U.S. v. Aigbevbolle, 84-2245

• Decision Date: 10 September 1985
• Docket Number: No. 84-2245,84-2245
• Citation: 772 F.2d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ayodelle AIGBEVBOLLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 652

772 F.2d 652

UNITED STATES of America, Plaintiff-Appellee, v. Ayodelle AIGBEVBOLLE, Defendant-Appellant.

No. 84-2245.

United States Court of Appeals, Tenth Circuit.

Sept. 10, 1985.

Carl A. Barnes, Tulsa, Okl., for defendant-appellant.

John S. Morgan, Asst. U.S. Atty., Tulsa, Okl. (Layn R. Phillips, U.S. Atty. for Northern Dist. of Oklahoma, Tulsa, Okl., with him on brief), for plaintiff-appellee.

Before McKAY and SEYMOUR, Circuit Judges, and BALDOCK, District Judge. ^*

McKAY, Circuit Judge.

At issue in this appeal is whether the district court erred in allowing an in-court identification of the defendant.

Defendant was convicted in a jury trial of mail fraud by use of a false name, title, or address. 18 U.S.C. Sec. 1342 (1982). At trial the government presented evidence that defendant had applied for and received two credit cards using a fictitious name, and had used the cards to obtain various goods. Two car agents testified that defendant had, on separate occasions, rented a car using one of the credit cards. A fingerprint expert identified defendant's fingerprints as appearing on the credit card application. A bank credit official testified that the application listed the defendant's residence as the applicant's address. Finally, a bank teller testified that defendant had presented a check for payment on an account in the fictitious name.

Defendant argued that he had been framed, claiming that another individual had placed defendant's picture on a photo identification card bearing the fictitious name, had possession of that card, and had applied for the credit cards.

Defendant bases his appeal exclusively on the in-court identification of him by the second car agent, a witness who had failed to identify the defendant from an array of ten photos prior to trial.

Identification testimony is evidentiary in nature. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977). Such testimony rises to a constitutional level only when a conviction is based on "a very substantial likelihood of irreparable misidentification." Id. at 116, 97 S.Ct. at 2254. We have previously held that if a pretrial photo array is impermissibly suggestive and the in-court identification by the witness is unreliable, the identification should be excluded. United States v. Shoels, 685 F.2d 379, 385 (10th Cir.1982). In the case at hand, defendant does not argue that the pretrial photo array was suggestive in any respect. Further, the mere fact that the witness was unable to identify the defendant from the photo array did not render the witness's testimony so unreliable as to require the exclusion of the in-court identification.

In United States v. Williams, 605 F.2d 495 (10th Cir.1979), a witness to a bank...