USCA4 Appeal: 18-4296 Doc: 81 Filed: 02/14/2023 Pg: 1 of 34

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4296

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARCUS DONTE IVEY,

Defendant - Appellant.

No. 18-4297

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARCUS DONTE IVEY, a/k/a Marcus Donte Ivey,

Defendant - Appellant.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:15-cr-00245-MOC-DCK-1; 3:04-cr- 00101-MOC-DCK)

Argued: December 9, 2022 Decided: February 14, 2023

Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges. USCA4 Appeal: 18-4296 Doc: 81 Filed: 02/14/2023 Pg: 2 of 34

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Chief Judge Gregory joined. Judge Rushing wrote an opinion concurring in part and concurring in the judgment.

ARGUED: James Patrick McLoughlin, Jr., MOORE & VAN ALLEN PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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THACKER, Circuit Judge:

Demarcus Donte Ivey (“Appellant”) challenges the convictions and sentence he

received after a jury found him guilty of one count of Hobbs Act robbery, in violation of

, and one count of using a firearm in furtherance of a crime of violence,

in violation of

(c) and 924(j)(1). Although we agree with Appellant that

the district court erroneously admitted certain evidence during the trial, we ultimately

conclude that those errors were harmless in light of the other, properly admitted evidence.

We further hold that the district court correctly instructed the jury that Hobbs Act robbery

constitutes a crime of violence as that term is defined in

(c)(3)(A).

Accordingly, we affirm Appellant’s convictions and sentence.

I.

A.

We recite the facts adduced at the jury trial in this case in the light most favorable

to the United States (the “Government”), as the prevailing party. United States v. Walker,

(4th Cir. 2022).

1.

Shortly before 2:00pm on Thursday, September 10, 2009, two men with guns

entered Club Nikki’s, a strip club in Charlotte, North Carolina. 1 One of the men was

noticeably taller, wore a light gray hoodie, and carried a revolver. The other man was

1 Although the incident was captured on surveillance video, and the video was admitted into evidence at the trial, the parties did not make the video -- or any other exhibits from the trial -- part of the record in this appeal.

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smaller, wore a darker gray hoodie, and carried a semi-automatic pistol. Both men wore

baggy clothes, including pants with distinctive patches.

When the men entered the club, Michael Johnson (“Johnson”), the club’s day shift

manager and bartender, was at the bar with Brettney Simmons (“Simmons”), one of the

club’s dancers. When Simmons saw the men, she ran to another area of the club and

ducked down under a table because she believed she would be safer there. The smaller

man then came around the bar to stand next to Johnson and demanded that Johnson give

him the money from the cash register. The area near the cash register was brighter than

the rest of the club, so Johnson was able to see the man’s face. After getting the money

from the register, the smaller man held onto Johnson’s shirt and led him toward the lobby

area of the club, which was also brighter than the main part of the club. Once they reached

the lobby, the smaller man instructed Johnson to open the door to the club’s office. At this

point, Johnson and the smaller man were face-to-face, standing just a couple feet apart.

When Johnson told the smaller man he did not have the code to open the door to the office,

the smaller man took Johnson back inside the main part of the club and laid him down on

the floor. The larger man pointed a gun at Johnson and demanded his cell phone while the

shorter man went around the club telling the customers and the dancers to lie on the floor.

Both men then walked around the club taking items like keys, wallets, cell phones,

and jewelry from the dancers and patrons. They took a cell phone, a wallet, and a single

key on a keyring from Randy Hamilton (“Hamilton”), a patron of the club. A short time

later, the larger man led Johnson behind the bar again and demanded the box of $1 bills the

club kept for customers to tip the dancers. He then told Johnson to lie on the floor behind

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the bar. Johnson could not see anything going on in the club after that. At one point, the

club became quiet and Johnson tried to get up, but one of the men saw him and told him to

lie back down. While Johnson was lying on the floor, he heard two gunshots.

Before the first shot was fired, Hamilton heard the smaller man tell Adrian

Youngblood (“Youngblood”), another patron of the club, to get on the floor “and

[Youngblood] was not responding,” which is when Hamilton heard a gunshot. J.A. 1161. 2

Simmons, who had been lying on the floor near the club’s entrance, stood up to see who

had been shot. She saw the smaller man in the darker hoodie bring Hamilton and

Youngblood to the front of the main part of the club, near the door to the lobby. Hamilton

was sitting on the floor when the shorter man shot Youngblood again. The bullet from the

second shot entered the area of Youngblood’s left shoulder and neck and lodged

somewhere near his abdomen. He was likely dead within a minute.

After the second shot, “[t]he girls started screaming in hysterics.” J.A. 1248. The

two intruders quickly left the club. Johnson then called the police and asked one of the

dancers to call the club’s owner. While Johnson was on the phone, another dancer came

inside for the start of her shift and said the suspects were leaving in a green Jeep. Although

he did not see the vehicle himself, Johnson provided this information to the dispatcher.

Meanwhile, Hamilton went to the back of the club to look for a friend who had come to

the club with him and saw “the tail end of a bluish green pickup backing up and pulling

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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off.” Id. at 1172. The Jeep, the pickup, and a white sedan 3 were all identified as potential

suspect vehicles in the alert sent out to law enforcement.

At 1:56pm, only two minutes after the first 911 call came in, James Stansberry

(“Officer Stansberry”), a patrol officer with the Charlotte-Mecklenburg Police Department

(“CMPD”), arrived at Club Nikki’s and could hear people screaming inside. When he

entered the main part of the club from the lobby, he could not see well and tripped over

Youngblood’s body at the entrance. A woman who was in the club at the time of the

incident gave Officer Stansberry a description of the suspects, and Officer Stansberry

informed dispatch that the suspects were in “a dark blue Ford F-150 heading northbound

on I-85.” J.A. 180. Officer Stansberry never saw the vehicle himself.

2.

