U.S. v. Bautista

• Decision Date: 06 May 1994
• Docket Number: No. 983,D,983
• Citation: 23 F.3d 726
• Parties: UNITED STATES of America, Appellee, v. Miguel BAUTISTA and Tony Rodriguez Perez, Defendants, Luis R. Minier-Contreras, Defendant-Appellant. ocket 93-1179.
• Court: U.S. Court of Appeals — Second Circuit

Page 726

23 F.3d 726

UNITED STATES of America, Appellee, v. Miguel BAUTISTA and Tony Rodriguez Perez, Defendants, Luis R. Minier-Contreras, Defendant-Appellant.

No. 983, Docket 93-1179.

United States Court of Appeals, Second Circuit.

Argued Feb. 4, 1994.

Decided May 6, 1994.

Gail Jacobs, Great Neck, NY, for defendant-appellant.

Thomas M. Finnegan, Asst. U.S. Atty., S.D. New York, New York City (Mary Jo White, U.S. Atty., and Paul G. Gardephe, Asst. U.S. Atty., of counsel), for appellee.

Before: OAKES, KEARSE and CARDAMONE, Circuit Judges.

OAKES, Senior Circuit Judge:

Luis R. Minier-Contreras appeals from a judgment of the United States District Court for the Southern District of New York, Miriam Goldman Cedarbaum, Judge, convicting him after a jury trial of the following crimes: (1) conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(C), and 846 (1988 & Supp. IV 1992); (2) possessing cocaine with intent to distribute within 1,000 feet of a school in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(C) and 18 U.S.C. Sec. 2 (1988); and (3) using a firearm in a drug trafficking crime in violation of 18 U.S.C. Secs. 2 and 924(c) (1988 & Supp. IV 1992). The district court sentenced Minier-Contreras to two concurrent 18-month sentences for the conspiracy and possession crimes and a 5-year sentence for the use of a firearm in a drug trafficking crime, to be served consecutive to the 18-month sentences. The court also sentenced Minier-Contreras to six years of supervised release following his incarceration. ¹ Minier-Contreras appeals on the grounds of (1) improperly admitted pre-trial identification testimony and (2) prosecutorial misconduct.

I. Background

The investigation leading to Minier-Contreras's arrest, trial, and conviction began when a confidential informant (the "CI") informed Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Robert Berger that the CI had purchased cocaine on several occasions in apartment 4F at 1766 Amsterdam Avenue in Manhattan. Agent Berger instructed the CI to return to the apartment to attempt to purchase cocaine on January 23, 1992. Upon returning to the apartment, one of the suspects searched the CI for weapons and then directed him to wait in line behind other "customers." After gaining admission to apartment 4F, the CI attempted to purchase cocaine. Before the transaction could be consummated, however, an alarm sounded and the suspects picked up the money and cocaine and fled into nearby apartments 4R and 5F. ²

After the CI reported this information, Agent Berger obtained a search warrant for apartments 4F, 4R, and 5F. Agent Berger then instructed the CI to return to apartment 4F and purchase cocaine on January 29, 1992. On that date, the CI purchased $30 worth of cocaine from two men in apartment 4F. After purchasing the cocaine, the CI reported that at least five men were involved in the transaction: one man patted him down on the fourth floor landing; another sat on a bannister on the fourth floor; still another stood in the doorway of the apartment holding a .38 caliber, silver-colored handgun; and two more men handled the drugs and cash inside apartment 4F. The CI described each of these men to Agent Berger.

Agent Berger instructed the CI and Officer Steven Johnson, of the New York City Housing Authority Police who was working under cover, ³ to go to the building's fourth floor and observe where people ran during the planned ATF raid. The CI and Johnson proceeded to apartment 4F. They were searched for weapons by a man on the landing just below the fourth floor. They then proceeded to the fourth floor, joining other "customers" in line. After a few minutes, the CI and Johnson signalled to Agent Berger that they were in position.

As the raid commenced, an alarm sounded inside apartment 4F. Johnson and the CI observed the "customers," who were waiting in line in the hallway, run downstairs while the suspects each ran to apartment 4R or 5F. Johnson and the CI observed Minier-Contreras run past them and throw a revolver into the building's garbage chute. ⁴ Johnson and the CI then followed the "customers" downstairs.

