United States v. Walter Eliyah Thody, Also Known as Ralph Owen Baker, 978 F.2d 625 (10th Cir. 1992). · Go Syfert
United States v. Walter Eliyah Thody, Also Known as Ralph Owen Baker, 978 F.2d 625 (10th Cir. 1992). Cases Citing This Book View Copy Cite
“congress enacted the ulp provisions in 8(b)(4) of the nlra, 29 u.s.c. 158 (b)(4), to protect 'neutral employer' caught between competing unions.”
122 citation events (83 in the last 25 years) across 18 distinct courts.
Strongest positive: Samson Tug and Barge Co., Inc v. International Longshore and Warehouse Union (akd, 2024-08-22)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) Samson Tug and Barge Co., Inc v. International Longshore and Warehouse Union (3×) also: Cited as authority (rule)
D. Alaska · 2024 · quote attribution · 2 verbatim quotes · confidence high
a valid work preservation objective provides a complete defense against alleged violations of ection 8(b)(4)(d).
discussed Cited as authority (verbatim quote) VSolvit, LLC v. Sohum Systems, LLC
D. Nev. · 2023 · quote attribution · 1 verbatim quote · confidence high
he 23 parties would have had no reason to add a term . . . if section has already done so.
discussed Cited as authority (verbatim quote) Samson Tug and Barge Co., Inc v. International Longshore and Warehouse Union
D. Alaska · 2021 · quote attribution · 1 verbatim quote · confidence high
congress enacted the ulp provisions in 8(b)(4) of the nlra, 29 u.s.c. 158 (b)(4), to protect 'neutral employer' caught between competing unions.
discussed Cited as authority (quoted) Samson Tug and Barge Co., Inc v. International Longshore and Warehouse Union
D. Alaska · 2021 · quote attribution · 1 verbatim quote · confidence low
nlrb opinion
discussed Cited as authority (quoted) United States v. Boles
2d Cir. · 2019 · quote attribution · 1 verbatim quote · confidence low
he manufacturer's imprint in the gun is not hearsay. it is technically not an assertion by a declarant as contemplated by the .
discussed Cited as authority (rule) Samson Tug and Barge Co., Inc v. International Longshore and Warehouse Union, Alaska Longshore Divis
9th Cir. · 2025 · confidence medium
See NLRB v. Int’l Longshoremen’s Ass’n, 473 U.S. 61 , 81–82 (1985) (holding that when the objective of an agreement and the purpose behind its enforcement is “work preservation,” the union does not violate 29 U.S.C. § 158 (b)(4)(B) or § 158(e)(6)); Int’l Longshore & Warehouse Union v. NLRB, 978 F.3d 625, 637 (9th Cir. 2020) (holding that a “valid work 2 24-5730 preservation objective provides a complete defense against alleged violations of section 8(b)(4)(D) . . . ”).
examined Cited as authority (rule) Pacific Maritime Association v. National Labor Relations Board (15×) also: Cited "see"
9th Cir. · 2025 · confidence medium
The panel held that the Board’s position was foreclosed by International Longshore and Warehouse Union v. NLRB (Kinder Morgan), 978 F.3d 625, 637 (9th Cir. 2020), which held that “[a] valid work-preservation objective provides a complete defense against alleged violations of section 8(b)(4)(D), as well as against jurisdictional disputes under section 10(k).” Pursuant to Kinder Morgan, a union charged with an unfair labor practice under section 8(b)(4)(D) may raise a work-preservation defense even when the union is not alleged to have engaged in illegal secondary activity.
cited Cited as authority (rule) United States v. Ruiz
10th Cir. · 2024 · confidence medium
United States v. Thody, 978 F.2d 625, 629 (10th Cir. 1992).
discussed Cited as authority (rule) United States v. Gallegos (2×) also: Cited "see"
10th Cir. · 2024 · confidence medium
See Bredy, 209 F.3d at 1197 (noting that multiple witnesses were “unequivocal” in their identification of the defendant); Thody, 978 F.2d at 629 (same).
discussed Cited as authority (rule) Johnson v. City of Cheyenne (2×) also: Cited "see"
10th Cir. · 2024 · confidence medium
Rather, an intrusion occurs when “[t]he suggestiveness of the lineup [or photographic identification procedure] . . . create[s] a very substantial likelihood of irreparable misidentification”—viz., “the tainted lineup [or photographic identification procedure] . . . so affect[s] the witnesses’ perceptions as to render their subsequent in-court testimony unreliable.” United States v. Thody, 978 F.2d 625, 629 (10th Cir. 1992); see also Alexander v. City of S. Bend, 433 F.3d 550, 555 (7th Cir. 2006) (“[T]he constitutional interest implicated in challenges to police identification pr…
discussed Cited as authority (rule) National Labor Relations Board v. Siren Retail Corporation Dba Starbucks
9th Cir. · 2024 · confidence medium
We will enforce an order of the Board if it “correctly applied the law and if its factual findings are supported by substantial evidence in the record as a whole.” Int’l Longshore & Warehouse Union v. NLRB, 978 F.3d 625, 633 (9th Cir. 2020) (quoting Plaza Auto Ctr., Inc. v. NLRB, 664 F.3d 286, 291 (9th Cir. 2011)).
