United States v. Rogers, Theodore D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3578 & 03-1870
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THEODORE D. ROGERS and WINFRED OWENS,
Defendants-Appellants.
____________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 01 CR 96—James T. Moody, Judge.
____________
ARGUED MARCH 2, 2004—DECIDED NOVEMBER 5, 2004
____________
Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Pursuant to a plea agreement,
Theodore Rogers pleaded guilty to one count of possession
with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1). The plea agreement required him to testify at the
trial of Winfred Owens. He later filed a motion to withdraw
his guilty plea; the district court denied the motion. He now
appeals that decision.
Mr. Rogers did testify at Mr. Owens’ trial, and based in
part on his testimony, Winfred Owens was convicted of
2 Nos. 02-3578 & 03-1870
multiple drug trafficking offenses in violation of 21 U.S.C.
§§ 841(a)(1) and 843(b), and of 18 U.S.C. § 1952. He appeals
his conviction.
For the reasons set forth in the following opinion, we af-
firm the district court’s denial of Mr. Rogers’ motion to with-
draw his plea, and we reverse the judgment of the district
court with respect to Mr. Owens’ conviction and remand the
case for further proceedings.
I
BACKGROUND
A. Facts
On the evening of December 2, 2000, Rogers, a crack
cocaine addict living in Kentucky, agreed to accompany his
supplier, James Moorman, on a trip to Merillville, Indiana.
Rogers received some cocaine from Moorman for agreeing
to make the trip. Rogers used the cocaine that night, and the
pair set out for Merillville on the morning of December 3,
2000. During the trip, Moorman made numerous calls on his
cellular telephone. The two arrived at their destination, the
Burger King parking lot in a Merrillville mall, later in the
afternoon.
When the pair pulled into the parking lot, Moorman was
on the telephone, and Rogers noticed an African-American
male in the same lot, also talking on his cellular telephone.
After they parked, Rogers exited the vehicle, and the other
man took his place. Moorman and the man then drove away;
Rogers ate at the Burger King and looked at some clothing
in the mall. After about twenty-five minutes, Rogers returned
to the parking lot in time to see Moorman return with the
same African-American male. This passenger exited
Moorman’s vehicle, entered another waiting car, and drove
away.
Nos. 02-3578 & 03-1870 3
Rogers and Moorman switched places for the return trip,
with Rogers driving. About thirty-five minutes later, as they
traveled south on Interstate 65, Trooper Jason Carmin of the
Indiana State Police observed Rogers’ vehicle weave in its
lane, cross by one to two feet the white (“fog”) line separat-
ing the travel lane from the shoulder and then make an
abrupt move to return to the correct side of the line. The
trooper stopped the car and, as he approached it, noticed an
odd, unidentifiable odor coming from the interior of the
vehicle. When he asked for Rogers’ license and registration,
Trooper Carmin became more suspicious because Rogers
and Moorman seemed nervous and avoided eye contact with
him. Trooper Carmin also learned by radio that Rogers had
several charges for possession of and trafficking in controlled
substances. The trooper therefore summoned assistance and
a drug-sniffing canine unit.
The dog alerted to the presence of drugs in the car, and its
handler, Officer Myron Retske, let the dog inside the car.
The officer eventually isolated the source of the scent—the
vehicle’s glove compartment—where he found a brick of
cocaine wrapped in plastic and in a week-old Gary, Indiana
newspaper. As Officer Retske searched the passenger com-
partment, other officers discovered two wads of currency,
totaling approximately $2000 hidden in a spare tire in the
trunk. A search of Moorman yielded an additional $660
from his front shirt pocket. Based on their discoveries, the
police arrested Rogers and Moorman and impounded the
vehicle.
On December 7, 2000, the police continued their search of
the car, and discovered a cellular telephone registered to
Moorman. In the phone’s internal directory, the officers no-
ticed two numbers with northwestern Indiana’s “219” area
code and a three-digit prefix for the city of Gary. One
number had been programmed with the letters “W I N”
4 Nos. 02-3578 & 03-1870
identifying the owner. This number was registered to Crystal
Bryant, who had purchased the cellular telephone associ-
ated with it for Owens; Owens had been in possession of
this phone for approximately one year, from the fall of 2000
to the fall of 2001. Telephone records from Owens’ phone
indicated two calls to Moorman on December 2, and eight
calls on December 3. Police subsequently found Owens’
fingerprint on the Gary newspaper wrapped around the
seized brick of cocaine, along with Moorman’s fingerprint
and several unidentified prints.
