U.S. v. Guidry

• Decision Date: 06 April 2005
• Docket Number: No. 04-40425.,04-40425.
• Citation: 406 F.3d 314
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Paul GUIDRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 314

406 F.3d 314

UNITED STATES of America, Plaintiff-Appellee, v. Donald Paul GUIDRY, Defendant-Appellant.

No. 04-40425.

United States Court of Appeals, Fifth Circuit.

April 6, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul E. Naman, Asst. U.S. Atty. (argued), Beaumont, TX, for U.S.

Denise S. Benson (argued), Amy R. Blalock, Asst. Fed. Pub. Defenders, Tyler, TX, for Guidry.

Appeal from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Donald Guidry challenges his conviction of violating 18 U.S.C. § 922(g)(1), the felon in possession of a firearm statute. Finding no reversible error, we affirm.

I.

The conviction is based on the robbery of a barbeque restaurant during the course of which the owner was struck in the back of the head with a weapon, and the employees and customers were bound with duct tape and rope and left in the bathroom. After the robbers left, the victims freed themselves and called police. Based on the fact that the witnesses heard the robbers refer to one of their own as "D.P.," and on the description of one of the perpetrators as having a distinctive "teardrop" tattoo by his left eye, the investigating officers believed that Guidry was involved. They immediately dispatched officers to a house where Guidry was known to be.

When the officers arrived, Guidry fled into the house but was subsequently detained. After the owner gave consent to search the house, officers discovered a shotgun, pistol, clothes matching those that the assailant called "D.P." wore during the robbery, and a box containing one-dollar bills that had a strong smell of barbeque smoke. Guidry and four other black male residents of the house were seized by the police and taken back to the crime scene.

Upon returning to the restaurant, the police lined up the five suspects in handcuffs, against the patrol cars outside the window of the restaurant. Guidry was identified as an assailant by two eyewitnesses, Allyssa Plunkett and Joseph Gabbard. Gabbard and another witness, James Lewis, identified the pistol recovered from the house as the one Guidry had used in the robbery. Guidry's fingerprints were identified on the pieces of duct tape that had been used to bind the witnesses.

A jury convicted Guidry of violating § 922(g)(1) based on the evidence that he possessed the firearm during the course of the aforementioned robbery, a stipulation that he had previously been convicted of a qualifying felony, and evidence that the gun had been manufactured in Europe. Guidry was sentenced to 120 months' imprisonment under the sentencing guidelines.¹

II.

Guidry argues that the evidence was insufficient to support a conviction. We must decide whether a rational trier of fact could have found that each element of the charged criminal offense was proven beyond a reasonable doubt. See United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998). We consider all the evidence in a light most favorable to the government, drawing all inferences and credibility choices in its favor. Id.

To establish a violation of § 922(g)(1), the government has the burden to prove three elements beyond a reasonable doubt

(1) that the defendant previously had been convicted of a felony;

(2) that he possessed a firearm; and

(3) that the firearm traveled in or affected interstate commerce.

United States v. Daugherty, 264 F.3d 513, 515 (5th Cir.2001). Guidry contests the sufficiency of the evidence only as to the second and third elements. After reviewing the evidence, we find both arguments legally untenable.

The government produced sufficient evidence from which a reasonable jury could conclude, beyond a reasonable doubt, that Guidry possessed a firearm. The government presented the testimony of two eyewitnesses who identified Guidry as a robber, one of whom identified the pistol that was recovered from Guidry's home as the one that was used during the robbery.

