                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          JAN 29 1998
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                     No. 97-7014
                                                    (D.C. No. CR-96-53-S)
 ERIC EVERETT SMITH, also known                          (E.D. Okla.)
 as Bubba Smith,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **


       Defendant-appellant Eric Everett Smith appeals from his convictions for

possession with intent to distribute methamphetamine (count I), 21 U.S.C.

§ 841(a)(1), use of a communications facility to commit or facilitate distribution

and possession with intent to distribute methamphetamine (count II), 21 U.S.C.

§ 843(b), and interstate travel in aid of an unlawful activity, namely possession

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
with intent to distribute methamphetamine (count III), 18 U.S.C. § 1952(a)(3).

He was sentenced to 120 months imprisonment on count I, 48 months on count II,

and 60 months on count III, all to run concurrently. On appeal, he contends that

the district court erred in not suppressing a photographic lineup and testimony

about pretrial identification. He further contends that the evidence was

insufficient. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.



                                    Background

      Pursuant to a parcel interdiction program at the Bakersfield, California,

Federal Express office, a detective came across two packages addressed to Betty

Smith, 1653 E. 13th St. in Okmulgee, Oklahoma, with a return address of Eric

Smith, 222 Forrest Ave. Laguna Beach, California. Betty Smith is Mr. Smith’s

mother, with whom he resided in Okmulgee.

      The detective asked a Federal Express agent about the shipper of the

packages and she described him as a white male, tall, stocky, with light brown

hair and middle-aged. The packages were subjected to a canine sniff, the canine

alerted, a search warrant was obtained and the packages were opened. The

smaller package contained a pound of methamphetamine while the larger

contained a heat sealer.

      The packages were resealed and sent to law enforcement in Okmulgee for a


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controlled delivery. A DEA agent delivered the packages to a woman at the

Okmulgee residence who identified herself as Betty Smith, but whose real name

was Rachel Holt. Ms. Holt indicated that her husband was waiting for the

packages. The agents returned to arrest Ms. Holt and Mr. Smith. Mr. Smith came

to the door with the package containing the methamphetamine, but no

methamphetamine was present. While in jail, Mr. Smith attempted to send a note

to Ms. Holt stating that “If you and I keep both are [sic] mouths shut we will get

out because the evidence got flushed.” Aplee. Addendum to Br. at 1 (Pl. ex. 41).

Sometime later, the Bakersfield Federal Express agent identified Mr. Smith as the

shipper based on a photographic lineup with six subjects. See Aplee. Addendum

to Br. at 2; see also I R. doc 9 ex. A (photos attached to government’s brief in

opposition to suppression motion). At trial, however, the agent testified that she

could not positively identify the shipper in the courtroom, but she reaffirmed that

she had selected the photograph of the defendant from the photographic lineup.

      At trial, the defense contended that Mr. Smith wrote the note to protect Ms.

Holt. III R. 59-60, 269-70. According to the defense, someone other than Mr.

Smith, perhaps the male companion of Mr. Smith’s sister or another enemy, sent

the package to Mr. Smith and involved his family. Id. at 232. When Mr. Smith

discovered the contents of the package, he immediately destroyed it with the

motive of protecting himself and his family. Id. at 57-58, 271.


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                                      Discussion

                                    A. Photo Array

      In a due process challenge concerning a photographic array, we review the

district court’s factual findings under the clearly erroneous standard and the

ultimate constitutional question de novo. United States v. Sanchez, 24 F.3d 1259,

1262 (10th Cir.), cert. denied, 513 U.S. 1007 (1994). A court first considers

whether the array is impermissibly suggestive. Simmons v. United States, 390

U.S. 377, 384 (1968). If so, the totality of the circumstances involved in the

identification, weighing in the effect of the suggestive identification, are

considered. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). If the identification

is deemed reliable, due process has not been compromised. See Sanchez, 24 F.3d

at 1261-62. Reliability turns on

      the opportunity of the witness to view the criminal at the time of the
      crime, the witness’ degree of attention, the accuracy of the witness’
      prior description of the criminal, the level of certainty demonstrated
      by the witness at the confrontation, and the length of time between
      the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972); see also Grubbs v. Hannigan, 982

F.2d 1483, 1490 (10th Cir. 1993).

      Mr. Smith argues that the photographs contained in the array are

impermissibly suggestive because although all six photos are of white males, only


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one other photo (Pl. ex. 22) portrays a stocky and possibly middle-aged male.

Aplt. Reply Br. at 1. Additionally, Mr. Smith notes that only one photo (Pl. ex.

25) portrays a male with light brown hair. Id. Notably, that photo is not that of

Mr. Smith (Pl. ex. 24), so we fail to see how that disadvantages him. At the

suppression hearing, counsel also raised the fact that Mr. Smith appeared to be the

only subject in a jail outfit and the only subject with disheveled hair. II R. 15-16.

Mr. Smith also pointed out that the Federal Express agent that identified him was

not the one that actually received the package. I R. doc. 5 at 2; II R. 17.

      Additional facts shed light on and place these contentions in perspective.

The Federal Express agent gave a description of the person shipping the packages

on the day the packages were received. II R. 7-8; III R. 83. The pretrial

identification with the photo array occurred some eleven days later. II R. 8. The

Federal Express agent was told that the person may or may not be in the group.

