U.S. v. Jaeger

• Decision Date: 04 April 2003
• Docket Number: No. 02-00550 ACK.,02-00550 ACK.
• Citation: 298 F.Supp.2d 1003
• Parties: UNITED STATES of America, Plaintiff, v. Paulo T. JAEGER, Defendant.
• Court: U.S. District Court — District of Hawaii

298 F.Supp.2d 1003

UNITED STATES of America, Plaintiff, v. Paulo T. JAEGER, Defendant.

No. 02-00550 ACK.

United States District Court, D. Hawai`i.

April 4, 2003.

COPYRIGHT MATERIAL OMITTED

Michael A. Weight, Shanlyn A.S. Park, Office of the Federal Public Defenders, Honolulu, HI, Georgia K. McMillen, Wailuku, HI, Arthur E. Ross, Law Office of Arthur Ross, Honolulu, HI, for Paulo T. Jaeger (1), defendant.

Loretta A. Sheehan, Office of the United States Attorney, Honolulu, HI, for U.S. Attorneys.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION IN LIMINE TO EXCLUDE 404(b) EVIDENCE

KAY, District Judge.

This matter comes before the Court on Defendant Paulo T. Jaeger's ("Defendant" or "Jaeger") Motion in Limine to Exclude 404(b) Evidence, filed March 17, 2003, ("Defendant's Motion in Limine"). Jaeger asks the Court (1) to exclude evidence relating to his prior criminal record and prior bad acts; (2) to preclude or limit in-court identification testimony; and (3) to prevent the use of a "mug shot" or other photograph of Jaeger at trial. (Defendant's Motion in Limine at 1-2). Plaintiff the United States of America ("Government") opposes the motion in part. (Government's Memorandum in Response to Jaeger's Motion in Limine, filed March 19, 2003, at 3, 5-6 ("Government's Response")).¹ For the reasons stated herein, the Court GRANTS in part and DENIES in part Defendant's Motion in Limine.

BACKGROUND

Jaeger is charged with two counts of knowingly and intentionally distributing a quantity of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). According the Government, undercover officers with the Honolulu Police Department ("HPD") purchased a substance commonly known as "crack cocaine" from Jaeger on March 25, 2002 ("March Sale") and April 10, 2002. ("April Sale"). (Government's Response, at 2-3).

DISCUSSION

I. Criminal History and Prior Bad Acts

Jaeger argues that evidence of his lengthy criminal record and other bad acts is inadmissible under Rules 404(b) and 609 of the Federal Rules of Evidence ("FRE"). (Defendant's Motion in Limine, at 3-5). The Government rightly concedes both points. (Government's Response, at 3, 5-6). Accordingly, evidence of Jaeger's crimes, wrongs and other bad acts may not be introduced pursuant to Rule 404(b), and Jaeger's criminal record may not be used for impeachment purposes under Rule 609.

II. Identification Issues

A. In-Court Identification.

Noting the inherent suggestiveness of in-court identifications, Jaeger asks the Court to exclude such testimony or, alternatively, to establish procedural safeguards to militate against possible prejudice.² Such precautions are necessary, Jaeger claims, because he was not the subject of a live or photo line-up and nearly one year has passed since the last alleged sale of crack cocaine to undercover HPD officers. (Defendant's Motion in Limine, at 6).

The Government does not directly respond to Jaeger's arguments but suggests that "[i]f the defense raises the issue of misidentification, the government is entitled to rebut with instances of prior police contact with [Jaeger]." (Government's Response, at 3). Although this point is not entirely relevant to the present issue, the Government is nevertheless correct. It is proper "to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness'[s] mind, he recognized and declared the present accused to be the person." 4 Wigmore, Evidence § 1130 (Chadbourn rev.1972); see also Fed.R.Evid. 801(d)(1). So, too, the Government may rebut a defense of misidentification with evidence that the witness was familiar with and able to recognize the defendant. United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir.1993); see also United States v. Easter, 66 F.3d 1018, 1021 (9th Cir.1995); United States v. Sanchez, 988 F.2d 1384, 1393-94 (5th Cir.1993). Thus, evidence offered to rebut a defense of misidentification presents no problem, provided, of course, that such evidence is otherwise relevant and not unfairly prejudicial.³ Fagan, 996 F.2d at 1015.

The foregoing discussion is admittedly abstract as Jaeger does not challenge the admission of evidence tending to rebut a defense of misidentification.⁴ Jaeger's Motion in Limine is instead focused on excluding in-court identification testimony. It is well settled, however, that "[w]hen a witness identifies the defendant from the witness's observations at the time of the crime, this testimony [is] ... admissible unless tainted by the prior suggestive identification process." United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986); accord United States v. Burdeau, 168 F.3d 352, 358 (9th Cir.1999).

