United States v. Bochicchio , 229 F. App'x 305 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 29, 2007
Charles R. Fulbruge III
Clerk
No. No. 06-40976
c/w No. 06-41009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BOCHICCHIO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-503-2
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges
PER CURIAM:*
David Bochicchio appeals his conviction and sentence for bank
robbery in violation of 18 U.S.C. § 2113. He also appeals the
district court’s finding, based on that conviction, that he
violated the terms of his supervised release.
Bochicchio challenges the district court’s denial of his
motion to suppress an eyewitness’s identification testimony on the
ground that the identification derived from an impermissibly
suggestive photographic line-up and resulted in an unreliable
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-40976 c/w
No. 06-41009
-2-
identification. We conclude, that the photographic line-up was not
impermissibly suggestive. See United States v. Sanchez, 988 F.2d
1384, 1389 (5th Cir. 1993).
Bochicchio also argues that the evidence was insufficient to
support his conviction of bank robbery. We have reviewed the
record and the briefs of the parties and hold that the evidence
presented at trial was sufficient for a reasonable jury to have
found, beyond a reasonable doubt, that Bochicchio committed the
instant offense. See United States v. Roberts, 481 F.2d 892, 893-
94 (5th Cir. 1973).
Bochicchio’s remaining arguments, that the prosecutor made
improper ex parte remarks and that the district court erred in
ruling that proffered defense testimony would open the door to
evidence regarding his prior criminal history, lack merit.
See United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998);
United States v. Rogers, 126 F.3d 655, 658-60 (5th Cir. 1997).
Because we affirm Bochiccio’s conviction for the reasons given
above, we similarly uphold the district court's determination that
he violated the terms of his earlier supervised release.
The judgments of the district court are, therefore, AFFIRMED.