United States v. Singleton

In these consolidated appeals we are called upon first to review the evidence presented in an armed robbery trial to determine whether the district court erred in granting a judgment of acquittal after a jury found appellee guilty. Second, we must decide whether an indictment charging appellee with failure to appear for arraignment was properly dismissed by the district court. In the first case, No. 81— 1810, because there was sufficient evidence upon which the jury could find appellee guilty beyond a reasonable doubt, we vacate the judgment of acquittal and remand with directions to reinstate the jury verdicts. In the second case, No. 81-1827, we hold that the indictment was properly dismissed as time-barred. The indictment was filed outside the five-year statutory period, and the Government failed to prove that the statute of limitations was tolled by appellee’s fugitive status.

I. Background

On the evening of September 8, 1975, a Gino’s fast food restaurant on the corner of Florida Avenue and North Capitol Street in Northeast Washington, D.C., was robbed by two men, one of whom brandished a sawed-off shotgun taken from a zippered bag. Moments after the robbery, appellee Macio Singleton was stopped approximately twenty-five yards from the door of the restaurant. He was taken to Gino’s for identification, and three of four counterwomen on duty positively identified him as the man who had wielded the gun during the robbery.

In October 1975, Singleton was indicted on four counts of armed robbery, one count of possession of an unregistered firearm, and one count of possession of a firearm not identified by a serial number. Singleton did not appear for arraignment and was not rearrested until February 1981. In April 1981, a separate indictment was filed charging him with one count of failure to appear, a Bail Reform Act violation.

The trial judge declined to consolidate the Bail Reform Act and the armed robbery cases, and appellee was tried on the latter charges in late April. After the jury returned verdicts of guilty on all counts, the district court granted Singleton’s motion for judgment of acquittal on the ground that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. At the same time, the district court granted appellee’s motion to dismiss the Bail Reform Act charge as barred by the statute of limitations. The Government noted appeals from both rulings, and the appeals were consolidated before this court.

On appeal, the Government argues that the district court misapplied the standard for determining whether to grant a judgment of acquittal and submits that the evidence adduced at trial was more than sufficient to support the jury’s verdicts. The Government also contends that the district court erred in dismissing the Bail Reform Act charge as untimely. Singleton was a fugitive from justice, it is argued, and therefore not entitled to the benefit of the statute of limitations.

II. No. 81-1810

A.

At the outset, we must consider whether we have jurisdiction to hear this appeal. Although the Supreme Court has never addressed the precise jurisdictional issue presented here, we believe that its decisions construing the Criminal Appeals Act of 1970, 18 U.S.C. § 3731 (1976), and the Double Jeopardy Clause of the Fifth Amendment make it clear that post-verdict judgments of acquittal based on insufficiency of the evidence may be appealed. At least eight other circuits have addressed this issue, and all have reached the same conclusion.

The Supreme Court has held that in enacting section 3731, “Congress intended to remove all statutory barriers to Government appeals, and to allow appeals whenever the Constitution would permit.” United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court stated that “the Double Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after a guilty verdict has been entered by the trier of fact.” Id. at 130, 101 S.Ct. at 434. The Double Jeopardy Clause prohibits Government appeals only where there is a danger of subjecting the defendant to a second trial for the same offense. See United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1010, 43 L.Ed.2d 250 (1975); Wilson, 420 U.S. at 352-53, 95 S.Ct. at 1026. Reversal of a post-verdict judgment of acquittal based on insufficiency of evidence would result in reinstatement of the jury verdict without placing defendant/appellee in jeopardy again. Thus, we hold that the Government may appeal, pursuant to section 3731, a post-verdict judgment of acquittal based on insufficiency of the evidence.

