* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 11 2004 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOHN CHESTER RIBLET, Defendant-Appellant. No. 03-3101 (D.C. No. 02-CR-40061-JAR)

(Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

John Chester Riblet was convicted of four counts of obstructing commerce by robbery in violation of 18 U.S.C. § 1951; four c ounts of brandishing a firearm during a crime of violence in violation of 18 U.S.C . § 924(c); one count of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 921(a)(6); and one count of possessing a f irearm after having been-2-

convicted of a felony, in violation of 18 U.S.C. § 922(g). He was sentenced to an aggregate term of 1,282 months. Mr. Riblet appeals the district court’s denial of his motion to sever counts and his motion to suppre ss witness identifications. He also argues the evidence was insufficient to support a guilty verdict as to two counts of the indictment. We hold the district cou rt neither abused its discretion nor committed error and AFFIRM

. Over the course of three days in May 2002, a man wi elding a shotgun robbed four stores in Topeka, Kansas: Reeb Retail L iquor Store, Casey’s General Store, Hollywood Video, and an Amoco service statio n. Witnesses from three of the robberies were shown photographic lineups. Pri or to viewing the lineups, they were told the police had a suspect in custody. Each witness identified Mr. Riblet as the robber after viewing the lineup and a gain at trial. A fourth witness, Mr. Scott Foster, the clerk at the Amoco station, i dentified a different person as the robber prior to trial and did not identify Mr. Riblet at trial. Prior to trial, Mr. Riblet filed a motion to sever the counts into separate trials on each robbery and the charge of possessionof firearms by a former felon, which the district court denied. We review this de nial for abuse of discretion. United States v. Sarracino , 340 F.3d 1148, 1165 (10th Cir. 2003). As the dis trict court noted, this court has consistently upheld joi nder when a defendant is charged with being a felon in possession of a firea rm in addition to substantive-3-

crimes. See , e.g. , United States v. Jones , 213 F.3d 1253, 1260-61 (10th Cir. 2000) (felon in possession and robbery); United States v. Cox , 934 F. 2d 1114, 1119-20 (10th Cir. 1991) (felon in possession and d rugs). We cannot accept Mr. Riblet’s invitation to disregard this line of prece dent. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the pre cedent of prior panels absent en banc reconsideration or a superseding contrary d ecision by the Supreme Court.”). Moreover, for substantially the reasons set forth in the district court’s well-reasoned Memorandum and Order, we conclude the court was well within its discretion when it denied Mr. Riblet’s motion to se ver the robbery counts. The district court also denied Mr. Riblet’s motion to suppress witness identifications. We review factual findings for cl ear error and the ultimate question of whether the identification infringed du e process de novo. United States v. Sanchez , 24 F.3d 1259, 1262 (10th Cir. 1994). The distric t court made detailed findings on the record which are not clear ly erroneous. See Rec., vol. III, at 62-77. The court also analyzed the constitution ality of the lineup under Neil v. Biggers , 409 U.S. 188, 199-200 (1972), and found that the photographic lineup was unduly suggestive. See Rec., vol. III, at 73. The court then examined th e factors required by Neil ’s second prong, and ruled that “based on the cumul ative opportunity, attention, accuracy, and certainty of these witnesses, . . . the reliability of the identification procedures far ou tweighs any undue suggestion-4-

posed by the detectives improperly advising the witnesses before the photo array that there was a suspect in the photo array.” Id. at 76-77; see also Neil , 409 U.S. at 199-200. On the record before us, we agree thatthe photo array was constitutional. See Rec., vol. III, at 62-77. Finally, we review de novo the district court’s den ial of Mr. Riblet’s motion for judgment of acquittal on two counts related to the Amoco station robbery, viewing all the evidence “in the light mos t favorable to the government, recognizing the right of the jury to determine cred ibility and to find the facts.” United States v. Fleming , 19 F.3d 1325, 1328 (10th Cir. 1994) (quotation and citation omitted). We do not retry the facts, and Mr. Riblet must point to prejudicial trial errors or establish that the verd ict is not based on substantial evidence. White v. Conoco, Inc. , 710 F.2d 1442, 1443 (10th Cir. 1983). Viewing the evidence in this light, we must uphold the jury ’s determination that Mr. Riblet committed the Amoco robbery. Despite Mr. Foster’s misidentification, there was a significant amount of evidence from which the jury could find Mr. Riblet committed the robbery, including testimony that he got out of a blue truck, walked toward the Amoco, returned a short while later witha gun and money, dropped something on the ground, got in the passenger seat of the truck with the gun, hunched down on the floorboard, instructed another person to drive, began removing his clothing, ran from the passenger side door shirtless, and was-5-

apprehended by the police with a flannel shirt in h is waistband matching the one worn by the robber in the video from the Amoco stor e. See Rec., vol. V, at 157- 62, 166-76, 207-14, 245-54; see also Tr. Exh. 7a. Although some of this testimony may have been under cut on cross examination, the weight of testimony and credibility of witnesses are exclusively the province of the jury. See White , 710 F.2d at 1443 (“Jury findings on sharply conflicting evidence are conclusively binding on ap peal inasmuch as jurors are charged with the exclusive duty of assessing the cr edibility of witnesses and determining the weight to be given to their testimo ny.”); United States v. McKissick, 204 F.3d 1282, 1289-90 (10th Cir. 2000) (“It is f or the jury, as the fact finder, to resolve conflicting testimony, weig h the evidence, and draw inferences from the facts presented.”). In this ca se, “a reasonable jury could find the defendant guilty beyond a reasonable doubt,” wh ich is the appropriate standard. United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999) (quotation and citation omitted). For the foregoing reasons, we AFFIRM

. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge