                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 6, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-4012
          v.                                             (D. of Utah)
 OMAR SIERRA,                               (D.C. No. 2:07-CR-00093-DB-DN-2)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, SEYMOUR, and HOLMES, Circuit Judges.


      Omar Sierra challenges his conviction for possessing with intent to

distribute and distributing methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). He argues the district court erred by (1) not suppressing a photo-

lineup identification, and (2) concluding evidence sufficient to sustain his

conviction was introduced at trial.

      We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 I. Background

      On January 11, 2007, a confidential informant arranged to obtain

methamphetamine from her supplier, “Choforo.” Choforo told the informant he

was unavailable to meet with her but made plans for his brother to do so. The

meeting was to be at the same house where the informant had previously picked

up drugs from Choforo. Police officers observed the informant as she

successfully obtained the drugs and subsequently procured a search warrant for

the house at which the transaction took place.

      Upon executing the search warrant, officers found methamphetamine,

cocaine, and a firearm. They also encountered Juan Sierra, Sierra’s brother,

whom they arrested.

      On January 22, 2007, the informant again met with officers and a DEA

agent. She recounted for them that she had previously met Choforo several times,

and on occasion his brother, at the house the officers searched. She indicated

those meetings had been face-to-face. The informant described Choforo as being

approximately 25 years old, five feet eight inches tall, weighing 150 pounds, and

having brown hair.

      During the January 22 meeting, the informant was asked whether she

thought she could identify Choforo and his brother from photo lineups. She was

told their pictures may or may not be present in the lineups she would be shown.

Neither the officers nor the DEA agent indicated to her which photos she should

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choose. The informant was first shown a lineup containing pictures of Juan and

seven other individuals. She identified Juan’s photo as that of Choforo’s brother.

Next, she was shown a three-photo lineup containing a picture of Sierra. She

identified the photo of Sierra as that of Choforo. The informant was then shown a

lineup containing the picture of Sierra she had selected from the three-person

lineup and pictures of seven other individuals. She again identified the photo of

Sierra as being that of Choforo.

      Subsequently, Sierra and his brother were indicted for possessing

methamphetamine with intent to distribute, distributing methamphetamine, and

possessing cocaine with intent to distribute. Before trial, Sierra moved to

suppress the informant’s identification of him as Choforo, contending the photo

lineups she was shown were impermissibly suggestive and that her selections

were unreliable. Sierra also argued, in the alternative, that the informant’s

identification should be suppressed because the government violated Brady v.

Maryland, 373 U.S. 83 (1963), by not producing the three-photo lineup to the

defense, which the government claimed had not been preserved.

      At the hearing on Sierra’s motion to suppress, a DEA agent who attended

the informant’s January 22 interview provided the following testimony: (1) the

informant’s physical description of Choforo closely matched Sierra’s appearance;

(2) the address of the house from which the informant obtained methamphetamine

supplied by Choforo prior to and on January 11 was the address listed on Sierra’s

                                         -3-
driver’s license; (3) the informant stated she had met with Choforo concerning

drugs face-to-face a couple of times per week for several months; (4) the

informant indicated Choforo had a brother with whom she sometimes dealt; (5)

the informant identified photos of Sierra and Juan as being those of Choforo and

his brother, respectively, from the lineups she was shown; and (6) the photo

lineups were not administered in accordance with DEA protocols since it was not

reported that standard instructions were given, fewer than eight photos were used

in one instance, the informant’s attention was focused on Sierra, and copies of the

photos used in the three-photo array were not kept. The DEA agent was the only

person who testified at the suppression hearing.

      The district court concluded the informant’s identification of Sierra as

Choforo was sufficiently reliable to present to a jury despite the imperfections in

the photo lineup. The district court also determined Brady did not require

suppression of the identification, because the identification was sufficiently

reliable to negate any favorable effect the government’s production of the three-

photo lineup would have had on Sierra’s defense.

      At trial, the informant was either unwilling or unable to identify Sierra as

Choforo.

