U.S. v. Dixon

• Citation: 413 F.3d 540
• Decision Date: 27 June 2005
• Docket Number: No. 04-5670.,04-5670.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Timothy DIXON, Sr., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

413 F.3d 540

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Timothy DIXON, Sr., Defendant-Appellee.

No. 04-5670.

United States Court of Appeals, Sixth Circuit.

Argued: May 31, 2005.

Decided and Filed: June 27, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: William M. Cohen, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellee. ON BRIEF: William M. Cohen, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Ronald C. Small, Caryll S. Alpert, Federal Public Defender's Office, Nashville, Tennessee, for Appellee.

Before: MARTIN and ROGERS, Circuit Judges; FORESTER, District Judge.^*

BOYCE F. MARTIN, JR., J., delivered the opinion of the court, in which FORESTER, D. J., joined. ROGERS, J. (p. 547), delivered a separate concurring opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Kenneth Timothy Dixon, Sr. is charged with attempted bank extortion in violation of 18 U.S.C. § 2113(a). Prior to trial, the district court held an evidentiary hearing on the admissibility of testimony by three prosecution witnesses: Dixon's son, Kenneth Timothy Dixon, Jr., whom we refer to as "Dixon, Jr.," and Dixon's former wives, Kathy Alexander and Penny Weems. Each witness was to testify at trial that, in their respective lay opinions, the suspect depicted in a photograph taken by a bank surveillance camera during the attempted extortion was, in fact, Dixon. The district court excluded this identification testimony, as well as testimony by Weems concerning incriminating statements that Dixon allegedly made to Weems's father. The United States appeals these evidentiary rulings.

I.

On January 15, 2002, a man entered the mail room of an AmSouth Bank carrying a FedEx box that contained an extortion note. Surveillance photographs were taken of the man and the package. Defendant Dixon eventually surfaced as a suspect in the crime. During the course of the investigation, Dixon, Jr., Alexander and Weems indicated to law enforcement officers that the individual depicted in the surveillance photograph resembled defendant Dixon. Dixon denied being the person in the photograph, but admitted it looked like him.

The district court held a pretrial hearing on the admissibility of the identification testimony of Dixon, Jr., Alexander and Weems. During the hearing, Dixon, Jr. testified that he had no doubt that the person depicted in the surveillance photograph was his father, defendant Dixon. Dixon, Jr. indicated that he saw his father around Christmas of 2001 and that he may have also seen him in January 2002. When asked whether his father tended to "change his appearance" or whether "he look[ed] the same all the time," Dixon, Jr. testified that he "[l]ooks the same to me." Upon further questioning by counsel for the United States, Dixon, Jr. indicated that he does not pay attention to his father's hair style, facial hair or weight. The district court explicitly asked Dixon, Jr., "[W]hen you were asked about ... and shown those [surveillance] photos in April of '03, did you at that time remember what your father looked like in January of '02, in terms of facial hair, weight, hair style, hair color?" J.A. 86. Dixon, Jr. answered, "No, ma'am. I just—it had looked like my dad. I just—the picture looked like my dad. I can't—I don't distinctly remember what he looked like at that time."

Kathy Alexander, one of Dixon's former wives, testified at the hearing that she was "100 percent" certain that the individual depicted in the photograph was Dixon. When asked why she was so certain, she answered, "The way that he carried himself, the shape of his face. He had on sunglasses that were familiar to me, because I purchased them for him. That's about it." Alexander indicated that she had lived on and off with Dixon from 1998 to 2001 and last saw him in October 2001, approximately three months prior to the offense. She also indicated that during the period from 1998 to 2001, Dixon had changed his "haircut, facial hair, beard, moustache, goatee." However, she stated that she had no reason to believe that Dixon had changed his appearance during the period from 2001, when she last saw him, to 2003, when she identified him in the surveillance photograph. Additionally, when asked by the district court, "Does [Dixon] look pretty much the same as he looked in the surveillance photo?," Alexander answered, "Yes. Except in the surveillance photo his hair is slicked back a little bit more, like he used gel or something."