Agent Berger then executed the search warrants on apartments 4F, 4R, and 5F. No people were found in apartment 4F. However, the agents seized assorted narcotics paraphernalia and .477 grams of cocaine. Three men and a woman were found in apartment 4R. Four men and a woman were found in apartment 5F. All nine of these people were handcuffed and led to the common hallway. Johnson returned to the building's fourth floor and identified six of the men as having been involved in the narcotics operation. After these identifications by Johnson, all nine people were taken outside. One at a time, each person was brought to a car in which sat the CI. The CI was asked to view each to determine whether he or she was one of the people involved in the narcotics operation. The CI identified the same six men as had Johnson. Minier-Contreras was amongst those identified. The man who was not identified and the two women were immediately released. Five days later, Agent Berger presented the CI with a group of photo arrays. Again, the CI identified Minier-Contreras. The CI subsequently identified Minier-Contreras in court.

The district court conducted a pre-trial evidentiary hearing pursuant to United States v. Wade, 388 U.S. 218, 239-243, 87 S.Ct. 1926, 1939-41, 18 L.Ed.2d 1149 (1967), in which it determined that testimony concerning the pre-trial identifications was admissible. At trial, the jury heard testimony concerning the previous identifications.

Judgment was entered on March 10, 1993. Minier-Contreras filed a timely notice of appeal on March 15, 1993.

II. Discussion

A. Admissibility of Pre-Trial Identification Testimony

After conducting the pre-trial Wade hearing, the district court determined that the pre-trial identification in this case was admissible. We will reverse such a determination "only upon a showing of clear error." United States v. Simmons, 923 F.2d 934, 950 (2d Cir.), cert. denied, 500 U.S. 919, 111 S.Ct. 2018, 114 L.Ed.2d 104 (1991); United States v. DiTommaso, 817 F.2d 201, 213 (2d Cir.1987).

Under Fed.R.Evid. 801(d)(1)(C), a prior identification is generally admissible. See United States v. Owens, 484 U.S. 554, 562-63, 108 S.Ct. 838, 844, 98 L.Ed.2d 951 (1988). We will exclude a pre-trial identification only if the procedure that produced the identification is "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); see also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); United States v. Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2858, 115 L.Ed.2d 1025 (1991). That is, we will exclude a pre-trial identification only if it was both produced through an unnecessarily suggestive procedure and unreliable. Even if the procedure was unnecessarily (or impermissibly) ⁵ suggestive, therefore, a district court may still admit the evidence "if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability." Simmons, 923 F.2d at 950; see generally Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977) ("reliability is the linchpin in determining the admissibility of identification testimony").

Minier-Contreras argues that the pre-trial identification procedure was suggestive in that he was presented to the CI in handcuffs; at night; in the custody of police officers; with his face lit by flashlights; and in the presence of Johnson who, each time the CI identified a suspect, radioed to his fellow officers, "it's a hit." Minier-Contreras argues further, as he must, that the identification procedure was unnecessarily suggestive. See United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir.1991) (whether identification procedure was unnecessarily suggestive depends on (1) suggestiveness of procedure and (2) necessity of procedure). Specifically, he argues that the identification by the CI was unnecessary because the suspects had already been identified by Johnson.

We find that the presentation of the suspects to the CI immediately following the raid was not unnecessarily suggestive. As Minier-Contreras's brief points out, "[a] prompt showing of a detained suspect at the scene of arrest has a very valid function: to prevent the mistaken arrest of innocent persons." Minier-Contreras's Brief at 24. Indeed, this court has instructed law enforcement officials that where an officer has "or should have doubts whether a detained suspect is in fact the person sought, the officer must make 'immediate reasonable efforts to confirm the suspect's identity.' " United States v. Valez, 796 F.2d 24, 27 (2d Cir.1986) (quoting United States v. Glover, 725 F.2d 120, 123 (D.C.Cir.), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 157 (1984)), cert. denied, 479 U.S. 1067, 107 S.Ct. 957, 93 L.Ed.2d 1005 (1987).

In this case, presentation of the suspects to the CI for the purpose of identifying perpetrators and releasing innocent persons was necessary. The fact that Johnson had previously identified the suspects did not render subsequent identification by the CI unnecessary. Unlike Johnson, the CI had several previous opportunities to observe the suspects. Further, unlike Johnson, the CI had several opportunities to observe the suspects who were within apartment 4F. Johnson, by contrast, observed these suspects only as they ran from the apartment during the raid. Although it turned out that the CI had not seen Minier-Contreras on any of his earlier visits to apartment 4F, at the time of the raid the arresting officers could not have known with certainty that the CI had...