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United States District Court

Eastern District of Michigan

Southern Division

The United States of America, Criminal No. 15-20487

Plaintiff, Honorable Sean F. Cox 

v.

 

Jabron Thomas,

Defendant.

 /

 

Government’s Response to Defendant’s Motions in Limine (Doc. 35) and 

Brief in Support

For the reasons stated in the government’s brief, this Court should (1) deny 

Defendant’s motion to preclude eyewitnesses to the bank robbery from identifying 

the bank robber in court and (2) deny Defendant’s motion to preclude the 

government from introducing photographs of Defendant. Because the government 

does not intend on introducing testimony relating to Defendant’s parole status, 

Defendant’s motion in limine to exclude such testimony is moot. 

Respectfully submitted,

BARBARA MCQUADE

United States Attorney 

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s/Andrew J. Yahkind

ANDREW J. YAHKIND

JEROME F. GORGON

Assistant United States Attorneys

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9100

andrew.yahkind@usdoj.gov

jerome.gorgon@usdoj.gov

Dated: December 7, 2015

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United States District Court

Eastern District of Michigan

Southern Division

The United States of America, Criminal No. 15-20487

Plaintiff, Honorable Sean F. Cox 

v.

 

Jabron Thomas,

Defendant.

 /

 

Government’s Brief in Response to Defendant’s Motions in Limine (Doc. 35)

Defendant seeks to (1) prevent the government from questioning 

eyewitnesses to the bank robbery as to whether they can identify the bank robber in 

court and (2) prevent the government from introducing photographs of Defendant 

so as to allow the jury to compare those photographs to surveillance images of the 

bank robber. Because such testimony and evidence is both proper and highly 

probative of the central issue in this case (the identity of the bank robber), the 

Court should deny Defendant’s motions. 

I. There Is No Basis Under Which to Screen or Exclude Eyewitness 

Testimony That May Identify Defendant as the Bank Robber 

Defendant complains that because law enforcement did not conduct a lineup 

or photo array in this case, eyewitnesses to the bank robbery should be precluded 

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from being questioned about whether they can identify the bank robber in court. 

His objection is without merit.

As an initial matter, a defendant has no constitutional right to either a line-up 

or photo array. See, e.g., Range v. Berghuis, No. 09-10945, 2015 WL 1967030, at 

*8 (E.D. Mich. Apr. 30, 2015) (Cleland, J.) (collecting cases) (“A criminal 

defendant has no federal constitutional right to a corporeal lineup.”); Paris v. 

Rivard, No. 11-15162, 2015 WL 1245772, at *18 (E.D. Mich. Mar. 18, 2015)

(Lawson. J.) (citations omitted) (“An accused has no constitutional right to a 

pretrial lineup”); Carter v. Howes, No. 2:08-CV-14228, 2011 WL 6003905, at *8 

(E.D. Mich. Dec. 1, 2011) (Roberts, J.) (“The Constitution, however, does not 

create a right to a lineup.”); United States v. Ostertag, 619 F.2d 767, 771 (8th Cir. 

1980) (“Appellant points to no constitutional right to a lineup and the cases 

indicate no such right exists.”) (citations omitted); Morris v. Giurbino, 162 F. 

App'x 769, 771 (9th Cir. 2006) (unpublished) (“[T]he United States Supreme Court 

has never held that a criminal defendant has a constitutional right to a pretrial 

lineup.”).

Defendant claims that when a witness has not made a pretrial 

identification—to which Defendant is not entitled—identification testimony at trial 

runs afoul of the Due Process Clause. (Doc. 35 at 4.) But Defendant’s claim

ignores a clear holding by the Supreme Court that the Due Process Clause only 

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extends to situations in which pretrial identification involving improper law 

enforcement conduct (such an as improper lineup) has occurred—not situations in 

which a trial witness has not made any pretrial identification. Specifically, in 

Perry v. New Hampshire, the Supreme Court explained that with regards to 

eyewitness identification testimony, Due Process concerns are triggered “when the 

police have arranged suggestive circumstances leading the witness to identify a 

particular person as the perpetrator of a crime.” 132 S. Ct. 716, 720 (2012)

(emphasis added). The Court indicated that it was concerned with police “rigging 

identification procedures, for example, at a lineup, showup, or photograph array.” 

