United States v. Guzman Rivera ( 1993 )

April 9, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1855
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN C. GUZMAN-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Roxana C. Matienzo-Carri n for appellant.
Jos A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Daniel F. L pez-Romo, United States Attorney, was on brief
for appellee.
April 9, 1993
TORRUELLA, Circuit Judge. Appellant Juan C. Guzm n-
Rivera and two co-defendants were charged with aiding and
abetting each other in the assault and battery of a postal
contractor and robbing him of mail,1 unlawful possession and
retention of United States treasury checks,2 and use of a
firearm in the commission of these crimes.3 The co-defendants
never went to trial. One was declared incompetent, and the other
accepted a plea bargain. Appellant now argues that the
government offered unreliable evidence of appellant's identity,
and that the evidence against him was therefore insufficient to
support his convictions. Because we find that the district court
properly admitted the disputed evidence, and that a rational jury
could find appellant guilty beyond a reasonable doubt, we affirm
the verdict.
BACKGROUND
Government witness Ramos-Cotto, a mail carrier,
testified to the following. On August 2, 1991, two men
approached him while he was distributing mail. One of the men,
later identified as appellant, pointed a .38 caliber revolver at
Ramos-Cotto's neck, and threatened to kill him if he moved. In a
violent exchange, appellant took the keys to the mail vehicle and
the mail that was in Ramos-Cotto's hand. Finally, appellant and
the other man pulled Ramos-Cotto across the street, and appellant
said "start running downhill or I'll kill you." While running,
1 18 U.S.C. 2, 2114.
2 18 U.S.C. 2, 510(b).
3 18 U.S.C. 924(c)(1).
Ramos-Cotto heard the car leave.
After the incident, Ramos-Cotto saw and recognized
appellant on two separate occasions while distributing mail on
the same route. Approximately two weeks later, upon receiving
confidential information that appellant might be in certain
places, Ramos-Cotto and four postal investigators went to these
locations to look for him. After passing by approximately five
of the suggested locations, Ramos-Cotto identified appellant
talking to three other people in a grocery store. The
investigators arrested appellant and one other individual.
The government also introduced evidence that when the
police found the mail car, four hundred pieces of mail were
missing, including a number of social security checks. In
addition, after the robbery, the Dominican Republic's national
police apprehended one of the co-defendants attempting to cash
social security checks bearing a San Juan address.
Appellant argues that we should reverse his conviction
for two reasons: (1) the government's evidence regarding
appellant's identity was unreliable, and thus, the district court
should not have admitted it; and (2) there was insufficient
evidence to sustain appellant's convictions.
DISCUSSION
Appellant's first argument is a due process argument.
A district court deprives a defendant of due process by admitting
evidence of an identification that has proven "'so impermissibly
suggestive as to give rise to a very substantial likelihood of
-3-
irreparable misidentification.'" United States v. Bouthot, 878
F.2d 1506, 1514 (1st Cir. 1989) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). Under the first prong of this
test, appellant must show impermissible suggestion by law
enforcement officials. See United States v. Gray, 958 F.2d 9,
13-14 (1st Cir. 1992); Bouthot, 878 F.2d at 1514.
Appellant asks us to infer that the identification was
unduly suggestive for four reasons: (1) the search for appellant
occurred one month after the robbery and after co-defendants'
arrests; (2) the investigators arrested a second individual with
appellant who was later released; (3) the investigation revealed
no fingerprints belonging to appellant; and (4) Ramos-Cotto never
described appellant at the time of the robbery. These are all
good arguments that trial counsel made to the jury regarding
Ramos-Cotto's credibility. Although the record offers no
explanation for these circumstances, we cannot draw the sizable
inference that appellant seeks.
The record evidence shows that upon receiving
confidential information regarding appellant's whereabouts, the
postal investigators brought Ramos-Cotto to at least five
different public locations to look for him. (Transcript of Jury
Trial at 38-39). After visiting the fifth location, they passed
a grocery store where Ramos-Cotto saw and identified appellant.