William Secondi, Jr. (“Officer Secondi”), also a CMPD patrol officer, was sitting

alone in his police car monitoring the radio traffic when he heard that a business had been

robbed and someone had been shot. Dispatch described the suspects and the vehicles they

could potentially be traveling in, along with the direction in which the suspects had gone.

Officer Secondi set himself up to watch the traffic and was looking out for the suspects’

vehicle when he saw “an older model Ford F-150” traveling at a high rate of speed and

passing other traffic. J.A. 202. Officer Secondi saw the truck exit the interstate and started

3 There was no testimony at trial as to the genesis of the identification of the white sedan, other than it was a part of the initial alert to law enforcement after the incident.

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following it. He informed dispatch that the truck was occupied by two Black males and

that the driver had a larger build and was wearing a white shirt.

After following the vehicle for a short time, Officer Secondi activated his lights and

sirens, but the truck did not stop, so Officer Secondi continued pursuing it. Eventually, the

truck crashed on a dead-end street, hitting a bush and “bouncing” around before hitting a

vehicle parked in a residential driveway and coming to rest. J.A. 213. While the truck was

“bouncing,” Officer Secondi observed the passenger “hanging outside the vehicle . . .

bouncing up and down inside the window frame.” Id. When the truck hit the parked car,

the passenger fell out of the truck’s window, got up, and took off running toward the woods.

Officer Secondi observed that the passenger was “a young [B]lack male with short hair,

black shirt, about 5’8”, 5’10”.” Id. at 216. The driver, “a larger [B]lack male wearing a

white shirt,” exited the vehicle and ran toward Officer Secondi. Id. Officer Secondi got

out of his cruiser and told the driver to get on the ground, but the driver “made a left

between his truck and [Officer Secondi’s] car” and kept running. Id. Officer Secondi

pursued the driver on foot and was able to detain him. The driver’s name was Kevin

Bishop, Jr. (“Bishop”). When other patrol officers searched Bishop after his arrest, he had

$23 in cash -- three $5 bills and eight $1 bills -- and three cell phones in his pockets. One

of the cell phones belonged to Johnson, and another belonged to Hamilton.

The police found a revolver on the curb near the bush that the truck ran over. They

did not find another gun anywhere in the area. In the grass near the driver’s side of the

truck, the police found a light gray hoodie. Officers also found a dark gray hoodie and a

knit cap with Appellant’s DNA on them on the floorboard of the truck. Appellant’s DNA

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was also located on the interior of the door on the truck’s passenger side. Inside the truck,

the police found a total of $355 in cash: one $100 bill, one $50 bill, eight $20 bills, one

$10 bill, four $5 bills, and 15 $1 bills. They also found Hamilton’s wallet on the floorboard.

After detaining Bishop, Officer Secondi communicated over the radio where the

passenger, whom Officer Secondi described as a “Black male, black shirt, short hair or

crew cut, about 5’8[”], 5’10”,” J.A. 219, was headed. Daniel Cunius (“Detective Cunius”),

a CMPD burglary detective who was initially on his way to Club Nikki’s but “detoured”

when he discovered that there was an ongoing pursuit for the suspects, heard Officer

Secondi say that there had been a “jump and run.” Id. at 483. Detective Cunius was

familiar with the area, so he and another officer who was riding with him in his police

cruiser went to a nearby neighborhood to look for the suspects. Between 12 and 15 minutes

after he heard the initial robbery call come over the radio, Detective Cunius spotted

Appellant in the backyard of a house. Appellant “was extremely out of breath, like he did

something physically demanding,” and “was sweating.” Id. at 489–90. While his fellow

officer frisked Appellant for weapons and found none, Detective Cunius communicated to

dispatch at 2:08pm that Appellant had been detained. When Officer Secondi heard that,

he asked Detective Cunius to make sure the suspect “was okay” because Officer Secondi

“believed the truck had struck him the way he had fallen out of the truck while it was

continually bouncing.” Id. at 221. Without first advising Appellant of his rights under

Miranda v. Arizona,

(1966), Detective Cunius asked Appellant if he needed

medical attention, but Appellant told Detective Cunius that he did not. Detective Cunius

relayed to Officer Secondi that Appellant was not hurt.

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Officer Secondi left Bishop with another officer and went to the location where

Appellant was detained. When he arrived, Officer Secondi identified Appellant as the

passenger in the pickup truck. He again asked Appellant if he was okay or had been hit by

the truck. Appellant replied that he was fine and that the truck did not hit him. Appellant

then asked Officer Secondi why he had been stopped, and Officer Secondi told him that

the police had been looking for the truck.

Meanwhile, Caleb Komis (“Officer Komis”), another CMPD patrol officer, had

been monitoring the radio traffic and was on his way to set up a perimeter to try to

apprehend the suspects when he heard Detective Cunius say that he had detained someone.

Officer Komis headed to the scene. Upon his arrival, Officer Komis saw that Appellant

was in handcuffs. Officer Komis was designated to take Appellant to jail and was walking

Appellant toward his cruiser when someone came over the radio and said that a homicide

detective was needed. Appellant asked Officer Komis what that meant, but Officer Komis

did not respond. Before placing Appellant in his cruiser, Officer Komis held onto

Appellant while another officer searched him. Appellant had “$186 in cash, a piece of

paper that had a probation officer’s name and phone number on it, and an advertisement

for a party, and a single vehicle key” in his pockets. J.A. 514–15. The cash consisted of

four $20 bills, four $10 bills, six $5 bills, and 36 $1 bills.

3.

Instead of taking Appellant to jail right away, Officer Komis remained at the

location with Appellant in the back of his cruiser so that Camila Hopkins (“Detective

Hopkins”), a CMPD homicide detective, could bring witnesses from Club Nikki’s for a

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“show-up” identification of Appellant. Detective Hopkins parked her police car

perpendicular to and 20–50 feet away from Officer Komis’s cruiser. Another patrol officer

brought 14 witnesses, one at a time, to the front passenger seat of Detective Hopkins’s

cruiser. Detective Hopkins told each witness that the individual the witness was about to

see “fits the description somehow of [an alert] that was put out of the robbery/homicide”

at Club Nikki’s, but she didn’t know whether he was the perpetrator. J.A. 1533. Although

she told each witness that he or she did not have to make an identification, Detective

Hopkins did not ask the witnesses to describe the suspects before allowing them to observe

Appellant.