After his arraignment, Rogers moved to suppress evidence
seized from the car. He asserted that the stop and search
violated his rights under the Fourth Amendment to the
Constitution of the United States. Before this motion was
heard, however, Rogers decided to cooperate with the
Government. In September or October of 2001, almost ten
months after his arrest, he was shown some photographs
and asked if any of them depicted the man who he had seen
1
in the parking lot with Moorman. Rogers could not identify
any photograph, but he gave a description of the man, along
with a statement, and, on October 2, 2001, he petitioned the
court to change his plea to guilty of one count of possession
with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1), in exchange for his cooperation. The district
court scheduled a hearing for October 26, 2001, to determine
whether to accept the guilty plea.
1
The record does not reflect how many photographs were shown
to Rogers, nor the form that the photographic display took. The
record also does not specify that the array contained a photo-
graph of Mr. Owens, although this fact is implicit in the parties’
agreement that Mr. Rogers could not identify Mr. Owens’ picture
in the lineup.
Nos. 02-3578 & 03-1870 5
During the week preceding this hearing, FBI Special
Agent Anthony Riedlinger had attempted to arrest Owens
with the help of Owens’ probation officer, Louis Fuentes,
but had to wait until Owens returned from a cruise. Officer
Fuentes, employing a ruse, convinced Owens to report to him
in person. Officer Fuentes then notified Agent Riedlinger,
who arrested Owens when he reported on October 26, 2001.
Agent Riedlinger found Owens in possession of a key chain
inscribed with the letters “W I N”—the letters programmed
2
in Moorman’s telephone. Owens was taken to a cell in the
same federal courthouse where Rogers’ plea hearing was
scheduled for that day.
3
At his plea hearing, Rogers testified to the facts above.
The district court accepted his guilty plea, and marshals
4
then returned him to the holding cell. According to Agent
Riedlinger, he told the marshals to ensure that Rogers and
Owens were separated; nevertheless, Rogers found himself
in the cell with Owens.
Rogers claims that, upon entering the cell, he recognized
Owens as the man from the Merrillville parking lot. While
2
At his trial, the Government associated the nickname “Win”
with Winfred Owens.
3
Rogers did not mention the other man in the parking lot in
his plea colloquy, and the only reference to this man was the
Government’s description of him as a known area drug dealer.
4
Owens arrived at the courthouse before or during Rogers’ plea
hearing. Agent Riedlinger testified that he went to the cell to pro-
cess Owens, and then went upstairs to watch Rogers’ hearing. At
the time Agent Riedlinger processed Owens, Rogers was not in
the same cell. It is not clear from the record whether, after the
hearing, Rogers was moved to a cell other than the one he had
occupied previously, or whether Owens was placed in the
vacated cell after Rogers went upstairs for his hearing.
6 Nos. 02-3578 & 03-1870
the two occupied the cell, a probation officer entered and
interviewed Rogers to begin his presentence investigation.
At some point, Agent Riedlinger arrived to talk with Rogers,
saw the two men together in the cell, and immediately told
the marshals to separate them.
B. District Court Proceedings
In March 2002, Rogers moved to vacate his guilty plea. He
contended that he did not have time or adequate counsel to
make a voluntary decision to plead guilty and that he never
received a hearing on his suppression motion. The Govern-
ment countered that his unconditional guilty plea consti-
tuted a waiver of his Fourth Amendment claim, which
mooted the suppression motion. The district court neverthe-
less held an evidentiary hearing, during which Rogers’
counsel questioned Trooper Carmin and Officer Retske about
the vehicle stop. The district court noted that both the evi-
dence of record and Rogers’ statements during the plea
hearing indicated that he had adequate access to counsel.
Accordingly, the court rejected the voluntariness challenge.
The district court further determined his Fourth Amendment
challenge to be baseless. Concluding that Rogers did not
demonstrate a fair and just reason to change his plea, the
district court denied his motion.
Owens was tried the same month. The Government intro-
duced evidence of the facts we have just described, and
Rogers testified against Owens. In his testimony, Rogers
identified Owens as the man he had seen in the Merrillville
parking lot and who drove away with Moorman. On cross
examination, Rogers admitted that he remembered Owens
better because he had spent time with him in the same cell
on October 26. Asked to describe the man he saw on
Nos. 02-3578 & 03-1870 7
December 3, 2000, Rogers replied only that the man was “a
5
black guy” and that to him “most black guys look alike.”
Tr.VI at 161-62.
Owens unsuccessfully objected to the in-court identifica-
tion, contending that his placement in the cell with Rogers
on October 26 was unduly suggestive. He also unsuccessfully
moved for judgment of acquittal. At the end of the two-day
bench trial, the court found Owens guilty on all counts.
Owens then filed a post-trial motion for acquittal or for a
new trial, again attacking Rogers’ identification and the suffi-
ciency of the evidence. The district court denied this motion.