Id. at 10. Although she was not the one that actually accepted the packages for

shipment, she testified that she saw the person for two minutes and talked to him

about the paperwork. III R. 88, 90, 92. Although she sees 75 customers per day,

the person she identified was the only person at the front counter when she waited

on him. Id. at 90. The area where she stood is lighted. II R. 13. She further

testified that her attention was drawn to him because he was nervous. III R. 88,

94. Regarding the photo array, she testified that the color of the subjects’


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clothing had nothing to do with her identification. Id. at 88.

      We have reviewed the photos in the array as did the district court. Its

finding that the six photos are similar to the physical description given by the

Federal Express agent is not clearly erroneous. Given the natural subjectivity in

evaluating terms like “stocky” and “middle-aged” and hair that is “mussed up,” II

R. 16, we cannot say that the subjects are dissimilar. The Federal Express agent

testified that the subjects’ attire did not influence her identification. Merely

because she could not positively Mr. Smith at the time of trial does not mean that

her earlier identification was a product of a due process violation. Because we

agree with the district court’s factual finding concerning similarity, we affirm its

legal conclusion that the array was not unnecessarily suggestive and no due

process violation occurred. See Sanchez, 24 F.3d at 1262.



                           B. Sufficiency of the Evidence

      In reviewing a challenge to the sufficiency of the evidence, we consider all

of the evidence, direct and circumstantial, in the light most favorable to the

government to ascertain whether any rational trier of fact could find the elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). This standard emphasizes that it is the jury’s role “to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from


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basic facts to ultimate facts.” Id.

      To establish possession with intent to distribute methamphetamine, the

evidence must prove beyond a reasonable doubt that the Defendant knowingly

possessed the methamphetamine and that he possessed it with the specific intent

to distribute it. United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996). Mr.

Smith argues that insufficient evidence of possession exists. He relies on the

Federal Express agent’s inability to identify him in court and the absence of

corroborating evidence such as fingerprints, travel records or handwriting

evidence that might connect him to Bakersfield. He reminds us that the package

was delivered to his girlfriend, the contraband was never discovered, and he

maintains that some evidence created doubt as to whether the incriminating note

was authored by him. See Aplt. Br. at 7.

      Mr. Smith implicitly challenges the sufficiency of the evidence identifying

him as the person who committed the offenses in question. Without question, an

essential element of every case is that the government prove beyond a reasonable

doubt that the defendant is indeed the person who committed the offenses. See

United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir.), cert. denied, 116 S. Ct.

210 (1995). The Federal Express agent’s inability to identify the defendant in

court cuts against the government’s case, but there is no requirement of an in-

court identification when other evidence permits the inference that the defendant


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is the person who committed the offense. See United States v. Gomez, 810 F.2d

947, 953 n.4 (10th Cir.), cert. denied, 482 U.S. 908 (1987). Here, testimony about

the pretrial identification, the return address on the package, and Mr. Smith’s

subsequent encounter with law enforcement authorities provided sufficient

evidence of identification.

        Regarding evidence of possession, the jury could consider (1) the pretrial

identification of Mr. Smith by the Federal Express agent, (2) the addresses

contained on the packages, (3) that Rachel Holt indicated that her husband was

waiting for the packages, (4) the disappearance of the contraband in light of the

explanation contained in Mr. Smith’s note to Rachel Holt, and easily find

possession beyond a reasonable doubt. The pretrial identification by the Federal

Express agent is particularly probative because at that time Mr. Smith had

exclusive possession of the package containing the contraband. See id. Though

Mr. Smith suggests additional steps the government might take to prove its case,

the government is entitled to rely upon the collective evidence and its reasonable

inferences. See United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.), cert.

denied, 475 U.S. 1128 (1986). The jury was free to reject as implausible, based

upon the trial evidence, the defense theory that Mr. Smith destroyed the

methamphetamine so as to protect his family and the defense explanation of the

note.


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      To establish use of a communications facility to facilitate a drug

transaction, the evidence must prove beyond a reasonable doubt that the

Defendant knowingly used a communication facility to commit or facilitate

distribution or possession with intent to distribute methamphetamine. See United

States v. Johnson, 57 F.3d 968, 971 (10th Cir. 1995). Mr. Smith contends that the

government failed to prove that he used the Bakersfield Federal Express office.

Again, the pretrial identification of Mr. Smith by the Federal Express agent

seriously undermines this contention. Her testimony not only pertained to

identity, but also the method and manner of Mr. Smith’s use. Moreover, the

package itself connected Mr. Smith given the addresses.

      Finally, to establish interstate travel in aid of an unlawful activity, the

evidence must prove beyond a reasonable doubt that Defendant (1) used facilities

of interstate commerce (2) with the intent to promote, manage, establish, facilitate

or carry on any unlawful activity, and (3) the performance or an attempt to

perform that unlawful activity. See United States v. Harris, 903 F.2d 770, 773

(10th Cir. 1990). The third element requires an overt act. United States v.

Stevens, 612 F.2d 1226, 1231 (10th Cir. 1979), cert. denied, 447 U.S. 921 (1980).

Mr. Smith contends that proof that he traveled in interstate commerce in aid of an

unlawful activity is lacking. To the contrary, a rational trier of fact could find

beyond a reasonable doubt that Mr. Smith traveled from Okmulgee to Bakersfield,


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performed various acts in furtherance of the unlawful activity, and returned to

Okmulgee and received the contraband at his residence.

      AFFIRMED. All pending motions are DENIED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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