When they were ready to begin, Detective Hopkins gave Officer Komis a sign, at

which point Officer Komis brought Appellant, who was handcuffed, out of the back seat

of his cruiser and had him “just stand there and face” Detective Hopkins’s police car. J.A.

1532. After each witness had finished viewing him, Officer Komis placed Appellant back

in the cruiser. The show-ups took about four hours to complete. At one point, Appellant

asked Officer Komis “why we were doing all this when all he did was run from the truck.”

. Officer Komis responded that the police “were conducting an investigation and

that was all [he] could tell [Appellant].”

Of the 14 witnesses, 12 could not identify Appellant. But Johnson and Simmons

both identified Appellant as one of the perpetrators of the incident at Club Nikki’s. Johnson

told Detective Hopkins that Appellant “looked like” the smaller of the two perpetrators,

“the guy that was in [Johnson’s] face earlier.” J.A. 1321. Simmons identified Appellant

as “[t]he shooter from the club.” Id. at 1408. She recognized Appellant from his “left side”

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because Officer Komis “made him turn sideways” so that Simmons could look at him. Id.

Detective Hopkins recorded Johnson and Simmons making a positive identification

immediately after they viewed Appellant. However, she did not ask Johnson and Simmons

how sure they were that they had correctly identified Appellant as one of the perpetrators.

She also did not record any of the 12 witnesses who did not identify Appellant.

4.

After the show-ups were completed, Officer Komis took Appellant to police

headquarters. Michael Burke (“Detective Burke”), a CMPD homicide detective, reviewed

the items that had been confiscated from Appellant’s pockets when he was arrested.

Detective Burke returned several of those items to Appellant, including a business card and

“a single key on a ring,” J.A. 580, because at the time Detective Burke “did not believe

they had any evidentiary value,” id. at 583. The business card had the name and contact

information for a state probation officer named Roxanne Frempong (“Frempong”) and an

appointment time for “Thursday at 3:00.” Id. at 582. Frempong supervised Youngblood,

the victim who was shot and killed at Club Nikki’s, between May and November 2008.

On Thursday, August 28, 2008, Frempong had an appointment with Youngblood at

3:00pm. Youngblood had other information relating to Frempong in his pockets at the time

of his death. Frempong was also Bishop’s probation officer and had last seen Bishop on

September 8, 2009, two days before the incident at Club Nikki’s. However, there was

never a scheduled meeting between Bishop and Frempong on a Thursday at 3:00pm.

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B.

On October 20, 2015, Appellant was indicted by a federal grand jury on one count

of Hobbs Act robbery, in violation of

(“Count One”), and one count of

using a firearm in furtherance of the crime of violence described in Count One, resulting

in death, in violation of

(c) and 924(j)(1) (“Count Two”), stemming from

his involvement in the incident at Club Nikki’s. Following a jury trial, Appellant was

found guilty of both counts charged in the indictment and sentenced to 240 months of

imprisonment on Count One and life imprisonment on Count Two, running consecutively.

Appellant timely appealed his convictions and sentence.

II.

Appellant raises several evidentiary challenges in this appeal. First, he argues that

the district court erroneously denied his pretrial motion to suppress Johnson’s and

Simmons’s identifications of him as one of the perpetrators of the incident at Club Nikki’s

as well as the incriminating statements Appellant made after the police apprehended him.

He also argues that the district court erred by permitting Detective Burke to testify about

the contents of the business card found in Appellant’s pocket at the time of his arrest. We

agree with Appellant that some of this evidence was improperly admitted. But we hold

that the errors were harmless in light of the other admissible evidence the jury heard during

the trial and that the cumulative error doctrine likewise does not merit reversal.

Appellant further argues that the district court erred by excluding testimony from

Appellant’s proffered expert witness. We hold that Appellant waived this challenge by

affirmatively withdrawing the witness at trial.

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A.

We begin with the district court’s denial of Appellant’s motion to suppress. “When

reviewing a district court’s denial of a motion to suppress, we review legal conclusions de

novo and any factual determinations only for clear error.” United States v. Barronette,

(4th Cir. 2022).

1.

Appellant argues that the district court should have suppressed evidence relating to

the show-ups during which Johnson and Simmons identified him as one of the perpetrators

of the incident at Club Nikki’s. “Due process principles prohibit the admission at trial of

an out-of-court identification obtained through procedures ‘so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable misidentification.’” United States

v. Saunders,

(4th Cir. 2007) (quoting Simmons v. United States,

(1968)). “Yet even where unnecessarily suggestive procedures are used, due

process does not require exclusion of the evidence if the ‘identification was sufficiently

reliable to preclude the substantial likelihood of misidentification.’” United States v. Saint

Louis,

(4th Cir. 2018) (quoting United States v. Johnson,

(4th Cir. 1997)).

a.

To determine whether identification testimony is admissible, we first evaluate

whether the defendant has demonstrated that the “identification procedure was

impermissibly suggestive,” and if he has, then we “consider[] whether the identification

was nevertheless reliable in the context of all the circumstances.” Saunders,

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389–90. We conclude that the procedure used during the show-ups in this case was

impermissibly suggestive and that the identifications were not sufficiently reliable.

Therefore, we hold that the identifications should not have been admitted into evidence.