Having decided that the Government’s appeal is properly before this court, we must determine the applicable standard of review. Until now, our review of district court rulings on sufficiency of evidence has been in the context of appeals from the denial of motions for judgments of acquittal. In such cases, the standard for appellate review is the same as that employed by the trial judge in passing on the motion. See Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-2150, 57 L.Ed.2d 1 (1978); United States v. Foster, 584 F.2d 997, 1000 (D.C.Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 620, 58 L.Ed.2d 682 (1978). Thus, the proper inquiry in reviewing denials of motions for judgments of acquittal is whether, viewing the evidence in the light most favorable to the Government, according the Government the benefit of all legitimate inferences, and recognizing that it is the jury’s province to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a reasonable doubt on the evidence presented. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Curley v. United States, 160 F.2d 229, 232 (D.C. Cir.), cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). “If the evidence reasonably permits a verdict of acquittal or a verdict of guilt, the decision is for the jury to make.” Curley, 160 F.2d at 237. We hold that this standard of review is equally applicable on appeal from the grant of a motion for judgment of acquittal. All other circuits that have had occasion to review the grant of a post-verdict judgment of acquittal have also applied the traditional standard for reviewing the sufficiency of evidence.

In United States v. Steed, 646 F.2d 136 (4th Cir.1981), a panel in the Fourth Circuit held that on the Government’s appeal from a post-verdict judgment of acquittal, the court of appeals must defer to the district court’s assessment of the evidence. Id. at 142. This decision was resoundingly rejected by the Fourth Circuit sitting en banc. United States v. Steed, 674 F.2d 284 (4th Cir.1982) (en banc). Judge Butzner, writing for the court, stated that “[wjhether the assessment of the evidence is at the behest of the government or the defendant, the function of the reviewing court is unchanged and consequently the same standard of review is appropriate.” Id. at 286. We agree. We have a responsibility to ensure that the Government’s right to appeal is not an empty one; we must conduct our review of Government appeals with the same care afforded appeals by defendants.

B.

We have reviewed with considerable care the fifteen-volume transcript in this case, and we are convinced that, viewing the evidence in the light most favorable to the Government, there is sufficient evidence in the record to support the jury’s verdicts of guilty. The evidence that supports the jury’s verdicts will be summarized briefly.

The trial testimony shows that on the evening of September 8, 1975, Officer John Betts and his partner, Officer Joyce Willis Hardy, were in a marked cruiser stopped in traffic on Florida Avenue directly in front of Gino’s. Betts saw two black men exiting the restaurant and heading toward the officers. When they spotted the squad car, however, the men began to run the other way. Betts, an experienced officer familiar with the high crime nature of the neighborhood, suspected that Gino’s had been robbed and instructed Officer Hardy to give chase by foot. As Officer Hardy chased the two suspects through Gino’s parking lot, one of the men turned left toward North Capitol Street, and the second continued straight ahead and entered an alley. Hardy pursued the second man but lost sight of him in the alley.

Betts drove around the corner onto North Capitol Street in an effort to cut the suspects off. No more than ten seconds after he initially observed the men leaving Gino’s, and only about twenty or twenty-five yards away from the door of the restaurant, Betts observed a black male wearing the same apparel as one of the men he had seen leaving Gino’s. The suspect, later identified as Singleton, had been walking at a fast pace, but slowed to a normal gait when he noticed the police car. Betts approached the suspect and advised him of an apparent robbery at Gino’s. Meanwhile, Officer Hardy came out of the alley and saw her partner approximately thirty feet away with Singleton. While walking toward them, she recovered a gym bag containing a sawed-off shotgun.

Singleton was taken immediately to Gino’s for a showup, and three of the four counterwomen present when the robbery was committed positively identified him as the man with the gun. Testimony regarding these identifications was the keystone of the Government’s ease against appellee. Brenda Hardy, one of the counterwomen, testified that the robber with the gun was in her sight for about two minutes at a distance of three to four feet, and that although she was primarily staring at his gun, she could still glance up at him. When the police brought Singleton into Gino’s, she identified him as the man with the gun. Ms. Hardy told the jury that she was “very positive” of her identification, that on her way to work about two days after the robbery she saw the man again, and that she “never forgot how he looked.” Trial Transcript (Tr.) at 29-32.

Ruth Taylor, another counterwoman, testified that she recognized Singleton as soon as the police brought him through the door of Gino’s, even before she was asked to identify him. Although she glanced at the robber’s face only once, Ms. Taylor was sure at the time of her identification that appellee was the man with the gun.

