The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendant Roman Zadiriyev ("Zadiriyev" or the "Defendant"), one of fourteen defendants charged in a five-count indictment with conspiracy to violate the Hobbs Act, 18 U.S.C. §1951, moves to suppress a photo identification made by a potential witness for the prosecution. Zadiriyev moves on the grounds that the photo array was impermissibly suggestive. I held a hearing on the photographic identification on May 13, 2009 and have carefully reviewed the photo array at issue. For the reasons that follow, Zadiriyev's motion is DENIED.
On November 7, 2008, FBI Special Agents Karma Smith and Michael Zuk interviewed a potential witness for the prosecution. Transcript of May 13, 2009 Hearing ("Tr.") at 5-6. The agents showed the witness a photo array composed of six photographs, one of which was a photograph of the Defendant obtained by the FBI from an out-of-state department of motor vehicles. Id. at 9. The FBI's "photo unit" had created the array by placing the Defendant's photograph on a board together with photographs of five other men. Id. at 11-14. The photo array features full frontal mug-shot style photographs of white men with close-cropped dark hair and moderately fair complexions. GX-1. The men appear to be between the ages of 30 and 40. Id. The backgrounds of the photographs are various shades of gray, and Agent Smith testified that the FBI's photo unit adjusted the background of the Defendant's photograph from blue to gray so as to bear a closer resemblance to the other five photographs. Tr. at 14. Agent Smith testified that she did not know if the photo unit made any other modifications to the photograph of the Defendant although they had the capability to do so. Id.
Agent Smith testified that she and Agent Zuk showed the photo array to the potential witness in a conference room and followed standard practice by placing the photo array on the conference table and instructing the witness to carefully look at all of the photographs and to tell them if he recognized any of them. Id. at 6-7. Agent Smith testified that the witness initially did not identify anyone but subsequently stated that the individual in the photograph numbered "2" looked similar to the hijacker although he recalled the hijacker having shorter hair and a thinner nose than the individual in the photograph. Id. at 24-26. The photograph numbered "2" is that of the Defendant. Id. at 26. The witness then placed his initials and the date on the photo array near the photograph of the Defendant. Id.
The lynchpinfor admissibility of identification testimony is its reliability. United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990) (citing Manson v. Brathwaite, 432 U.S. 98, 106-07 n. 9 (1977)). A defendant's due process rights include the right "not to be the object of suggestive police identification procedures that create 'a very substantial likelihood of irreparable misidentification'" United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1993) (quoting Simmons v. U.S., 390 U.S. 377, 384 (1968)).
The admissibility of evidence of a pretrial identification is analyzed in two sequential steps. Brisco v. Ercole, 565 F.3d 80, 88 (2d Cir. 2009).
The court must first determine whether the pretrial identification procedures unduly and unnecessarily suggested that the defendant was the perpetrator. If the procedures were not suggestive, the identification evidence presents no due process obstacle to admissibility; no further inquiry by the court is required, and the reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury. If the court finds, however, that the procedures were unnecessarily suggestive, it must then determine whether the identification was nonetheless independently reliable.
Id. (quoting Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001) (internal alterations omitted)).
"The fairness of a photographic array depends on a number of factors, including the size of the array, the manner of presentation by officers, and the array's contents." Concepcion, 983 F.2d at 377. In determining whether an array is impermissibly suggestive, courts assess "whether the picture of the accused 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." Jarrett v. Headley,802 F. 2d 34, 40-41 (2d Cir. 1986) (internal quotation and alterations omitted). Use of six photographs has been upheld as not unduly suggestive. United States v. Bennett, 409 F.2d 888, 898 (2d Cir.) cert. denied, 396 U.S. 852 (1969).
In United States v. Bautista, the Circuit affirmed the lower court's conclusion that a photo array in which the defendant's picture was "slightly brighter and slightly more close-up" than the other five photographs in the array was not unduly suggestive. 23 F.3d 726, 730-731 (2d Cir. 1994). There the Circuit noted that each of the six color photographs "depict[ed] a man in a frontal mug-shot... of roughly the same age and coloring" and with a moustache. Id. The Circuit found that as a consequence of the similarities in the photographs, "the differences complained of by [defendant] 'would hardly suggest to an identifying witness that [the defendant] was more likely to be the culprit.'" Id. (quoting United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). Analogously, heterogeneity in the photographs that comprise an array may weigh against a finding that the array is impermissibly suggestive. See United States v. Jones, 652 F.Supp. 1561 (S.D.N.Y. 1986) (photo array not impermissibly suggestive, even though defendant's skin was lighter than skin of others, where variations in tone and hue of all photographs minimized possible reliance on such differences as distinguishing characteristic.)
After carefully reviewing the photoarray at issue here, I cannot conclude that the photograph of Zadiriyev so stands out from the other five photographs as to suggest that he is the person suspected by the FBI to have participated in the hijacking. The photo array is comprised of six individuals with similar complexions, hairstyles and facial compositions. Each photograph depicts men of roughly the same age with moderately fair skin and short-cropped dark brown or black hair. Three of the men depicted have blue or green eyes, while the balance, including Zadiriyev, have darker brown eyes. Two of the individuals have short facial hair in the nature of a "5 o'clock shadow" but none sports a moustache, beard or goatee. The photographs are full frontal mug shots, similarly cropped and of a uniform scale. The background of each photograph is gray, albeit of varying shades. To the extent that it is visible, the clothing worn by the men in the photographs is not uniform.*fn1 In short, Zadiriyev does not stand out from the other five individuals so as to "suggest to an identifying witness that [he] was more likely to be the culprit." Archibald, 734 F.2d at 940.
Zadiriyev complains that the shading of his photograph makes him "stick out like a sore thumb" because five of the six photos have a "yellowish or reddish tint" while his picture is "pale, more on the white side." Tr. at 34. His argument falls short, however, because not only is there no uniform tint from which Zadiriyev's photograph stands out, the tint of at least one of the other photographs, photograph "6", is far brighter than that of Zadiriyev. Although the lighting of Zadiriyev's photograph is slightly distinctive and light appears to reflect from his forehead and the left side of his face, the lighting of the other five photographs in inconsistent. For example, photograph "5" is much darker than photograph "6". In short, given the that the individuals themselves all resemble one ...