Penny Weems, who had been married twice to Dixon and had a daughter with him, also testified at the hearing. She stated that the person depicted in the photograph "looked like" Dixon. Weems estimated that she had seen Dixon approximately twice a month in 2001 and 2002. She could not say with any certainty, however, what Dixon looked like in January 2002; she knew nothing about his hair style or facial appearance at that time. She testified that Dixon sometimes changed the way he looked by changing the length of his hair or the color of his beard.

Weems also testified about matters bearing on her potential bias against Dixon. For example, she acknowledged that she had accused Dixon of physically and mentally abusing her during their marriage and that in the past she had been angry about the abuse. Weems testified that at the time of the hearing she continued to be "disappointed" in Dixon because of the effect of his behavior on their daughter. She also indicated that in the fall of 2002 she had been "mad" at Dixon because he was not paying child support; in October 2002, she filed a petition requesting that the court find Dixon in contempt of court for failing to pay approximately $14,000 in past child support payments and that the court imprison him for up to six months as a penalty.

In addition to testifying about the identity of the man depicted in the surveillance photograph, Weems also testified about a conversation she had with Dixon at her house on May 31, 2003. Weems testified that she told Dixon about a conversation that she had previously had with her father, Carroll Duke, in which Duke told her that Dixon made certain statements to him that were incriminating in nature—specifically, that (1) Dixon asked Duke if Dixon could get away with something if he changed his hair or disguised himself; and (2) Dixon mentioned extortion at AmSouth Bank and $250,000. According to Weems, upon hearing this information, Dixon "lost the color in his face." Notably, counsel for the United States admitted that it would not call Duke as a witness because "he's done 180 degrees, for whatever reason, and does not recall those things." In an apparent attempt to avoid potential hearsay problems, counsel for the United States indicated that it was offering Weems's testimony only for Dixon's reaction to the information that Weems relayed to him—i.e., that he lost the color in his face—rather than for the truth of any matter asserted.

After the hearing, the district court issued an oral ruling excluding the identification testimony of Dixon, Jr., Alexander and Weems. In a subsequent written ruling, the district court also excluded, pursuant to Federal Rule of Evidence 403, Weems's testimony concerning the conversation she had with Dixon about the incriminating statements that he allegedly made to Duke. The United States filed this appeal challenging the foregoing evidentiary rulings by the district court.

II.

A district court's evidentiary rulings are reviewed for abuse of discretion. United States v. Wagner, 382 F.3d 598, 616 (6th Cir.2004). "Under this standard, we will leave rulings about admissibility of evidence undisturbed unless we are left with the definite and firm conviction that the [district] court ... committed a clear error of judgment in the conclusion it reached." Id. (citation and internal quotation marks omitted). An abuse of discretion occurs when a district court relies on clearly erroneous findings of fact, improperly applies the law or uses an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995). "Broad discretion is given to district courts in determinations of admissibility based on considerations of relevance and prejudice, and those decisions will not be lightly overruled." Id. (citation and internal quotation marks omitted).

A. Identification Testimony

1. Kenneth Dixon, Jr. and Kathy Alexander

The district court excluded the proposed identification testimony of Dixon, Jr. and Alexander on the ground that their testimony would not assist the jury in determining whether the individual depicted in the photograph was, in fact, Dixon. The United States argues that the district court's exclusion of this testimony amounts to an abuse of discretion.

Federal Rule of Evidence 701 permits the admission of opinion testimony from a lay witness when the witness's opinions are, among other requirements, "helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Fed.R.Evid. 701(b). Both parties agree that lay opinion identification testimony is helpful to the determination of whether a suspect depicted in a photograph is the defendant where "there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984). The parties also agree that "a number of factors" are relevant to the determination of whether a lay witness is more likely than the jury to identify the defendant correctly. United States v. Pierce, 136 F.3d 770, 774 (11th Cir.1998).

In Pierce, a case cited by both parties, the Eleventh Circuit listed the following factors as relevant to the analysis: (1) the witness's general level of familiarity with the defendant's appearance; (2) the witness's familiarity with the defendant's...