201 F.3d 1223 (9th Cir. 2000), 98-50601, United States v. Dixon

Docket Nº98-50601
Citation201 F.3d 1223
Party NameUNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRILL DIXON, Defendant-Appellant.
Case DateJanuary 21, 2000
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1223

201 F.3d 1223 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TERRILL DIXON, Defendant-Appellant.

No. 98-50601

United States Court of Appeals, Ninth Circuit

January 21, 2000

Argued and Submitted November 2, 1999

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[Copyrighted Material Omitted]

Page 1225

COUNSEL: Sonya A. Clark, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Julie F. Puleo, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Leland C. Nielsen, District Judge, Presiding D.C. No. CR-98-00273-LCN

Before: Myron H. Bright, 1 Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Terrill Dixon ("Dixon") appeals his jury convictions and sentence for bringing an illegal alien into the United States in violation of 8 U.S.C. S 1324(a)(2)(B)(ii), (iii). Dixon challenges his convictions on the ground that the district court erred by denying his motion to exclude in-court identification testimony, refusing his request for an in-court lineup, and improperly instructing the jury. Dixon also challenges his sentence arguing that the district court improperly enhanced his offense level pursuant to sections 3C1.2 and 2L1.1(b)(5) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742, and we AFFIRM in part, REVERSE in part, and REMAND to the district court.

Page 1226

I

Factual Background

On January 16, 1998, at approximately 11:05 p.m., a dark red Ford Escort ("Escort") driven by an African-American male entered the United States from Mexico at the San Ysidro, California port of entry. At the port of entry, Customs Inspector Sherman Lee ("Lee") questioned the driver of the Escort. According to Lee's testimony, the driver told Lee that he did not have anything to declare. In addition, the driver informed Lee that he was returning to the United States to obtain bail money for his brother, who had been arrested in Mexico. Lee then asked the driver for his license and registration. In response, the driver claimed that his license had been stolen and, in lieu of registration, the driver presented Lee with a bill of sale, explaining that he recently had purchased the car.

The driver's responses aroused Lee's suspicions and, as a result, Lee requested that the driver give him the keys so that Lee could further inspect the car. Rather than comply, however, the driver gunned the car's engine and sped away. Lee shouted for the driver to stop and yelled "port runner" to alert others that the Escort had run the port.

Officer James Coleman of the San Diego Police Department ("SDPD"), who was on duty at the San Ysidro port of entry, was positioned approximately fifty to seventy-five feet away from Lee's inspection post. Coleman testified that he heard Lee yelling "port runner," and that he observed the driver of the Escort as he sped away from the port of entry. According to Coleman, the Escort crashed through a chain link barrier and then drove northbound in the southbound lanes of Interstate-5.

Driving in the northbound lanes of Interstate-5, Coleman attempted to pursue the Escort; however, he lost sight of the car. Coleman testified that, approximately two minutes later, he heard a radio transmission reporting an automobile accident at the nearby intersection of Camino de la Plaza and Willow streets. In response, Coleman drove to the scene of the accident, where he observed the Escort. At that time, the Escort was unoccupied, the driver's door was open, and the engine was running. In addition, Coleman testified that the Escort had front-end damage that was consistent with having crashed through a chain link barrier. Once he arrived at the scene, Coleman turned off the Escort's engine and opened its hatchback, where he discovered two Mexican citizens, Francisco Alejandre-Gutierrez ("Alejandre-Gutierrez") and Ruben Nava-Moreno ("Nava-Moreno").

Although Coleman was the officer who discovered Alejandre-Gutierrez and Nava-Moreno, Border Patrol Agent Herbert Moore ("Moore"), not Coleman, was the first person to arrive at the scene of the accident. Moore, who was on duty near the San Ysidro port of entry, testified that he heard a radio transmission reporting that a dark or maroon Ford had run the border. Shortly thereafter, Moore observed a car matching that description exit the freeway the wrong way -down an on-ramp. As Moore followed the car, he radioed other border patrol agents to inform them that the car was traveling west on Camino de la Plaza. Because he was being cautious and not following closely behind, Moore briefly lost sight of the car before coming upon it stopped in the middle of the intersection at Camino de la Plaza and Willow streets, facing the wrong direction.

Moore testified that when he came upon the car, it appeared to be unoccupied, the driver's door was open, and there was a person standing directly behind the car, whom Moore described as an African-American male, approximately six feet tall, wearing a white shirt and dark shorts. At that point, Moore turned on his emergency lights and the individual started to run from the scene of the accident. Although Moore attempted to pursue the individual, he lost sight of him as the individual ran through an apartment complex. Thus, Moore radioed other border patrol agents

Page 1227

to inform them which direction the individual was running. As Moore continued to search the apartments, Border Patrol Agent Steven Thurman ("Thurman") approached Moore and asked him where he thought the individual might have run. According to Moore's testimony, he told Thurman that, considering the direction in which the individual ran, he probably was over by the KMart.

Like Moore, Thurman was on duty near the San Ysidro port of entry when he learned that a dark colored vehicle had run the border. Thurman then heard Moore's first radio transmission regarding the car's location. In response, Thurman drove to the intersection of Camino de la Plaza and Willow streets, where he observed the maroon Escort and conferred with Moore. Thurman testified that Moore told him that an individual, described as an African-American male, approximately six feet tall, wearing a white t-shirt and jeans, had fled from the scene and had run through the apartment complex.