Lutherina Baptist, yet another counter-woman at Gino’s, told the jury that at one point she looked directly at the man with the gun, who was within an arm’s length of her. When the police brought the suspect into the restaurant, she was “more than positive” that he was the same man because the incident was “fresh in [her] mind” and “his face was implanted on [her] mind.” Tr. at 123-24. The fourth counterwoman to testify, Catherine Allen, was so frightened by the robbery that she was unable to recall whether she was even asked by police to identify appellee.

Arguing that the district court correctly ruled that this evidence was insufficient to support the jury’s guilty verdicts, appellee contends that there was a broad divergence between the witnesses’ recollections of the robber’s appearance and Singleton’s appearance on the evening of the robbery. Government Exhibit Number Four, a photograph taken at the police station after his arrest, shows Singleton with a beard, mus-, tache, and bushy hair. The apparel worn by appellee in the photograph consisted of a dark zippered jacket with jagged cut-off sleeves, light brown pants and white tennis shoes.

At trial, Brenda Hardy recalled that the robber wore a short or medium bush hairstyle, a goatee, and perhaps a mustache. She testified that he was dressed in blue jeans and a green jacket with long sleeves buttoned at the wrist. Ms. Baptist stated that although “it was a long time ago,” Tr. at 114, and she didn’t remember exactly what the man with the gun looked like, he had no beard, but might have had a mustache. Ms. Baptist had no recollection of the robber’s clothing.

Ms. Taylor recalled that the man with the gun had bushy hair. She stated that his face was “kind of clean,” Tr. at 70, and that, although he may have had a mustache, he did not have a beard. According to Ms. Taylor, the robber with the gun was wearing an open, faded jean jacket with long sleeves and an orange knitted cap. Ms. Taylor stated that her identification at Gino’s was based, at least in part, on her recollection of the robber’s clothing. Looking at Government Exhibit Number Four, she testified that she was positive that the clothes shown in the photograph were not the clothes the man with the gun had on at the time of the robbery.

Officer Betts testified that the man he saw leaving Gino’s and later apprehended was wearing a dark jacket and dark pants, and that he had noticed no color distinction between them. Betts also stated that Government Exhibit Number Four accurately represented the clothing Singleton was wearing when he was apprehended. On cross-examination, however, Betts admitted that a distinct difference between the color of Singleton’s pants and jacket is evident from the photograph.

C.

In a Supplemental Memorandum and Order filed on September 3, 1981, the district judge expressed his concern regarding the suggestive nature of the showup conducted at Gino’s and emphasized that the independent recollections of the witnesses substantially contradicted the showup identification. In his view, these factors, considered together, reduced the weight of the identification evidence to the point where the jurors must have had a reasonable doubt as to the identification of the robber with the gun. Thus, the district judge concluded that the judgment of acquittal was required. We disagree.

We share the concern of the trial judge regarding the showup in this case; it was undoubtedly conducted in a highly, perhaps even unnecessarily, suggestive manner. We do not believe, however, that the suggestiveness was a factor which, considered with the conflicting testimony of the witnesses, necessitated or justified a verdict of acquittal. Immediate on-the-scene showup identifications, while recognized as inherently suggestive, have long been upheld by this court. See, e.g., Russell v. United States, 408 F.2d 1280, 1284 (D.C. Cir.), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); Wise v. United States, 383 F.2d 206, 208 (D.C.Cir.1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968). “Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations ... will ‘if anything promote fairness by assuring reliability ....’” Russell, 408 F.2d at 1284 (quoting Wise, 383 F.2d at 209). Notwithstanding its suggestive elements, the showup at issue here took place under circumstances that would tend to promote reliability. The showup took place within two or three minutes after the robbery, at the scene of the crime. The witnesses had ample opportunity to view the culprits at close range in good lighting conditions. In addition, the witnesses were quite certain of their identifications.