discussed Cited as authority (rule) International Brotherhood of Electrical Workers, Local 302 v. Marathon Petroleum Company LP (2×) also: Cited "see, e.g."
N.D. Cal. · 2023 · confidence medium
Bd., 978 F.3d 625, 641 (9th Cir. 2020).1 Next, defendants argue that they don’t need to arbitrate the Covered Work dispute be- cause (i) the PLA clearly excludes the “post-weld heat treating and stress relieving” work at issue from the definition of Covered Work, and (ii) the PLA gives defendants discretion to determine whether the disputed work can be performed by a non-union subcontractor.
discussed Cited as authority (rule) Operating Engineers Local 3 v. Marathon Petroleum Company LP
N.D. Cal. · 2023 · confidence medium
Bd., 978 F.3d 625, 641 (9th Cir. 2020).1 Defendants also argue that they don’t need to arbitrate the Covered Work dispute because (i) the PLA clearly excludes the disputed work from the definition of Covered Work, and (ii) the PLA gives defendants discretion to determine whether the disputed work can be performed by a non-union subcontractor.
discussed Cited as authority (rule) United States v. O'Neil (2×)
10th Cir. · 2023 · confidence medium
(Fourth Amendment); United States v. Thody, 978 F.2d 625, 628 (10th Cir. 1992) (Due Process Clause).
discussed Cited as authority (rule) Spreckels Sugar Company, Inc. v. United Food and Commercial Workers, Local 135, AFL-CIO, CLC
S.D. Cal. · 2023 · confidence medium
An arbitrator may make a determination 15 on whether an employer’s conduct constitutes an unfair labor practice and the NLRB may 16 interpret a CBA, but ultimately, the interpretation of the CBA falls on the arbitrator and a 17 determination on whether conduct constitutes an unfair labor practice falls on the Board. 18 See Int’l Longshore and Warehouse Union v. N.L.R.B., 978 F.3d 625, 640 (9th Cir. 2020) 19 (“[a]lthough the Board has occasion to interpret collective-bargaining agreements in the 20 context of unfair labor practice adjudication, the Board is neither the sole nor the primar…
cited Cited as authority (rule) United States v. Dana Day, Jr.
8th Cir. · 2022 · confidence medium
Evid. 703; United States v. Carter, 270 F.3d 731, 735 (8th Cir. 2001); United States v. Thody, 978 F.2d 625, 630-31 (10th Cir. 1992).
discussed Cited as authority (rule) Everport Terminal Services Inc v. NLRB (2×)
D.C. Cir. · 2022 · confidence medium
The Longshore Contract’s scope is broad, reaching “[v]irtually all longshore work at West Coast ports,” ILWU v. NLRB (“Kinder Morgan”), 978 F.3d 625, 630 (9th Cir. 2020), and the Board has upheld many of its jurisdiction setting provisions as consistent with the National Labor Relations Act, see PMA, 256 NLRB 769 , 770 (1981); cf. IAM, Loc.
cited Cited as authority (rule) Clark v. Murch
D. Colo. · 2022 · confidence medium
U.S. v. Thody, 978 F.2d 625, 629 (10th Cir. 1992).
discussed Cited as authority (rule) Commonwealth v. Santiago, A., Aplt.
Pa. · 2019 · confidence medium
See, e.g., U.S. v. Concepion, 983 F.2d 369, 378 (2d Cir. 1992) (in-court identification admissible where witnesses had opportunity to observe defendant, nature of events, including identification made unequivocally within minutes or hours of shooting); Montgomery v. Greer, 956 F.2d 677, 681-82 (7th Cir. 1992) (although post-arrest lineup identification inadmissible fruit of illegal arrest, in-court identification admissible because based on independent recollection of previous encounter and rape victim's opportunity to view assailant) Killebrew v. Endicott, 992 F.2d 660, 664-65 (7th Cir. 1993)…
discussed Cited as authority (rule) United States v. Pina
S.D. Ohio · 2016 · confidence medium
E.g., United States v. Koch, 625 F.3d 470, 480 (8th Cir.2010); United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir. 1992), overruled on other grounds by 947 Kawashima v. Mukasey, 530 F.3d 1111, 1116 (9th Cir.2008) (“An inscription placed on a firearm by the manufacturer is ... a mechanical trace and not a statement for purposes of [Rule 801(c) (definition of hearsay) ]”.); ' United States v. Thody, 978 F.2d 625, 630-31 (10th Cir.1992) (manufacturer’s imprint in the gun is not hearsay).
discussed Cited as authority (rule) United States v. Gutierrez
10th Cir. · 2015 · confidence medium
United States v. Thody, 978 F.2d 625, 630-31 (10th Cir.1992) (holding manufacturer’s “Made in Spain” stamp on gun butt was not hearsay); see also United States v. Buchanan, 604 F.3d 517, 522 (8th Cir.2010) (holding manufacturer’s markings on a safe and a key were not hearsay).
discussed Cited as authority (rule) United States v. David Saguil
5th Cir. · 2015 · confidence medium