After conferring with Moore, Thurman drove to the K-Mart shopping center in search of the individual. Shortly thereafter, Thurman spotted a person behind a Laundromat located directly across from the K-Mart. After radioing the other border patrol agents, Thurman got out of his car, pulled his weapon, and ordered the individual to the ground. The individual, whom Thurman testified was an African-American male, refused to comply with Thurman's order and fled. Thurman chased the individual over fences, through a field, and down the side of a Interstate-805 before finally apprehending him. Once Thurman apprehended the individual, who ultimately was identified as Terrill Dixon, two SDPD officers arrived at the scene. The officers questioned Dixon, took him into custody, and brought him directly back to the San Ysidro port of entry, where the incident had begun.

At the port of entry, Lee and Moore identified Dixon as the driver of the Escort who had run the border earlier that evening. Lee testified that he was in the security office filling out a report when he heard someone say "We caught him." Lee then turned around, saw Dixon in handcuffs, and identified him as the port runner. Moore testified that he observed Dixon in a holding cell, along with others who were being detained. Moore then identified Dixon as the individual who was standing behind the car at the intersection of Camino de la Plaza and Willow streets. Finally, Thurman testified that there was not a "technical" identification procedure conducted back at the port of entry. Instead, Thurman explained, there was "just a consensus that [Dixon] was the guy."

II

Procedural Background

Dixon was charged with two violations of 8 U.S.C. S 1324(a)(2)(B)(ii)2 and two violations of 8 U.S.C. S 1324(a) (2)(B)(iii)3 for bringing an illegal alien into the United States. Prior to trial, Dixon's counsel made a motion to exclude any in-court identification of her client, or, in the alternative, for an in-court lineup, arguing that such a lineup was necessary because no formal identification procedure had ever been conducted and that any in-court identification of the defendant might itself be unduly suggestive.

In the event that the motion for an in-court lineup was denied, counsel urged that "any purported identification witnesses should be examined outside the

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presence of the jury and outside the presence of Mr. Dixon" to see if the witness had "an adequate independent recollection." This nonspecific request for an examination of the witness did not name any witness, nor did it give any cognizable reason for the requested examination other than that no witness had ever seen Mr. Dixon in a lineup. Counsel's motion and supporting statements of facts and supporting memorandum contained no allegations of impermissibly suggestive pretrial identification procedures, nor was the motion supported by any declarations or affidavits. The motion dismissed as "impractical" any alternative protective procedure, such as having the defendant sit somewhere in the courtroom other than the defense table. At the motions hearing conducted in open court immediately before the trial, the only factor counsel added on behalf of her motion was that "it's very easy for a witness to take the stand and just point to defense table to point out the defendant." The district court denied Dixon's motion and set the trial date for March 31, 1998.

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93 practice notes
  • 651 F.Supp.2d 1191 (D.Hawai
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 20 Agosto 2009
    ...under color of law-is very different than a defendant's flight, which may be for a multitude of reasons. See United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir.2000) (discussing facts that may support inference from flight to consciousness of...
  • 298 F.Supp.2d 1003 (D.Hawai'i 2003), 02-00550, United States v. Jaeger
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 4 Abril 2003
    ...suggestiveness of in-court identification, such as seating the defendant elsewhere in the room." Id.; accord United States v. Dixon, 201 F.3d 1223, 1229 (9th Cir.2000); Burdeau, 168 F.3d at 358; Rodriguez v. Peters, 63 F.3d 546, 556 (7th Cir.1995) Page 1007 United States v. Brown, 699 ......
  • United States v. Smith, 021214 NVDC, 2:11-cr-58-JAD-CWH
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 12 Febrero 2014
    ...the evidence is not necessarily indicative of guilt, and that there could be innocent reasons for the flight. See United States v. Dixon, 201 F.3d 1223, 1232-33 (9th Cir. Judge Hoffman correctly noted that, in the Ninth Circuit, the prosecution need not shows that the defendant knew he was ......
  • State v. Slater, 052021 WASC, 98795-5
    • United States
    • Washington United States State Supreme Court of Washington
    • 20 Mayo 2021
    ...crime charged. Id. (citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)); see also United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000) (using the same test). In Bruton, the defendants were stopped by a store detective and accused of shopliftin......
  • Request a trial to view additional results
93 cases
  • 651 F.Supp.2d 1191 (D.Hawai
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 20 Agosto 2009
    ...under color of law-is very different than a defendant's flight, which may be for a multitude of reasons. See United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir.2000) (discussing facts that may support inference from flight to consciousness of...
  • 298 F.Supp.2d 1003 (D.Hawai'i 2003), 02-00550, United States v. Jaeger
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 4 Abril 2003
    ...suggestiveness of in-court identification, such as seating the defendant elsewhere in the room." Id.; accord United States v. Dixon, 201 F.3d 1223, 1229 (9th Cir.2000); Burdeau, 168 F.3d at 358; Rodriguez v. Peters, 63 F.3d 546, 556 (7th Cir.1995) Page 1007 United States v. Brown, 699 ......
  • United States v. Smith, 021214 NVDC, 2:11-cr-58-JAD-CWH
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Nevada
    • 12 Febrero 2014
    ...the evidence is not necessarily indicative of guilt, and that there could be innocent reasons for the flight. See United States v. Dixon, 201 F.3d 1223, 1232-33 (9th Cir. Judge Hoffman correctly noted that, in the Ninth Circuit, the prosecution need not shows that the defendant knew he was ......
  • State v. Slater, 052021 WASC, 98795-5
    • United States
    • Washington United States State Supreme Court of Washington
    • 20 Mayo 2021
    ...crime charged. Id. (citing United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)); see also United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000) (using the same test). In Bruton, the defendants were stopped by a store detective and accused of shopliftin......
  • Request a trial to view additional results

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