Once admitted, identification evidence is for the jury to weigh. Suggestive procedures often vitiate the weight of the evidence, and the jury may tend to discount the resulting identification. Manson v. Brathwaite, 432 U.S. 98, 112 n. 12, 97 S.Ct. 2243, 2252 n. 12, 53 L.Ed.2d 140 (1977). The suggestiveness of the identification procedure used in this case was argued vigorously to the jury in defense counsel’s closing argument. Closing Argument Transcript at 46-49. As Justice Blackmun so eloquently stated in Manson,

[w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

432 U.S. at 116, 97 S.Ct. at 2253.

Nor do we find fatal the incongruence in the testimony of the witnesses. There are variations, to be sure, between the recollections of the witnesses as to the robber’s facial appearance and clothing and Singleton’s appearance as shown by the photograph taken on the night of his arrest. Such discrepancies are to be expected, however, especially since the witnesses were recalling an event that happened over five years earlier. “It would be a rare case indeed if all the testimony of the prosecution were in perfect harmony.” Government of the Virgin Islands v. Petersen, 507 F.2d 898, 901 (3d Cir.1975). Again, we note that the weight to be given to the testimony of the witnesses is for the jury to determine. Sewell v. Cardwell, 454 F.2d 177, 179 (6th Cir.1972). The inconsistencies in testimony were emphasized on cross-examination and argued to the jury in defense counsel’s closing arguments.

Appellee also complains about the failure of the Government to attempt to elicit an in-court identification. Brief for Appellee at 6. Both before and during trial there was discussion on the issue of whether an in-court identification should be conducted in this case. Neither the Government nor defense counsel thought such an identification advisable in light of the number of years that had passed before trial. Furthermore, pretrial identifications are often more probative than ritualized in-court identifications. See, e.g., United States v. Hallman, 439 F.2d 603, 604 (D.C.Cir.1971). This is particularly true when a substantial period of time has elapsed between the out-of-court identification and the trial. United States v. Higgans, 507 F.2d 808 (7th Cir.1974).

D.

In sum, we find that the evidence is sufficient to find appellee guilty beyond a reasonable doubt. Three of the four counterwomen on duty at Gino’s on the night of the robbery told the jurors they identified Singleton on the evening of September 8, 1975, and each expressed certainty about her identification. In addition, the combined testimony of Officers Betts and Hardy suggested to the jurors that one of the robbers was observed fleeing toward the location where Singleton was stopped, which was also near the spot where the bag with the shotgun was recovered. Finally, appellee elected to testify in his own defense, and the jurors obviously chose to disbelieve his testimony. The judgment of acquittal entered by the district court is, accordingly, vacated.

III. No. 81-1827

A.

The basis for the indictment charging Singleton with violation of the Bail Reform Act, 18 U.S.C. § 3150 (1976), was his failure to appear for arraignment on the armed robbery charges on November 7, 14, and 21 of 1975. The indictment was filed on March 12, 1981, more than three months after the five-year statute of limitations had run. 18 U.S.C. § 3282 (1976). In response to appellee’s motion to dismiss the indictment as barred by the statute, the Government sought to invoke the tolling provision of 18 U.S.C. § 3290 (1976), which provides that “[n]o statute of limitations shall extend to any person fleeing from justice.” A hearing was held on the motion to dismiss on May 5, 1981, and the trial judge granted the motion on June 19, the same day it orally granted the motion for acquittal in Number 81-1810, the armed robbery case. Although the district court gave no reasons for granting the motion to dismiss, our review of the record makes it clear that the Government failed to carry its burden of proving that Singleton was “fleeing from justice.”

B.

At the hearing on the motion to dismiss the Bail Reform Act charge, Singleton testified that when he was originally arrested in 1975, he lived at 1708 5th Street, Northwest, in the District of Columbia, and that his mother lived at 8 Channing Street, Northeast. Bail Transcript (Bail Tr.) at 18, 20. He lived at the same address for some two years after his arrest, and then he moved to a “bigger apartment” located at 76 Randolph Place, Northwest, where he lived at the time of his rearrest in February of 1981. Singleton’s mother remained at the Channing Street address for about three years following his arrest. Bail Tr. at 19-20. At the time of his arrest, Singleton worked at the Congressional Country Club, where he continued to work for eighteen months thereafter. Bail Tr. at 20. Singleton testified that at his preliminary hearing on the armed robbery charges he was told he would receive something in the mail regarding the date of his next court appearance and that he never received such notice. Bail Tr. at 20-21. During the armed robbery trial, Singleton testified that he had heard that the case against a second man charged with the robbery had been dismissed and assumed that the case against him had been dismissed as well. Tr. at 368-69. Appellee also testified that he did not know of any attempts by United States Marshals or police to locate him and that he saw Betts, the arresting officer in the robbery case, on many occasions after his arrest, and the missed court appearances were never mentioned. Bail Tr. at 21-23. Singleton also stated that since his original arrest he had left the District of Columbia only in the course of his employment, for trips into suburban Maryland and Virginia to lay carpet. Bail Tr. at 23-24.