E.g., United States v. Koch, 625 F.3d 470, 480 (8th Cir.2010); United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir.1992), overruled on other grounds by Kawashima v. *947 Mukasey, 530 F.3d 1111, 1116 (9th Cir. 2008) (“An inscription placed on a firearm by the manufacturer is ... a mechanical trace and not a statement for purposes of [Rule 801(c) (definition of hearsay) ]”.); United States v. Thody, 978 F.2d 625, 630-31 (10th Cir.1992) (manufacturer’s imprint in the gun is not hearsay).
cited Cited as authority (rule) United States v. Burdulis
1st Cir. · 2014 · confidence medium
See United States v. Koch, 625 F.3d 470, 480 (8th Cir.2010); United States v. Thody, 978 F.2d 625, 630-31 (10th Cir.1992); United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir.1992).
discussed Cited as authority (rule) United States v. Buchanan
8th Cir. · 2010 · confidence medium
The Tenth Circuit, applying plain-error review, rejected a defendant’s argument that a “nine millimeter pistol ... was improperly admitted as proof that [the defendant] used a weapon that had travelled in interstate commerce.... ” United States v. Thody, 978 F.2d 625, 630 (10th Cir.1992).
cited Cited as authority (rule) United States v. Dixon
10th Cir. · 2008 · confidence medium
See United States v. Nichols, 169 F.3d 1255, 1267 (10th Cir. 1999); United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992).
cited Cited as authority (rule) United States v. Batie
10th Cir. · 2006 · confidence medium
United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Natalini
10th Cir. · 2002 · confidence medium
Thus, “we evaluate the reliability of the identification under the totality of the circumstances to determine whether the suggestive show-up ‘created a substantial likelihood of irreparable misidentification.’ ” Id. (quoting United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992)).
cited Cited as authority (rule) United States v. Kerr
10th Cir. · 2002 · confidence medium
United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992).
examined Cited as authority (rule) United States v. Hennefer (3×) also: Cited "see, e.g."
10th Cir. · 1998 · confidence medium
However, “[t]he ‘clearly erroneous’ standard applies with respect to the trial court’s factual findings ‘even when those findings relate to a constitutional issue.’” United States v. Thody, 978 F.2d 625, 629 (10th Cir. 1992) (quoting Hernandez v. New York, 500 U.S. 352, 366 (1991)), cert. denied, 513 U.S. 907 (1994).
examined Cited as authority (rule) United States v. Donny Jace Hennefer (3×) also: Cited "see, e.g."
10th Cir. · 1998 · confidence medium
However, "[t]he 'clearly erroneous' standard applies with respect to the trial court's factual findings 'even when those findings relate to a constitutional issue.' " United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992) (quoting Hernandez v. New York, 500 U.S. 352, 366 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991)), cert. denied, 513 U.S. 907 (1994). 6 Evaluating the constitutionality of pretrial identification procedures involves a two-step analysis.
cited Cited as authority (rule) United States v. Kerry Neil Enjady
10th Cir. · 1998 · confidence medium
United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992).
cited Cited as authority (rule) United States v. Enjady
10th Cir. · 1998 · confidence medium
United States v. Thody, 978 F.2d 625, 631 (10th Cir. 1992).
discussed Cited as authority (rule) United States v. One Parcel of Real Property Described as Lot 41, Berryhill Farm Estates, Etc., Tommy Lee Dunmore, Claimant-Appellant (2×) also: Cited "see"
10th Cir. · 1997 · confidence medium
“The ultimate conclusion of whether [Dun-more’s] Fifth Amendment due process rights have been violated is subject to de novo review.” United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992). 1.
cited Cited as authority (rule) United States v. Cosby
D. Kan. · 1997 · confidence medium
See Manson, 432 U.S. at 114 , 97 S.Ct. at 2253 ; United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992), cert. denied, 513 U.S. 907 , 115 S.Ct. 273 , 130 L.Ed.2d 190 (1994).
cited Cited as authority (rule) United States v. Leffall
10th Cir. · 1996 · confidence medium
United States v. Thody, 978 F.2d 625, 628-29 (10th Cir.1992), cert. denied, — U.S. —, 115 S.Ct. 273 , 130 L.Ed.2d 190 (1994).
discussed Cited as authority (rule) United States v. Pamela Jones, Katresa Marie Johnson, Mark J. Scott, Jr.
10th Cir. · 1995 · confidence medium
A plain error is one that is “ ‘obvious or ... seriously a£fect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992) (quoting United States v. Atkinson, 297 U.S. 157 , 56 S.Ct. 391 , 80 L.Ed. 555 (1936)).
cited Cited as authority (rule) Grand Jury Subpoenas Dated December 7 & 8, Issued to Stover v. United States
10th Cir. · 1994 · confidence medium
