Such insubstantial differences between the defendant's photograph and the others do not in themselves create an impermissible suggestion that the defendant is the offender. See United States v. Carbajal, 956 F.2d 924, 929 (9th Cir. 1992) (array not impermissibly suggestive when defendant's photograph was only one in which individual wore wig and had bruises on face); United States v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987) (photographic array was not impermissibly suggestive when defendant's photograph was hazier than others); United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974) (photographic array in which defendant's photograph was darker and clearer was not impermissibly suggestive). The differences between Burdeau's photograph and the other five in the array in no way implied that the witnesses should identify him as the perpetrator.

¶ 9 In other jurisdictions, the decision has been left up to the discretion of the trial court. See United States v. Sambrano, 505 F.2d 284, 287 (9th Cir.1974) (applying an abuse of discretion standard to the alleged error of failing to give an eyewitness identification instruction and holding the trial court had not abused its discretion where general instructions given by the court adequately directed the jury's attention to the identification issue); Wallace v. State, 306 Ga.App. 118, 701 S.E.2d 554 (2010) (holding the trial court did not abuse its discretion in refusing the defendant's requested jury instruction on the reliability of cross-racial eyewitness identification where, by general instructions, the jury was informed that it was required to determine whether the eyewitness identification was sufficiently reliable to help satisfy the State's burden of proof and other corroborating evidence existed). ¶ 10 The final approach adopted by some jurisdictions has been to reject outright a requirement for Telfaire-like instructions.

Even where the only evidence is identification evidence, general instructions on the jury's duty to determine the credibility of the witnesses and the burden of proof are fully adequate. See United States v. Sambrano, 505 F.2d 284, 287 (9th Cir. 1974). Accordingly, the district court did not err in refusing the proposed instruction.

In sum, "there [was] no evidence . . . that was admissible at the joint trial . . . that would have been inadmissible if separate trials had been conducted." United States v. Sambrano, 505 F.2d 284, 287 (5th Cir. 1974) (citing United States v. Gentile, 495 F.2d 626, 632-33 (5th Cir. 1974)); see also United States v. McPartlin, 595 F.2d 1321, 1334 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979) (joinder did not result in exclusion or admission of evidence or making of any argument that would not have been excludable, admissible, or made in separate trial). The primary practical difference between this case and a separate trial is that, in this case, Turner remained in the courtroom as a defendant during the trial rather than being excluded, as would be nondefendant witnesses.

A mere suggestion that the accused committed the crime does not turn a lineup or a photo spread into a due process violation. United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976); United States v. Sambrano, 505 F.2d 284 (9th Cir. 1974). Rather, the suggestion must be so "unnecessary" or "impermissible" as to create a "substantial likelihood of irreparable misidentification" under the "totality of the circumstances".

United States v. Collins, 559 F.2d 561, 565 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); United States v. Masterson, 529 F.2d 30, 32 (9th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976). The instruction given here was adequate under United States v. Sambrano, 505 F.2d 284 (9th Cir. 1974). 5. Allen Charge

The jury instructions, taken together, focused the jury's attention on its duty to consider only the crimes charged in the indictment solely in the light of evidence tending to prove the necessary elements of those crimes. See United States v. Sambrano, 505 F.2d 284, 287 (9th Cir. 1974) (instructions, though not in precise language requested by counsel, sufficiently focused jury's attention on issue of identity); United States v. Fritts, 505 F.2d 168, 169 (9th Cir. 1974), cert. denied; 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975) (failure to give cautionary accomplice instruction not reversible error); United States v. Campbell, 507 F.2d 955, 958 (9th Cir. 1974) (failure to give desired instruction was not plain error in light of fair and neutral statements made by trial judge and otherwise detailed and accurate instructions). The jury was instructed to consider similar transactions in determining whether appellant acted in good faith or with intent to defraud.

The Court instructed the jury that it was its duty to determine the credibility of witnesses, and that the Government had the burden of proving each element of the crime against each defendant beyond a reasonable doubt. We agree with the Ninth Circuit in United States v. Sambrano, 505 F.2d 284 (9th Cir. 1974) that implicit within the instructions given was the question of whether or not the defendants were in fact the perpetrators of the crime. We think it inconceivable that the attention of the jury was not focused on the issue of the perpetrators' identification.

The need for a focused identification charge increases where an out of court identification was made under suggestive circumstances. See United States v. Sambrano, 505 F.2d 284, 286 (9th Cir. 1974); United States v. Fernandez, 456 F.2d 638, 642 (2d Cir. 1972). Here there was no allegation that either the photographic selection or the lineup violated the standards set forth in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966).

At the outset, the appellant is confronted with the well established rule that the giving of jury instructions on identification rests largely within the discretion of the trial judge. See, e.g., United States v. Sambrano, 505 F.2d 284, 286 (CA9 1974), cf. Trejo, supra, 501 F.2d at 140. Moreover, this court has repeatedly declined to require the use of the Telfaire instruction.