     Case: 08-41214     Document: 00511021033          Page: 1    Date Filed: 02/04/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 4, 2010

                                       No. 08-41214                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

JUAN ANTONIO DELGADO,

                                                   Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:08-CR-398-1


Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Juan Antonio Delgado appeals his jury conviction on two counts of
transporting an undocumented alien by means of a motor vehicle within the
United      States    for   private   financial    gain,    in   violation    of   8   U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(B)(i), and 18 U.S.C. § 2. On appeal, Delgado challenges
the district court’s admission of identification testimony, arguing that the
identification procedures (which included a one-man showup) were unduly



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 08-41214

suggestive. For the following reasons, we AFFIRM the judgment of the district
court.
               FACTUAL AND PROCEDURAL BACKGROUND
         On the night of March 9, 2008, a tractor trailer driven by Delgado, a
United States citizen, was stopped by United States Border Patrol agents at the
Interstate 35 checkpoint near Laredo, Texas. During the initial inspection of the
tractor trailer, a Border Patrol dog signaled the possibility of concealed persons
or contraband inside the tractor trailer.      After opening the trailer, agents
discovered fifteen undocumented immigrants (aliens) lying under a blue tarp
amongst automobile parts in the trailer. The Border Patrol agents then detained
Delgado and the fifteen aliens.
         The Border Patrol agents interviewed Delgado, obtained biographical
information from him, photographed him, and placed him in a holding cell. The
biographical information indicates that Delgado is of average height, and the
Border Patrol photograph shows that, on the night of his arrest, Delgado had a
mustache and a beard and was wearing a cap.                Delgado also provided a
statement to the Border Patrol in which he claimed that he did not know that
the trailer was loaded with aliens and that he had no reason to suspect as much.
         The Border Patrol agents also interviewed the aliens and decided to detain
two of them, sisters Eusebia and Luisa Aviles–Vences, as material witnesses.
Both provided statements regarding how and when they had come to the United
States. Eusebia and Luisa were also brought separately by the Border Patrol
agents to view Delgado and asked whether they could identify him as the driver
of the tractor trailer. Luisa identified Delgado and provided information about
his appearance. Eusebia provided some information about the person who put




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her in the trailer,1 but upon seeing Delgado, she was unable to say whether he
was that person.2
      The Government charged Delgado with two counts of violating 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(B)(i), and 18 U.S.C. § 2 in using a motor vehicle to
transport Eusebia and Luisa, aliens, for commercial advantage or private
financial gain, while knowing, or recklessly disregarding, that they had come to,
entered, and remained in the United States illegally. Before trial, Delgado filed
a motion to suppress Eusebia’s and Luisa’s out-of-court identification
statements,3    arguing     that   the   out-of-court    identification    process    was
impermissibly suggestive and thus conducive to irreparable mistake such that
any identification of him by either Eusebia or Luisa would violate his due
process rights. The district court denied the motion, but the court stated that
the parties could examine the method of identification at trial, at which time
Delgado could re-urge his motion to suppress.4
      At trial, Eusebia and Luisa testified that their aunt had arranged to
smuggle them and their brother into the United States and transport them to
Austin, Texas, for $2500 per person. Both sisters also testified that they had




      1
        The record indicates that on March 9 Eusebia was able to confirm that the man she
had seen by the trailer was wearing a cap and had a mustache.
      2
       The record is unclear regarding whether the sisters viewed Delgado before providing
information about his appearance.
      3
          Delgado apparently considered the Border Patrol’s report, which stated that both
sisters had provided information that Delgado was present when they were loaded into the
trailer, to be out-of-court identification evidence.
      4
        One district judge (Kazen, J.) presided over pre-trial motions and procedures while
another district judge (Walter, J.) presided over the trial.

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crossed into the United States via boat near Laredo, Texas, on March 5, 2008,
and that they then stayed at a house in or around Laredo until March 7, 2008.5
      Both sisters further testified that on March 7, 2008, they were taken by
truck to a parked trailer. The sisters testified that they and other aliens got into
the trailer, which contained automobile parts, and covered themselves with a
blue tarp. Eusebia also testified that she saw a man standing outside the trailer
who was wearing a cap, had a mustache, and was “not so tall, not so short.”
Both sisters testified that, after some time, the tractor pulling the trailer
experienced mechanical problems, and all of the aliens got out of the trailer to
wait for a truck to transport them back to the house where they were staying.
Eusebia and Luisa testified that while waiting for the truck, they sat in the
tractor that had been pulling the trailer. Eusebia also testified that the same
man that she had seen earlier—the one with a mustache and cap—was sitting
in the driver’s seat.
      The sisters also testified that on the night of March 9, 2008, they and other
aliens were transported back to the same parked trailer. Eusebia testified that
as she was approaching the trailer, she again saw the same man, with a
mustache and beard and wearing a cap, that she had seen on March 7. When
asked if the man she had seen was present in the courtroom, Eusebia identified
Delgado as the person she had seen. On cross-examination, when Delgado asked
why Eusebia was unable to identify Delgado or provide more information
regarding his appearance on March 9, Eusebia testified that she had been scared
and confused that night but that, on further reflection, she realized that Delgado
was the man she had seen on March 7 and 9.



