U.S. v. Lumpkin

• Citation: 192 F.3d 280
• Decision Date: 04 June 1999
• Docket Number: Docket No. 98-1640
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ROXANNE LUMPKIN, Defendant, MARIO WILLIAMS, Defendant-Appellant. June Term 1998 Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 280

192 F.3d 280 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ROXANNE LUMPKIN, Defendant, MARIO WILLIAMS, Defendant-Appellant.

Docket No. 98-1640

June Term 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 4, 1999

Decided: August 19, 1999

Defendant Mario Williams appeals from a judgment of the United States District Court for the Western District of New York (Arcara, J.) convicting him, following a jury trial, of possessing crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The judgment is affirmed. [Copyrighted Material Omitted] KIMBERLY A. SCHECHTER, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant.

GREGORY L. BROWN, Assistant United States Attorney, Buffalo, N.Y. (Denise E. O'Donnell, United States Attorney for the Western District of New York, Buffalo, NY, on the brief), for Appellee.

Before: WALKER and OAKES, Circuit Judges, and GOLDBERG,^* Judge.

GOLDBERG, Judge:

Mario Williams was convicted in the United States District Court for the Western District of New York (Arcara, J.) on May 18, 1998, following a jury trial, of possessing crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Williams to a term of 41 months imprisonment, to be followed by 36 months of supervised release. Williams appeals the judgment of conviction and makes seven claims of error, all of which pertain to the defense's theory of misidentification and all of which we reject. We write principally to address two of these claims: (1) whether the district court erred when it held that Williams's co-defendant, Roxanne Lumpkin, could properly invoke her Fifth Amendment privilege not to testify; and (2) whether the district court erred in refusing to allow Williams's expert witness to testify on the relationship between witness confidence in identification and the accuracy of that identification. For the reasons stated herein, we affirm the judgment of the district court.

I.

As part of an assignment for the Career Criminal Task Force ("CCTF"), Detective James Galie, Jr. of the Niagra Falls Police Department and Investigator Christine Sherer-Young of the New York State Police were investigating drug trafficking in the Townsend Street area of Buffalo, New York in the early afternoon of September 25, 1996. Driving in an unmarked car, the officers were soon approached by a female, later identified as Lumpkin, and asked if they wanted to purchase drugs. Galie responded that he was interested in purchasing an "eight ball" of cocaine base, also known as crack cocaine. Lumpkin proceeded alone to a residence at 67 Townsend Street but returned shortly thereafter, stating she was unable to make a purchase.

Lumpkin then entered the officers' car and directed Galie to a nearby location. Upon arriving at the appointed destination, Lumpkin exited the vehicle and crossed the street, where she met with a young male for a period of approximately thirty seconds. Both Galie and Sherer-Young testified that they had an unobstructed view of Lumpkin and her male counterpart from a distance of approximately ten to twenty feet. At this point, both officers observed the male hand a package to Lumpkin, who then returned to the vehicle. Galie paid a sum of cash to Lumpkin in return for contents from the package, later identified as crack cocaine.

In a written report made after this first transaction, Galie described the male in the transaction as "wearing blue camouflage pants, a hooded sweatshirt and [in his] early 20s." As part of their undercover operation, Galie and Sherer-Young also concealed video and audio recording equipment in a gym bag that sat on the rear dash of their car. The video camera recorded images to the left and left-front side of the driver. Although overexposed, an enhanced recording of the first transaction shows Galie looking in the direction of the two individuals at the time the transaction took place. In addition, Galie and Sherer-Young wore wires and broadcast updates that were monitored from a remote location by Detective James McMahon, the lead officer of the CCTF investigation.

Nearly two hours later, Galie and Lumpkin returned to the vicinity of the earlier transaction. Both officers observed the same unidentified male who negotiated with Lumpkin in the area. On this occasion, however, another male, approximately 5'8" tall with dredlock style hair, approached Galie to ask if they were interested in purchasing drugs. Again, Galie informed the individual that he desired an "eight ball," at which point the individual walked over to the male seen earlier with Lumpkin. Galie and Sherer-Young testified that this transaction also was completed in approximately thirty seconds and that they had an unobstructed view from a distance of approximately twenty feet. During this transaction, Galie observed the male who had earlier given drugs to Lumpkin again give drugs to the second intermediary. The intermediary then returned with the requested drugs, and Galie obtained them in exchange for cash. After the second transaction, Galie and Sherer-Young proceeded to CCTF headquarters for debriefing. There, Detective McMahon displayed a single photograph of Williams to the two undercover officers. Both officers identified Williams, the individual pictured in the photograph, as the male involved in the two drug transactions that day.

