United States v. Mouzon , 178 F. App'x 193 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4791
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEREMY MOUZON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-896)
Submitted: March 15, 2006 Decided: April 25, 2006
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeremy Mouzon was convicted by a jury of carjacking, 18
U.S.C. § 2119 (2000) (Count One); using and carrying a firearm
during and in relation to a crime of violence, 18 U.S.C.A. § 924(c)
(West 2000 & Supp. 2005) (Count Two); and possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count Three).
He appeals his conviction and the sentence of 360 months
imprisonment he received. We affirm.
Mouzon was involved in a minor car accident in
Charleston, South Carolina, just after midnight on June 16, 2003,
while driving a stolen vehicle. Mouzon drove away, striking a
police officer slightly, and was pursued by Charleston Police
Officer Jeffrey Soniak. Mouzon forced a white Buick off the street
under a streetlight and, in view of Officer Soniak, pulled the
driver, Akilah Robertson, out of the car at gunpoint. Terrion
Smith, one of the passengers in the Buick, also got out of the car,
but a second passenger, Cereta Jackson, could not release her seat
belt and remained in the front seat while Mouzon drove the Buick
north until he failed to negotiate a turn and ran into a fence. He
then fled on foot and was quickly apprehended by North Charleston
Police Officer Timothy Ramsey. Mouzon was brought back to the
carjacked vehicle, where Jackson saw him.
After Mouzon was in custody, Robertson, Smith, and
Jackson were transported to the police station, where they each
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separately gave a statement about the incident. Robertson and
Smith described the carjacker as a black male with an afro, wearing
a white T-shirt. Smith added that he was wearing dark pants.
Jackson did not described the carjacker in her statement. Mouzon
told the police his name was Ferris Earl Green, and gave a false
address; however, he was later identified by his fingerprints as
Jeremy Mouzon.
When Robertson met with the prosecutor before trial, she
told him that, while she was at the police station, she saw the
incident report and commented to the officer present that she did
not think the carjacker’s name was Green. Robertson thought she
had seen him before. After they left the station, she and Jackson
realized that they had grown up in the same neighborhood as the
carjacker, knew his family, and thus knew who he was. Their belief
was confirmed by news reports that identified the carjacker as
Jeremy Mouzon. Robertson advised the prosecutor of this when he
met with her before trial. In consequence, the victims were not
asked to identify Mouzon from a lineup or photographic array.
Officers Soniak and Ramsey and the three victims testified at
trial. Soniak described the carjacker as a heavyset black male
wearing a white T-shirt and dark pants, and having bushy hair.
Ramsey gave the same description of the man he apprehended, except
that he did not remember the man’s pants. Robertson, Smith, and
Jackson all positively identified Mouzon as the carjacker.
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Mouzon contends on appeal that the district court erred
in denying his pre-trial motion in limine for an evidentiary
hearing on the trustworthiness of the expected identification
testimony. We review rulings on the admissibility of evidence for
abuse of discretion. United States v. Bostian, 59 F.3d 474, 480
(4th Cir. 1995). Because deciding on the reliability of evidence
is a function of the jury, the Constitution does not mandate a per
se rule that an evidentiary hearing on the admissibility of
identification evidence is needed. Watkins v. Sowders, 449 U.S.
341, 347-49 (1981). If a defendant challenges a pre-trial
identification procedure, courts engage in a two-step analysis to
determine the admissibility of the identification testimony.
First, the defendant must establish that the identification
procedure was impermissibly suggestive, i.e., that “a positive
identification is likely to result from factors other than the
witness’s own recollection of the crime.” Satcher v. Pruett, 126
F.3d 561, 566 (4th Cir. 1997). If the defendant makes this
showing, the court then must determine whether the identification
was nevertheless reliable under the totality of the circumstances.”
Id.. The Supreme Court has set out five factors to be considered
in deciding the reliability of identification testimony. They are:
“[1] the opportunity of the witness to view the criminal at the
time of the crime, [2] the witness’ degree of attention, [3] the
accuracy of his prior description of the criminal, [4] the level of
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certainty demonstrated at the confrontation, and [5] the time
between the crime and the confrontation.” Manson v. Brathwaite,
432 U.S. 98, 114 (1977). If, however, the court concludes that the
confrontation procedure was not impermissibly suggestive, the
inquiry ends. United States v. Bagley, 772 F.2d 482, 492 (9th Cir.
1985); cf. Harker v. Maryland, 800 F.2d 437, 444 (4th Cir. 1986)
(ending analysis after finding photographic array and show-up not
impermissibly suggestive).1
In this case, the district court determined that there
was no impermissibly suggestive pre-trial identification procedure
and denied the motion for an evidentiary hearing on that basis.