      5
        In their statement given to the Border Patrol on March 9, 2008, the sisters each
claimed to have entered the United States on March 8, 2008. However, at trial, the sisters
recanted that statement, claiming that they had been confused by the Border Patrol’s
questions when they stated that they had entered the United States on March 8, 2008.

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      Luisa also testified that, while being loaded into the trailer on March 9,
she saw a man, with a mustache and beard who was wearing a cap. Luisa
further testified that this man told her to remain quiet while she was in the
trailer. When asked if the man she had seen was present in the courtroom,
Luisa also identified Delgado as the person she had seen.
      Both sisters testified that, after again lying down in the trailer and
covering themselves with a blue tarp, they traveled for approximately 30
minutes before the tractor trailer stopped.      After some time, immigration
officials opened the trailer and uncovered them and the other aliens.
      Delgado did not re-urge his motion to suppress the sisters’ identification
testimony at trial; however, he did extensively cross-examine both sisters
regarding the information they provided to the Border Patrol. At the close of the
sisters’ testimony, Delgado moved for a judgment of acquittal on the grounds
that the material witnesses, Eusebia and Luisa, were not credible. Specifically,
Delgado argued that the sisters’ motivation in testifying for the Government was
to keep their family together, that the sisters had been coached in their
testimony, and that the descriptions the sisters had given of Delgado were
exceedingly generalized. The district court denied the motion, stating that
Delgado’s arguments raised credibility questions that were best left for the jury.
      The case was then submitted to the jury, which returned a guilty verdict
on both counts of the indictment. The district court sentenced Delgado to 30
months of imprisonment on each count, the sentences on both counts to run
concurrently. Delgado now appeals.
                                 DISCUSSION
      On appeal, Delgado argues that the out-of-court identification procedure
used was impermissibly suggestive and unconstitutional. Specifically, Delgado
challenges the manner in which the sisters were shown Delgado and
subsequently questioned about him.          Delgado urges that the subsequent

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identification testimony should have been suppressed because it was not reliable
in light of the totality of the circumstances. We disagree.
      In reviewing a motion to suppress identification testimony, “‘we accept the
district court’s findings of fact unless they are clearly erroneous, but we review
de novo the court’s ultimate conclusion of the constitutionality of the law
enforcement action.’” United States v. Moody, 564 F.3d 754, 762 (5th Cir. 2009)
(quoting United States v. Guidry, 406 F.3d 314, 319 (5th Cir. 2005)).               In
undertaking this inquiry, we may “consider the evidence admitted at both the
suppression hearing and the trial.” United States v. Jones, 239 F.3d 716, 718
(5th Cir. 2001). Whether an identification is constitutionally admissible is a
mixed question of law and fact. Moody, 564 F.3d at 762.
      “The Due Process Clause protects against the use of evidence obtained
from impermissibly suggestive identification procedures.”        Id. (citation and
internal quotation marks omitted). “The admissibility of identification evidence
is governed by a two-step test. . . .” Id. (quoting Guidry, 406 F.3d at 319). First,
we ask whether the identification procedure was impermissibly suggestive.
Second, we ask whether the procedure used posed a “very substantial likelihood
of irreparable misidentification.”     Id. (quoting Guidry, 406 F.3d at 319).
Identification testimony is inadmissible only if both questions are answered in
the affirmative. Id. The linchpin of the admissibility inquiry is whether the
identification is reliable. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
      “[T]he practice of showing suspects singly to persons for the purpose of
identification, and not as part of a lineup, has been widely condemned.” Allen
v. Estelle, 568 F.2d 1108, 1112 (5th Cir. 1978) (internal punctuation, quotation
marks, and citations omitted). However, even if an out-of-court identification
procedure was impermissibly suggestive in violation of a defendant’s due process
rights, the resulting identification testimony may still be admissible if it is
reliable in light of the totality of the circumstances. Amador v. Quarterman, 458

