U.S. v. Kornegay, 04-1681.

• Decision Date: 09 June 2005
• Docket Number: No. 04-1681.,04-1681.
• Citation: 410 F.3d 89
• Parties: UNITED STATES, Appellee, v. Andrew KORNEGAY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 89

410 F.3d 89

UNITED STATES, Appellee, v. Andrew KORNEGAY, Defendant, Appellant.

No. 04-1681.

United States Court of Appeals, First Circuit.

Heard April 4, 2005.

Decided June 9, 2005.

COPYRIGHT MATERIAL OMITTED

Eduardo Masferrer, with whom Masferrer & Hurowitz, P.C. was on brief, for appellant.

Timothy Q. Feeley, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Theodore B. Heinrich, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Defendant Andrew Kornegay appeals from his conviction and sentence on one count of distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D). We affirm.

I.

We set forth the facts in the light most favorable to the verdict, see United States v. Capozzi, 347 F.3d 327, 328 (1st Cir. 2003), and provide additional facts in our discussion of the legal issues. In the spring of 2001, an individual named Richard Chaney, a convicted narcotics user, agreed to cooperate with the Bureau of Alcohol, Tobacco, and Firearms (ATF) in identifying narcotics and firearms distributors. In the summer of 2001, Chaney notified an ATF agent that he had been in contact with Kornegay and could purchase a half-ounce of crack cocaine from him. Chaney knew Kornegay from their time as cellmates in a Massachusetts jail during early 2001.

The ATF authorized Chaney to make a controlled purchase of crack cocaine from Kornegay. On August 20, 2001, Kornegay met Chaney on Geneva Avenue in Boston, Massachusetts, entered Chaney's car, and received a $470 payment from him. Several minutes later, Kornegay returned to the car and gave Chaney over 13 grams of crack cocaine. The purchase was monitored by audio and video surveillance equipment and was observed by several law enforcement officers.

Kornegay was not indicted for this sale until April 2003. The ATF delayed apprehending Kornegay because the agency wanted to preserve Chaney as an informant. Meanwhile, Kornegay served a 14-month state sentence for another drug conviction. At trial on the federal charge, Kornegay defended on the ground of mistaken identity. He claimed that his identical twin brother, Andre Kornegay, had sold the drugs to Chaney.

The government met this defense through the introduction of pictures of the Kornegay brothers taken in 2001 and the videotape of the drug deal. Chaney also identified Kornegay based on their time together in prison. Additionally, Boston Police Detective Earl Perkins testified that, in the summer of 2001, he encountered Andrew and Andre Kornegay on several occasions and that he could distinguish them because Andrew had shorter hair and a fuller face than his brother and had fashioned his left eyebrow in a distinctive "three-slash" style. Perkins also identified the individual in the videotape of the drug deal as Andrew Kornegay.

After a five-day trial, the jury convicted Kornegay on one count of distributing five or more grams of crack cocaine. The court calculated Kornegay's sentence range at between 78 and 97 months and sentenced Kornegay to the minimum of 78 months' imprisonment. This appeal followed.

II.

Kornegay presses five arguments on appeal. First, he claims that Detective Perkins' identification testimony should have been suppressed because he learned of Kornegay's distinguishing characteristics through unconstitutional investigatory stops conducted by the Boston police during the summer of 2001. Second, he contends that the admission of Detective Perkins' identification testimony violated Federal Rules of Evidence 701 and 403. Third, he argues that the prosecutor prejudicially vouched for Detective Perkins' credibility and appealed to the jury's emotions during the closing argument. Fourth, he posits that the district court erred in denying him certain downward departures under the Sentencing Guidelines. Finally, he asserts that he is entitled to resentencing because the district court erroneously considered the Guidelines mandatory in determining his sentence.

A. Motion to Suppress

Kornegay contends that the district court should have suppressed Detective Perkins' identification testimony as the fruit of several illegal Terry stops conducted by the Boston police during the summer of 2001. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (permitting police to conduct investigatory stops based on reasonable suspicion of criminal activity). The government counters that Kornegay's suppression motion was correctly denied because Kornegay failed to establish a connection between the allegedly unconstitutional conduct and Detective Perkins' testimony.