United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992), cert. denied, - U.S. -, 115 S.Ct. 273 , 130 L.Ed.2d 190 (1994).
discussed Cited as authority (rule) Nos. 94-2032, 94-2033
10th Cir. · 1994 · confidence medium
United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992), cert. denied, --- U.S. ----, 115 S.Ct. 273 , 130 L.Ed.2d 190 (1994). 19 The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." 3 The Supreme Court has stated that "[t]he essence of this basic constitutional principle is 'the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' " Estelle v. Smith, 451 …
discussed Cited as authority (rule) United States v. Vernon Eugene Baker (2×)
10th Cir. · 1994 · confidence medium
“All reasonable inferences and credibility choices must be made in favor of the jury’s conclusions.” United States v. Thody, 978 F.2d 625, 630 (10th Cir.1992); see also United States v. Vigil, 743 F.2d 751, 753 (10th Cir.) (“[We are] bound by the rule that resolution of conflicting evidence is exclusively within the discretion of the jury, as the trier of fact, and its verdict must be given added weight when the opportunity to hear and observe the witnesses is considered.”), cert. denied, 469 U.S. 1090 , 105 S.Ct. 600 , 83 L.Ed.2d 709 (1984).
discussed Cited as authority (rule) United States v. John Jacob Sanchez
10th Cir. · 1994 · confidence medium
While we must review the district court’s underlying factual findings, if any were made, under the clearly erroneous standard, United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992), the ultimate question of whether trial and pretrial identification evidence infringed due process rights is reviewed de novo.
cited Cited as authority (rule) United States v. Virginia Lee Ternes
10th Cir. · 1993 · confidence medium
Fed.R.Crim.P. 52(b); United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992).
cited Cited as authority (rule) United States v. Johnson
10th Cir. · 1993 · confidence medium
“Evidence is sufficient if a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Thody, 978 F.2d 625, 630 (10th Cir.1992).
cited Cited as authority (rule) ca10 1993
10th Cir. · 1993 · confidence medium
"Evidence is sufficient if a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Thody, 978 F.2d 625, 630 (10th Cir.1992).
cited Cited as authority (rule) United States v. Tony Gorrion
10th Cir. · 1993 · confidence medium
United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Charles Edward McIntyre (2×)
10th Cir. · 1993 · confidence medium
R.Evid. 103(a)(1), (d); United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992). 11 The owner of the Magic Carpet Motel testified that the log was kept in the regular course of business. .
discussed Cited as authority (rule) United States v. Catherine Gibson Pierce
10th Cir. · 1993 · confidence medium
Fed.R.Crim.P. 52(b); United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992). 9 The government argues that the question was not intended to imply a "bad act" on the part of defendant, but was merely designed to give a complete picture of defendant's check-cashing activities at DAVC.
discussed Cited "see" Operating Engineers Local 3 v. Marathon Petroleum Company Lp
9th Cir. · 2024 · signal: see · confidence high
See International Longshore and Warehouse Union v. NLRB, 978 F.3d 625, 641 (9th Cir. 2020) (stating that when a bargaining agreement is unambiguous, “the parties’ negotiations . . . bear no relevance to its meaning”). 3.
cited Cited "see" United States v. Cruz
10th Cir. · 2006 · signal: see · confidence high
See United States v. Thody, 978 F.2d 625, 631 (10th Cir.1992).
discussed Cited "see" United States v. Craig Paulinus Clay (2×)
11th Cir. · 2004 · signal: see · confidence high
See United States v. Thody, 978 F.2d 625, 630-31 (10th Cir.1992) (no plain error for hearsay argument raised first time on appeal by admitting a firearm with manufacturer’s “Made in Spain” inscription to prove gun’s place of origin for purpose of demonstrat ing that weapon traveled in interstate commerce).
cited Cited "see" United States v. Fria Vazquez Del Mercado
10th Cir. · 2000 · signal: see · confidence high
See United States v. Thody, 978 F.2d 625, 628 (10th Cir.1992).
UNITED STATES of America, Plaintiff-Appellee,
v.
Walter Eliyah THODY, Also Known as Ralph Owen Baker, Defendants Appellant
92-7013.
Court of Appeals for the Tenth Circuit.
Oct 30, 1992.
978 F.2d 625
Mike Kelly of Kelly, Potts & McClure, Muskogee, Okl., for defendant-appellant., John Raley, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.
Seymour, Anderson, Baldock.
Cited by 70 opinions  |  Published
3 passages pin-cited by 4 cases
Pinpoint authority: #36,748 of 633,719
Citer courts: Fourth Circuit (2) · D. Alaska (1) · Second Circuit (1)
[*627] STEPHEN H. ANDERSON, Circuit Judge.

