U.S. v. Smith, 97-1320

• Citation: 156 F.3d 1046
• Decision Date: 04 September 1998
• Docket Number: No. 97-1320,97-1320
• Parties: 98 CJ C.A.R. 4776 UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. SMITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1046

156 F.3d 1046

98 CJ C.A.R. 4776

UNITED STATES of America, Plaintiff-Appellee, v. Christopher A. SMITH, Defendant-Appellant.

No. 97-1320.

United States Court of Appeals, Tenth Circuit.

Sept. 4, 1998.

Jenine Jensen, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.

Stacey Ross Goh, Assistant United States Attorney (Henry L. Solano, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before HENRY, BARRETT, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

A grand jury charged Defendant Christopher Smith with the following offenses: (1) interference with commerce by threats or violence, in violation of the Hobbs Act, 18 U.S.C. § 1951; and (2) theft from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u). A jury found him guilty on both counts. Mr. Smith contends that the district court erred in the following respects: (1) allowing introduction of eyewitness identifications in violation of his due process rights; (2) excluding the testimony of his expert witness; (3) allowing the government to cross-examine one of his witnesses regarding her prior drug use; (4) denying his motion for judgment of acquittal on the Hobbs Act count; and (5) ordering restitution in an amount greater than the loss he caused. We affirm in part, reverse in part, and remand with instructions.

I. STATEMENT OF THE CASE

A. Factual Background

On the evening of January 15, 1996, two men entered a sporting goods store in Colorado Springs. They walked up to the gun counter, and one of them asked a sales associate if he could see two .45 caliber semiautomatic handguns from the display case. The sales associate, Glen Dotson, cleared the two guns to make sure they were unloaded. He then handed the man the guns, one at a time. Once the man had the guns in his hands, he began to move down the counter. Then he turned and ran out of the store. His companion ran also.

Mr. Dotson yelled for help as he chased the two men. Two employees, Keith Stotts and George MacLarty joined the chase. The suspect ¹ got into the driver's seat of a black Nissan 300ZX sports car. Although it was dusk or dark at the time of the escape, the parking lot of the store was well-illuminated. Mr. MacLarty testified that he saw the driver through the car window from about one foot to one and a half feet away. Rec. vol. V at 233. As the getaway car lurched out of the parking lot, Mr. Stotts and Mr. Dotson were in the car's path. Mr. Stotts testified that he got a good look at the driver through the windshield. Id. vol. IV at 120. On its way out of the parking lot, the car struck Mr. Dotson and broke his ankle. Mr. Dotson was unable to see the driver as the car was coming toward him. Id. at 81. Another employee, Brian Cunico, happened to be in the parking lot during the chase. He also testified that he saw the driver through the windshield. Id. vol. V at 164.

After the men fled, the employees talked with one another about the incident. Id. at 137-38. When a Colorado Springs police officer arrived, the employees gave their statements to the officer in each others' presence and then discussed their statements with each other. Jennifer Sherman, who worked as a cashier at the sporting goods store on the evening of the theft, testified that on the night of the theft and the following day, store employees were discussing their memories of the details of the suspect. She stated that at first, the employees' descriptions differed, but eventually everyone started agreeing as to what he looked like. Id. vol. VII at 549.

The following day, Agent Scott Thomasson of the Bureau of Alcohol, Tobacco and Firearms became involved with the case. Agent Thomasson interviewed the six employees who were in the store at the time of the theft. A couple days later, Agent Thomasson took Mr. Stotts and Mr. MacLarty to the Sheriff's Office to create computer composites of the suspect. He also took them to a sketch artist, who used their input to create a sketch of the suspect.

Agent Thomasson enlarged the resulting sketch and made it into a "wanted" poster. He took the poster to Doherty High School, the high school nearest the scene of the theft, and he gave the poster to the school principal. A teacher at Doherty thought he recognized the person in the sketch as a former Doherty High School student, Mr. Christopher A. Smith. The principal then obtained yearbooks containing Mr. Smith's sophomore and junior yearbook photos. In the sophomore photo, Mr. Smith was fifteen years old; in the junior photo, he was sixteen. At the time of the theft he was nineteen years old, and at trial he was twenty. Agent Thomasson requested a copy of the photo of Mr. Smith in his junior year, and he also requested seven other photos from the same yearbook.