The Government conducted no cross-examination of appellee and presented no evidence contradicting his statements. The Government called Deputy United States Marshal James M. McCarthy as a witness, but he could only testify to several efforts to locate Singleton in 1979. Mr. McCarthy stated that Marshal’s Office records indicated that no attempts were made to locate the appellee in 1980 or 1981. Bail Tr. at 44. Since very poor records, or no records at all, were kept prior to 1979, the Deputy Marshal could not testify to attempts to locate Singleton during 1975-1978. Bail Tr. at 53.

C.

This court has seldom been called upon to construe the language contained in 18 U.S.C. § 3290 and has apparently never addressed the question whether one who does not physically flee the jurisdiction can be a fugitive from justice in the sense contemplated by this section. Other circuits applying section 3290 have held that in order to find that an accused was “fleeing from justice,” it is necessary to show he acted with the intent to avoid prosecution or punishment, whether or not he actually left the jurisdiction. See, e.g., United States v. Wazney, 529 F.2d 1287 (9th Cir. 1976); Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir.1973); Donnell v. United States, 229 F.2d 560 (5th Cir.1956). The Ninth Circuit in Wazney stated that physical absence from the jurisdiction is not required to trigger the tolling provision of section 3290. 529 F.2d at 1289. “It is enough that an accused leaves his usual place of abode and conceals himself for the purpose of avoiding arrest or prosecution .... In modern large and heavily populated districts it is almost as easy to avoid arrest or prosecution by concealing oneself within the district as by fleeing the district.” Id.

We agree that flight from the jurisdiction is not required to trigger the tolling provision. It would be neither logical nor supportive of the policy underlying section 3290 to interpret the law in such a way that one who leaves and is found without the jurisdiction is “fleeing justice” regardless of his intent, while one who actively evades authorities and conceals himself within the jurisdiction can receive the benefit of the statute of limitations.

The crux of the Government’s argument in this case is that by changing his address and failing to maintain contact with his attorney or the court, appellee rendered himself “effectively beyond the reach of justice,” thereby triggering the tolling provision of section 3290. Brief for Appellant at 21. The Government argued before the district court, and appears to argue here as well, that “one who does not appear as ordered is ... a fugitive until and unless he, not the Government, can show otherwise.” Bail Tr. at 12. Proceeding on this' assumption, the Government failed to present evidence that Singleton was notified of his court dates, or that efforts were made to locate him within a reasonable period of time after his failure to appear for arraignment. The Government relied instead upon testimony that the Marshal’s Office sought to locate Singleton on two consecutive days during the more than five years prior to his rearrest and on the very fact that Singleton failed to appear in court to prove that he was a fugitive from justice.

We do not believe that failure to make a court appearance in itself necessarily renders one a. fugitive from justice. In a normal case, the facts that Singleton failed to appear, that he did not notify the bail agency of his change of address, and that he failed to maintain contact with his attorney would tend to indicate flight. This is not, however, a normal case. More than five years passed between appellee’s failure to appear in 1975 and his rearrest in 1981. Appellee lived at the same address for two years following his initial arrest and then moved to another apartment. There is no evidence that the Marshal’s Office attempted to contact Singleton at any time prior to, or after, June 1979. Furthermore, there is no showing that the Marshals sought to discover Singleton’s phone number or new address (e.g., through the Post Office or the phone book) or that they ever tried to locate him at the country club where he worked at the time of his arrest and for eighteen months thereafter.