It determined that the identification procedures were reli-
able even if Rogers’ placement in the same cell had been
unduly suggestive. Rogers and Owens were sentenced to 51
and 97 months’ imprisonment, respectively.
II
DISCUSSION
A. Standard of Review
This court reviews the denial of a motion to withdraw a
guilty plea for abuse of discretion. United States v. Roque-
Espinoza, 338 F.3d 724, 726 (7th Cir. 2003). We review the
district court’s factual findings for clear error. United States
v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). On Mr. Owens’
challenge to the sufficiency of the evidence, we shall affirm
his conviction if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003). In
making this evaluation, we must draw all reasonable infer-
5
Mr. Rogers and Mr. Owens are both African-American.
8 Nos. 02-3578 & 03-1870
ences in favor of the Government without reweighing the
evidence or witness credibility. United States v. Senffner, 280
F.3d 755, 760 (7th Cir. 2002). We review de novo the refusal
to suppress Mr. Rogers’ identification of Mr. Owens, with
due deference given to the district court’s findings of fact.
United States v. Harris, 281 F.3d 667, 669-70 (7th Cir. 2002).
B. Theodore Rogers
A defendant may be allowed to withdraw a guilty plea if
he “can show a fair and just reason for requesting the with-
6
drawal.” Fed. R. Crim. P. 11(d)(2)(B); see Bennett, 332 F.3d
at 1099. Mr. Rogers bears the burden of demonstrating a fair
and just reason. Bennett, 332 F.3d at 1099.
Mr. Rogers submits that the district court abused its dis-
cretion in denying his motion to withdraw his plea. In his
view, he could have demonstrated a likelihood of success on
his suppression motion—had he been allowed to argue it.
Therefore, he contends, the district court’s refusal to hear
the suppression motion constituted a fair and just reason to
change his plea. Although he predicated his withdrawal
motion before the district court on both inadequacy of
counsel and unconstitutionality of the stop and search, his
submissions before this court claim only the latter ground.
At his plea hearing, Mr. Rogers did not ask to enter a
conditional plea, and therefore did not preserve his right to
seek appellate review of the stop and search. Fed. R. Crim.
6
Amendments to the Federal Rules of Criminal Procedure took
effect on December 1, 2002. At the time of his plea hearing, the
plea withdrawal provisions of the Rules were located at Rule
32(e); the fair and just reason standard remains the same. See
United States v. Bennett, 332 F.3d 1094, 1099 n.1 (7th Cir. 2003).
Nos. 02-3578 & 03-1870 9
P. 11(a)(2). His guilty plea operates as a waiver of all non-
jurisdictional defects. See United States v. Galbraith, 200 F.3d
1006, 1010 (7th Cir. 2000). “In order to preserve an issue for
appeal, the plea must precisely identify the pretrial issues
which the defendant wishes to preserve for review, and
must demonstrate that a decision on one of those issues will
dispose of the case . . . by suppressing essential evidence.”
United States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998).
We can find no statements in the record of the plea hear-
ing that indicate Mr. Rogers’ plea of guilty was anything but
unconditional. Notably, the record indicates that he rec-
ognized the impact of his plea because his agreement to
waive the right to appeal any sentence sparked extensive
7
discussion with the district court. Mr. Rogers thus waived
consideration of his Fourth Amendment claim.
Despite this waiver, the district court nevertheless held an
evidentiary hearing and allowed Mr. Rogers the opportu-
nity to establish a fair and just reason to change his plea by
demonstrating that police had conducted the stop and
search in violation of his Fourth Amendment rights. After
hearing testimony from Trooper Carmin and Officer Retske,
7
During the plea hearing, the district court expressed some con-
cern about his giving up his right to appeal the sentence, and Mr.
Rogers did not seem to understand exactly what he was giving up.
After the court tried to explain it to him, Mr. Rogers stated that he
did not want to give up this right. The court then recessed while
Mr. Rogers conferred with his attorney, and when they came
back, he agreed that he intended to give up the possibility of
appealing his sentence. This exchange indicates that Mr. Rogers
was aware of and concerned with the idea of preserving issues
for appellate review and undermines to some extent the claim
that he did not realize that his suppression motion would be
waived.
10 Nos. 02-3578 & 03-1870
the court found their testimony credible and determined
that the traffic violation and odor from the car had given
Trooper Carmin reasonable suspicion to detain Mr. Rogers
and to call a canine unit. From the same evidence, the dis-
trict court further determined that Mr. Rogers had con-
sented to a search of the car. The court finally held that Mr.
