In United States v. Hassan, --- F.4th ---, No. 24-263 (9th Cir. 2025), the Court affirmed Mohamed Ahmed Hassan’s benchtrial convictions on four counts of bank robbery.
Mohamed Ahmed Hassan appeals from his bench-trial convictions on four counts of bank robbery, in violation of 18 U.S.C. § 2113(a). All four robberies were caught on surveillance cameras. We address today the narrow question of whether the Sixth Amendment’s guarantee of a fair trial permits the trier of fact to compare photographs or video recordings of the culprit with the defendant’s in-court appearance for identification purposes. For the reasons below, we hold that it does.Hassan raises two issues on appeal. First, Hassan argues that the district court impermissibly relied on extrinsic evidence in violation of his Sixth Amendment right by comparing the video footage to his in-court appearance, descriptions of which were not introduced into the record. Second, and in the alternative, Hassan argues that the evidence was insufficient to support his conviction.We are not persuaded. We conclude that the trier of fact may properly identify a defendant by comparing his observable appearance to photographic representations of the culprit. The visual comparison made by the district court, along with other available information about the robber, was sufficient evidence of Hassan’s guilt. We affirm.The Sixth Amendment guarantees “the defendant’s right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 473 (1965). This right to a fair trial entails that “a jury’s verdict must be based upon the evidence developed at the trial.” Id. at 472 (internal quotation marks omitted). We have thus held that “[e]vidence not presented at trial, acquired through out-of-court experiments or otherwise, is deemed ‘extrinsic.’” United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991). A new trial is warranted if there is “a reasonable possibility that the extrinsic material could have affected the verdict.”[T]he district court did not rely on extrinsic evidence by observing Hassan in person and comparing his appearance with the robber in the surveillance video footage. The very point of evidence like the video footage presumes such a comparison.“Identification of the defendant as the person who committed the charged crime is always an essential element which the government must establish beyond a reasonable doubt.” United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995). A witness’s in-court identification is not necessary; “[i]dentification can be inferred from all the facts and circumstances that are in evidence.” Id. (quoting United States v. Weed, 689 F.2d 752, 754 (7th Cir. 1982)). We conclude that sufficient evidence supported Hassan’s identity as the robber, the only element challenged by Hassan on appeal.The district court did not rely on extrinsic evidence to identify Hassan as the culprit, and sufficient evidence supported that finding. We therefore affirm the judgment of conviction on all counts.