Id. In other words, “what triggers due process concerns is police use of an 

unnecessarily suggestive identification procedure, whether or not they intended the 

arranged procedure to be suggestive” Id. at 721. But the Court clearly held that 

“[w]hen no improper law enforcement activity is involved . . . it suffices to test 

reliability through the rights and opportunities generally designed for that purpose, 

notably, the presence of counsel at postindictment lineups, vigorous crossexamination, protective rules of evidence, and jury instructions on both the 

fallibility of eyewitness identification and the requirement that guilt be proved 

beyond a reasonable doubt.” Id. The Court further held that the “the Due Process 

Clause does not require a preliminary judicial inquiry into the reliability of an 

eyewitness identification when the identification was not procured under 

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unnecessarily suggestive circumstances arranged by law enforcement.” Id. at 730

(emphasis added). Here, because the police did not conduct a line-up, photo array, 

or any other pre-trial identification procedure involving the eyewitnesses to the 

bank robbery, there can be no claim of improper police conduct. Consequently, 

Due Process concerns are simply not triggered, and the proper means to challenge 

any in-court identification of the defendant is through cross-examination and 

argument. 

Notably, in United States v. Whately, the Eleventh Circuit Court of Appeals 

addressed a similar argument by a defendant in a bank robbery case who 

challenged the admission of in-court identifications of himself as the bank robber:

Whatley argues that the in-court identifications were unnecessarily 

suggestive because he was seated at the defense counsel table, he was 

the only African–American man in the courtroom other than 

courtroom personnel, he had never been identified in a line-up or 

array of photographs before trial, and he was first seen by the bank 

employee witnesses during their testimony.

United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir.) cert. denied, 134 S. Ct. 

453, 187 L. Ed. 2d 303 (2013).

The Whatley Court easily concluded that “[u]nder Perry, the admission of 

the in-court identifications of Whatley did not violate his right to due process 

because he cannot establish that the suggestive circumstances of the identifications 

were the result of improper police conduct.” Id. The Eleventh Circuit noted that 

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that the defendant’s placement at a table with his lawyer was “customary” and “not 

the result of improper police conduct.” Id. 

Other courts have similarly applied Perry in rejecting challenges to in-court 

identifications where prior police conduct is not being challenged. See, e.g., 

Johnson v. Burt, No. 2:11-CV-15108, 2015 WL 5821514, at *6 (E.D. Mich. Oct. 6, 

2015) (Duggan, J.) (“Consequently, under Perry, the question of the reliability of 

the in-court identification was for the jury to decide”); Roberts v. Bell, No. 08-CR13362, 2013 WL 5448933, at *4 (E.D. Mich. Sept. 30, 2013) (Ludington, J.) 

(“Petitioner has not shown that the identification at issue resulted from 

unnecessarily suggestive circumstances arranged by law enforcement. 

Consequently, under Perry, the question of the reliability of Runkel's in-court 

identification was for the jury to decide”); Slusser v. Wolfenbarger, No. 2:10-CV14979, 2013 WL 1789276, at *7 (E.D. Mich. Apr. 26, 2013) (Borman, J.) (same); 

Davis v. Ludwick, No. 10-CV-11240, 2013 WL 1212833, at *13 (E.D. Mich. Mar. 

25, 2013) (Goldsmith, J.) (citing Perry and noting that “the Supreme Court held 

that the Due Process Clause does not require preliminary judicial inquiry into the 

reliability of an eyewitness identification unless the identification was procured 

under unnecessarily suggestive circumstances arranged by law enforcement 

officers. In the absence of official misconduct, the reliability of eyewitness 

identification is a matter for the jury to determine.”); United States v. Jackson, No. 

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2:14-CR-42, 2015 WL 4557330, at *5 (E.D. Tenn. July 27, 2015) (“While there is 

no question that there is a degree of suggestiveness to an in-court identification, it 

is not a result of improper law enforcement conduct. Moreover, the Defendant has 

not cited one case nor has the Court found one that held that a witness is precluded 

from identifying a defendant in-court where there have been no previous 

identifications in the presence of law enforcement.”).