“A procedure is unnecessarily suggestive if a positive identification is likely to

result from factors other than the witness’s own recollection of the crime.” United States

v. Greene,

(4th Cir. 2013) (quoting Satcher v. Pruett,

(4th Cir. 1997)). That is true of the show-ups in this case. Appellant was the only

individual that the witnesses viewed during the show-ups, and he was handcuffed and

emerged from the back of a police cruiser while the witnesses watched. While each of

those circumstances, on its own, may not constitute a due process violation, taken together,

they are highly suggestive of Appellant’s guilt. On top of that, without first asking the

witnesses to describe the perpetrators prior to their viewing Appellant, Detective Hopkins

told the witnesses that Appellant fit the description of someone involved in the incident at

Club Nikki’s. The Government emphasizes that Detective Hopkins also told the witnesses

that Appellant was not necessarily one of the perpetrators and that the witnesses were not

obligated to make a positive identification. However, in this case, those admonishments

were not enough to overcome the strong inference of guilt -- and the corresponding risk of

misidentification -- resulting from the other circumstances of the show-ups. And contrary

to the Government’s assertion, the fact that the majority of the witnesses were not swayed

to identify Appellant under these circumstances does not detract from the suggestiveness

of the procedure used.

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b.

When faced with a suggestive out-of-court identification, we next evaluate the

reliability of that identification:

considering the totality of the circumstances, including factors such as: (1) “the opportunity of the witness to view the criminal at the time of the crime”; (2) “the witness’[s] degree of attention”; (3) “the accuracy of the witness’[s] prior description of the criminal”; (4) “the level of certainty demonstrated by the witness at the confrontation”; and (5) “the length of time between the crime and the confrontation.”

Saint Louis,

(quoting Neil v. Biggers,

, 199–200 (1972)). “We

weigh these factors against ‘the corrupting effect of the suggestive identification itself,’

keeping in mind that ‘the exclusion of such evidence is the exception to the rule that favors

the admissibility of eyewitness identification for the jury’s consideration.’”

(internal

citation omitted).

Although Johnson’s and Simmons’s identifications of Appellant as one of the

perpetrators of the incident at Club Nikki’s had some indicia of reliability, on the whole,

those identifications were not sufficiently reliable to withstand the suggestiveness of the

show-ups. For instance, Johnson had a good opportunity to see the individual who stood

only a few feet away from him in the two most brightly lit areas of the club. But when he

was asked to describe that individual during an interview after the show-ups had taken

place, Johnson told the police that the individual was wearing a black t-shirt. According

to the surveillance video of the incident, the perpetrators were wearing hoodies. However,

Appellant wore a black t-shirt at the time of the show-ups, indicating that Johnson’s

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memory of the incident was influenced by his viewing of Appellant during the show-ups.

That raises a significant question about the reliability of Johnson’s identification of

Appellant.

Simmons, on the other hand, had less of an opportunity to see the perpetrators than

Johnson because she observed the incident from across the club and was never in close

proximity to the perpetrators. Although she told Detective Hopkins during the show-ups

that Appellant “looked exactly like the shooter,” J.A. 1557, Simmons could not identify

Appellant until she saw a side profile. Simmons was also inconsistent about seeing the

right or left side of the shooter’s body during the incident. This inconsistency cuts against

the reliability of her identification.

Moreover, because Detective Hopkins did not even ask the witnesses to describe the

perpetrators before viewing Appellant or ask Johnson and Simmons how certain they were

in their identifications, those indicia of reliability are missing in this case. In that manner,

the reliability of the identifications is inextricably intertwined with the suggestiveness of

the procedure used during the show-ups. That makes this case markedly distinguishable

from the one cited by the Government, United States v. Saunders,

(4th Cir.

2007).

In Saunders, not only did the witness have “a sufficient opportunity to observe [the

defendant] and to form a reliable recollection of what he looked like,” the witness’s

description of the suspect “was flawless in several important particulars,” and he “did not

hesitate when selecting [the defendant’s] photo” from a six-photo array shown to him two

hours after the robbery.

. This, combined with the other evidence

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connecting the defendant to the robbery in Saunders, made the witness’s identification

reliable despite the suggestive photo array.

. In this case, by contrast, Detective

Hopkins’s failure to ask the witnesses two of the most important questions guiding our

reliability analysis prevents us from determining that Johnson’s and Simmons’s

identifications of Appellant were reliable. Additionally, Detective Hopkins failed to record

the identifications until after Johnson and Simmons initially made them. And, notably, she

did not record the 12 witnesses who did not identify Appellant at all. This is suspect, to

say the least, and adds to the unreliability of the identifications.

Further, the show-ups were not conducted within the immediate aftermath of the

incident at Club Nikki’s but rather took place over several hours. Johnson and Simmons

were two of the last people to view Appellant during the show-ups, so their memories of

the incident could not have been as fresh as they had been earlier in the afternoon.

In sum, the totality of the circumstances fails to establish that Johnson’s and

Simmons’s identifications were sufficiently reliable despite the suggestiveness of the

procedure used during the show-ups. The district court should not have permitted

testimony about those identifications.

c.

Nonetheless, the district court’s error was harmless. “An error is harmless when it

appears ‘beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.’” United States v. Collins,

(4th Cir. 2020) (quoting

Chapman v. California,

(1967)). “The burden rests on the government,

the beneficiary of the error, to show harmlessness.” United States v. Garcia-Lagunas, 835

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(4th Cir. 2016). The Government has met that burden in this case by

providing overwhelming evidence of Appellant’s involvement in the incident at Club

Nikki’s. Officer Stansberry arrived at the club within five minutes of the first 911 call and

obtained a description of the perpetrators and a number of potential vehicles which they

could have used to flee the scene. Officer Secondi spotted a vehicle on the interstate

nearby, which fit one of the descriptions and which was traveling at a high rate of speed.

He followed the truck until it crashed. Appellant, who was the passenger in the truck, ran

and was apprehended shortly afterward. All of this took place within 15 minutes of the

incident at Club Nikki’s.