Walter Thody appeals his conviction, after a jury trial, on two counts of bank robbery in violation of 18 U.S.C. § 2113(a), one count of possession of a firearm moved interstate after a felony conviction in violation of 18 U.S.C. § 922(g) and § 924(a)(2), two counts of use of a firearm during commission of a crime in violation of 18 U.S.C. § 924(c)(1), and one count of conspiracy in violation of 18 U.S.C. § 371.

Thody contends that: (1) there was insufficient evidence to support his conviction on one of the counts charging use of a firearm; (2) his Fifth Amendment right to due process was violated when the court allowed certain witnesses to identify him at trial when those witnesses had previously identified him in a lineup that the parties concede was unconstitutional; and (3) there was insufficient evidence that the gun found in his possession had been moved in interstate commerce. We affirm.

I. BACKGROUND

On July 12, 1991, Cimarron Federal Savings Association in Muskogee, Oklahoma, was robbed of more than $50,000. Two men entered the building, one carrying a briefcase and the other holding an earpiece to his ear. The man (identified later as Thody) with the briefcase approached a teller, Doris Harshfield, opened the briefcase and revealed a police scanner. He then informed Harshfield that he was robbing Cimarron Federal and instructed her not to call the police because his companion would be monitoring the scanner. He showed Harshfield a gun tucked into his waistband, and informed her that he would use it should the scanner detect that an alarm had been activated. During the robbery both Harshfield and Stacie Dillard, another Cimarron Federal employee, complied with the robbers’ demands. Harsh-field and Dillard testified that they had unobstructed views of the robbers, and were in close contact with them for several minutes. Dillard also testified that she had been trained to remember the robbers’ appearances. A third employee, Hadee Louise Woods, also observed the robbery and was able to observe the robbers at close enough range to give a description of their facial features and clothing.