Thomas claims that “[s]everal other courts throughout the country have 

concluded than an in-court identification without a previous line-up or photo array 

is unduly suggestive” and cites two cases in support of this proposition: Kennaugh 

v. Miller, 289 F.3d 36 (2d Cir. 2002) and United States. v Rundell, 858 F.2d 425 

(8th Cir. 1988). (Doc. 35 at 5.) But neither Kennaugh nor Rundell (which both 

pre-date Perry) actually reached this conclusion—or anything close to it. In 

Kennaugh, the Second Circuit noted that the case was “unusual” because it 

involved an in-court identification by a witness who “had participated in a lineup 

as well as several photo arrays and was unable to identify the petitioner during any 

of these repeated pretrial confrontations. . . .” Kennaugh v. Miller, 289 F.3d 36, 46 

(2d Cir. 2002). In Rundell, the Eight Circuit concluded that an in-court 

identification, without any previous line-up or photo array, was “sufficiently 

reliable.” United States v. Rundell, 858 F.2d 425, 427 (8th Cir. 1988). And to the 

extent that United States. v. Hill, 967 F.2d 226 (6th Cir. 1992) (doc 35. at 5)

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suggested that the Due Process Clause extends to in-court identifications “when the 

identification takes place for the first time at trial” and where there is no allegation 

of prior police misconduct, that holding is clearly no longer valid in light of Perry. 

Cf. Whatley, 719 F.3d at 1215 (noting that Perry abrogated prior holdings by the 

Eleventh Circuit that had required judicial prescreening for in-court identifications 

even when those identifications did not involve allegations of improper police 

conduct).

Because there is no allegation of improper police conduct relating to pretrial 

identification in this case, under Perry, the jury, rather than this Court, must decide 

the reliability of any eyewitness testimony identifying Defendant as the bank 

robber. 132 S. Ct. at 728 (“The fallibility of eyewitness evidence does not, without 

the taint of improper state conduct, warrant a due process rule requiring a trial 

court to screen such evidence for reliability before allowing the jury to assess its 

creditworthiness.”); see also Whatley, 719 F.3d at 1216 (11th Cir.) (citations 

omitted) (“Perry makes clear that, for those defendants who are identified under 

suggestive circumstances not arranged by police, the requirements of due process 

are satisfied in the ordinary protections of trial. These protections include the right 

to confront witnesses, the right to effective assistance of an attorney who can 

expose the flaws in identification testimony on cross-examination, the right to 

eyewitness-specific jury instructions as adopted by the jurisdiction, and the right to 

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be presumed innocent until found guilty beyond a reasonable doubt by a jury of the 

defendant's peers. Due process imposes no requirement of a preliminary 

examination for an in-court identification.”).

II. Photographs of Defendant Are Proper Evidence to Help the Jury 

Determine Whether He Is the Individual Seen Robbing the 

Huntington Bank in Surveillance Video 

Defendant also seeks to exclude photographs of him that law enforcement 

obtained by accessing his Facebook page.

1

These photographs show what 

Defendant looks like, which, of course, makes them relevant to the question of 

whether he is the individual shown in surveillance footage of the bank robbery 

(which features close-ups of the bank robber’s face). In his motion, Defendant 

identifies two ways that his appearance in these photographs differs from the 

appearance of the bank robber in the surveillance footage: (1) he notes that the

bank robber is wearing a different shirt than Thomas is seen wearing in any of the 

 

1 Defendant indicates that he “does not concede that the photos would 

overcome the evidentiary hurdle set forth in Fed. R. Evid. 901” but assumes that 

they would be properly authenticated for purposes of advancing his motion. (Doc. 

35 at 6-7.) The government anticipates introducing testimony from the specific 

police officer who obtained Thomas’s Facebook photographs from the internet. 

The government anticipates that this officer will detail how he searched Facebook 

for Thomas’s name, viewed Thomas’s publicly-accessible Facebook page, and 

captured various photographs of Thomas that were on that page. Such testimony 

will meet the requirements of Fed. R. Evid. 901(b)(1) in authenticating the 

photographs as it is testimony of “a witness with knowledge . . . that an item is 

what it is claimed to be.” Furthermore, the photographs alternatively satisfy Fed. 