Additionally, in and around the truck and on Appellant’s and Bishop’s persons, the

police found cash, including a significant number of $1 bills; hoodies similar to the ones

the suspects were described to be wearing, one of which had Appellant’s DNA on it; a

revolver; and two cell phones and a wallet taken from people who were at Club Nikki’s

during the incident. Appellant was also noted to be smaller than Bishop in height and in

stature, and the smaller of the two perpetrators was the shooter according to the surveillance

video from the club and the eyewitnesses’ testimony. The clothes Appellant was wearing

at the time of his arrest -- particularly the distinctive markings on his jeans -- also looked

similar to those worn by the smaller man in the surveillance video. Therefore, we conclude

that Johnson’s and Simmons’s identifications of Appellant as one of the perpetrators did

not unduly influence the jury’s guilty verdict on either count, as the verdict was otherwise

supported by overwhelming evidence.

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2.

Appellant also argues that the district court should have suppressed the purportedly

incriminating statements he made to the officers who apprehended him after he fled from

the scene of the crash, before he had been advised of his rights under Miranda v. Arizona,

(1966). Specifically, Appellant challenges the admission of his responses to

Detective Cunius’s and Officer Secondi’s questions about whether he needed medical

attention or was hit by the truck. Appellant also challenges the admission of his question

to Officer Secondi about why he was stopped and his questions to Officer Komis about

what it meant to need a homicide detective and “why [the police] were doing all this when

all he did was run from the truck.” J.A. 518.

An incriminating statement “made during a custodial interrogation will be

suppressed unless police advise the defendant of his rights under Miranda v. Arizona,

(1966), and the defendant knowingly, intelligently, and voluntarily waives those

rights.” United States v. Giddins,

(4th Cir. 2017) (quoting United States

v. Holmes,

(4th Cir. 2012)). Importantly, “[c]oncerns under Miranda

only arise when a defendant is in custody and subjected to interrogation.”

“‘[I]nterrogation’ includes not only ‘express questioning’ but also its ‘functional

equivalent’ -- ‘words or actions on the part of the police . . . that the police should know

are reasonably likely to elicit an incriminating response from the suspect.’” Grueninger v.

Dir., Va. Dep’t of Corr.,

(4th Cir. 2016) (quoting Rhode Island v. Innis,

, 300–01 (1980)).

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Appellant’s own questions to the officers after he was apprehended were clearly not

made in response to interrogation. “The Supreme Court made clear in Miranda that ‘[b]y

custodial interrogation, [it] mean[t] questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.’” United States v. Kimbrough,

(4th Cir. 2007) (quoting

Miranda,

) (emphasis in original). “[S]pontaneous or volunteered

statements that are not the product of interrogation or its functional equivalent are not

barred by Miranda, even if the defendant is in custody when the statements are made.”

United States v. Williams,

(4th Cir. 2001) (per curiam). The district

court correctly concluded that Appellant’s questions to the officers about why they stopped

him, what it meant that a homicide detective was needed, and “why [they] were doing all

this when all he did was run from the truck,” J.A. 518, were unprompted by questioning

from the officers and thus did not require a Miranda warning. For example, Appellant

asked why he was stopped when the officers had him detained and were speaking amongst

themselves, not to him. And he asked the other questions at random points during his arrest

and the show-ups, not in response to any questioning by Officer Komis. Plainly, no

interrogation was taking place. Therefore, Miranda was not implicated.

Officer Secondi’s questions to Appellant about whether he was hit by the truck or

needed medical attention are a closer call. The district court found that Officer Secondi

was genuinely concerned for Appellant’s welfare and truly believed that Appellant had

been hit by the truck after he fell out of the window when the truck crashed. However, as

Appellant points out, Officer Secondi already knew that Appellant did not need medical

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attention because Detective Cunius had asked him that question and relayed Appellant’s

answer to Officer Secondi. Yet, upon arriving at the location where Detective Cunius had

apprehended Appellant, Officer Secondi still asked Appellant if the truck had hit him.

Given those circumstances, it would be reasonable to conclude that Officer Secondi aimed

to get Appellant to incriminate himself.

Even so, any error the district court made by admitting Appellant’s response to

Officer Secondi’s question into evidence was harmless because there was plenty of other

evidence connecting Appellant to the truck, including Appellant’s own question about why

he had to participate in the show-ups “when all he did was run from the truck.” J.A. 518.

In addition, Officer Secondi recognized Appellant as the passenger who was hanging out

the window of the truck during the chase, and Appellant’s DNA was found inside the truck

and on the dark gray hoodie and the knit cap that were on the floorboard. Thus, it is unlikely

that the admission of Appellant’s response to Officer Secondi’s question about whether

Appellant had been hit by the truck affected the verdict in this case.

B.

Appellant asserts that the district court violated the “best evidence rule,” Federal

Rule of Evidence 1002, by permitting Detective Burke to testify about the contents of the

business card that was found in Appellant’s pocket after his arrest. We review the district

court’s admission of this evidence over Appellant’s objection for abuse of discretion.

United States v. Arce,

(4th Cir. 2022).

The best evidence rule provides that when a party seeks “to prove [the] content” of

a “writing, recording, or photograph,” it must do so with the original. Fed. R. Evid. 1002.

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The Government does not argue that the business card is not a “writing, recording, or

photograph” subject to the rule, nor does the Government contend that it did not seek to

prove the card’s content by eliciting Detective Burke’s testimony at trial. Rather, the

Government argues that one or more exceptions to the best evidence rule apply here.

A party may introduce “other evidence of the content of a writing, recording, or

photograph” in one of four circumstances: (1) “all the originals are lost or destroyed, and

not by the proponent [of the evidence] acting in bad faith”; (2) “an original cannot be

obtained by any available judicial process”; (3) “the party against whom the original would

be offered had control of the original[ and] was put on notice . . . that the original would

be a subject of proof at the trial” but “fails to produce it at the trial”; and (4) “the writing,

recording, or photograph is not closely related to a controlling issue.” Fed. R. Evid. 1004.

