin and an Afro haircut, and surveillance photographs depicted the perpetrator of the crime as an individual with such coloring and hair style: "[t]he surveillance photos showed a `black' with a skin almost that of a white; none of the five other photographs even approached this in lightness of color." The slight apparent difference in skin tone does not render the array unnecessarily suggestive.

Nor is Defendant's argument that the depiction of the individuals' hair unnecessarily highlighted the Defendant availing. Although Defendant argues that he, unlike the others, appears "bald" in the array, that simply is not the case. Each of the individuals depicted, including Defendant, has very closely cropped dark curly hair that can be seen in the photographs. Hairlines, hair length, and baldness patterns vary somewhat among the pictures. Defendant's picture suggests that his hair might be cut a bit shorter than that of the others, particularly on the sides, but he does not stand out as a bald person in the company of the hirsute. The other individuals depicted, like the Defendant, all have moustache/goatee facial hair to some degree. The depiction of Defendant's hair did not render the photographs unnecessarily suggestive.

Defendant, pointing out that the manner in which a photo array is conducted could render it unnecessarily suggestive, argues that the Court should conduct a hearing into the circumstances under which the array was composed and presented to the witnesses. As noted above, the Government has proffered the affidavit of a Special Agent of the Secret Service. In that affidavit, the agent asserts that he composed the photo array with no knowledge of any descriptions previously provided by any of the witnesses who subsequently identified Defendant from the array, that he spoke directly with victims to inform them that they might be asked to review photo arrays, and that the arrays were displayed to the victims by field office agents, two of whom were involved in the investigation solely for the purpose of conducting the array. Affidavit of Special Agent John Bross, dated May 7, 2003. Defendant has not proffered any information indicating that there were irregularities in the presentation of the arrays, but argues that a hearing is nonetheless warranted because the Government "has not offered any information that would allow this Court to determine that there were not suggestive comments by law enforcement during the identification procedure." Def. Suppl. Letter Motion at 1. Defendant misperceives the parties' respective burdens with respect to the conduct of a hearing. As the Second Circuit has noted, "the Supreme Court has made it clear that there is no `per se rule compelling such a [hearing] in every case.' . . . Even if `the only duty of [the] jury' in the case is `to assess the reliability of th[e identification] evidence, . . . the information needed for assessment of reliability can ordinarily be elicited through `the time-honored process of cross-examination.'" Dunnigan v. Keane, 137 F.3d 117, 128-29 (2d Cir. 1998), quoting Watkins v. Sowders, 449 U.S. 341, 347-49 (1981) (citations omitted; emphasis original). Where, as here, the Defendant fails to make a showing of impropriety in the conduct of an array, a pre-trial hearing into the identification procedures is not warranted. United States v. Leonardi, 623 F.2d 746, 755 (2d Cir. 1980); Padilla, 1994 WL 686812 at *8; United States v. Ruggiero, 824 F. Supp. 379, 395 (S.D.N.Y. 1993).

The Court has reviewed carefully the photo arrays utilized by the three Government witnesses in identifying Defendant as the perpetrator of the subject crimes, and has considered carefully all of Defendant's contentions, including Defendant's contention that a further pre-trial hearing is warranted. The Court finds that there was nothing unduly suggestive on the face of the photo array, which depicted six men with facial characteristics sufficiently similar so as not to suggest unnecessarily that Defendant was the person sought. The Court further finds that no hearing on the issue of suggestiveness is warranted because Defendant has failed to identify any alleged defects in the conduct of the photo arrays that put in question any improper suggestiveness of the procedures utilized. Because the Court has not found that the photo array procedure was unduly suggestive, no pre-trial hearing into the reliability of the identifications is warranted. See, e.g., United States v. Bautista, 23 F.2d at 731 n. 7.

Accordingly, Defendant Adeniyi's motion to suppress identification evidence arising from the photographic identifications that occurred on December 10, 2001, January 10, 2002 and January 25, 2002 is denied.

The next pre-trial conference in this case will be held on May 27, 2003 at 10:00 a.m.



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