Although courts have sometimes found fault with in-court identification testimony, Burdeau, 168 F.3d at 358, it remains that defendants do not have a constitutional right to "an in-court line-up or other particular methods of lessening the 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); United States v. Brown, 699 F.2d 585, 593 (2d Cir.1983). The decision to allow an in-court identification is therefore left "to the trial court's sound discretion." Brown, 699 F.2d at 593; accord United States v. Hernandez, No. 01-50118, 35 Fed.Appx. 300, 305, 2002 U.S.App. Lexis 2332, at *5-6 (9th Cir. Feb. 7, 2002) (pursuant to Rule 36-3(a) of the Ninth Circuit Rules, the Court is not relying on this unpublished opinion for authority); Domina, 784 F.2d at 1369. That discretion is abused only when the in-court identification testimony given is "so `unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of due process of law ....'" Domina, 784 F.2d at 1369 (quoting United States v. Williams, 436 F.2d 1166, 1168-69 (9th Cir.1970)); see also Burdeau, 168 F.3d at 358; Dixon, 201 F.3d at 1229.

This is not such a case. According to the Government, HPD officers purchased crack cocaine from Jaeger on two nonconsecutive occasions. (Government's Response, at 2-3). The Government further asserts that Jaeger was known to one of the HPD officers before the alleged transaction and described and identified by the other HPD officer immediately following a similar sale. (Governments's Response, at 2-3). On these facts, there is neither a danger that the identification of Jaeger as the perpetrator was unduly suggestive nor a substantial likelihood of misidentification at trial.⁵ See Dixon, 201 F.3d at 1229-30; Rodriguez, 63 F.3d at 557-58; Domina, 784 F.2d at 1369.

Furthermore, even an impermissibly suggestive pretrial identification does not automatically require exclusion of in-court identification testimony if the totality of the circumstances shows the in-court identification to be reliable. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Hernandez, 35 Fed.Appx. at 303, 2002 U.S.App. Lexis 2332, at *5; United States v. Hill, 967 F.2d 226, 230-33 (6th Cir.1992). The reliability of in-court identification testimony is determined by "(1) the witness' opportunity to view the defendant at the time of the incident; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the defendant; (4) the level of certainty demonstrated by the witness at the time of the identification procedure; and (5) the length of time between the incident and the identification." Hernandez, 35 Fed.Appx. at 303, 2002 U.S.App. Lexis 2332, at *5; accord Neil, 409 U.S. at 199-200, 93 S.Ct. 375.

Applying these factors to the instant case, the Court is confident that the proffered in-court identification testimony is reliable. Significantly, the HPD officers who allegedly purchased crack cocaine from Jaeger had an opportunity during the sales to observe him for a relatively long period of time without distraction and, therefore, the first and second Neil factors strongly favor allowing in-court identification testimony. See Neil, 409 U.S. at 201, 93 S.Ct. 375; Hernandez, 35 Fed.Appx. at 303, 2002 U.S.App. Lexis 2332, at *6; Sanchez, 988 F.2d at 1389-90; United States v. O'Leary, 827 F.2d 52, 59-60 (7th Cir. 1987).

The third factor also supports the proffered in-court identification testimony because the officer involved in the April Sale was allegedly familiar with Jaeger from prior dealings with the establishment. (Government's Response, at 2). Accordingly, little doubt can be cast on the accuracy of this officer's identification. See O'Leary, 827 F.2d at 60. Furthermore, the officer involved in the March Sale purportedly described Jaeger to the surveillance team immediately after the transaction. (Government's Response, at 2). The team then entered the establishment, identified Jaeger and brought him to the window, which allowed the undercover officer to drive past and positively identify Jaeger as the individual who sold him crack cocaine just moments before. Id.

The fourth factor is neutral because it cannot be evaluated until the identification testimony is given and the witnesses are cross-examined, at which point the jury will be positioned to weigh the credibility of the same.

Finally, although the length of time between the incidents and the in-court identification is not insubstantial, the HPD officers were either familiar with Jaeger before the sales or described and identified him a short while after. There is, therefore, no reason to suspect that the officers' memories had faded before they determined Jaeger to be the perpetrator. See Neil, 409 U.S. at 201, 93 S.Ct. 375. In any event, courts have allowed in-court identification testimony after far more time had passed between the incident and the identification. See Patterson v. Stewart, No. 00-15034, 9 Fed.Appx. 770, 772, 2001 U.S.App. Lexis 11420, at...