                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2006

USA v. Sanford
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1490




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 05-1490




                          UNITED STATES OF AMERICA,


                                           v.

                                 CURTIS SANFORD
                                   a/k/a HASSEN,

                                                Curtis Sanford,
                                                           Appellant




                      On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                           (D.C. Crim. No. 03-cr-00015J)
                   Honorable David Stewart Cercone, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 7, 2006

               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                                 (Filed: April 5, 2006)




*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.
                                         OPINION




BUCKWALTER, Senior District Judge.

              Curtis Sanford a/k/a Hassen (“Sanford”) appeals from his conviction on two

counts of knowingly, intentionally, and unlawfully distributing less than five (5) grams of

a mixture and substance containing a detectable amount of cocaine base in the form

commonly known as “crack,” a Schedule II controlled substance, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

              Sanford raises three issues in his appeal from his conviction:

              1. Whether the District Court properly admitted into evidence
              Agent Zacur’s and Detective Price’s preliminary hearing and in-
              court identifications of Sanford because the identification
              procedures were not unduly suggestive and, even if they had
              been, circumstances surrounding the officers’ initial
              observations of Sanford survived the totality of circumstances
              test?

              2.    Whether Sanford enjoyed the full exercise of his
              constitutional right to present a defense when the District Court:
              1) admitted relevant testimony from . . . Sanford’s expert
              witness on six areas that impact eyewitness identification
              accuracy; and, 2) excluded testimony regarding a Department of
              Justice research report containing suggested procedures for
              obtaining eyewitness identifications because Sanford failed to
              provide notice of the testimony and the testimony was
              irrelevant?

              3. Whether the District Court acted within its discretion when
              it denied Sanford’s request for a jury view of the crime scene

                                              2
                because both parties presented ample evidence of the crime
                scene for the jury to make an informed decision regarding
                Detective Price’s ability to identify Sanford from his vantage
                point?

(Appellant’s Br. at 3-4). We discuss each issue in the order presented.1

I. Agent Zacur’s and Detective Price’s Identification

                Sanford argues that the District Court improperly denied his motion to

suppress Agent Zacur’s and Detective Price’s preliminary hearing and in-court

identifications of Sanford. We “review[] the [D]istrict [C]ourt’s denial of the motion to

suppress for clear error as to the underlying facts, but exercise[] plenary review as to its

legality in light of the courts’s properly found facts.” United States v. Givan, 320 F.3d

452, 458 (3d Cir. 2003) (internal quotations omitted) (citations omitted).

                A pretrial identification procedure violates a defendant’s due process rights

when it creates a substantial risk of misidentification. United States v. Emanuele, 51 F.3d

1123, 1128 (3d Cir. 1995). A two-step approach is utilized to determine whether, under

the totality of circumstances, an out-of-court identification procedure violated a

defendant’s rights to due process. First, the defendant must demonstrate that the

procedure in question was impermissibly or unnecessarily suggestive. United States v.

Lawrence, 349 F.3d 109, 115 (3d Cir. 2003) (citing Reese v. Fulcomer, 946 F.2d 247, 259

(3d Cir. 1991)). If the defendant overcomes this burden, the court then assesses the

reliability and admissibility of the out-of-court identification under the totality of the

   1
       As we write this opinion for the parties, the fact section will be omitted.

                                                3
circumstances. Reese, 946 F.2d at 259. The following five factors must be weighed in

conducting the totality of the circumstances analysis: (1) the opportunity of the witness to

view the defendant at the time of the crime; (2) the degree of attention of the witness; (3)

the accuracy of any witness' prior description of the criminal by the witness; (4) the

witness’ level of certainty at the pre-trial identification; and, (5) the amount of time

between the crime and the pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199-200

(1972).

              After holding a Suppression Hearing regarding Sanford’s motion to

suppress pretrial and in-court identifications on December 9, 2003, the District Court

made findings of fact and denied Sanford’s motion in a memorandum and order of

January 26, 2004.

              First, we conclude that the District Court’s findings of fact are not clearly

erroneous as they are supported by the record. Second, based on the District Court’s

findings, we believe Sanford has failed to overcome his initial burden of proving that the

preliminary hearing identification procedure was unduly suggestive. Based on the

District Court’s findings, Agent Zacur and Detective Price made their identifications at a

preliminary hearing, and Sanford and his counsel had full opportunity to cross examine

Agent Zacur and Detective Price at that hearing. Clearly, the preliminary hearing

identification procedure was not impermissibly suggestive.2

   2
    We also note that Agent Zacur’s and Detective Price’s identifications would survive
the Biggers totality of the circumstances analysis. Agent Zacur met with Sanford face-to-

                                               4
II. Exclusion of Department of Justice Research

              Sanford claims that the District Court violated his Sixth Amendment

constitutional right to present a defense by excluding testimony regarding a Department

of Justice (“DOJ”) research report, entitled “Eyewitness Evidence: A Guide for Law

Enforcement, Research Report,” which detailed guidelines and procedures for dealing

with eyewitness identifications. With respect to our standard of review, it is plenary

when determining whether a defendant’s Sixth Amendment right has been violated.

United States v. Tyler, 164 F.3d 150, 156 (3d Cir. 1998) (citation omitted). However, we

note that a circuit court “generally review[s] decisions of a district court concerning the

admission and exclusion of evidence for abuse-of-discretion.” Rineheimer v. Cemcolift,

Inc., 292 F.3d 375, 382-83 (3d Cir. 2002).