As the Wazney court stated, the accused should not be held responsible for a delay caused by “an open move to a new residence where [he] is readily accessible to careful law enforcement officers.” 529 F.2d at 1289 (emphasis added). It appears that the Marshal’s Service made only minimal efforts to locate Singleton. Therefore, we cannot infer too much from the fact that these efforts proved fruitless. We conclude that on the facts of this case, the Government failed to show that Singleton acted with the intention of avoiding prosecution. The motion to dismiss the indictment under section 3150 was properly granted.

IV. Conclusion

The judgment of the district court in No. 81-1810 is vacated. The case is remanded, and the district court is directed to reinstate the jury’s verdicts of guilty, to enter a judgment of conviction, and to impose sentence. The order of the district court in No. 81-1827 dismissing the indictment for failure to appear is affirmed.

So Ordered.

. The per curiam opinion issued today in this case and in USA v. Campbell reflects the position of the en banc court in cases involving these legal problems. 702 F.2d 1182. Our opinion in this case was decided in accord with the principles stated in the per curiam.

. 22 D.C.Code Ann. §§ 2901, 3202 (1981).

. 26 U.S.C. § 5861(d) (1976).

. Id. § 5861(i).

. 18 U.S.C. § 3150 (1976).

. The motion was made and granted pursuant to Fed.RXrim.P. 29(c).

. 18 U.S.C. § 3731 (1976) provides that in criminal cases the Government may appeal “from a decision, judgment, or order of a district court dismissing an indictment or information ... except where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

. See United States v. Steed, 674 F.2d 284, 286 (4th Cir.1982) (en banc); United States v. Burns, 597 F.2d 939, 940 (5th Cir.1979); United States v. Blasco, 581 F.2d 681, 683 (7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); United States v. Jones, 580 F.2d 219, 221-22 n. 3 (6th Cir.1978); United States v. Calloway, 562 F.2d 615, 616-17 (10th Cir.1977); United States v. Cahalane, 560 F.2d 601, 603 n. 2 (3d Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); United States v. Rojas, 554 F.2d 938, 941 (9th Cir.1977); United States v. De Garces, 518 F.2d 1156, 1159 (2d Cir.1975).

. In illustrating this point, the Court referred to two cases that hold that the Government can appeal post-verdict judgments of acquittal based on insufficiency of the evidence. See United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 43 L.Ed.2d 232 (1980) (citing United States v. Rojas, 554 F.2d 938, 941 (9th Cir.1977), and United States v. De Garces, 518 F.2d 1156, 1159 (2d Cir.1975)).

The dissent suggests that DiFrancesco lends no support to our holding that jurisdiction exists in this case because it involved Government appeal of sentences, and the Court there went to great lengths to distinguish acquittals from sentences. See dissenting opinion (dis. op.) at 1172 n. 8. All of the cases relied upon by the Supreme Court in making this distinction, however, were cases where a successful appeal would have necessitated a second trial. See, e.g., Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904). A careful reading of DiFrancesco and other recent Supreme Court cases in the Double Jeopardy area reveals that the Court’s primary concern lies with denying the Government successive opportunities to convict a defendant. See, e.g., DiFrancesco, 449 U.S. at 132, 101 S.Ct. at 434 (“[T]he prohibition against multiple trials is the ‘controlling constitutional principle.’ ”); id. at 136, 101 S.Ct. at 437 (“The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence..... [T]he basic design of the double jeopardy provision ... is[ ] as a bar against repeated attempts to convict ____”). See also United States v. Scott, 437 U.S. 82, 90, 91, 98 S.Ct. 2187, 2193, 2194, 57 L.Ed.2d 65 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 570, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); United States v. Jenkins, 420 U.S. 358, 365, 369, 370, 95 S.Ct. 1006, 1010, 1012, 1013, 43 L.Ed.2d 250 (1975). Just as these considerations have “no significant application” in the context of appellate review of a sentence, DiFrancesco, 449 U.S. at 136, 101 S.Ct. at 437, they are inapplicable in the instant circumstances where, as noted infra in text, the jury verdict can be reinstated upon remand and there is no threat of the type of governmental oppression against which the Double Jeopardy Clause is designed to protect.