Nonetheless, the court reviewed the five factors set out in Manson
and decided that the witness testimony met the reliability test.
Mouzon argues that the district court erred in so finding. The
thrust of Mouzon’s argument is that he was arrested because he
happened to fit the general description of the carjacker and
happened to run from the police who were looking for the carjacker,
and that, once he was in custody, Jackson and Officer Soniak
believed him to be the carjacker. Mouzon contends that neither
Smith nor Jackson testified that they saw his face during the
carjacking. In fact, Smith testified that she could see him as he
1
Some circuits allow pretrial hearings on the reliability of
identifications. See e.g., United States v. Davenport, 753 F.2d
1460, 1462 (9th Cir. 1985) (although hearing on admissibility of
identification evidence often advisable, no abuse of discretion in
denying motion for such a hearing).
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approached the car. Jackson testified that she saw his face while
she was in the car with him. Mouzon’s argument that Jackson’s view
of him in custody tainted the identifications of Robertson and
Smith also ignores the evidence that Robertson independently
recognized Mouzon as someone she had seen before and that she was
correct about his identity. Robertson could only have recognized
Mouzon from her own view of him during the carjacking, before the
he was taken into custody.
We conclude that the district court correctly determined
that no impermissibly suggestive identification procedure was
employed by the government before trial; indeed no identification
procedure was used at all. Therefore, there was no need for an
evidentiary hearing to determine the reliability of the witnesses’
identification of Mouzon. Instead, the weight and trustworthiness
of the witnesses’ in-court identification testimony properly was
left to the jury, and the district court did not abuse its
discretion by denying Mouzon an evidentiary hearing on the
reliability of their identifications. See Davenport, 753 F.2d at
1462 (reviewing court’s decision not to hold hearing on reliability
of identification under abuse of discretion standard).
Mouzon next contends that the district court abused its
discretion in admitting the eyewitness identifications because they
were “the product of an unnecessarily suggestive encounter between
Officer Soniak, Ms. Jackson and the defendant, which was
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transmitted to Ms. Robertson and Ms. Smith,” and did not meet the
reliability test set out in Manson. At the hearing on Mouzon’s
motion in limine, the district court considered each of the five
factors prescribed in Manson and decided that Robertson and Jackson
had a good opportunity to view the carjacker with a high degree of
attention, that their descriptions were accurate, that the level of
certainty was high, and that the time interval between the crime
and the confrontation (for Jackson, the only one of the victims who
saw Mouzon after his arrest) was minimal.
The exclusion of identification evidence is “a drastic
sanction, one that is limited to identification testimony which is
manifestly suspect.” Harker, 800 F.2d at 443. In this case, the
three victims and Officer Soniak all had an opportunity to get a
good look at the carjacker in a well-lighted place and their
subsequent descriptions of him were very similar. Officer Soniak
did not see the carjacker’s face, but could identify the man taken
into custody by Officer Ramsey as the same man he saw commit the
carjacking by his body type, his hair style, and his clothes. We
are satisfied that the district court did not abuse its discretion
in admitting the eyewitness identifications of Mouzon as the
carjacker. For the same reasons, we conclude that the district
court did not abuse its discretion in denying Mouzon’s motion for
a mistrial based on Robertson’s, Jackson’s, and Smith’s
identification of him as the carjacker.
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Finally, appellate counsel maintains that Mouzon’s armed
career criminal2 and career offender sentence violated the Sixth
Amendment, raising the issue under Anders v. California, 386 U.S.
738 (1967), but conceding that the argument is foreclosed by United
States v. Cheek, 415 F.3d 349 (4th Cir.) (Sixth Amendment does not
require that predicate convictions for armed career criminal
sentence be charged in indictment or admitted by defendant), cert.
denied, 126 S. Ct. 640 (2005). See also United States v. Thompson,
421 F.3d 278, 282-83 (4th Cir. 2005) (armed career criminal
sentence based on prior convictions neither charged nor admitted
does not violate Sixth Amendment if facts necessary to support
enhanced sentence are inherent in fact of convictions and no
additional fact finding is required), cert. denied, 126 S. Ct. 1463(2006). Because Mouzon’s career offender offense level was
determined by his prior convictions, and the qualifying nature of
the predicate convictions was clear from his criminal record, no
Sixth Amendment error occurred in his sentencing.
We therefore affirm Mouzon’s conviction and the sentence
imposed by the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented in
2
Mouzon qualified for sentencing as an armed career criminal
under 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005), and USSG
§ 4B1.4. However, because Mouzon had a § 924(c) conviction, his
sentence was determined by the career offender table for
§ 924(c)offenders rather than by USSG § 4B1.4. See §§ 4B1.1(c)(3),
4B1.4, comment. (n.2).
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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