On August 29, 1991, Cimarron Federal was again robbed by two men. They proceeded in the same manner as before, demanding money and using a police scanner. Harshfield and Woods recognized the two men from the prior robbery. Harshfield exclaimed “It’s him!” when she saw one of the two men approaching her teller window. On this occasion Woods was the employee that complied with the robbers’ demands and was in close enough proximity to them to give a detailed description of their facial features. One of the men showed Woods a police scanner. His only instruction to Woods when he showed her the scanner was, “This is a police scanner,” to which she responded, “I know.” Then he said, “Now remember, no bait money or dye packed money.” Úpon receiving back the briefcase filled with money; the same man said, “Now, remember, don’t pull any alarm for five minutes.” Similar instructions had been given to Harshfield during the July robbery. Neither man displayed a gun or otherwise indicated that he was armed.

Two other employees, Shelli Jiles and Eileen Stinson, also had clear views of the robbers from about 30 feet away. Jiles and Stinson noted that an “old blue Cutlass” with Texas tags was parked outside Cimarron Federal, and wrote down its description and license number. Woods and Harshfield also noticed the same car during the second robbery, and Woods saw the men get into it. Harshfield wrote down its license number. Harshfield’s and Woods’ description of the car corroborated that of Jiles and Stinson.

The robbers departed with $26,764.00. Immediately thereafter, Cimarron Federal employees called the police, reported the robbery and gave a description of the two men and the blue Cutlass along with its license number. The police dispatcher broadcast the descriptions. Several minutes later, Muskogee Police Officer Marion Bolding saw the car parked in a shopping[*628] center parking lot and also noticed two men that matched the description of the robbers walking south of the shopping center. Officer Bolding approached the men in his police car, stopped the car and told the men that he needed to talk to them. The two men ran from Officer Bolding. The officer saw one of the men, whom he later identified as Thody, pull a gun from his waistband. He then saw the two men accost a woman in the parking lot, force her out of her car and escape in the car. A high speed chase of 15-20 minutes ensued, during which the driver fired shots at the police. The chase ended only when an officer rammed the escape vehicle with his police car.

Thody and McIntosh exited the vehicle and were arrested. Two nine millimeter pistols were found in the car, a Browning on the driver’s side and a Llama on the passenger side. The Browning was chamber loaded with a full clip. The Llama was found along with a clip of bullets, and was cocked and off safety. McIntosh was identified as the driver of the car; Thody was identified as the passenger. When arrested, Thody had two $500.00 bundles of $10.00 bills sticking out of his pocket. The following items were also retrieved from the car: a tearaway shirt, a clip-on tie, a briefcase containing $25,000, two wigs and a portable police scanner with an earplug.

On September 6, 1991, before Thody was charged by federal authorities but after he was arraigned on state charges, agents of the Federal Bureau of Investigation, along with state law enforcement officials, conducted a police lineup at the Muskogee City/Federal Jail. Three of the employees of Cimarron Federal — Harshfield, Woods and Dillard — were present at the lineup. Although an attorney for Thody had already been appointed, he was not notified of the lineup, and consequently was not present. Furthermore, Thody was the only member of the lineup with facial hair.

At the lineup Dillard, Harshfield, and Wood all identified Thody as a participant in both robberies.

Before trial, Thody moved to suppress the lineup identifications and all other identifications made by the witnesses present at the lineup. The district court concluded that the lineup identifications themselves were constitutionally impermissible and should be suppressed, but that subsequent identification testimony by Cimarron Federal employees Harshfield, Woods, and Dillard would nevertheless be admissible. At trial Thody was identified by those individuals as one of the men who robbed Cimar-ron Federal.