Rogers had provided little, if any, support for the motion to
suppress and therefore had not demonstrated a fair and just
reason to withdraw his plea. We can find no clear error in
the district court’s factual determinations, and we cannot
say that the district court abused its discretion in denying
Mr. Rogers’ motion.
Mr. Rogers’ submission to this court might be construed
as an invitation to revisit the merits of his claim that the
vehicle search violated his constitutional rights. We simply
cannot accept such an invitation. At the time of his plea,
Federal Rule of Criminal Procedure 11(a)(2) provided that
“a defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right, on appeal from
the judgment, to review the adverse determination of any
specified pretrial motion. If the defendant prevails on appeal,
he shall be allowed to withdraw his plea.” Fed. R. Crim. P.
11(a)(2) (1999). Consistent with the views of our sister cir-
cuits, we have held that a defendant’s failure to preserve a
pre-trial motion for review under Rule 11(a)(2) constitutes
a waiver of the issue. See, e.g., Galbraith, 200 F.3d at 1010; see
also, e.g., United States v. Bell, 350 F.3d 534, 535 (6th Cir. 2003);
United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003); United
States v. Lampazianie, 251 F.3d 519, 526 (5th Cir. 2001).
Mr. Rogers’ situation differs from that of other instances
of waiver by a failure to preserve through Rule 11(a)(2); he
does not seek to appeal an adverse ruling on his suppres-
sion motion but asserts that he may withdraw his plea
because the district court never considered the suppression
Nos. 02-3578 & 03-1870 11
motion. His unconditional guilty plea, however, waived his
right to have this court review his Fourth Amendment
claim:
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of the
guilty plea . . . .
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Notably, Mr. Rogers does not assert here that he was
coerced into pleading guilty; he does not attempt to show
that his plea was involuntary; and he does not suggest any
misapprehension on his part that his suppression motion
would survive the plea. See United States v. Muniz, 882 F.2d
242, 243-44 (7th Cir. 1989). Although this court has relaxed
the Rule 11(a)(2) requirement that a condition be in writing,
see United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989),
we find no statements from Mr. Rogers in his change of plea
hearing or otherwise that his intent to plead guilty depended
on the outcome of his suppression motion, or that his plea
was conditioned on the preservation of his suppression mo-
8
tion. Because Mr. Rogers’ asserted constitutional viola-
8
The Sixth Circuit considered and rejected the argument that,
when—as here—a defendant explicitly agrees to waive appeal of
his sentence, the maxim expressio unius est exclusio alterius could
lead us to construe this express waiver as an implicit preservation
of every other issue. See United States v. Bell, 350 F.3d 534, 536 n.2
(continued...)
12 Nos. 02-3578 & 03-1870
tion is non-jurisdictional, he “waived his right to appeal the
suppression issue by entering this unconditional plea, [and]
we will not review his Fourth Amendment claims.” Galbraith,
200 F.3d at 1010.
In its response to Mr. Rogers’ change of plea motion, the
Government argued in the district court that Mr. Rogers
waived his right to consideration of the Fourth Amendment
claim. The district court nevertheless chose to conduct an
evidentiary hearing to determine whether Mr. Rogers could
establish, through the asserted Fourth Amendment vio-
lation, a fair and just reason to change his plea. See United
States v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). The
Government does not present its waiver argument here, but
limits its brief to the district court’s fair and just deter-
mination based on the search issue. We have nevertheless
held that a defendant’s failure to preserve a constitutional
claim for appeal through a Rule 11(a)(2) conditional plea
deprives this court of authority to hear the claim. United
States v. Adams, 125 F.3d 586, 588-89 (7th Cir. 1997). This
view is consistent with the holdings of some of our sister
circuits, and seems consistent with the Supreme Court’s
view in Tollett. See, e.g., United States v. Herrera, 265 F.3d 349,
351 (6th Cir. 2001) (“It is elemental that a guilty pleading
defendant may not appeal an adverse pre-plea ruling . . . .”