The district court did not make a specific determination that one of these exceptions

applied. Instead, when defense counsel objected to the introduction of Detective Burke’s

testimony about the business card “on the grounds that the best evidence would be the card

itself,” the district court simply asked, “Do we have the card here?” J.A. 581. When

counsel for the Government replied in the negative, the district court overruled Appellant’s

objection without further elaboration.

We agree with Appellant that the district court erroneously overruled his objection

solely because the business card was not present in the courtroom and that this is not

equivalent to a finding that the original card was lost or destroyed or that any of the other

exceptions applied. The proponent of the evidence bears the burden to show that one of

the exceptions to the best evidence rule applies. See Nicholas v. Wal-Mart Stores, Inc., 33

22 USCA4 Appeal: 18-4296 Doc: 81 Filed: 02/14/2023 Pg: 23 of

(4th Cir. 2002) (per curiam). And when the proponent asserts that an

original may have been lost or destroyed, the proponent “must demonstrate to the

satisfaction of the court that although [the original] once existed, it cannot be found despite

a diligent and unsuccessful search and that there is no reasonable probability that it has

been designedly withheld or suppressed.” Sellmayer Packing Co. v. Comm’r,

(4th Cir. 1944). The Government did not endeavor to do this, nor did the district

court require it to before overruling Appellant’s objection. This was an abuse of discretion.

However, here, too, the district court’s error in admitting the testimony was

harmless because the jury heard substantial other evidence connecting Appellant to the

incident at Club Nikki’s. Even without the business card, the Government presented a

plethora of evidence that Appellant was one of the perpetrators involved in the incident at

the club. For example, Hamilton testified that he saw a dark blue pickup truck leaving the

club in the minutes after the incident. Officer Secondi spotted the truck on the interstate

traveling at a high rate of speed and followed it until it crashed. A hoodie and a knit cap

with Appellant’s DNA on them were found inside the truck. The jeans Appellant was

wearing when he was arrested had distinctive markings that were similar to those on the

pants worn by the smaller suspect on the surveillance video. Officer Secondi identified

Appellant as the truck’s passenger, and Appellant’s DNA was on the interior passenger

side of the truck. Indeed, Appellant himself indicated that he had “run from the truck.”

J.A. 518. Police also found Hamilton’s wallet inside the truck, and Bishop had Hamilton’s

and Johnson’s cell phones in his pockets when he was arrested. A total of $355, including

15 $1 bills, was found inside the truck, and Appellant had $186, including 36 $1 bills, in

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his pockets at the time of his arrest. Clearly, the jury’s guilty verdict did not depend on the

business card.

C.

Notwithstanding that these evidentiary errors committed by the district court were

harmless, Appellant argues that the cumulative error doctrine warrants reversal. “Pursuant

to the cumulative error doctrine, the cumulative effect of two or more individually harmless

errors has the potential to prejudice a defendant to the same extent as a single reversible

error.” United States v. Runyon,

(4th Cir. 2013) (quoting United States

v. Basham,

(4th Cir. 2009)). The cumulative error doctrine applies when

“such errors . . . so fatally infect the trial that they violated the trial’s fundamental fairness.”

(quoting Basham,

).

In cases like this one, where “the strength of the government’s evidence leaves little

doubt that the jury would have returned guilty verdicts irrespective of the identified errors,”

reversal pursuant to the cumulative error doctrine is inappropriate. United States v. Woods,

(4th Cir. 2013). And there was sufficient evidence for the jury to convict

Appellant on both counts even if the erroneously admitted evidence had been excluded. 4

Therefore, for largely the same reasons as we deem the district court’s errors harmless, the

cumulative error doctrine has no application here. See Basham,

(“When

4 That Appellant was acquitted of his state charges arising from the incident at Club Nikki’s is of no moment, as we focus on the evidence presented at the federal trial. See United States v. Ricks,

, 889–90 (4th Cir. 1989) (holding that defendant’s state court acquittal “does not bar reconsideration of a factual issue presented in that [state court] case in a subsequent federal prosecution for different offenses”).

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none of the individual rulings work any cognizable harm, it necessarily follows that the

cumulative error doctrine finds no foothold.” (alterations adopted and internal quotation

marks omitted)).

D.

Appellant also argues that the district court erred by excluding expert testimony he

offered to challenge the reliability of Johnson’s and Simmons’s identifications of Appellant

as the shooter from Club Nikki’s. We generally review the exclusion of expert testimony

for abuse of discretion. Hickerson v. Yamaha Motor Corp.,

(4th Cir.

2018). However, in this case, Appellant clearly waived his right to assert this argument on

appeal by withdrawing the expert as a witness before the district court made a final ruling

to exclude the testimony.

At trial, Appellant sought to introduce expert testimony from optometrist Dr. Paul

Michel (“Dr. Michel”) on the issue of eyewitness identification. The Government moved

to exclude the evidence, and after hearing argument from both sides and testimony about

Dr. Michel’s qualifications, the district court “conditionally” excluded the testimony. J.A.

1639. The district court told the parties that Dr. Michel could “come back in and testify

fully about what he’s going to say when the jury is not here . . . and then [the district court

would] make a final decision on this.” Id. at 1640. However, later that afternoon, before

the district court had a chance to hear further from Dr. Michel, Appellant’s counsel

informed the district court, “we have elected not to try to get Dr. Michel’s testimony in,”

and asked to release him from his subpoena. Id. at 1700. The district court then confirmed

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twice that Appellant was withdrawing Dr. Michel as a witness, and both times, defense

counsel answered in the affirmative:

THE COURT: Eyewitness identification. So you’re withdrawing him as a witness.

[Appellant’s counsel]: Yes, Your Honor.

THE COURT: All right. No, as long as you’re withdrawing him. Because otherwise, I’ve got to make a record of what he would say.

[Appellant’s counsel]: We’re withdrawing him, yeah.

THE COURT: All right. Thank you. Then yes, he’s released.

Id. at 1700–01.

“A ‘waiver is the intentional relinquishment of a known right.’” United States v.

