United States v. Lewis ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31320
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERNARD LEWIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CR-207-13-N)
January 29, 2001
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Primarily at issue is an eyewitness identification of Jernard
Lewis for a murder he committed. Lewis also challenges the
sufficiency of the evidence for his drug conspiracy conviction and
the exclusion of impeachment testimony by his former attorney. We
AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
On 15 April 1997, Albert Cortez, a crack cocaine addict who
lived in the Seventh Ward of New Orleans, was shot and killed.
Leshara El-Amin, a resident of that ward, claimed she witnessed the
murder. After giving Lewis’ nickname to the police that May, she
selected his photograph from a lineup that August. That December,
El-Amin was approached by Adonis Thompkins, Christopher Frank, and
another; Frank shot El-Amin. As a result, she is confined to a
wheelchair.
In January 1999, Lewis and 12 co-defendants were charged with
conspiracy to distribute cocaine base and cocaine hydrochloride, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Lewis was also
charged with using a firearm in relation to a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1); this charge concerned
the fatal shooting of Cortez, an alleged crack cocaine customer.
Severed from his co-defendants’ trial, Lewis’ commenced in
August 1999. El-Amin testified that, on the night of Cortez’s
murder, she had just spoken with him on the telephone, and planned
to meet him on the street. As Cortez approached her, she saw a car
pull beside him. Someone in the car called to Cortez; El-Amin
heard a gunshot, saw Cortez fall to the ground, and saw Lewis exit
the car and shoot him several more times.
Being frightened, El-Amin ran to her home. A few minutes
later, the same car stopped at El-Amin’s house; Lewis and another
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exited and told El-Amin not to say anything, or they would kill
her. El-Amin recalled that, a few days before Cortez was killed,
she overheard Cortez tell Lewis he did not have his money, and
Lewis reply, “You better have”.
Regarding El-Amin’s being shot in December 1997, Thompkins,
one of Lewis’ co-defendants, testified that Trevor Williams,
another co-defendant, offered him nine ounces of cocaine to kill
El-Amin, so that Lewis could be released from pre-trial detention
by Christmas. (Lewis had been arrested on 7 August 1997, the day
El-Amin picked him from the photographic lineup.) Thompkins denied
having played a part in the shooting, but acknowledged that he took
one-third of the payment.
Lewis’ motion to suppress concerning the photographic
identification by El-Amin was denied; she identified him in-court.
A jury found Lewis guilty. He was sentenced, inter alia, to life
in prison for the conspiracy conviction, and to a consecutive 60-
month sentence for the firearm conviction.
II.
Lewis contends the district court erred by: admitting into
evidence El-Amin’s identification testimony; denying his motion for
judgment of acquittal; and refusing to admit the testimony of his
former attorney.
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A.
Concerning the denial of Lewis’ motion to suppress El-Amin’s
identification testimony, “[t]he admissibility of identification
evidence and the fruits therefrom raises a mixed question of law
and fact on appeal”. United States v. Brown, 217 F.3d 247, 259
(5th Cir.), cert. denied, 121 S. Ct. 415 (2000). The district
court’s factual findings are reviewed for clear error. Id.
A suppression hearing was held in July 1999. Detective
Stoltz, the lead homicide detective, testified that, in May 1997
(approximately one month after Cortez’s murder), El-Amin told the
police “Nardi” killed Cortez. Believing Jernold Parker to be
“Nardi”, the police, on 28 July 1997, showed El-Amin a photographic
lineup, which included Parker’s photograph. El-Amin picked Parker,
telling the police she was 40 percent sure he killed Cortez. The
police, however, later eliminated Parker as a suspect, and began to
suspect Lewis. On 5 August 1997, El-Amin told the police that the
killer was 5'8" tall and had gold teeth; Lewis, however, is
approximately 6'1" tall and has no gold teeth.
Two days later, on 7 August, a second photographic lineup,
which included Lewis’ photograph, was shown to El-Amin. Because
she did not cooperate with the police, they warned her she could be
charged with obstruction of justice if she did not identify a
suspect. El-Amin picked Lewis’ photograph.