. In Jenkins the Court assumed that a judgment of acquittal granted after a jury verdict of guilty could be appealed, since no retrial would be required. 420 U.S. at 365, 95 S.Ct. at 1010. Later, in Scott, the Court quoted extensively from this section of Jenkins and stated that “[d] espite the ... heavy emphasis on the finality of an acquittal in Martin Linen [and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ], neither decision explicitly repudiates” the assumption in Jenkins “that a judgment of acquittal may be appealed where no retrial would be needed on remand.” 437 U.S. at 91 n. 7, 98 S.Ct. at 2194 n. 7.

. See also United States v. Johnson, 589 F.2d 716, 720 (D.C.Cir. 1978) (accused entitled to judgment of acquittal only when there is no evidence upon which reasonable minds might fairly conclude guilt beyond a reasonable doubt).

. The dissent suggests that the standard of review we adopt today may encourage district judges to pass on motions for judgments of acquittal before a jury has returned its verdict in order to preclude review by this court. Dis. op. at 1172. We agree that where all the evidence has been presented, trial courts should reserve judgment on motions for acquittal until after return of the jury verdict, but we are unwilling to assume that the decisions of district judges in this regard will be more influenced by the desire to avoid appellate review than by the desire to take “the maximum opportunity to consider with care a pending acquittal motion.” Id.

. See, e.g., United States v. Dixon, 658 F.2d 181, 188 (3d Cir.1981); United States v. Burns, 597 F.2d 939 (5th Cir. 1979); United States v. Blasco, 581 F.2d 681 (7th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); United States v. Calloway, 562 F.2d 615 (10th Cir. 1977); United States v. Rojas, 554 F.2d 938 (9th Cir.1977); United States v. De Garces, 518 F.2d 1156 (2d Cir.1975).

. By the time of the trial, Officer Betts had been promoted to Detective.

.Detective Betts testified that he did not recognize this individual on the basis of facial features. Trial Transcript (Tr.) at 205. Betts also stated that when he first saw the men exiting Gino’s, the suspect he later apprehended had been carrying a valise or large tote bag. Tr. at 202-03.

. On cross-examination Ms. Hardy stated that she saw the man twice after the robbery. Tr. at 55.

. In a bit of contradictory testimony, Ms. Taylor stated, “Well, I didn’t really glance up at him. I didn’t take a glance at his face that good.” Tr. at 67.

. The trial judge began the memorandum by-stating that this case “is a clear-cut example of the dangerous potential of the one-man ‘show-up’ for tragic misidentification.” United States v. Singleton, Crim. No. 75-721 (D.D.C. Sept. 3, 1981), Supplemental Memorandum and Order at 1; Appellant’s Appendix (A.A.) at 25.

. “[W]here the only government evidence, identifications made in a highly suggestive showup, is flatly contradicted by the independent recollections of the same witnesses, reasonable men and women must have reasonable doubt.” Id. at 4; A.A. at 28.

. The witnesses were grouped together during the identification process. The suspect was handcuffed and in police custody. At least one of the counterwomen remembered the police officers’ stating that they had a man thought to be one of The robbers and asking for a positive identification. Furthermore, the police never asked the victims for a description of the robbers before the showup, which they certainly could and should have done; nor did they conduct a line-up at any time following the showup in order to further clarify the identification.

There is also evidence suggesting that the bag was positioned near the suspect when the victims viewed him, although the gun may not have been visible. Testimony by Ms. Taylor on direct examination indicates that when Singleton was brought into Gino’s for identification, the police also had the bag and the gun with them. Tr. at 73. On cross-examination, however, Ms. Taylor stated that she never saw the bag after the robbery and that she did not know whether or not the police had the bag with them when they brought Singleton into Gino’s. Id. at 87-88. She was not asked about the gun on cross-examination. Ms. Baptist testified that she did not see the gun until after she had made her identification. Id. at 127-28. Singleton himself testified that although the bag was beside him during the showup, it was zipped up and the gun was not visible to him or to those attempting to identify him. Id. at 388.

. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Supreme Court held that a defendant could claim that a particular identification procedure had been “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Id. at 301-02, 87 S.Ct. at 1972. The “central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). The Court in Biggers noted the factors to be considered in evaluating the likelihood of misidentification:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. at 382. Although Stovall and Biggers were due process cases, we think the factors enumerated in Biggers are relevant in evaluating the weight of identification evidence as well as its admissibility.