(emphasis added) (citing Tollett, 411 U.S. at 267)); United
States v. Arrellano, 213 F.3d 427, 430 (8th Cir. 2000) (noting
“well established” rule that a defendant pleading guilty
waives non-jurisdictional defenses); United States v. Cordero,
42 F.3d 697, 699 (1st Cir. 1994) (“We have assiduously fol-
8
(...continued)
(6th Cir. 2003). We agree with our sister circuit, however, that
“Rule 11(a)(2) mandates that [the] defendant not get the benefit
of such silence.” Id.Nos. 02-3578 & 03-1870 13
lowed the letter and spirit of Tollett, holding with monoto-
nous regularity that an unconditional guilty plea effectuates
a waiver of any and all independent non-jurisdictional
lapses that may have marred the case’s progress up to that
point . . . .”); United States v. Pickett, 941 F.2d 411, 415 (6th
Cir. 1991) (Rule 11(a)(2) “prevents our hearing [the defen-
dant’s] appeal.” (emphasis added)); United States v. Carrasco,
786 F.2d 1452, 1453-54 (9th Cir. 1986) (“We do not have
jurisdiction to decide Carrasco’s appeal of the denial of the
suppression motion unless she entered a valid conditional
plea.”). But see United States v. Robinson, 20 F.3d 270, 273 (7th
Cir. 1994); Garcia, 339 F.3d at 118; cf. United States v. Davis,
900 F.2d 1524, 1526 (10th Cir. 1990) (noting that the court
“need not” entertain appeal of an unpreserved pre-trial
9
motion).
9
We note that, even if we were to reach the point, we would find
the Fourth Amendment issue without merit. Trooper Carmin tes-
tified that he observed Mr. Rogers’ vehicle cross the fog line be-
fore making an abrupt correction. This erratic behavior gave the
trooper probable cause to believe that Mr. Rogers had committed
a traffic violation. We have no reason to suspect that Trooper
Carmin had an ulterior motive in stopping Mr. Rogers, but, even
if we did, his subjective motive for making the stop is not relevant;
the only relevant inquiry for Fourth Amendment purposes is
whether the evidence, when objectively assessed, gave the officer
probable cause for the stop. See Whren v. United States, 517 U.S.
806, 813 (1996); United States v. Bass, 325 F.3d 847, 850 (7th Cir.
2003). Although Mr. Rogers asserts that the stop was pretextual,
the evidence establishes both that Trooper Carmin had probable
cause to stop the car, and that he was authorized to make the
stop. See generally United States v. Trigg, 878 F.2d 1037 (7th Cir.
1998).
We further agree with the district court’s determination that,
based on Mr. Rogers’ nervous behavior, the odd odor emanating
(continued...)
14 Nos. 02-3578 & 03-1870
Accordingly, we find no error in the district court’s denial
of Mr. Rogers’ motion to withdraw his guilty plea, and we
affirm Mr. Rogers’ conviction.
C. Winfred Owens
Mr. Owens appeals his conviction on two grounds, both
for sufficiency of the evidence and trial court error. Specifi-
9
(...continued)
from the vehicle, and his prior drug history, Trooper Carmin had
reasonable suspicion to believe that the vehicle’s occupants were
engaged in drug activity and to justify calling a canine unit. See
United States v. Finke, 85 F.3d 1275, 1281-82 (7th Cir. 1996). Al-
though, given the traffic violation and the occupants’ suspicious
behavior, the officers may have had sufficient probable cause to
place Mr. Rogers under arrest and search the vehicle incident to
that arrest, see New York v. Belton, 453 U.S. 454, 460-61 (1981);
Chimel v. California, 395 U.S. 752, 760 (1969); United States v.
Hernandez-Rivas, 348 F.3d 595, 599 (7th Cir. 2003); United States v.
Wimbush, 337 F.3d 947, 950-51 (7th Cir. 2003), we need not
address that question because the evidence supports the district
court’s determination that, based on the officers’ testimony, the
vehicle occupants consented to the search, see Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); United States v. West, 321 F.3d
649, 651-52 (7th Cir. 2003). In the alternative, we agree with the
district court’s determination that once the canine alerted to the
presence of drugs in the vehicle the officers’ reasonable suspicion
elevated to probable cause to further search the car. See United
States v. Ganser, 315 F.3d 839, 844 (7th Cir. 2003).
Thus, although his unconditional plea waived consideration of
his Fourth Amendment claim, we, like the district court, see no
merit to Mr. Rogers’ suppression motion. We therefore find no
abuse of discretion in the district court’s determination that the
asserted Fourth Amendment violation did not constitute a fair
and just reason for changing the plea.
Nos. 02-3578 & 03-1870 15
cally, he claims that the evidence presented was insufficient
to convict him of the charged crimes. He also asserts that the
district court erred in refusing to suppress Mr. Rogers’
identification because the placement of the two in the same
cell was unduly suggestive and inherently unreliable.
A finding of insufficient evidence is akin to an acquittal
and bars the defendant’s retrial under the Double Jeopardy
Clause. Burks v. United States, 437 U.S. 1, 18 (1978); see gen-
erally United States v. Lanzotti, 90 F.3d 1217, 1220-24 (7th Cir.
1996). Improper admission of evidence, on the other hand,
is “trial error,” the double jeopardy bar does not attach, and
a retrial may be had on remand. Lockhart v. Nelson, 488 U.S.