Id. They then passed by a second time so that Ramos-Cotto could
identify him again. Id. The record exhibits no evidence that
the investigators controlled or manipulated the people that
-4-
Ramos-Cotto would encounter during this search. Nor does the
record reveal that the investigators indicated to Ramos-Cotto in
any way that they believed appellant was the perpetrator. Ramos-
Cotto testified that he was at all times since the robbery able
to identify appellant as his assailant. Id. at 39-40. Indeed,
he testified that he identified appellant on two previous
occasions without the investigators, and that he promptly called
one of the investigators after the second sighting. Id. at 37-
40, 62. Based on these facts, we can find no undue suggestion by
law-enforcement officials.
Since we do not find the identification impermissibly
suggestive, we need not reach the likelihood of misidentification
prong of the test. See Gray, 958 F.2d at 14. Even if we were to
reach that issue, however, it would not significantly bolster
appellant's argument. Under the second prong, we consider: (1)
the witness' opportunity to view the defendant during the crime;
(2) the witness' degree of attention at the time of the crime;
(3) the accuracy of the witness' prior description; (4) the
witness' level of certainty when identifying the suspect at the
confrontation; and (5) the length of time between the crime and
the confrontation. United States v. Alexander, 868 F.2d 492, 495
(1st Cir.), cert. denied, 493 U.S. 979 (1989).
In the present case, three of the five factors support
the reliability of the identification. Ramos-Cotto testified
that he stood right next to appellant, almost face-to-face,
during the robbery and thus had a significant opportunity to view
-5-
him. (Transcript of Jury Trial at 39-40). Additionally, he
testified that he specifically focused on appellant during the
incident while appellant pointed a gun at him, and that he knew
at all relevant times that he could identify appellant, which he
did twice before the final confrontation. While Ramos-Cotto gave
no prior description of appellant and waited a month until the
final confrontation, the totality of the circumstances does not
mandate a finding of unreliability. As such, we are unwilling to
usurp the determination from the jury. See United States v.
Turner, 892 F.2d 11, 14 (1st Cir. 1989) (identification evidence
should be withheld from jury only in extraordinary cases).
Appellant's second argument challenges the sufficiency
of the evidence against him. To overturn a jury's conviction
based on insufficient evidence, we must find that no rational
jury could conclude beyond a reasonable doubt that appellant
committed the crimes charged. United States v. Maraj, 947 F.2d
520, 522-23 (1st Cir. 1991). In doing so, we must review the
record in the light most favorable to the government and resolve
all credibility issues in favor of the verdict. United States v.
Angiulo, 897 F.2d 1169, 1197 (1st Cir.), cert. denied, 498 U.S.
845 (1990).
Reading the record in this light, we find that
sufficient evidence existed to convict appellant. The bulk of
appellant's sufficiency argument concerns the reliability of the
testimony identifying appellant as the perpetrator. As noted
above, Ramos-Cotto testified that he had plenty of time to see
-6-
appellant at the time of the crime and twice thereafter. He also
testified that he concentrated on appellant during the robbery
because appellant had the gun. (Transcript of Jury Trial at 54).
Ramos-Cotto looked for appellant in five public locations before
finding him at the grocery store. Appellant had ample
opportunity to cross-examine Ramos Cotto with respect to
appellant's identity. In fact, the trial transcript reveals at
least twenty pages of cross-examination on this very issue. A
jury could rationally choose to rely on Ramos-Cotto's
identification. We find no error in the ultimate verdict on this
ground.
Appellant's other sufficiency argument fails as well.
Appellant argues that the government failed to show that the
social security checks confiscated from appellant's co-defendant
were the checks that appellant allegedly stole. Appellant's
argument fails because Ramos-Cotto testified that the four
disputed checks were among those taken during the robbery. Id.
at 41-42. He further testified that he recognized them because
they displayed his mail distribution route number and the date of
the robbery, and he recognized the names of the addressees as
individuals who receive mail on his route. Id. at 41. This
evidence was sufficient to show that the confiscated social
security checks were taken during the robbery at issue.
Finally, after reviewing the remaining elements of the
charges, we find that the evidence presented at trial
sufficiently supported appellant's convictions. We affirm the
-7-
verdict.
Affirmed.
-8-