II. DISCUSSION

A. Admissibility of Identification Testimony.

Thody contends that in-court identifications of him by Harshfield, Woods, and Dillard violated due process because that testimony was based on seeing him in an impermissibly suggestive lineup. See United States v. Wade, 388 U.S. 218, 240-41, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149 (1967) (in-court testimony based on a constitutionally tainted lineup is inadmissible). The district court found, and the government does not dispute the fact,.that the lineup at which Harshfield, Woods, and Dillard saw and identified Thody was improperly conducted. [1] The court further found, however, that the improper lineup would not affect the independent reliability of in-court testimony by the witnesses, identifying Thody as one of the men who robbed Cimarron Federal.

The ultimate conclusion of whether a defendant’s Fifth Amendment due process rights have been violated is subject to de novo review. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982); see also United States [*629] v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991), cert. denied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); United States v. Buchanan, 891 F.2d 1436, 1440 (10th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Archuleta v. Kerby, 864 F.2d 709, 710-11 (10th Cir.), cert. denied, 490 U.S. 1084, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989); United States v. Jarrad, 754 F.2d 1451, 1455 n. 2 (9th Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). The “dearly erroneous” standard applies with respect to the trial court’s factual findings “even when those findings relate to a constitutional issue.” Hernandez v. New York State, — U.S. -, 111 S.Ct. 1859, 1870, 114 L.Ed.2d 395 (1991); United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir. 1986); see United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989); Archuleta, 864 F.2d at 711.

The mere fact that a lineup is unnecessarily suggestive is not enough to forbid admission of in-court identifications made by the lineup witnesses. The suggestiveness of the lineup must create a very substantial likelihood of irreparable misidentification; in short, the tainted lineup must so affect the witnesses’ perceptions as to render their subsequent in-court testimony unreliable. “[Reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Archuleta, 864 F.2d at 711; United States v. Williams, 605 F.2d 495, 498 (10th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 189 (1979).

One must assess the “totality of the circumstances” in order to determine whether the suggestive lineup created a substantial likelihood of irreparable misidentification and thus violated due process. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Williams, 605 F.2d at 498. The following factors, among others, are relevant in assessing whether the identification testimony is reliable despite the witnesses’ exposure to the person identified during an improper lineup:

(1) The opportunity of the witnesses to view the criminal at the time of the crime;

(2) The witnesses’ degree of attention;

(3) The accuracy of the witnesses’ prior description of the criminal;

(4) The level of certainty demonstrated by the witnesses at the confrontation; and

(5) The length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382; Archuleta, 864 F.2d at 711; United States v. Williams, 605 F.2d at 498.

Applying these factors, we are satisfied that the identifications offered by Harshfield, Woods, and Dillard were sufficiently independent of the lineup to be reliable; that is, the suggestive lineup did not create a very substantial likelihood of irreparable misidentification. Each witness had an adequate opportunity to observe Thody closely during the two robberies. All three witnesses testified at the suppression hearing that at least once they were within a few feet of Thody, and that they were able to observe McIntosh and him for several minutes. Woods and Harshfield were within arm’s reach of Thody while complying with his instructions. The light was good, and there is no question that the attention of these three employees was riveted on Thody and his companion. Dillard testified that she had been trained to remember the descriptions of robbers. When the second robbery took place Harshfield immediately recognized Thody from the July 12 robbery, exclaiming to Woods, “It’s him!” The descriptions of the robbers given by Harshfield, Woods, and Dillard after the robberies also corroborated one another to the degree that descriptions of subtleties in nose size, presence or lack of facial hair, and hair color corresponded significantly.

The witnesses were unequivocal, in their testimony, both at trial and at the suppression hearing. Despite attempts by defense counsel to unearth inconsistencies, no significant inconsistenciés materialized. Also, only one week separated the confrontation from the robbery.

Accordingly, we conclude that the trial court did not err in finding the witnesses’[*630] testimony to be independently reliable, and that the admission of the challenged testimony did not violate Thody’s constitutional rights.

B. Sufficiency of the Evidence: Use of a Firearm.

Thody was convicted on two counts (one for each robbery) of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(e)(1). The statute provides in relevant part: “Whoever, during and in relation to any crime of violence [2] ... uses or carries a firearm, shall, in addition to the punishment provided for such crime ..., be sentenced to imprisonment for five years____” Id. Mere possession of a gun during' the commission of such a crime constitutes use. The gun need not be displayed. United States v. McKinnell, 888 F.2d 669, 674-75 (10th Cir.1989); see United States v. Moore, 580 F.2d 360, 362 (9th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978).