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At the suppression hearing, El-Amin testified: she witnessed
Cortez’s murder, and knew the perpetrator from the neighborhood;
although she did not know the perpetrator’s name, she knew his
nickname was “Nardi”; she had lied to the police, but did so
because she wanted to get them “off of [her] back”; at the 7 August
lineup, she kept picking people and “playing games with the police”
because she “was scared” and “didn’t want to get involved”;
although the police would say “[t]hat’s not true, or I know it’s
not true” when she picked someone other than Lewis, they did not
make her pick Lewis or ask her to lie; and when she witnessed
Cortez’s murder and made this identification, she was addicted to
crack cocaine. (Emphasis added.)
At the hearing’s conclusion, the district court denied Lewis’
suppression motion. It found: “the identification procedure was
not impermissibly suggestive” and “did not pose a substantial
likelihood of irreparable misidentification”. (Emphasis added.)
Determining the admissibility of an eyewitness identification
at trial, following a pre-trial photographic identification,
requires examining two elements — those considered by the district
court: whether the photographic array was impermissibly
suggestive; and, if so, whether, based upon the totality of the
circumstances, “the display posed a very substantial likelihood of
irreparable misidentification”. Brown, 217 F.3d at 260 (emphasis
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added; citations omitted). For this determination, “reliability is
the linchpin”. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
The following factors should be considered: opportunity of
the witness to view the perpetrator at the time of the crime; the
witness’ degree of attention; the accuracy of the witness’ prior
description of the perpetrator; the level of certainty demonstrated
at the confrontation; and the length of time between the crime and
the confrontation. Id. “Against these factors is to be weighed
the corrupting effect of the suggestive identification itself.”
Id. (emphasis added).
As noted, El-Amin testified at the suppression hearing that
she knew Lewis from her neighborhood, thereby converting the issue
into one of credibility, not reliability. United States v.
Fernandez-Roque, 703 F.2d 808, 814 (5th Cir. 1983). Thus, even
assuming the photographic lineup was impermissibly suggestive, see
Brown, 217 F.3d at 260, there was not, under the totality of the
circumstances, a substantial likelihood of irreparable
misidentification. Id.
Accordingly, the district court did not err in allowing the
jury to consider El-Amin’s identification testimony. Manson, 432
U.S. at 116. Any inconsistencies in it were properly resolved by
the jury. Id. (“Juries are not so susceptible that they cannot
measure intelligently the weight of identification testimony that
has some questionable feature.” (emphasis added)). For example, at
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Lewis’ trial, El-Amin testified, for the first time, that she had
purchased crack cocaine from Lewis. She also testified she
prostituted herself with Lewis after Cortez was murdered.
Lewis contends, for the first time on appeal, that the
photographic arrays were impermissibly suggestive because they
included photographs of individuals with common names, not physical
similarities. Lewis’ failure to raise this issue at trial
constituted a waiver. United States v. Chavez-Valencia, 116 F.3d
127, 129 (5th Cir.), cert. denied, 522 U.S. 926 (1997).
B.
After the jury returned its guilty verdict, Lewis moved for
judgment of acquittal, pursuant to Federal Rule of Criminal
Procedure 29(c). Concluding that the evidence, when viewed in the
light most favorable to the verdict, would permit a rational trier
of fact to find Lewis guilty beyond a reasonable doubt on both
charges, the district court denied the motion. Lewis contests that
denial only as to his conspiracy conviction.
We review de novo the denial of an acquittal motion. E.g.,
United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998), cert.
denied, 526 U.S. 1043 (1999); United States v. Allison, 616 F.2d
779, 784 (5th Cir.), cert. denied, 449 U.S. 857 (1980). Lewis
having timely moved for judgment of acquittal, and because the
motion is treated as a challenge to the sufficiency of the evidence
to convict, we view the evidence in the light most favorable to the
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Government, with all reasonable inferences made in support of the
jury’s verdict. E.g., United States v. Gallardo-Trapero, 185 F.3d
307, 313-14 (5th Cir. 1999), cert. denied, 528 U.S. 1127 (2000).
The verdict must be affirmed if a reasonable jury could have found,
beyond a reasonable doubt, that the evidence proved the essential
elements of the crime. Id. at 314.