      Even without the informant’s positive identification, the government

produced substantial evidence implicating Sierra, including, among other

testimony: (1) the informant identified the house from which she had obtained

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drugs from Choforo on prior occasions; (2) the informant picked up

methamphetamine from that house while cooperating with, and being observed

by, police; (3) methamphetamine, cocaine, and a firearm were found at the house

when officers searched it, and Sierra’s brother was arrested there when the search

was conducted; (4) the informant obtained drugs from Choforo about four times

before she began cooperating with police; (5) the informant had occasion to meet

with Choforo face-to-face when picking up drugs prior to January 11, 2007 and to

have a discussion with him while seated in the living room of the house where

their transactions occurred; (6) on January 22, 2007, the informant identified

Sierra and Juan as Choforo and his brother, respectively; (7) the informant took

time to identify Sierra as Choforo from the three-photo lineup on January 22,

2007 but was confident she selected the right picture; (8) the address of the house

where officers found the contraband was listed as being Sierra’s address on his

driver’s license, vehicle registration, and papers relating to child support; (9)

Sierra’s brother admitted providing methamphetamine to the confidential

informant at Sierra’s request in a sworn statement but later contested that

admission; and (10) despite Sierra’s claim he was in Mexico between December

2006 and August 2007, a traffic citation bearing his signature was issued in Utah

on January 6, 2007.

      The jury found Sierra guilty of possession with intent to distribute and

distribution of methamphetamine, and not guilty of possession with intent to

                                          -5-
distribute cocaine. Sierra filed a motion for judgment of acquittal, contending

evidence sufficient to identify him as Choforo and thus support the jury’s verdict

had not been introduced. The district court denied the motion and sentenced

Sierra to 235 months’ imprisonment and 60 months’ supervised release.

                                 II. Discussion

      On appeal, Sierra contests his conviction, arguing the district court erred by

not suppressing the informant’s identification of him as Choforo from the photo

lineups and by ruling sufficient evidence identifying him as Choforo was

presented at trial. We address Sierra’s contentions in turn.

      A. Photo Lineups

      Sierra contends his identification as Choforo from the photo lineups should

have been suppressed as unconstitutional because the lineups were impermissibly

suggestive and their results were unreliable. In the alternative, he argues the

identification should have been suppressed because the government violated

Brady by not producing the three-photo lineup. We disagree with both of Sierra’s

arguments.

             1. Reliability of Lineup

      We review the ultimate question of whether the identification was

unreliable de novo and any factual findings made by the district court for clear

error. See United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994). In

doing so, we consider the evidence in the light most favorable to the government,

                                         -6-
see United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006), and we are

“permitted to consider evidence introduced at the suppression hearing, as well as

any evidence properly presented at trial.” United States v. Jones, 523 F.3d 1235,

1239 (10th Cir. 2008) (internal quotation marks omitted).

      When a defendant challenges the constitutionality of a photo lineup, the

Due Process Clause requires us to engage in a two-step inquiry: (1) “[we] must

determine whether the photo array was impermissibly suggestive, and if it is

found to be so, then [(2) we] must decide whether the identifications were

nevertheless reliable in view of the totality of the circumstances.” Sanchez, 24

F.3d at 1261S62. In determining whether a photo lineup was unduly suggestive,

we consider a number of factors, including the number of pictures in the lineup,

the manner of its presentation by law enforcement, and the details of the pictures

themselves. See id. at 1262. “[T]he number of photographs in an array is not

itself a substantive factor, but instead is a factor that merely effects the weight

given to other alleged problems or irregularities in an array.” Id.

      In determining whether an impermissibly suggestive photo lineup

nonetheless yielded a sufficiently reliable identification, we consider the

opportunity of the witness to view the suspect at the time of the crime, the

witness’s degree of attention, the accuracy of the witness’s prior description of

the suspect, the level of certainty the witness demonstrates when the lineup is

given, and the time that has elapsed between the criminal activity alleged and

                                          -7-
presentment of the lineup to the witness. See United States v. Wiseman, 172 F.3d

1196, 1210 (10th Cir. 1999). The ultimate test is whether the unduly suggestive

lineup created a “very substantial likelihood of irreparable misidentification.”

Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

      The government does not challenge the district court’s finding that the

photo lineups were unduly suggestive, so we presume for purposes of our analysis

that they were. Accordingly, we address only whether the informant’s

identification of Sierra as Choforo from the lineups was sufficiently reliable,

notwithstanding the lineups’ impermissibly suggestive nature.

      Considering the totality of the circumstances, the district court did not err

by refusing to suppress the identification. First, the informant had a number of

opportunities to view Choforo engaging in criminal activity—she obtained

methamphetamine from him on several occasions.

      Second, the informant had the opportunity to view Choforo thoroughly and

with a high degree of attention. She testified she met with him face-to-face on

multiple occasions, including in the living room of his home.

      Third, the description of Choforo the informant provided before viewing

the photo lineups closely matched Sierra. She described Choforo as being about

25 years old, five feet eight inches tall, weighing 150 pounds, and having brown

hair. According to his driver’s license, Sierra was 27 years old, five feet nine

inches tall, weighed 170 pounds, and had black hair.

                                         -8-
      Fourth, the informant identified Sierra as Choforo with a high level of

certainty. While she took some time to consider the three-photo lineup before

selecting Sierra’s picture, she testified at trial that she was positive the picture she

chose was that of Choforo.

      Finally, a relatively short period of time had passed between when the

informant last met with Choforo to receive drugs—January 11, 2007—and when

she identified Sierra as Choforo—January 22, 2007. See Archuleta v. Kerby, 864

F.2d 709, 712 (10th Cir. 1989) (listing cases where time intervals of several

months were found not to be so long as to cast doubt on the reliability of

identifications).

      In sum, even assuming the photo lineups were impermissibly suggestive,

we conclude the informant’s identification of Sierra as Choforo was sufficiently

reliable to pass constitutional muster. The unduly suggestive nature of the photo

lineups did not create a “very substantial likelihood of irreparable

misidentification.” Manson, 432 U.S. at 116.

             2. Brady v. Maryland

      While Sierra bases his alternative argument on Brady, and the district court

analyzed the government’s failure to produce the three-photo array in accordance

with that case, we find that the standard established by Arizona v. Youngblood,

488 U.S. 51 (1988), and California v. Trombetta, 467 U.S. 479 (1984), should

have been applied here.

                                           -9-
       “As we have previously stated, the Supreme Court’s jurisprudence divides

cases involving nondisclosure of evidence into two distinct universes. Brady and

its progeny address exculpatory evidence still in the government’s possession.

Youngblood and Trombetta govern cases in which the government no longer

possesses the disputed evidence.” See United States v. Gomez, 191 F.3d 1214,

1218 (10th Cir. 1999) (internal punctuation and citations omitted). In this case,

Sierra asserts, and the government concedes, the three-photo array was not

preserved.

       As an initial matter, Sierra forfeited his argument under Youngblood.

When a defendant pursues a particular theory, but fails to raise another closely

related argument, the defendant has forfeited the argument. See United States v.

Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010), cert. denied, --- S. Ct. ---, 2010 WL

1990552 (June 14, 2010). As a result, we review only for plain error. See id. On

plain-error review we will reverse the district-court judgment “only if (1) there is

error, (2) the error is plain, (3) the error affects substantial rights, and (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal alterations and quotation marks omitted).

       Sierra cannot prevail under the plain error standard. At best, the three-

photo array was potentially exculpatory evidence, rather than evidence that

“possess[ed] an exculpatory value that was apparent before the evidence” was not

preserved, United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003) (internal

                                           -10-
quotation marks omitted), and Sierra does not argue to the contrary. Under our

caselaw, to establish the government violated the Due Process Clause by failing

to preserve potentially exculpatory evidence, a defendant must show: “1) the

evidence destroyed was potentially exculpatory and 2) the government acted in

bad faith in destroying it.” United States v. Beckstead, 500 F.3d 1154, 1158 (10th

Cir. 2007). “[U]nless a criminal defendant can show bad faith on the part of the

police, failure to preserve potentially useful evidence does not constitute a denial

of due process of law.” Youngblood, 488 U.S. at 58. We review for clear error

the district court’s determination the government did not act in bad faith. See

Beckstead, 500 F.3d at 1158.

