United States v. Chargois Ramon Anderson ( 2005 )


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               IN THE UNITED STATES COURT OF APPEALS
    
                       FOR THE ELEVENTH CIRCUIT
                         ________________________                FILED
                                                        U.S. COURT OF APPEALS
                                No. 05-10506              ELEVENTH CIRCUIT
                                                          NOVEMBER 29, 2005
                           Non-Argument Calendar
                                                           THOMAS K. KAHN
                          ________________________
                                                                CLERK
    
                      D. C. Docket No. 03-20882-CR-PAS
    
    UNITED STATES OF AMERICA,
    
    
                                                        Plaintiff-Appellee,
    
                                    versus
    
    CHARGOIS RAMON ANDERSON,
    
                                                        Defendant-Appellant.
    
                          ________________________
    
                  Appeal from the United States District Court
                      for the Southern District of Florida
                         _________________________
    
    
                               (November 29, 2005)
    
    
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    
    PER CURIAM:
          Chargois Ramon Anderson appeals his convictions and sentence for
    
    (1) conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C.
    
    § 1951(a); (2) interfering with commerce by robbery, in violation of § 1951(a);
    
    (3) carjacking, in violation of 18 U.S.C. § 2119; and (4) using a firearm in
    
    furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). We
    
    affirm his convictions and sentence.
    
                                    I. BACKGROUND
    
          Prior to trial, Anderson filed a motion to suppress identification testimony,
    
    arguing a 26-person photographic lineup, from which Reynaldo Fernandez
    
    identified him, was extremely suggestive, such that the likelihood of
    
    misidentification was high because his picture was placed in a “prominent
    
    position” and was “more prominent” than the other pictures. The district court
    
    denied Anderson’s motion.
    
          At the trial, Fernandez identified Anderson as one of the two men who had
    
    robbed him. Another victim, Reider Espinosa, initially could not identify the
    
    perpetrator in the courtroom. He was then shown a copy of the photographic
    
    lineup from which he previously identified Anderson, and acknowledged that, at
    
    the time he picked out a photograph of the perpetrator, but could not identify the
    
    perpetrator in the courtroom that day. A short period after Anderson was discreetly
    
    
    
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    asked by his attorney to remove his glasses, over Anderson’s objection, the
    
    following exchange took place:
    
          Government:         When you’re looking at this picture can you see
                              the person that you identified as robbing you that
                              day in the courtroom?
          Espinosa:           There is a gentleman that looks like him.
          Government:         Where is that gentleman seated?
          Espinosa:           In front of me.
          Government:         Could you please point that person out and
                              describe something that [he is] wearing?
          Espinosa:           He has a white shirt with a tie.
          Government:         Can the record please reflect that the witness
                              identif[ied] the Defendant?
          Court:              He has pointed out the Defendant
                              ...
          Government:         How is the person[’s] appearance . . . today
                              different than the person [who] you pointed out in
                              the picture?
          Espinosa:           The hair. Because of the time that has gone by . . .
    
    Upon being convicted, Anderson was sentenced under an advisory
    
    Guidelines scheme, after the Supreme Court’s decision in United States v.
    
    Booker, 
    125 S. Ct. 738
     (2005).
    
          On appeal, Anderson argues the district court should have granted his
    
    motion to suppress Fernandez’s identification testimony and subsequent in-court
    
    identification of Anderson. According to Anderson, the 26-person photo array,
    
    from which Fernandez identified Anderson, was unduly suggestive since:
    
    (1) Anderson’s photo was in a prominent position as the first photograph; (2) his
    
    
    
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    photo stood out from the others, since he was the only man pictured with short
    
    dread locks, and at least 7 of the men were 15 to 20 years older than Anderson; and
    
    (3) the men depicted did not have uniform skin color. Next, Anderson asserts the
    
    procedure surrounding Espinosa’s in-court identification violated due process
    
    because, by the third time Espinosa was asked to identify the perpetrator, “it was
    
    clear that Anderson was the defendant,” making the in-court identification
    
    “tantamount to a police show-up,” in which police officers confront a witness with
    
    a single suspect and ask for an identification. Anderson notes that even when
    
    Espinosa finally identified Anderson it was “somewhat tentative.” Finally,
    
    Anderson contends the retroactive application of Booker to his sentence violated
    
    due process and ex post facto principles because when he allegedly committed the
    
    instant offenses in 2003, under a correct interpretation of the Sixth Amendment, he
    
    could be sentenced only based on facts proven to a jury. He contends because after
    
    Booker, the court was free to impose a sentence above the advisory Guidelines
    
    maximum, the application of Booker increased his punishment retroactively.
    