. Ms. Taylor testified that the lighting in Gino’s was “about like” that in the courtroom —“not that bright, but it’s bright enough ... to see the customers.” Transcript of Motions Hearing (Mar. 30, 1981) 16. Ms. Baptist testified that the lighting was “good,” perhaps a little brighter than in the courtroom. Id. at 79.

. The trial judge conducted two days of hearings prior to the denial of Singleton’s motion to suppress the evidence of the showup identification on due process grounds. Appellee urges us to review the trial judge’s ruling in this regard. Unlike the dissent, however, we decline to reach an issue not properly before us at this time.

. In many cases the only identification evidence is testimony of an out-of-court identification. See, e.g., Rice v. United States, 437 A.2d 582 (D.C.1981); Wilkerson v. United States, 427 A.2d 923 (D.C.), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981); United States v. Hudson, 564 F.2d 1377 (9th Cir.1977); United States v. Bishop, 534 F.2d 214 (10th Cir.1976).

. Singleton told the jury that at the time he was stopped by Officer Betts he was walking to his mother’s house on Channing Street, Northeast. He denied committing the robbery.

. 18 U.S.C. § 3150 provides:

Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release,' and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both, or (2) if he was released [i]n connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor or imprisoned for not more than one year, or both, or (3) if he was released for appearance as a material witness, shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

. Arraignment was originally scheduled for November 7, 1975. When appellee failed to appear, a bench warrant was ordered and issued. This warrant was returned unexecuted and was quashed on November 10. Arraignment was continued until November 14 and again until November 21. The district court issued a second bench warrant on November 21; it was returned executed on February 18, 1981, when Singleton was rearrested.

. 18 U.S.C. § 3282 provides:

Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.

The Government could have sought an indictment at any time after Singleton failed to appear for arraignment; it is unclear why they waited until March of 1981 to do so.

. The designation “Bail Transcript” (Bail Tr.) is used here to refer to the transcript in No. 81-1827. The designation “Tr.” will continue to be used in referring to the transcript in No. 81-1810.

. The testimony indicated that on June 12, 1979, the Marshal’s Service attempted to locate appellee at 2225 N Street, Northwest, and at 1708 5th Street, Northwest. On June 13, the Marshals tried to find him at 700 Quincy Street, Northwest, and 8 Channing Street, Northeast. Bail Tr. at 29-31, 48. There was no indication in the records kept by the Marshals of why they looked for Singleton at these particular addresses or how they determined that he was not on the premises.

.The Marshal did, however, testify that Singleton’s name was placed in the National Crime Information Center computer on November 24, 1975. Bail Tr. at 42.

. The principal cases in this circuit interpreting the relevant language are Green v. United States, 188 F.2d 48 (D.C.Cir.), cert. denied, 341 U.S. 955, 71 S.Ct. 1008, 95 L.Ed. 1376 (1951), and McGowen v. United States, 105 F.2d 791 (D.C.Cir.), cert. denied, 308 U.S. 552, 60 S.Ct. 98, 84 L.Ed. 464 (1939). These cases, both involving defendants who had left the District of Columbia, suggest that the defendant’s intent is irrelevant in determining whether he has fled justice. “The question is not whether [the defendant] remained out of the District for any particular reason, or at all; it is enough that he did not remain ... within the District.” Green, 188 F.2d at 48 (quoting McGowen, 105 F.2d at 792). In this case, the Government has offered no proof that appellee left the jurisdiction. It is therefore unnecessary for us to decide whether the rule of law set forth in these early cases— that mere absence from the jurisdiction is sufficient to toll the statute — retains its vitality today.

. The Government argues that Singleton bore a special burden because he was obligated, under the terms of his release on personal recognizance, to contact the bail agency and his attorney weekly and to notify the former of any change of address. “Even if appellee did not have notice of his future court dates, he had the obvious means to obtain them.” Brief for Appellant at 22. Singleton’s failure to fulfill the conditions of his release may merit the imposition of sanctions under the Bail Reform Act but does not, in our view, alone suffice to prove that he was “fleeing justice” for purposes of the tolling provision.