In a voir dire before the district court,¹ Perkins testified that, during the summer of 2001, he learned that Kornegay was possibly a drug dealer and that he might be called upon to distinguish Kornegay from his identical twin brother in a subsequent prosecution. Therefore, throughout the summer, Perkins sought opportunities to encounter Kornegay so that he could positively identify him. Perkins testified that, on six occasions, he encountered Kornegay while Kornegay was talking to other police officers.² Each time Perkins saw Kornegay, Kornegay was already talking with the police, and therefore Perkins did not know the circumstances which led to the encounter. In particular, Perkins testified that he did not know whether the police had pat-frisked Kornegay and could not remember how many officers were present. Perkins identified the locations where several of these encounters occurred.

Aside from Detective Perkins' testimony, the only evidence before the district court was Kornegay's affidavit submitted in conjunction with the suppression motion. In his affidavit, Kornegay stated:

During the summer of 2001, I was stopped on multiple occasions by members of the Boston Police Department.... I do not recall the names of the officers who stopped me. As many as 4 to 5 officers would approach me without warning and surround me. They would ask which Kornegay brother I was. I would identify myself and the officers would then pat-frisk me.... I never felt as if I was free to leave the police officers when they approached me.

Kornegay did not testify concerning the stops or introduce other evidence or witnesses in support of his motion. After Perkins' testimony and argument, the district court orally denied the motion. Appellate review of a suppression motion is bifurcated. The ultimate conclusion as to suppression as well as the determination that a given set of facts meets the legal standard for reasonable suspicion are reviewed de novo. But the trial court's findings of facts are reviewed for clear error. See United States v. Charles, 213 F.3d 10, 17 (1st Cir.2000). "We will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir.1996).

To succeed on a motion to suppress, a defendant must establish a nexus between the Fourth Amendment violation and the evidence that he seeks to suppress.³ See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Finucan, 708 F.2d 838, 844 (1st Cir.1983); see also United States v. King, 222 F.3d 1280, 1285-86 (10th Cir.2000); Kandik, 633 F.2d at 1335; 6 W.R. LaFave, Search and Seizure, § 11.2(b) at 50 n. 75 (4th ed.2004) (citing cases). Kornegay failed to meet this burden.

In his affidavit, Kornegay claimed that he was unlawfully stopped by Boston police officers on several occasions in the summer of 2001. He did not claim that Detective Perkins was present at these stops. Nor did he claim that Perkins was a participant in an illegal stop. If Perkins was merely an uninvolved observer, even to an illegal stop, Kornegay would have no plausible argument. Perkins testified that he saw Kornegay at certain locations after Kornegay was already talking to the police, but that he did not know the circumstances that led to these encounters. Even after Perkins identified the locations of the encounters, Kornegay failed to produce evidence that any of the stops alluded to in his affidavit were the ones identified by Perkins. As the district court stated, based on the record before it, it could not conclude that the stops "in the affidavit [were] the same stops that Perkins [was] talking about." In the absence of proof that Perkins' testimony was based on information gleaned from the allegedly unlawful stops, Kornegay failed to establish the nexus between the claimed Fourth Amendment violation and the evidence he sought to suppress. See Nava-Ramirez, 210 F.3d at 1131-32 (affirming the denial of a motion to suppress because the defendant failed to show a connection between the allegedly unconstitutional seizure and the evidence he sought to suppress).

B. Lay Testimony

Kornegay next contends that the district court erred by admitting Detective Perkins' identification testimony as a lay opinion under Fed.R.Evid. 701. We review the district court's ruling for a manifest abuse of discretion. See United States v. Jackman, 48 F.3d 1, 4 (1st Cir. 1995).

Rule 701 allows for the admission of lay opinion testimony that is "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Kornegay challenges Perkins' testimony under both prongs. He claims that Perkins' observations during the summer of 2001 were so limited in duration that the in-court identification was not rationally based on Perkins' perception. He also contends that the testimony was unnecessary because Perkins' observations were brief and the jury had sufficient other evidence of identity (i.e., photographs and the videotape of the crime) to make the identification.

Based on Perkins' testimony, it is clear that the identification was based...