
USCA1 Opinion

	




          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                                      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                                      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-
