Opinion
No. 71-1117.
August 31, 1971. Rehearing Denied November 26, 1971.
George Haverstick, San Diego, Cal., for appellant.
Harry D. Steward, U.S. Atty., Robert H. Filsinger, Chief, Crim. Div., Thomas M. Coffin, Asst. U.S. Atty., San Diego, Cal., for appellee.
Before HAMLEY, ELY, and HUFSTEDLER, Circuit Judges.
Appellant appeals from his conviction upon two counts for conspiracy to transport aliens in violation of 18 U.S.C. § 371 and for transporting aliens in violation of 8 U.S.C. § 1324. The dispositive issue is whether or not an in-court identification of appellant was tainted by a preceding and impermissibly suggestive photographic identification.
Seven aliens were found in appellant's car. All of the aliens were interrogated and were shown pictures of appellant and others. Only one of the aliens, Serna-Gomez, was called to testify at the trial. He identified appellant as the man who placed him in the trunk of the car. It is uncontradicted that the photographic display included at least two persons of appellant's nationality. The testimony of the interrogating officer provides no sustenance for an argument that the display to Gomez was unduly suggestive. The record does not sustain appellant's contention that the photographic identification process violated the standards of Simmons v. United States (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.
The judgment is affirmed.