Guidry asserts that we should closely scrutinize the identification of the weapon because it was made by a "frightened witness" undergoing traumatic "extreme circumstances of the robbery." It is not our role, however, under our standard of review for sufficiency of the evidence, to second-guess the determinations of the jury as to the credibility of the evidence. See Ortega Reyna, 148 F.3d at 543. Assuming, as we must, that the eyewitness identification of the weapon was credible, there was sufficient evidence of weapon possession to prove the second element of § 922(g)(1).²

Similarly, the government produced sufficient evidence from which a jury could conclude beyond a reasonable doubt that the firearm possessed by Guidry affected interstate commerce. The government provided evidence that the firearm was manufactured in Belgium, so it necessarily must have traveled in interstate commerce to get into Guidry's hands in Texas. The interstate commerce element of a § 922(g)(1) charge is satisfied where the government demonstrates that the firearm was manufactured out of state.³

Finally, Guidry attacks the constitutionality of his conviction under § 922(g)(1) as applied to him, arguing that the government had to prove that his possession of a firearm had a "substantial" effect on interstate commerce under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). As Guidry concedes— he notes that he merely raises the issue to preserve it for further review— this argument is foreclosed by our precedent.⁴

III.

Guidry argues that the eyewitness identification testimony should have been suppressed because it was impermissibly tainted by a suggestive show-up procedure. In reviewing the denial of a suppression motion, we accept the district court's findings of fact unless they are clearly erroneous, but we review de novo the court's ultimate conclusion of the constitutionality of the law enforcement action. See United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir.2002). Whether an identification is constitutionally admissible is a mixed question of fact and law. See United States v. Hefferon, 314 F.3d 211, 217 (5th Cir.2002).

The Due Process Clause protects against the use of evidence obtained from impermissibly suggestive identification procedures. See United States v. Rogers, 126 F.3d 655, 658 (5th Cir.1997) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). The admissibility of identification evidence is governed by a two-step test: First, we determine whether the identification procedure was impermissively suggestive, and second, we ask whether the procedure posed a "very substantial likelihood of irreparable misidentification." Rogers, 126 F.3d at 658 (citing United States v. Sanchez, 988 F.2d 1384, 1389 (5th Cir.1993)). If we answer both questions in the affirmative, the identification is inadmissible. Id.

As to the first part of the test, Guidry argues that the show-up was impermissively suggestive because he was part of a lineup outside the restaurant window, handcuffed aside a patrol car. Guidry relies on United States v. Shaw, 894 F.2d 689, 692 (5th Cir.1990), in which we found a show-up to be impermissibly suggestive where the suspect was presented for identification at the crime scene alone, handcuffed, and before an FBI vehicle. Guidry's situation is distinguishable, however, because he was not shown alone as was the defendant in Shaw; he was displayed to the eyewitnesses together with four others who were of the same race, three of whom were of similar weight and height, and all of whom were in handcuffs and stood in front of a police car.

The eyewitnesses were only allowed to make their identifications individually and were not permitted to communicate with each other until the procedure was complete. The procedure employed was analogous to a typical station-house lineup, apart from the situs of the show-up and the fact that all the suspects were in handcuffs — differences that did not taint the procedure, given that all the suspects were similarly disabled. Under these circumstances, the procedure was not unnecessarily suggestive.⁵

Because the procedure was not unnecessarily suggestive, we need not consider the second prong of the test, whether there was a "substantial likelihood of misidentification." The district court properly denied Guidry's suppression motion.

IV.

Guidry argues that the district court erred in admitting exhibits 4 and 5, because the chain of custody had been broken. We review admission of evidence for abuse of discretion. See United States v. Dixon, 132 F.3d 192, 196 (5th Cir.1997). In deciding whether to admit evidence, the district court only has the duty to determine whether the government made a sufficient prima facie showing of authenticity; the ultimate issue of authenticity is a question for the jury. See United States v. Sparks, 2 F.3d 574, 582 (5th Cir.1993).

Exhibits 4 and 5 were rolls of duct tape and rope twine—shown through expert testimony to have Guidry's fingerprints on them—alleged to have been used by him and his cohorts to restrain the victims during the robbery. Guidry's brief inaccurately claims that these specific pieces of evidence were recovered by Officer Ryan Janovsky at the house where he was arrested.⁶ In fact, the exhibits were found at the crime scene by Detective Scott Felts, who testified that he released them to Sells, who in turn stated that he transported them to the police department and logged them into the evidence locker.

The essence of Guidry's argument is that the chain of custody was defective because there was insufficient documentation of the evidence's being passed from officer to officer. A district court does not abuse its discretion, however, in admitting...