              To establish that the exclusion of Dr. Jonathan Schooler’s testimony

concerning the DOJ research report violated his Sixth Amendment right to present a

defense, Sanford must prove: “First, that he was deprived of the opportunity to present

evidence in his favor; second, that the excluded testimony would have been material and


face in a well-lit apartment on two occasions; Agent Zacur made a concerted effort to
study Sanford in their meetings, knowing he would have to identify Sanford in a future
proceeding; Agent Zacur observed Sanford on a third occasion in a well-lit Sheetz
parking lot; Agent Zacur recorded a description of Hassen after their first meeting and the
description matched Sanford’s; and Agent Zacur identified Sanford with certainty at the
preliminary hearing. With respect to Detective Price, he observed Sanford through the
apartment window on October 29, 2002; Detective Price watched Sanford at the Sheetz
parking lot on October 30, 2002; and Detective Sheetz identified Sanford with certainty at
the preliminary hearing. Therefore, the identifications would survive the totality of the
circumstances analysis.

                                              5
favorable to his defense; and third, that the deprivation was arbitrary or disproportionate

to any legitimate evidentiary or procedural purpose.” Gov’t of Virgin Islands v. Mills,

956 F.2d 443, 446 (3d Cir. 1992) (citing Rock v. Arkansas, 483 U.S. 44, 56 (1987)).

              Sanford offered Dr. Schooler as an expert to testify regarding the potential

inaccuracies of Agent Zacur’s and Detective Price’s identifications. Before trial, after

hearing argument from the parties, the District Court denied the government’s motion for

a Daubert hearing with respect to Dr. Schooler’s testimony and decided to allow Dr.

Schooler to testify with respect to the following areas: “1) cross-racial identification; 2)

distance of the perpetrator; 3) exposure to suggestive sources; 4) exposure between

encoding and test; 5) the effects of delay; 6) the effect of multiple witness identifications;

and 7) the relationship between confidence and accuracy.” (App. 24.)

              At trial, Dr. Schooler testified only with respect to the areas permitted by

the District Court. During direct examination, Sanford attempted to question Dr.

Schooler regarding the DOJ report. The government objected to this testimony, arguing

that: (1) it was irrelevant because the application of DOJ guidelines was not an issue in

the case, (2) the studies on the identification issue were relevant, not the DOJ Report; and

(3) Sanford had agreed not to reference the DOJ report. The District Court, after noting

that neither the District Court nor the government had been put on notice that Dr.

Schooler would testify with respect to the DOJ Report, sustained the government’s

objection.



                                              6
              Based on our review of the record, we believe that Sanford has failed to

establish all three elements of the Mills test. First, Sanford did not show that he was

deprived of the opportunity to present evidence in his favor. The District Court provided

Sanford with ample opportunity to present Dr. Schooler’s testimony on the identification

issue. Second, Sanford did not establish that this omission was material. Third, the

District Court’s decision to exclude testimony on the DOJ Report was not arbitrary. In

sustaining the government’s objection that the DOJ Report was not relevant, the District

Court also noted that Sanford failed to notify the District Court of his intention to

question Dr. Schooler on the DOJ Report. Therefore, we conclude that Sanford’s Sixth

Amendment rights have not been violated and that the District Court did not abuse its

discretion.

III. Denial of Request for a Jury View of Crime Scene

              Sanford argues that the District Court abused its discretion in denying his

request for a jury view of the alleged crime scene. Granting or denying a motion to view

is within the discretion of the district court. Unites States v. Woolfolk, 197 F.3d 900,

905-06 (7th Cir. 1999) (citation omitted). In making its decision on a motion to view, a

district court weighs “a variety of factors involving the fair and efficient conduct of a

trial.” Id. at 906 (citation omitted). We review the District Court’s decision to deny the

motion to view only for abuse of discretion. Id. at 905-06 (citation omitted).

              On April 7, 2004, in a memorandum and order, the District Court denied



                                              7
Sanford’s motion for jury view of the alleged crime scene. The District Court reasoned

that Detective Price’s testimony regarding October 29, 2002 was not a critical component

of the government’s case, that Detective Price’s observation of Sanford was not limited to

October 29, 2002, and that Sanford’s attempt to undermine Detective Price’s alleged

observation could be accomplished through videotape or photograph evidence. Based on

this reasoning, the District Court concluded that the probative value of the jury view of

the alleged crime scene was substantially outweighed by the potential for confusion of the

issues, undue delay and redundant nature of the evidence.

              Sanford believes this jury view was necessary in order for the jury to make

an informed decision regarding Detective Price’s ability to identify Sanford from his

vantage point. At trial, Sanford presented an expert who had videotaped the crime scene.

The government challenged the videotaped evidence based on the expert’s failure to

replicate the conditions under which Detective Price observed Sanford. Sanford argues

that the government’s challenge of his expert supports his contention that the jury needed

to visit the alleged crime scene.

              We believe that the District Court did not abuse its discretion in denying

Sanford’s motion to view. Based on the record, it is evident that the jury was presented

with ample evidence from which to make an informed decision regarding Detective

Price’s ability to identify Sanford on October 29, 2002. Sanford’s expert’s failure to

replicate the conditions of identification is not the fault of the District Court.



                                               8
IV. Conclusion

           Based on the reasons set forth above, we affirm the decision of the District

Court.




                                          9
