UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN MANUEL FUENTES-MORALES,

Defendant - Appellant.

No. 20-4219

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN MANUEL FUENTES-MORALES,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:14-cr-00556-JMC-1)

Submitted: October 27, 2020 Decided: November 13, 2020 Before GREGORY, Chief Judge, and KING and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Derek J. Enderlin, ROSS & ENDERLIN, PA, Greenville, South Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Peter M. McCoy, Jr., United States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, Columbia, South Carolina, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Denver, Colorado, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

A jury convicted Juan Manuel Fuentes-Morales (“Fuentes”) of conspiracy to

kidnap, in violation of

, 1201(a), (c); kidnapping, in violation of

, 1201(a)(1); hostage taking, in violation of

, 1203; and making a

materially false statement to a federal agent, in violation of

(a). The

district court sentenced Fuentes to 500 months’ imprisonment. On appeal, Fuentes

contends that the district court erred in declining to instruct the jury on reasonable doubt,

as well as granting the Government’s motion in limine prohibiting him from arguing a

definition, and in denying his pretrial motion to suppress the victim’s identification of

Fuentes. Finding no reversible error, we affirm.

As for Fuentes’ first argument, he concedes that his argument is foreclosed by

circuit precedent. “The law is well-settled in this Circuit that a judge is not allowed to

define reasonable doubt unless requested to do so by the jury. Furthermore, a district court

may restrict counsel from arguing definitions of reasonable doubt.” United States v.

Patterson,

(4th Cir. 1998) (citation omitted). “[O]ne panel [of this court]

cannot overrule a decision issued by another panel.” United States v. Williams,

(4th Cir. 2015) (internal quotation marks omitted). Although Fuentes has filed a

motion for initial hearing en banc for us to reconsider this line of cases, we deny his motion.

See Fed. R. App. P. 35.

Fuentes also briefly argues that the Government erred during its closing arguments

in asking the jury to render a verdict that speaks the truth and to do its job, and that the

district court erred in instructing that the jury’s sole interest was to determine the truth.

3 Because Fuentes did not object in the district court to the Government’s arguments or the

court’s instructions, we review for plain error. See United States v. Catone,

(4th Cir. 2014). Thus, to succeed on his claim, Fuentes “must show (1) that the

[district] court erred, (2) that the error is clear and obvious, and (3) that the error affected

his substantial rights, meaning that it affected the outcome of the district court

proceedings.”

(internal quotation marks omitted). If Fuentes meets this burden,

“we retain discretion whether to recognize the error and will deny relief unless the district

court’s error seriously affects the fairness, integrity or public reputation of judicial

proceedings.”

(internal quotation marks omitted).

We have previously concluded that a district court did not reversibly err in

instructing a jury that its duty was to search for the truth when the language was included

within the court’s general duty to deliberate instructions and separate from the reasonable

doubt instructions where it might imply that the standard of proof is less than reasonable

doubt. See United States v. Farkas,

(4th Cir. 2012) (No. 11-4714).

Other circuits have also reached similar conclusions. See, e.g., United States v.

Shamsideen,

(2d Cir. 2008); United States v. Gonzalez-Balderas,

(5th Cir. 1994). Similarly, as for the Government’s remark during closing

arguments that the jury should render a verdict that speaks the truth, the First Circuit has

found that such a remark “asking the jury to deliver an honest verdict is proper and it is

inherently the prosecutor’s position that this test entails conviction.” United States v.

Jones,

(1st Cir. 2012). While the Government should not have exhorted

the jury to do its job, see United States v. Young,

(1985), we conclude that

4 Fuentes cannot show he was prejudiced by this isolated remark, see United States v. Rand,

(4th Cir. 2016). Therefore, we conclude that Fuentes cannot establish

plain error. See United States v. Garcia-Lagunas,

(4th Cir. 2016) (noting

that unpublished Fourth Circuit case contradicting appellant’s argument “suggests that

even if the district court erred, such error was not plain”); United States v. Rouse,

(4th Cir. 2004) (recognizing, in the absence of Supreme Court or Fourth Circuit

authority, “decisions by other circuit courts of appeals are pertinent to the question of

whether an error is plain” (internal quotation marks omitted)).

Fuentes also argues that the district court erred in denying his pretrial motion to

suppress. “When reviewing a district court’s ruling on a motion to suppress, we review

factual findings for clear error and legal determinations de novo,” construing “the evidence

in the light most favorable to the prevailing party.” United States v. Lull,

(4th Cir. 2016) (internal quotation marks omitted). Due process concerns arise

“when law enforcement officers use an identification procedure that is both suggestive and

unnecessary.” Perry v. New Hampshire,

, 238-39 (2012). The defendant

bears the burden of proof in challenging the admissibility of an out-of-court identification.

See United States v. Johnson,

(4th Cir. 1997). “First, the defendant must

show that the photo identification procedure was impermissibly suggestive.” United States

v. Saunders,

(4th Cir. 2007). If the procedure was improper, we must

“consider[] whether the identification was nevertheless reliable in the context of all of the

circumstances.”

. Factors to be considered in evaluating the reliability of the

identification include: “the opportunity of the witness to view the criminal at the time of

5 the crime, the witness’ degree of attention, the accuracy of the witness’ prior description

of the criminal, the level of certainty demonstrated by the witness at the confrontation, and

the length of time between the crime and the confrontation.” Neil v. Biggers,

(1972).

Assuming that the identification procedure was unduly suggestive, we conclude that

the victim’s identification was reliable. The strongest factor weighing against the

reliability of the victim’s identification is that Fuentes was holding a weapon on one

occasion when the victim saw him. See United States v. Greene,

(4th

Cir. 2013) (relying on social science research and concluding a witness’ “degree of

attention to the robber at the time of the offense was greatly diminished due to her

reasonable fear and the distraction of having a weapon pointed at her”). Additionally, the

fact that the victim was blindfolded also weighs against finding the identification reliable.

See

(considering fact “that the witness’s opportunity to view the perpetrator was

limited” because the robber was in the bank for a short time and “was wearing a long wig

and sunglasses”).

However, we conclude that the other factors weigh in favor of reliability. Fuentes

matched the victim’s description of a Mexican male with black hair and a thin beard.

Brostrom showed the victim the photographs the day of the rescue, less than a week after

his initial capture. See Manson v. Brathwaite,

(1977) (noting two-day

gap between crime and line-up in finding identification was reliable). Although the victim

was blindfolded the majority of the time, he stated that he could see under his blindfold

and his overall description of his ordeal was detailed. See United States v. Saint Louis, 889

(4th Cir. 2018) (finding witness’ ability to “recall specific details about

her captivity, showing a high degree of attention during that time,” supported reliability of

identification). Furthermore, Brostrom testified that the victim was confident in his

identification. See

(noting witness “showed a high level of certainty when she picked

[the] photo from the array”). Therefore, we conclude that the district court appropriately

allowed the victim to identify Fuentes.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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