displayed. She didn’t testify that this individual who came in the store on four occasions and ultimately robbed her prominently displayed his teeth. So, I don’t know why the appearance of teeth would be suggestive of anything. The district court did not clearly err in ruling that the photo identification array was not unduly suggestive. A darker hue or different colored background does not “in [itself] create an impermissible suggestion that the defendant is the offender.” United States v. Burdeau, 168 F.3d 352, 358 (9th Cir.1999) (denying challenge to pretrial identification where defendant’s “picture was placed in the center of the array, was darker than the rest, and was the only one in which the eyes were closed.”); see also United States v. Mathis, 264 F.3d 321, 333 (3d Cir.2001) (<HOLDING>). Detective Kelso provided a reasonable
holding that district court did not err in holding that it was unnecessary to instruct the jury that intent to produce anticompetitive effects is an element of the offense of which defendants were convicted holding search of trunk unnecessary to protect officers or prevent defendants escape holding that slightly darker background of defendants picture did not significantly contribute to the arrays unnecessary suggestiveness holding that the prosecutors comment regarding the defendants failure to call a potential witness did not shift the burden of proof because it did not implicate the defendants fifth amendment right not to testify holding that aedpa did not codify keeney but instead significantly curtails the availability of evidentiary hearings to develop material facts