Thody contends that as to the August 29, 1991, robbery the evidence was insufficient to support a guilty verdict on the section 924(c)(1) count because neither he nor his companion displayed or referred to a gun while they were inside the building.

Evidence is sufficient if a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Le-vario, 877 F.2d 1483, 1485 (10th Cir.1989). The evidence on appeal is examined in a light most favorable to the government. United States v. Alonso, 790 F.2d 1489, 1492 (10th Cir.1986). All reasonable inferences and credibility choices must be made in favor of the jury’s conclusions. United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982). The evidence need not exclude every reasonable hypothesis of innocence so long as the evidence permits a conclusion of guilt beyond, a reasonable doubt. The trier of fact is free to choose among various reasonable constructions of the evidence. United States v. Edmonson, 962 F.2d 1535, 1548 (10th Cir.1992).

Applying those standards, we conclude that there was sufficient evidence from which the jury could rationally infer that Thody was armed while robbing Cimarron Federal on August 29, 1991. Testimony established that Thody displayed a pistol, tucked in the waistband of his trousers, during the July robbery. Furthermore, the two robbers’ modus operandi for the July and August robberies was essentially identical: police scanner, disguises, instructions to employees, and actions while inside the institution.

Minutes after the August robbery Thody pulled a pistol from his waistband when accosted by Officer Bolding, shots were fired during the ensuing chase, and pistols were recovered by the police at its conclusion. The woman whose car was commandeered at gun point by Thody and McIntosh testified that there were no pistols in her car before it was taken. Thus, it was an established fact that, immediately following the August 29 robbery, both Thody and McIntosh had pistols on them, along with other “tools of the trade” used in the robbery: the police scanner and disguises. They also had the stolen cash. While Tho-dy essentially argues that he and McIntosh robbed the institution and then armed themselves almost1 immediately after leaving the scene of the robbery, the jury could rationally infer from the evidence that Tho-dy had his pistol with him the entire time. Accordingly, the evidence was sufficient to support Thody’s conviction on the section 924(c)(1) count.

C. Admission of the Gun as Evidence of Interstate Movement.

Thody argues that the Llama nine millimeter pistol found on the passenger side of the getaway car was improperly admitted as proof that he used a weapon that had travelled in interstate commerce, in violation of 18 U.S.C. § 922(g). The government offers no other evidence to prove that the weapon had moved interstate, relying solely on the manufacturer’s “Made in Spain” marking on the gun itself. Thody contends that the stamp “Made in[*631] Spain” found on the butt of the gun is hearsay, and was thus inadmissible to prove the gun’s place of origin. However, he did not object to the admission of the weapon at the time it was offered as evidence. Rather, he raised the issue later in the trial as part of his Fed.R.Crim.P. 29 motion for a judgment of acquittal.

When an objection is not timely made, appellate review of the admissibility of the evidence is governed by the “plain error” standard. United States v. Devons, 764 F.2d 1349, 1353 (10th Cir.1985). A plain error is an error that is “ ‘obvious, or ... seriously affect[s] the fairness, integrity or public reputation of judicial proceedings ____’” Id. (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). It is “ ‘error so “plain” the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.’ ” Id. (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)); see United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.1991) (the plain error rule is to be used only in those circumstances in which a miscarriage of justice would result); United States v. Lonedog, 929 F.2d 568, 570 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991).

There was no such error here. Furthermore, the manufacturer’s imprint in the gun is not hearsay. It is technically not an assertion by a declarant as contemplated by the Rule. For the foregoing reasons, the judgment of conviction is AFFIRMED. The mandate shall issue forthwith.

1

. There is some dispute between the parties as to whether the lineup violated Thody’s rights on Fifth Amendment due process (unduly suggestive lineup) or Sixth Amendment (absence of counsel) grounds, and whether the plain error standard of review applies. Our analysis proceeds on the Fifth Amendment ground advanced by Thody and addressed by the district court. However, our disposition of the issue would be the same regardless of the standard employed or the basis for the tainted lineup.

2

. Bank robbery is a crime of violence. 18 U.S.C. § 924(c)(3).