    Anderson concedes, however, in United States v. Duncan, 
    400 F.3d 1297
    , 1306–07
    
    (11th Cir. 2005), cert. denied __ S. Ct. __, 
    2005 WL 2493971
     (Oct. 11, 2005), we
    
    rejected such an ex post facto argument.
    
    
    
    
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                                      II. DISCUSSION
    
    A. Motion to Suppress
    
          In considering a district court’s denial of a defendant’s motion to suppress,
    
    we review the district court’s findings of fact for clear error and its application of
    
    the law to those facts de novo. United States v. Gil, 
    204 F.3d 1347
    , 1350 (11th Cir.
    
    2000). In assessing the constitutionality of the district court’s decision to admit an
    
    out-of-court identification, we first “must determine whether the original
    
    identification procedure was unduly suggestive.” United States v. Diaz, 
    248 F.3d 1065
    , 1102 (11th Cir. 2001). If we find the procedure was suggestive, “we then
    
    must consider whether, under the totality of the circumstances, the identification
    
    was nonetheless reliable.” Id. We will “construe the facts in the light most
    
    favorable to the prevailing party.” United States v. Gordon, 
    231 F.3d 750
    , 754
    
    (11th Cir. 2000).
    
          Construing the facts most favorably to the Government, the district court did
    
    not clearly err by finding the photo spread was not unduly suggestive. The photo
    
    array itself depicts 26 men, of differing ages and hairstyles, all of whom appear to
    
    be of African-American descent. All of the photographs are roughly the same size,
    
    with backgrounds that are either white or off-white. Under each photo is the man’s
    
    name and date of birth, all in the same font and size. Anderson’s picture is in the
    
    
    
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    top, left-hand corner, but, as the magistrate found, there is nothing about it that
    
    causes it to stand out from the others, and Anderson fails to explain why this
    
    particular positioning was “prominent.” Indeed, the evidence suggests Anderson’s
    
    photo was placed at that particular position because his name came first
    
    alphabetically, not because the Government wanted to call attention to it. There is
    
    no evidence the police knew Anderson was the suspect they were looking for
    
    regarding the May 2, 2003, robbery when Fernandez identified him.
    
          Although Anderson claims he is the only person depicted with short dread
    
    locks, three other photos depict men with fairly short dread locks, and several
    
    pictures depict men with hair similar to Anderson’s hair in his picture. Moreover,
    
    although the men pictured do not have uniform skin color, they do seem to be
    
    racially similar, and we have held, “simply being of a different race or ethnic group
    
    from others placed in a lineup does not necessarily make that lineup impermissibly
    
    suggestive, especially where . . . the other individuals in the lineup had roughly the
    
    same characteristics and features as the accused.” Williams v. Weldon, 
    826 F.2d 1018
    , 1021 (11th Cir. 1987) (habeas context). Although there are some men
    
    pictured who are older than Anderson, nine are roughly his age, and six are
    
    younger. Thus, the district court did not clearly err when it determined the photo
    
    
    
    
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    array was not unduly suggestive on its face, and we need not proceed to the second
    
    step to determine whether the identification was unreliable.
    
    B. In-Court Identification
    
          We review constitutional challenges de novo. United States v. Lyons, 
    403 F.3d 1248
    , 1250 (11th Cir. 2005), petition for cert. filed, No. 05-5047 (June 21,
    
    2005). The Supreme Court has held “the conduct of identification procedures may
    
    be so unnecessarily suggestive and conducive to irreparable mistaken identification
    
    as to be a denial of due process of law.” Foster v. California, 
    89 S. Ct. 1127
    , 1128
    
    (1969). In Foster, the witness was asked to identify the perpetrator out of three
    
    people in a lineup, where the perpetrator was five or six inches taller than the other
    
    two people and was wearing clothing similar to that worn by the perpetrator. Id. at
    
    1128. After the witness initially could not positively identify the perpetrator, he
    
    was allowed to speak to the perpetrator, one-on-one. Even after this conversation,
    
    he was unable to be sure about his identification, but, about a week later, at a
    
    second lineup, where the perpetrator was the only person who also had appeared in
    
    the first lineup, the witness positively identified the perpetrator. Id. The Supreme
    
    Court held the procedure in Foster essentially said to the witness, “this is the man,”
    
    and thus violated due process. Id. at 1129. We have found reversible error where
    
    the prosecutor, among other things, pointed to the defendant when eliciting
    
    
    
                                               7
    identification testimony from a witness and verbally aided the witness in making
    
    his identification. United States v. Warf, 
    529 F.2d 1170
    , 1172–74 (5th Cir. 1976).1
    
           The in-court identification was not unduly suggestive. Unlike the pre-trial
    
    identification procedure that was at issue in Foster, this was not a situation where
    
    Espinosa was asked to identify Anderson out of a lineup where it was obvious the
    
    Government wanted him to choose Anderson. See Foster, 89 S. Ct. at 1128.
    