On January 7, 1997, Williams was charged in a three-count indictment. The first count alleged a conspiracy to distribute drugs with co-defendant Lumpkin. The remaining counts alleged possession with intent to distribute in connection with the two drug transactions on September 25, 1996. Prior to trial, Williams filed a motion to suppress the anticipated in-court identifications by Galie and Sherer-Young. Magistrate Judge Carol Heckman issued a report and recommendation, concluding that while the photo identification made by the officers during the debriefing session was impermissibly suggestive and, hence, could not be introduced as evidence, Galie and Sherer-Young nevertheless had an independently reliable basis upon which to make in-court identifications. The district court adopted Judge Heckman's report and recommendation following de novo review.

Then, both prior to and during trial, Williams filed a series of motions in limine. Specifically, Williams first requested permission to offer testimony from Michael R. Lieppe, Ph.D., an expert in the field of eyewitness identification. The district court certified Dr. Lieppe as an expert and permitted his testimony on certain subjects, yet declined to allow testimony on the relationship between witness confidence in identification and the accuracy of that identification. Williams also sought to prevent Officer James Reese of the Buffalo Police Department from testifying that he often saw Williams in the area where the drug sales occurred. The district court denied this motion. Finally, during trial, the government dropped the conspiracy count against Williams after his co-defendant, Lumpkin, entered a guilty plea. Williams still planned to call Lumpkin as a witness, however, anticipating that she could provide exculpatory testimony. Yet, when it became apparent that Lumpkin would be allowed to invoke her Fifth Amendment right against self-incrimination, Williams filed another motion. This time, Williams sought to offer testimony from an investigator for the public defender's office, William Gethoefer, who planned to testify concerning allegedly exculpatory hearsay statements made to him by Lumpkin. The district court also denied this motion. After a four-day trial, the jury returned a guilty verdict on the two remaining counts of the indictment. Williams filed a timely notice of appeal, and the instant appeal followed.

II.

A. Fifth Amendment Privilege of Co-Defendant

Williams first argues the district court erred when it allowed Lumpkin to invoke her Fifth Amendment right not to testify. According to Williams, Lumpkin's anticipated testimony, including the fact that she knew Williams but never purchased drugs from him, was exculpatory and did not conflict with her plea colloquy. At the time Lumpkin was called as a witness, she had pled guilty but had not been sentenced.

In deciding if the privilege was properly invoked, the district court conducted a hearing outside the presence of the jury. As part of this hearing, Williams's counsel put the following series of questions to Lumpkin:

1) did she recall seeing the videotape concerning the September 25, 1996 incident;

2) did she plead guilty to a conspiracy to distribute drugs on that day;

3) did she remember from whom she purchased drugs on that day;

4) did she recall selling drugs to Williams;

5) did she ever see Williams wearing blue camouflage pants;

6) was she under the influence of drugs on the day of the incident; and

7) did she recall conversing with an African-American male prior to delivering drugs to two white individuals in a car.

To each question, Lumpkin invoked the Fifth Amendment. The district court then ruled that because Lumpkin's testimony exposed her to federal prosecution for perjury, as well as state prosecution for similar acts, she had a valid Fifth Amendment privilege. Williams claims the district court's decision deprives him of his own Fifth Amendment due process rights and of his Sixth Amendment right to present witnesses in his favor.

As an initial matter, the Supreme Court recently made clear that the assertion of the privilege against self-incrimination survives a guilty plea. See Mitchell v. United States, 119 S.Ct. 1307, 1313 (1999) (holding a defendant could assert her Fifth Amendment right not to testify at sentencing); see also United States v. Bahadar, 954 F.2d 821, 825 (2d Cir. 1992) (finding a witness who had pled guilty but had not yet been sentenced could...