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United States of America v. Aaron Smith

November 3, 2011

UNITED STATES OF AMERICA
v.
AARON SMITH



The opinion of the court was delivered by: Juan R. Sanchez, J.

MEMORANDUM

Defendant Aaron Smith is charged with several offenses based on his alleged involvement in an armed robbery of the Fox & Hound Smokehouse & Tavern (Tavern) in Philadelphia on October 27, 2008. Smith asks this Court to suppress (1) his out-of-court photographic identification by witness Tyrone Jenkins in February 2011, and (2) any in-court identification of him by Jenkins or the other two Tavern employees who were present at the time of the robbery, Valynn Barfield and Leonard Lowe. The Government does not oppose Smith's motion as to Barfield and Lowe, from whom it does not intend to elicit an identification of Smith at trial. See Gov't's Omnibus Resp. to Defs.' Pretrial Mots. 5-6. Because Jenkins's photographic identification of Smith was not the result of an unnecessarily suggestive identification procedure, the motion is denied as to Jenkins. FACTS*fn1

1. On October 27, 2008, the date of the robbery, Jenkins worked as a cook at the Tavern.

2. Around 10:00 a.m., while Jenkins was in the back of the Tavern preparing for the day, two men entered the restaurant, which was not yet open. The hostess (Barfield) and the manager (Lowe) were also in the Tavern at the time.

3. Jenkins, who had gone into the front of the Tavern to speak with Barfield, saw the two men standing in the customer area of the restaurant and approached them. The men told Jenkins they were there to fill out an application and had been told to ask for Sean or Lenny (i.e., Lowe). Jenkins said he would go get Lowe.

4. During this initial interaction, Jenkins saw the men from a distance of 15 to 20 feet. Some of the lights were on in the portion of the Tavern where the men were standing, and there was also light coming in through the Tavern's glass walls. Jenkins observed that one of the men was about 6'4" tall, and the other was about 5'8" or 5'9". Both were wearing tan or khaki-colored clothing. As Jenkins approached the men, his attention was focused on the voice of the taller man, who had spoken first, but Jenkins could see both men.

5. Jenkins went back into the kitchen and told Lowe two men had asked for him and wanted to fill out applications. Jenkins then stayed in the back of the restaurant while Lowe went out to talk to the men.

6. Within two to three minutes, Jenkins saw Lowe struggling with the taller of the two men and thought the Tavern was being robbed. When Lowe stopped struggling, the taller of the two men pushed Lowe toward the Tavern's office, passing by Jenkins.

7. Seconds later, the shorter of the two men came toward Jenkins with Barfield, whom the shorter man was pushing from behind toward the office. The shorter man said "come on," grabbed Jenkins by the arm, and gestured him toward the office as well.

8. The shorter man forced Jenkins and Barfield into the office and told them to lie face down on the ground with their hands behind their backs. Jenkins, peeking up at the robber from his position on the ground, saw the shorter man tape Barfield's feet, then her hands, with duct tape.

Jenkins was able to see the shorter man's face from where he was lying. The shorter man then taped Jenkins's hands and feet with duct tape.

9. While the shorter man was taping Barfield and Jenkins, the taller man directed Lowe to open the safe. The taller man then proceeded to empty the safe while the shorter man duct-taped Lowe on the ground next to Jenkins. Jenkins was able to see both the taller man's and the shorter man's faces during this time. At some point while he was on the ground in the office, Jenkins noticed that the taller man had a black pistol, causing him to fear for his life.

10. During the robbery, a beer delivery person entered the Tavern. He, too, was ordered into the office, where he was also duct-taped on the ground by the shorter of the two robbers.

11. After the beer delivery person was taped, the taller man finished clearing out the safe, and Jenkins watched the two men leave the office. Jenkins estimated he was in the ...


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