    Moreover, the Government’s actions cannot fairly be construed as a “show-up”
    
    because: (1) there is no evidence the prosecutor verbally, or physically, suggested
    
    to Espinosa whom to identify; and (2) after Espinosa initially indicated he could
    
    not identify the robber, each time the prosecutor asked Espinosa again, he had a
    
    reason to believe Espinosa’s answer might be different since Espinosa had been
    
    refreshed with his previous identification and had a chance to see Anderson
    
    without his glasses. There is no evidence the Government’s procedure was
    
    designed to suggest to Espinosa whom to identify, but, instead, the record shows
    
    the prosecutor and the court were careful not to call Espinosa’s attention to the fact
    
    Anderson had removed his glasses. Moreover, Espinosa’s final in-court
    
    
    
    
           1
             In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), this Court
    adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
    of business on September 30, 1981.
    
                                                    8
    identification of Anderson was tentative, which Anderson’s counsel utilized on
    
    cross-examination and during his closing statements.
    
          Even assuming the in-court identification procedure was unduly suggestive,
    
    it was harmless error in light of the other, more reliable identification Espinosa had
    
    made previously, Lieutenant Croughwell’s separate in-court identification of
    
    Anderson, and the overwhelming evidence of Anderson’s guilt. First, the
    
    undisputed evidence shows Espinosa made a prior identification of Anderson, less
    
    than a month after the incident, which was more reliable than his in-court
    
    identification since it was closer in time to the incident. Furthermore, Lieutenant
    
    Croughwell, another eyewitness, made an in-court identification of Anderson,
    
    which Anderson does not dispute, after Anderson removed his glasses. Finally,
    
    even notwithstanding the identifications, substantial evidence supports Anderson’s
    
    convictions as to these counts, as it shows Anderson jumped out of a Damien truck
    
    as it was fleeing from the police, on the same day, and in the same area, as the
    
    robbery and carjacking occurred. Thus, the district court did not err by admitting
    
    Espinosa’s in-court identification.
    
    C. Retroactive Application of Booker
    
          We review de novo a defendant's claim his sentence violated ex post facto
    
    principles. United States v. Abraham, 
    386 F.3d 1033
    , 1037 (11th Cir. 2004), cert.
    
    
    
                                               9
    denied, __ S. Ct. __, 
    2005 WL 2493873
     (Oct. 11, 2005). In Booker, the Supreme
    
    Court held the mandatory nature of the Sentencing Guidelines rendered them
    
    incompatible with the Sixth Amendment's guarantee to the right to a jury trial.
    
    Booker, 125 S. Ct. at 749–51. In a second and separate majority opinion, the Court
    
    concluded the appropriate remedy was to render the Sentencing Guidelines
    
    effectively advisory. Id. at 764. The Court stated both its “Sixth Amendment
    
    holding and . . . remedial interpretation of the Sentencing Act” must be applied to
    
    “all cases on direct review.” Id. at 769. In Duncan, we determined due process is
    
    not violated by the retroactive application of Booker’s remedy since the defendant
    
    had “warning at the time he committed his crime that life imprisonment was a
    
    potential consequence of his actions.” Duncan, 400 F.3d at 1307. At the time
    
    Anderson committed the offenses he had ample warning, based on the maximum
    
    statutory sentences set out in the U.S. Code, that a total 272-month sentence was a
    
    possible consequence of his actions, and therefore, there are no ex post facto or due
    
    process violations implicated in this case. See id.
    
                                    III. CONCLUSION
    
          The district court did not clearly err by denying Anderson’s motion to
    
    suppress the identification testimony. Additionally, the in-court identification
    
    
    
    
                                              10
    procedure did not violate Anderson’s due process rights, and no due process or ex
    
    post facto violations occurred at sentencing.
    
          AFFIRMED.
    
    
    
    
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