R. Evid. 901(b)(4) because they contain distinctive characteristics of Thomas, such 

as his face, his tattoos, and a hat bearing the name to his employer (Rite Touch 

Auto). 

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captured Facebook photographs and (2) he claims that the hat worn by Mr. Thomas 

in one Facebook photograph is different than that hat worn by the bank robber.

(Doc. 36 at 6-7.) However, whether Defendant is wearing different clothing in his 

Facebook photographs than the robber was wearing at the time of the bank robbery 

is not a basis for exclusion. Rather, these are differences that can be highlighted for 

the jury at trial in comparing the photographs—not in seeking to preclude their 

comparison altogether. 

Courts have routinely allowed for the introduction of photographs of a 

defendant when identity is a contested issue at trial. For example, in United States 

v. Thomas, a bank robbery case involving surveillance video, the Sixth Circuit 

considered whether it was proper for the district court to admit “ten photographs of 

Thomas ranging over a span of seven years.” Those ten photographs were “arrest 

photos,” but “[had] no law enforcement markings,” and “depict[ed] a head and 

shoulders likeness of Thomas wearing civilian clothing.” United States v. Thomas, 

223 F. App'x 447, 457 (6th Cir. 2007) (unpublished). The Sixth Circuit found that 

the admission of these photographs was proper:

These photographs were probative of the robber's identity, a central 

issue of fact for the jury to determine. The jury was never told under 

what circumstances the photographs were taken. Where photographs 

of a defendant are admitted for a permissible purpose and do not 

reveal that they were taken in connection with the defendant's prior 

arrest, the mere fact that they were mug shots does not undermine the 

propriety of their admission.

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223 F. App'x 447, 455 (6th Cir. 2007) (citations omitted); see also United States v. 

Balter, 91 F.3d 427, 442 (3d Cir. 1996) (upholding the admission of a six year-old 

yearbook photograph of a defendant despite his objection that “it was old and 

depicted him when he was ‘a mere adolescent.’”). 

Just as in Thomas, the Facebook photographs of Defendant are highly 

probative of the central issue in this case, the identity of the bank robber, and are 

proper evidence relating to that issue. 

III. The Government Does Not Intend to Introduce Testimony Revealing 

Thomas’s Parole Status 

Defendant “requests the Court to bar any references to Mr. Thomas’s parole 

status or any line of questioning that would lead the jury to infer that he is on 

parole.” (Doc. 35 at 8.) Defendant also offers to stipulate that the residence from 

which a pair of shorts was recovered was his residence. (Id.)

The government does not intend to introduce testimony that reveals that 

Defendant was on parole at the time of the events in question. Specifically, the 

government will not elicit testimony from any parole agents that it calls regarding 

their precise law enforcement responsibilities or the nature of their familiarity with 

Thomas. Rather, the government will limit such testimony to the fact that these 

witnesses are employed in a law enforcement capacity and, in the case of 

Thomas’s parole agent, that she was familiar with Thomas and his residence 

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through her work.2 Consequently, Defendant’s motion to bar reference or 

testimony to his parole status is moot. 

IV. Conclusion

For the reasons detailed above, the government respectfully requests that the 

Court: (1) deny Defendant’s motion to preclude eyewitnesses from identifying the 

bank robber; (2) deny Defendant’s motion to preclude the government from 

introducing photographs of Defendant; and (3) find that Defendant’s motion to bar 

reference or testimony relating to his parole status is moot. 

Respectfully submitted,

BARBARA MCQUADE

United States Attorney 

s/Andrew J. Yahkind

ANDREW J. YAHKIND

JEROME F. GORGON

Assistant United States Attorneys

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9100

andrew.yahkind@usdoj.gov

jerome.gorgon@usdoj.gov

 

2

The government reserves the right to introduce evidence of Defendant’s 

parole status if Defendant places this fact into issue.

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Certificate of Service

I hereby certify that on December 7, 2015, I electronically filed the 

foregoing motion and memorandum in support with the Clerk of the Court using 

the ECF system which will send notification of such filing to the following via 

electronic mail:

Attorney of Record

Natasha Webster

Email: Natasha_webster@fd.org

s/Andrew J. Yahkind

ANDREW J. YAHKIND

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9565

E-Mail: andrew.yahkind@usdoj.gov

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