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F.3d 397, 414 (5th Cir. 2006). An identification is reliable if the identification
procedures    did   not   pose   a   “substantial   likelihood   of   irreparable
misidentification[;]” i.e., it meets the second Brathwaite prong.      Id.   If we
determine that an identification meets the second Brathwaite prong, we need not
examine whether the identification procedures satisfied the first Brathwaite
prong to determine that the resulting identification is admissible. Moody, 564
F.3d at 762 n.10 (citing Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir.
2006)).   In assessing whether identification procedures posed a substantial
likelihood of irreparable misidentification, we consider several factors: “(1) the
opportunity of the witness to view the criminal at the crime scene; (2) the
witness’s degree of attention; (3) the accuracy of the witness’s prior description
of the criminal; (4) the level of certainty demonstrated by the witness at the
confrontation; and (5) the length of time between the crime and the
confrontation.” See id. at 762–63 (quoting Coleman, 456 F.3d at 544).
      The out-of-court identification procedures here did not pose a substantial
likelihood of irreparable misidentification.     First, Eusebia and Luisa had
multiple opportunities, before they were shown Delgado by the Border Patrol
agents, to view Delgado: The sisters twice had the opportunity to view the
individuals involved in their transport while being loaded into the trailer, and
both sisters sat in the tractor on March 7, with Eusebia testifying that Delgado
was also present.    Factor one therefore weighs in favor of reliability.         Cf.
Amador, 458 F.3d at 415 (factor one weighed in favor of reliability where witness
had an opportunity to view defendant when they rode together in a taxicab);
Coleman, 456 F.3d at 544 (factor one weighed in favor of reliability when
witness, who was sitting in a car, had the opportunity to see the defendant when
the defendant fired upon the car).
      Second, Eusebia and Luisa were not engaged in other activities during
their transportation, and they could thus focus on the people aiding them.

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Factor two therefore weighs in favor of reliability. See Moody, 564 F.3d at 763
(factor two weighed in favor of reliability where witness was focused on the
crime in question and that crime was the “primary activity taking place at the
time” (emphasis omitted)).
      Third, the record is unclear concerning whether Eusebia and Luisa
provided descriptions of Delgado prior to viewing him. Assuming (contrary to
the Government’s argument) that the sisters did not provide descriptions of
Delgado before the out-of-court identification, the third factor weighs neither for
nor against reliability. See Moody, 564 F.3d at 763 (holding that a defendant
cannot rely on the third factor when there is “no testimony” regarding the
witness’s description of the defendant before the out-of-court identification). As
such, we assume arguendo that factor three weighs neither for nor against
reliability here.
      Fourth, upon being shown Delgado at the Border Patrol station, Luisa
identified him, without reservation. And though Eusebia was unable to confirm
that Delgado was the man she had seen, her initial inability to identify Delgado
is not dispositive.   See Amador, 458 F.3d at 415 (holding that subsequent
identification testimony could still be reliable even where witness was initially
“reluctant to identify anyone until she was confident in her identification”).
Additionally, at trial, neither Luisa nor Eusebia hesitated in identifying Delgado
in open court, and, even after extensive cross-examination, both sisters testified
consistently about Delgado’s appearance and the events in question. Given
Luisa’s confidence at the out-of-court identification, the sisters’ confidence in
identifying Delgado in court, and the consistency of the sisters’ testimony, we
conclude that factor four weighs in favor of reliability. See Moody, 564 F.3d at
763 (finding in favor of reliability where description of defendant throughout
examination was consistent); Amador, 458 F.3d at 415 (unchanging description
of suspect at trial found to weigh in favor of reliability).

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      Fifth, Eusebia and Luisa had the opportunity to identify Delgado within
days of their initial opportunity (on March 7) to view him and within hours of
their subsequent opportunity (on March 9). Factor five therefore weighs in favor
of reliability. See Moody, 564 F.3d at 763 (concluding that an identification
made only a day or two after the incident weighed in favor of reliability);
Coleman, 456 F.3d at 544 (determining that nine day wait between incident and
identification weighed in favor of reliability).
      Ultimately, as in Brathwaite:
      we cannot say that under all the circumstances of this case there is
      a very substantial likelihood of irreparable misidentification. Short
      of that point, such evidence is for the jury to weigh. We are content
      to rely upon the good sense and good judgment of American juries,
      for evidence with some element of untrustworthiness is customary
      grist for the jury mill. Juries are not so susceptible that they cannot
      measure intelligently the weight of identification testimony that has
      some questionable feature.
Brathwaite, 432 U.S. at 116 (citation and internal quotation marks omitted).
Accordingly, we conclude that the out-of-court identification procedures here did
not lead to a very substantial likelihood of irreparable misidentification, and we
answer the second Brathwaite inquiry in the negative. Thus, we need not
examine the first Brathwaite inquiry—whether the out-of-court identification
procedures were unduly suggestive—to conclude that the district court properly
denied the motion to suppress the identification testimony and properly left the
identification testimony for the jury to consider. Amador, 458 F.3d at 415;
Coleman, 456 F.3d at 544.
                                 CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.
      AFFIRMED.




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