33, 40-42 (1988); United States v. Hudspeth, 42 F.3d 1015, 1025
(7th Cir. 1994) (en banc).
1. Sufficiency of the Evidence
Mr. Owens argues that the Government offered evidence
insufficient to support his convictions. To prove that he
possessed with intent to distribute 500 or more grams of
cocaine in violation of 21 U.S.C. § 841(a)(1), the Government
was required to establish that (1) he possessed more than 500
grams of cocaine; (2) he knew the drug was a controlled
substance; and (3) he intended to distribute it. See United
States v. Jones, 248 F.3d 671, 675 (7th Cir. 2001). To prove a
violation of 21 U.S.C. § 843(b), the Government had to
demonstrate that Mr. Owens used a communication device
in furtherance of the § 841(a)(1) offense. See United States v.
Binkley, 903 F.2d 1130, 1136 (7th Cir. 1990). To meet its
burden on the alleged violations of 18 U.S.C. §§ 2 and 1952,
the Government had to show that Mr. Owens knowingly
aided and abetted another person’s interstate travel with the
intent of promoting the § 841(a)(1) offense. See United States
v. O’Hara, 301 F.3d 563, 570 (7th Cir. 2002).
16 Nos. 02-3578 & 03-1870
There was ample circumstantial evidence of record to
convict Mr. Owens on all three counts. At trial, the Govern-
ment introduced evidence that Moorman and Mr. Rogers
traveled from Kentucky to Merrillville for the apparent sole
purpose of buying cocaine. After arriving, Moorman and
another man drove away for twenty to twenty-five minutes
before returning to the parking lot. Mr. Rogers identified
Mr. Owens as that man, and Mr. Owens’ fingerprint was
found on the newspaper covering a one-kilogram brick of
cocaine in Moorman’s glove box. Police found a large quantity
of currency on Moorman’s person and even more money
hidden in the vehicle. Mr. Rogers testified that Moorman
made several telephone calls to the man during their trip,
and noticed the man in the parking lot on a telephone at the
same time Moorman talked on his. Telephone records
indicated eight calls placed that day between Moorman’s
cellular telephone and a cellular telephone in Mr. Owens’
possession. In his phone directory, Moorman had pro-
grammed the letters “W I N” next to the number associated
with the telephone in Mr. Owens’ possession, and these
same letters were inscribed on a keychain in Mr. Owens’
possession at his arrest.
Before this court, Mr. Owens points to the evidence that
was not presented. He notes that the fingerprint evidence is
inconclusive because it does not rule out the possibility that
he read the newspaper and discarded it, only to be picked
up and used to wrap cocaine. Along the same lines, he
argues that evidence did not rule out the possibility that
another person used his cellular telephone that day. He also
asserts that no trial witness saw him with the cocaine or
testified about the substance of any telephone calls. Mr.
Owens made these arguments at his bench trial, and the
district court nevertheless found them unconvincing.
Nos. 02-3578 & 03-1870 17
Drawing all reasonable inferences in the Government’s
favor, as we must, see Senffner, 280 F.3d at 760, we believe
that a rational trier of fact could have inferred that Moorman
and Mr. Rogers traveled to Merrillville at least partly with
the aid or encouragement of Mr. Owens. The same rational
factfinder could have determined that Mr. Owens intended
to, and did, transfer over 500 grams of cocaine to Moorman,
and that the participants facilitated the transaction by using
telephones. The evidence was thus sufficient to convict
Mr. Owens of all three counts.
2. Identification
A criminal defendant has a due process right not to be
identified before trial “in a manner that is ‘unnecessarily
suggestive and conducive to irreparable mistaken identifica-
tion.’ ” Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000)
(quoting Stovall v. Denno, 388 U.S. 293, 301-02 (1967)). We
conduct a two-step analysis to determine whether an iden-
tification procedure comports with due process. Gregory-Bey
v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003). First, Mr.
Owens “must demonstrate that the identification procedures
were unduly suggestive.” Id. (citing United States v. Traeger,
289 F.3d 461, 474 (7th Cir. 2002)). Second, “we ask whether,
under the totality of the circumstances, the identification
was reliable despite the suggestive procedures.” Traeger, 289
F.3d at 474.