Agent Thomasson took the eight photos to the sporting goods store; however, he did not mount them to create a photo array. Instead, he laid the photos onto the counter and asked Mr. Stotts if he could identify the suspect. The names of the persons in the photos were not concealed. Thus, "Christopher Smith" was printed on the bottom of Mr. Smith's photo. After Mr. Stotts picked the picture of Mr. Smith, Agent Thomasson indicated that Mr. Stotts had picked the correct photo. Rec. vol. V at 146. Agent Thomasson had Mr. Stotts sign and date the back of Mr. Smith's photo.

Agent Thomasson then repeated this procedure with Mr. Cunico. Mr. Cunico had attended Doherty High School, and he recognized Mr. Smith and one other person as Doherty High students. When Mr. Cunico selected the picture of Mr. Smith, Agent Thomasson had him sign and date the back of Mr. Smith's photo. A few days later, Agent Thomasson told Mr. Cunico that he had picked the picture of the suspect. Id. at 178.

Agent Thomasson then showed the photographs to Mr. MacLarty. When Mr. MacLarty picked Mr. Smith's photo, Agent Thomasson had him sign and date the back. Agent Thomasson "might have said, Nice job, or something like that" after Mr. MacLarty picked Mr. Smith's photo. Id. at 259.

Agent Thomasson also showed the photos to Kathy Walker, who was working as a "greeter" at the sporting goods store on the evening of the theft. She was able to see the suspect when he was at the gun counter. He came within ten feet of her as he was running out of the store. Ms. Walker picked the photo of Mr. Smith.

On the evening of the theft, Mr. Dotson had told police that he could not identify the suspect. Approximately a week after the theft, Agent Thomasson showed Mr. Dotson the photographs, but Mr. Dotson told him that he did not recognize anyone. Agent Thomasson told Mr. Dotson to take his time and look at the photographs. He then left Mr. Dotson alone in an office for about five minutes. As with the other interviews, the photos were not mounted; they were lying loose on a table. By this time, approximately three or four of Mr. Dotson's co-employees had signed and dated the back of Mr. Smith's photo. Mr. Dotson picked Mr. Smith's photograph. When Agent Thomasson returned to the room, he informed Mr. Dotson that everyone else had picked the picture of Mr. Smith also.

On two occasions, Agent Thomasson interviewed Ms. Sherman. The first interview took place within forty-eight hours of the theft. At that time, she told him that she "absolutely could not identify" the suspect. Id. vol. VII at 550. During the next couple of weeks, Agent Thomasson called Ms. Sherman five times to ask if she could describe the suspect for a sketch artist. She told Agent Thomasson that she "[did not] have enough to go by." Id. at 551.

The second interview took place at the police station at around 9:00 or 9:30 p.m. At that interview, Agent Thomasson showed Ms. Sherman the photos. She told him several times that she could not identify anyone. Eventually Mr. Thomasson told her to guess. Agent Thomasson then removed the photos, brought out a single mug shot of Mr. Smith, and told her this was "the guy that other people had said did it...." Id. at 555. He told her this was off the record, and he asked her if she recognized the man in the mug shot. She testified that she said something like, "I guess" because it was late and she wanted to go home. Id. at 556.

B. Procedural History

Mr. Smith was charged with interference with commerce by threats or violence, in violation of the Hobbs Act, 18 U.S.C. § 1951, and theft from a federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u). At Mr. Smith's first trial, the jury could not reach a unanimous verdict, and the judge declared a mistrial. Subsequently, a grand jury returned an indictment charging Mr. Smith with the same two counts. At his second trial, a jury convicted him on both counts. The district court sentenced Mr. Smith to eighty-seven months' imprisonment on both counts, to run concurrently. The court further ordered Mr. Smith to pay $1,209.98 in restitution to the sporting goods store.

II. DISCUSSION

A. Did the identification procedures Agent Thomasson used violate Mr. Smith's due process rights?

Mr. Smith argues that the procedures used by Agent Thomasson resulted in unreliable pre-trial identifications, introduction of which violated his due process rights. He also argues that these unreliable pre-trial identifications tainted the in-court identifications. The government counters that the identification procedures Agent Thomasson used were proper, and the identifications themselves were reliable. The ultimate question of whether identification procedures violate a defendant's due process rights is a question of law, which we review de novo. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.1994).

When the constitutionality of a photo array is challenged under the Due Process Clause, the court must engage in a two-pronged inquiry. First, we must determine whether the photo array was impermissibly...