Robinson,

(4th Cir. 2014) (quoting Wood v. Milyard,

(2012)). “Criminal defendants may waive statutory or constitutional rights -- including the

right to challenge a particular ruling on appeal -- if the waiver is knowing and voluntary.”

Appellant does not argue that the waiver in this case was not knowing and voluntary.

Instead, he contends that the district court’s ruling was not, in fact, preliminary because the

district court “made clear absent extraordinary circumstances it would not admit the

testimony of the expert.” Appellant’s Reply Br. at 6. That is simply not accurate.

Although the district court did express doubt about the necessity of Dr. Michel’s expert

testimony, the district court nonetheless explained that it would wait to hear more from Dr.

Michel before definitively ruling to exclude his testimony. But before the district court

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had that opportunity, Appellant’s counsel asked that Dr. Michel be released from his

subpoena because the defense did not plan to introduce him as an expert witness. This is

waiver. See Robinson,

(“A party who identifies an issue, and then

explicitly withdraws it, has waived the issue.” (quoting United States v. Rodriguez,

(1st Cir. 2002))). And “when a claim is waived, it is not reviewable on

appeal, even for plain error.”

III.

Lastly, Appellant contends that the district court erred by instructing the jury that

Hobbs Act robbery qualifies as a “crime of violence” as that term is defined in

(c)(3)(A). “We review de novo the question whether an offense qualifies as a crime

of violence.” United States v. Mathis,

(4th Cir. 2019). However, “when,

as in this case, a party fails to object to [a jury] instruction . . . we review for plain error.”

United States v. Alvarado,

(4th Cir. 2016) (internal quotation marks

omitted).

The district court properly instructed the jury in this case. The term “crime of

violence,” as it is used in

(c), is defined as “an offense that is a felony and

. . . has as an element the use, attempted use, or threatened use of physical force against the

person or property of another.”

(c)(3)(A). 5 At the time the district court

5 The definition of “crime of violence” also includes a felony offense “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

(c)(3)(B). However, this “residual clause” is “unconstitutionally vague” and therefore invalid. United (Continued) 27 USCA4 Appeal: 18-4296 Doc: 81 Filed: 02/14/2023 Pg: 28 of 34

instructed the jury, we had already held in United States v. Mathis “that Hobbs Act robbery

constitutes a crime of violence under [§ 924(c)(3)(A)].”

(4th Cir. 2019).

The district court’s instruction was consistent with that holding.

Appellant nonetheless suggests that our holding in Mathis has been undermined by

the Supreme Court’s more recent decision in Borden v. United States,

(2021). To that end, “we need not follow precedent by a panel . . . if the decision rests on

authority that subsequently proves untenable considering Supreme Court decisions.”

United States v. Banks,

(4th Cir. 2022) (internal quotation marks

omitted). “Authority is untenable if its reasoning or holding is inconsistent with a Supreme

Court decision.”

In Borden, the Supreme Court held that the definition of “violent felony” in the

Armed Career Criminal Act,

(e), does not include offenses that criminalize

reckless conduct because those offenses “do not require . . . the active employment of force

against another person.”

. The portion of the “violent felony” definition

that the Supreme Court was considering in Borden is almost identical to the definition of

“crime of violence” in § 924(c)(3)(A), in that a “violent felony” is a felony offense that

“has as an element the use, attempted use, or threatened use of physical force against the

person of another.”

(e)(2)(B)(i). Therefore, it follows that if Hobbs Act

States v. Davis,

(2019). Accordingly, to qualify as a “crime of violence,” Hobbs Act robbery must meet the definition in § 924(c)(3)(A).

28 USCA4 Appeal: 18-4296 Doc: 81 Filed: 02/14/2023 Pg: 29 of 34

robbery can be committed recklessly, Borden would undermine our holding in Mathis that

Hobbs Act robbery is a crime of violence.

But Hobbs Act robbery cannot be committed recklessly. Hobbs Act robbery is

defined as “the unlawful taking or obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or threatened force, or violence,

or fear of injury, immediate or future, to his person or property.”

(b)(1).

Appellant argues that Hobbs Act robbery can be committed recklessly because there is no

intent element in the statutory definition. But when the statutory text “is silent concerning

the mens rea required for a violation,” we rely on “the common-law rule requiring mens

rea” to imply an intent element into the statute, unless “some indication of congressional

intent” counsels against it. Staples v. United States,

, 605–06 (1994). “The

presumption in favor of scienter requires [us] to read into a statute only that mens rea which

is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Carter v.

United States,

(2000) (quoting United States v. X-Citement Video, Inc.,

(1994)). Usually, this is “a general intent requirement” -- “i.e., proof of

knowledge with respect to the actus reus of the crime.”

We agree with several of our

sister circuits that this presumption means that Hobbs Act robbery cannot be committed

recklessly but instead requires intentional conduct. See, e.g., United States v. Dominguez,

(9th Cir. 2020) (quoting United States v. Du Bo,

(9th Cir. 1999)), overruled on other grounds by United States v. Taylor,

(2022); United States v. García-Ortiz,

, 108–09 (1st Cir. 2018); United States

v. Gray,

, 1283 (11th Cir. 2001). Therefore, the Supreme Court’s decision

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in Borden did not render untenable our holding in Mathis that Hobbs Act robbery qualifies

as a “crime of violence” pursuant to § 924(c)(3)(A).

Appellant further argues that the “fear of injury” portion of the Hobbs Act robbery

definition does not align with the definition of “crime of violence” because, according to

Appellant, “putting someone in fear of injury . . . does not require an intentional threat of

physical force.” Appellant’s Opening Br. at 42. But Mathis also forecloses this argument.

In Mathis, we explained that the phrase “fear of injury” as used in the Hobbs Act robbery

definition is equivalent to the federal bank robbery statute’s definition of “intimidation,”

which “necessarily ‘involves the threat to use [physical] force’” and therefore comes within

the meaning of “crime of violence” in § 924(c)(3)(A).