In this case, the district court allowed, over Mr. Owens’
objection, Mr. Rogers to identify Mr. Owens in court. That
identification is tainted, according to Mr. Owens, because
placing him alone in the same cell with Mr. Rogers, when
the latter previously had been unable to identify him from
a photo lineup, was unduly suggestive. In this vein, he likens
the situation to a “showup,” in which only one suspect,
18 Nos. 02-3578 & 03-1870
rather than a lineup, is presented to a witness. See Armstrong
v. Young, 34 F.3d 421, 427 (7th Cir. 1994). The district court
denied Mr. Owens’ post-conviction motion for acquittal but
nevertheless characterized the identification as “less than
ideal.” R.88 at 9. It assumed that the situation in the holding
cell “could be construed as a suggestive pre-trial identifi-
cation.” R.88 at 10. The court nevertheless found the in-court
identification reliable. Mr. Owens claims that this determi-
nation was erroneous, and that, under the totality of the
circumstances, the in-court identification was unreliable.
The Government contends that the placement of Mr.
Rogers in a cell with Mr. Owens represented a simple chance
encounter between the two and was not unduly suggestive
because law enforcement authorities did not present Mr.
Owens to Mr. Rogers. Assuming that the encounter was un-
duly suggestive, however, the Government further argues
that the in-court identification of Mr. Owens was suffi-
ciently and independently reliable under the totality of the
circumstances.
a. suggestiveness
We agree with the district court that Mr. Rogers’ identifi-
10
cation of Mr. Owens was “less than ideal.” There is no
evidence that the Government intentionally placed Mr.
Rogers in the cell to identify Mr. Owens; the lapse in ap-
propriate procedures appears to have been inadvertent. The
10
Mr. Owens does not claim the picture lineup shown to Mr.
Rogers in September or October 2001 to be unduly suggestive,
and the record is insufficient to determine whether it was so. We
therefore consider only how Mr. Rogers’ viewing of the photo-
graphs affected his identification after the two were placed in the
same cell on October 26.
Nos. 02-3578 & 03-1870 19
agents did not present him to the witness for identification.
The Government, however, goes too far in characterizing
the events of October 26 as a chance encounter.
To be sure, courts have held accidental encounters be-
tween a witness and a suspect to be non-suggestive. See, e.g.,
United States v. Briggs, 700 F.2d 408, 411-13 (7th Cir. 1983)
(witness recognized defendant after seeing him in court-
house hallway); see also United States v. Lopez-Lopez, 282 F.3d
1, 11 (1st Cir. 2002) (narcotics agents had unsuccessfully pur-
sued defendants and spontaneously recognized the defen-
dants upon entering police station and seeing them in
custody); United States v. Domina, 784 F.2d 1361, 1369-70 (9th
Cir. 1986) (witness waiting to testify recognized defendant
in group of people exiting courtroom during recess); United
States v. Hensel, 699 F.2d 18, 40 (1st Cir. 1983) (witness
waiting to testify spontaneously recognized defendant at
courthouse snack bar).
The facts before us indicate that the meeting between
Mr. Rogers and Mr. Owens was more than an accidental en-
counter in a hallway or a snack bar. Both men were in the
cell because of their complicity in the same criminal transac-
tion. A probation officer interviewed Mr. Rogers,
in preparation for sentencing on that offense, while Mr.
Owens sat close by. Mr. Rogers had been shown a picture of
Mr. Owens in the photo array a few weeks earlier at most,
and he may well have determined—if only subconsciously—
that finding the same man in his cell on the day he pleaded
guilty was no coincidence. Mr. Rogers’ failure to recognize
Mr. Owens from the photo array casts suspicion on his “im-
mediate” recognition in the holding cell.
It is irrelevant that police unintentionally placed the two
men in one cell. Manson v. Brathwaite, 432 U.S. 98, 112-14
(1977). The circumstances were, as the district court assumed,
unduly suggestive. Mr. Owens has met his burden of dem-
onstrating the first element of the two-part inquiry.
20 Nos. 02-3578 & 03-1870
b. reliability of the in-court identification
Having determined the identification procedure to be
unduly suggestive, we must consider whether, under the
totality of the circumstances, Mr. Rogers’ in-court identifica-
tion was reliable despite his having been placed in a cell
with Mr. Owens. In assessing the reliability of an identifi-
cation despite unduly suggestive pre-trial procedures, we
must consider the five so-called “Biggers factors”: (1) the
witness’ opportunity to view the suspect at the scene of the
crime; (2) the witness’ degree of attention at the scene; (3)
the accuracy of his pre-identification description of the
suspect; (4) the witness’ level of certainty in the identifica-
tion; and (5) the time elapsed between the crime and the
identification. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972);
McFowler v. Jaimet, 349 F.3d 436, 449 (7th Cir. 2003). Apply-
ing these factors to the facts of this case casts very serious
doubt on the reliability of this in-court identification.