      Sierra does not demonstrate any error, let alone plain error. He has not

presented any evidence of bad faith on the part of the government—the

prosecution counsel, the officers, or the DEA agent involved in this case.

As a result, he cannot demonstrate a Youngblood/Trombetta violation. See United

States v. Gardner, 244 F.3d 784, 788S89 (10th Cir. 2001). 1

      1
         Even if Brady applied, the district court found the absence of the three-
photo lineup was not prejudicial to the defense. See United States v. Williams,
576 F.3d 1149, 1163 (10th Cir. 2009), cert denied, 130 S. Ct. 1307 (2010) (listing
the elements of a Brady violation). Because the informant’s identification was
sufficiently reliable, it would have been entered into evidence whether the three-
photo lineup was available or not. For purposes of the Brady ruling, the court
presumed the other two photos were dissimilar to Sierra. We agree with the
district court that the other evidence of reliability made the risk of
misidentification de minimis; there is no “reasonable probability that the result of
the trial would have been different if the suppressed documents had been
                                                                       (continued...)

                                         -11-
      In sum, the district court did not err by refusing to suppress the informant’s

identification of Sierra as Choforo because the three-photo lineup was not

preserved.

      B. Sufficiency of Evidence

      Sierra also argues the district court erred by determining evidence

sufficient to sustain his conviction was presented at trial. He contends the

government failed to produce sufficient evidence he is the individual who

completed the acts alleged in the indictment—i.e., that he is Choforo. We

disagree.

      We review whether evidence sufficient to sustain a conviction was

introduced de novo. See United States v. Wardell, 591 F.3d 1279, 1286 (10th Cir.

2009). “Evidence is sufficient to support a criminal conviction if a reasonable

jury could find the defendant guilty beyond a reasonable doubt, given the direct

and circumstantial evidence, along with reasonable inferences therefrom, taken in

a light most favorable to the government.” United States v. Mains, 33 F.3d 1222,

1227 (10th Cir. 1994). We consider the collective inferences that can be drawn

from the evidence as a whole in assessing the sufficiency of the evidence. See

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). “We disregard only

incredible testimony—i.e., testimony as to facts that the witness physically could

      1
       (...continued)
disclosed to the defense.” United States v. Ford, 550 F.3d 975, 981 (10th Cir.
2008) (internal quotation marks omitted).

                                        -12-
not have possibly observed or events that could not have occurred under the laws

of nature.” United States v. Smith, 606 F.3d 1270, 1281 (10th Cir. 2010) (internal

quotation marks omitted).

        The evidence presented at trial more than adequately meets these standards.

Among other things, the following evidence identified Sierra as Choforo: (1) the

informant, who obtained methamphetamine from Choforo and met him face-to-

face multiple times, identified Sierra’s picture as Choforo; (2) the informant, who

also received drugs from Choforo’s brother, positively identified the brother; (3)

the informant picked up methamphetamine at the address listed on Sierra’s

driver’s license, vehicle registration, and child support documents; (4) the

informant arranged to obtain methamphetamine from Choforo by picking it up

from his brother on January 11, 2007; (5) after the purchase, additional drugs

were found and Sierra’s brother was arrested at the same address; (6) Sierra’s

brother initially admitted in a sworn statement that he provided drugs to the

informant at Sierra’s request; and (7) although Sierra denied being in the United

States during January 2007, he received a traffic ticket in Utah on January 6,

2007.

        Viewing the evidence presented in the light most favorable to the

government, the evidence was sufficient for a reasonable jury to conclude beyond

a reasonable doubt that Sierra and Choforo are the same person. Accordingly, we

conclude the district court did not err by finding evidence sufficient to sustain

                                         -13-
Sierra’s conviction was introduced at trial—denying Sierra’s motion for judgment

of acquittal was not in error.

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM Sierra’s conviction.

                                                        Entered for the Court,

                                                        Timothy M. Tymkovich
                                                        Circuit Judge




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