As noted, Lewis challenges the sufficiency of the evidence
only for his conspiracy conviction; he does not do so for his
firearm conviction. In order to establish a drug conspiracy under
21 U.S.C. § 846, the Government must prove: (1) an agreement
existed between two or more persons to violate the narcotics laws;
(2) each alleged conspirator knew of, and intended to join, the
conspiracy; and (3) each alleged conspirator voluntarily
participated in it. E.g., Brown, 217 F.3d at 254. “A
conspiratorial agreement may be tacit and may be proved by
circumstantial evidence, including evidence of concerted action
among co-conspirators.” Id. Of course, mere presence and
association with wrongdoers is insufficient to authorize a
conviction; but, it is a fact the jury may consider in conjunction
with other evidence in reaching its verdict. Id.
The evidence at trial was that, beginning in the early 1990s,
co-defendants Brian Jones and Clifford Baptiste supplied drugs to
the other co-defendants who, acting as street-level dealers, openly
sold those drugs to customers on two street corners in their
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neighborhood in the Seventh Ward. Generally, the men sold drugs in
two separate groups, although occasionally group members would “mix
and mingle”. One group sold drugs at the corner of Rocheblave and
LaHarpe Streets (the Rocheblave group); the other, at the nearby
corner of Dorgenois and Lapeyrouse (the Dorgenois group). Lewis
usually sold with the latter.
Thomas Enclarde, one of the sellers from the Rocheblave group,
testified: “[I]f me, you, and somebody else [are] sitting on a
porch [in the neighborhood], we all have drugs. Now, every time
somebody come[s] up, like we might take a turn. I take this one,
you take that one, you take the next one”. Beginning in January
1994, however, a “turf war” developed between the two groups,
resulting in the murders of a number of the sellers, mainly from
the Rocheblave group.
There is ample evidence there was an “open-air market” for
cocaine in the Seventh Ward. As discussed, co-defendants Jones and
Baptiste were the main suppliers, with Lewis being one of the
street-level dealers. They shared the same motive, drug
distribution for financial gain, and acted together in a spirit of
cooperation, even referring customers to each other. The fact that
at least two of Lewis’ co-defendants attempted to murder El-Amin
also supports the inference of a conspiracy and Lewis’
participation in it. In short, the evidence was sufficient.
C.
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Finally, Lewis maintains the district court erred by refusing
to admit, under the residual exception to the hearsay rule, the
testimony of David Belfield, Lewis’ attorney during the state
prosecution of the Cortez murder. See FED. R. EVID. 807.
The exclusion of evidence is reviewed for abuse of discretion.
E.g., United States v. Perez, 217 F.3d 323, 329-30 (5th Cir.),
cert. denied, 121 S. Ct. 416 (2000). But, a ruling on the
admissibility of evidence under the residual hearsay exception will
not be reversed “absent a definite and firm conviction that the
[district] court made a clear error of judgment”. Id. at 330
(citations omitted).
At the trial’s conclusion, Lewis made the following offer of
proof. Belfield would have testified: shortly before El-Amin’s
sister, Fatima Walters, was murdered, she told him (Belfield) that
El-Amin had been “stunting” on the night Cortez was killed; Walters
explained that meant El-Amin had “r[u]n off her mouth in the
neighborhood, basically claiming that she had witnessed this Cortez
murder, when she had in fact not”. (Emphasis added.)
Rule 807 requires the proponent of the evidence to give notice
of his intention to offer it “sufficiently in advance of the trial
or hearing”. FED. R. EVID. 807. Lewis did not do so. But, even if
he had, no “truly exceptional circumstances” exist which would
warrant the admission of Belfield’s testimony. United States v.
Williams, 809 F.2d 1072, 1083 (5th Cir.), cert. denied, 484 U.S.
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896 (1987). Moreover, such evidence lacks the requisite
“circumstantial guarantees of trustworthiness”. FED. R. EVID. 807;
United States v. Metz, 608 F.2d 147, 157 (5th Cir. 1979) (sworn
statement taken by attorney in nonadversarial setting did not meet
trustworthiness standards of residual hearsay exception), cert.
denied, 449 U.S. 821 (1980).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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