It is not clear from Mr. Rogers’ testimony how long he
observed the other man in the Merrillville parking lot. He
saw the man twice within the space of twenty-five minutes,
and testified to observing him in the parking lot, entering
Moorman’s car and driving away, returning, and then
leaving in another vehicle. But there is no indication how
close the two came to each other or for how long Mr. Rogers
observed him. Mr. Rogers’ view may have been obstructed
at almost every stage: the man held a telephone to his ear in
the parking lot at first, and was then observed in a vehicle.
As for the second Biggers factor, the record raises doubts
about the amount of attention Mr. Rogers gave to events in
that parking lot. On one hand, Mr. Rogers was a knowing
participant in a criminal transaction and may have been
particularly attentive as a result. See United States v. Plunk,
153 F.3d 1011, 1021-22 (9th Cir. 1998), abrogated on other grounds
by United States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir.
Nos. 02-3578 & 03-1870 21
2000). He also had used cocaine seven to eight hours before
arriving in the parking lot, but we defer to the district court’s
factual determination that he was free from the drug’s in-
fluence at the time. See Harris, 281 F.3d at 669-70. However,
Mr. Rogers played a limited role in the transaction—he only
accompanied Moorman in exchange for the cocaine. He
appears to have been uninterested in Moorman’s scheme;
Mr. Rogers exited the vehicle once they arrived at the
parking lot, allowed Moorman and the other man to drive
away, spent his time eating and looking at clothes until they
returned, and then immediately began driving back to
Kentucky. There is no evidence that Mr. Rogers ever spoke
to the other man or that he even asked Moorman about the
transaction. Moreover, Mr. Rogers’ statement that “most black
guys look alike” to him casts doubt on any attention that he
paid to the man in the parking lot.
The record is silent as to the quality or content of any de-
scription Mr. Rogers gave of the other man. Again, though,
his admitted inability to distinguish African-Americans
would give us pause in considering his description. Perhaps
instructively, at trial the best description Mr. Rogers could
give of himself was “a black guy and I got a little bit of
hair.” Tr.VI at 162.
Mr. Rogers expressed no uncertainty about identifying
Mr. Owens in court. We give this factor little weight in the
present circumstances, however, because the presence at a
criminal trial of a single defendant like Mr. Owens can be
suggestive, see McFowler, 349 F.3d at 450, and it is not sur-
prising that Mr. Rogers would express certainty with respect
to his in-court identification. Indeed, “the most certain wit-
nesses are not invariably the most reliable ones.” Rodriguez
v. Young, 906 F.2d 1153, 1163 (7th Cir. 1990). It is telling that
when asked to describe the individual who drove the man
identified as Mr. Owens away from the parking lot, Mr.
22 Nos. 02-3578 & 03-1870
Rogers’ certainty faltered, and the most he could manage
was in response to prodding from Mr. Owens’ counsel:
Q: So, the other person in that car was a male, not a
female?
A: It was a back [sic]—yeah, black male.
Tr.VI at 162. In addition, here, where Mr. Rogers’ certainty
is a product of the suggestive earlier identification in the
cell, we are particularly skeptical. See Cossel, 229 F.3d at 656
n.4. Moreover, as certain as Mr. Rogers may have been in
the identification at trial, his failure to identify Mr. Owens’
photograph before the suggestive encounter makes his ac-
tual degree of certainty doubtful.
Finally, consideration of the fifth Biggers factor reveals
that a significant amount of time elapsed between the park-
ing lot transaction and his identification of Mr. Owens. Mr.
Rogers did not recognize Mr. Owens until, as a cooperating
witness, he walked into the holding cell on October 26, 2001,
almost eleven months after seeing the man in the parking lot
and weeks after failing to identify Mr. Owens’ photograph.
See Cossel, 229 F.3d at 656 (seven months between encounter
and identification would “be a seriously negative factor”
(quoting Biggers, 409 U.S. at 201)). He did not identify Mr.
Owens in court for a further five months.
We conclude that Mr. Rogers’ identification was unduly
suggestive and, under the totality of the circumstances, un-
reliable, and it should have been excluded. At oral argument
the Government conceded that if we found the identification
to be inadmissible its admission would not be considered
harmless. We agree that the error was not harmless, and
therefore reverse Mr. Owens’ convictions. Because we
reverse based on trial error, we remand to the district court
for further proceedings consistent with this opinion.
Nos. 02-3578 & 03-1870 23
Conclusion
For the foregoing reasons, we affirm the district court’s
denial of Mr. Rogers’ motion to withdraw his guilty plea.
With respect to Mr. Owens, we hold that there was suffi-
cient evidence to support his convictions, but we reverse on
all three counts because the in-court identification of Mr.
Rogers improperly was admitted into evidence. Mr. Owens’
case is remanded to the district court for further proceed-
ings.
AFFIRMED in part; REVERSED and REMANDED in part
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-04