(quoting United

States v. McNeal,

(4th Cir. 2016)) (alteration in original). Even if we

agreed with Appellant that we reached an incorrect conclusion in Mathis, we “cannot

overrule a decision issued by another panel.” Payne v. Taslimi,

(4th Cir.

2021) (quoting McMellon v. United States,

(4th Cir. 2004) (en banc))

(emphasis deleted). Therefore, despite Appellant’s argument to the contrary, committing

Hobbs Act robbery by “fear of injury” involves the threatened use of force and is a “crime

of violence” as that term is defined in § 924(c)(3)(A).

The district court’s jury instruction was not erroneous.

IV.

For the foregoing reasons, we affirm Appellant’s convictions and sentence.

AFFIRMED

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RUSHING, Circuit Judge, concurring in part and concurring in the judgment:

I agree with the majority that every evidentiary ruling of which Ivey complains—

individually and considered cumulatively—was harmless in light of the overwhelming

evidence of his guilt. I write separately because I am not convinced that the show-up

identification procedure was “so impermissibly suggestive as to give rise to a very

substantial likelihood of misidentification.” United States v. Saint Louis,

(4th Cir. 2018) (citing Neil v. Biggers,

(1972)).

“A procedure is unnecessarily suggestive if a positive identification is likely to

result from factors other than the witness’s own recollection of the crime.” Satcher v.

Pruett,

(4th Cir. 1997). We have repeatedly held that “[p]rompt, on the

scene show-ups are not per se suggestive and may in fact ‘promote fairness, by enhancing

reliability of the identifications, and permit expeditious release of innocent subjects.’”

United States v. Adoma,

, 204–205 (4th Cir. 2019) (quoting Willis v.

Garrison,

(4th Cir. 1980)); United States v. Porter,

(4th Cir. 2009); United States v. Wilson,

, 265–266 (4th Cir. 2006);

see also Norris v. Slayton,

(4th Cir. 1976); Stanley v. Cox,

, 50–51 & n.7, 53–55 (4th Cir. 1973); cf. Johnson v. Riddle,

(4th Cir.

1977). Of course, some show-ups are suggestive, so we assess the circumstances of each

case to determine whether the procedure used was so impermissibly suggestive as to create

a very substantial likelihood of misidentification.

Here, officers began bringing witnesses to view Ivey in person promptly upon

capturing him, less than two hours after the robbery and murder at Club Nikki’s. Cf.

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Simmons v. United States,

, 386 n.6 (1968) (noting that witnesses’

“memories were still fresh” one day after bank robbery and that “a corporeal identification”

is “normally more accurate” than a photographic one); Adoma, 781 Fed. App. at 205

(reasoning that “a show-up was important to search for the real culprit promptly” when

shots had been fired during an armed robbery). Officers brought 14 witnesses to view Ivey

one by one. Each viewed him with only Detective Hopkins present and without knowing

if any other witness had made an identification. While this procedure prolonged the show-

up, it also increased its reliability. It eliminated the possibility that witnesses would

influence each other and decreased any sense of pressure from law enforcement officers to

make an identification.

Detective Hopkins gave each witness instructions that mitigated the potential

suggestiveness of the show-up. At the pre-trial suppression hearing, Hopkins testified that

she told the witnesses “[t]hat the person that they’re going to view here in a moment may

or may not be the person involved. That it was important for them to not feel as if they had

to make an identification. That it was just as important to eliminate someone that was, you

know, innocent as to identify somebody that was the perpetrator.” J.A. 100. She explained,

“What’s going to happen is this officer is going to step this individual out. And if you

recognize that individual, tell me how it is that you recognize that individual.” J.A. 112.

At trial, Detective Hopkins testified that she said things like “this individual is being

detained because we can’t move him. He fits the description somehow of a BOLO [(be-

on-the-lookout)] that was put out of the robbery/homicide. And I don’t know whether this

is the suspect or not. I don’t know whether it’s the suspect or not. If you make an

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identification, fine. If you don’t, fine.” J.A. 1533. On cross-examination, she stated that

she told the witnesses that “[t]he person being detained fits some portion of the BOLO.”

J.A. 1543.

As the majority notes, when the witnesses viewed Ivey, he was wearing handcuffs

and exiting a police car with a uniformed officer. These circumstances increase the

suggestiveness of the procedure. But see Porter,

(holding show-

up identification was not suggestive even though defendant was in handcuffs and

accompanied by officers). But Detective Hopkins’s instructions provided the witnesses

with an explanation of these circumstances that was consistent with Ivey’s possible

innocence. The show-up was conducted in public shortly after the crime, giving the correct

impression that police were seeking the witnesses’ input before taking Ivey to the police

station. This scene corroborated Detective Hopkins’s caution to the witnesses that the

officers did not know whether Ivey was the right man and that ruling out possible suspects

was just as important as identifying the perpetrator. We have previously found that similar

instructions mitigated a suspect’s detention during a show-up and supported a conclusion

that the procedure was not impermissibly suggestive. See Adoma, 781 Fed. App. at 205.

Indeed, we know Detective Hopkins’s instructions were effective because only four

of the fourteen witnesses positively identified Ivey (two of whom testified at trial). As we

have previously reasoned, this “factor weigh[s] against a finding of suggestive conduct by

the officers.” Porter,

. And both Johnson and Simmons qualified

their identifications, suggesting that they were not unduly influenced to make a positive

identification based on anything other than their own recollections of the crime. Because

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this show-up procedure, considered as a whole, was not impermissibly suggestive, any

“potential for misidentification” was properly “left for testing ‘by a course of cross-

examination at trial.’” United States v. Saunders,

, 389 n.1 (4th Cir. 2007)

(quoting Simmons,

); see Manson v. Brathwaite,

(1977)

(“Short of” a “very substantial likelihood of irreparable misidentification,” “[w]e are

content to rely upon the good sense and judgment of American juries, for evidence with

some element of untrustworthiness is customary grist for the jury mill.” (internal quotation

marks omitted)).

34