UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4233

MARTIN SANCHEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-97-281)

Submitted: September 30, 1998

Decided: October 28, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dale T. Cobb, BELK, COBB, INFINGER & GOLDSTEIN, P.A.,
Charleston, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, Nancy C. Wicker, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Martin Sanchez appeals his conviction and sentence for conspiracy
to possess with intent to distribute marijuana, in violation of 21
U.S.C. § 846 (1994). Sanchez alleges that out-of-court photographic
identifications and in-court identifications of Sanchez by Government
witnesses were unduly suggestive and unreliable. He also objects to
the district court's application of a sentencing enhancement for
obstruction of justice, under U.S. Sentencing Guidelines Manual
§ 3C1.1 (1997), for perjury committed at trial. Finding no error, we
affirm.

Sanchez filed a motion to suppress evidence of his out-of-court
photographic and in-court identifications by three Government wit-
nesses: Julio Perez, Victor Castillo, and Salvador Villanueva. After a
hearing on the motion, the district court denied the motion as to the
in-court and out-of-court identifications of Perez and Castillo. The
court took the motion under advisement as to Villanueva. The Gov-
ernment subsequently withdrew its objection to the suppression of the
out-of-court photographic identification by Villanueva. The court then
denied Sanchez's motion to suppress the in-court identification of
Villanueva.

While in the process of transporting marijuana for Sanchez from
Texas to Wilson, North Carolina, Perez, Castillo, and Villanueva
were arrested in North Carolina prior to delivery. On the night before
their arrests, the three witnesses met with Sanchez in Wilson to
inform him that the marijuana could not be delivered until the next
day. Upon his arrest, Perez cooperated with the DEA and told Agent
McNair he had been involved in one prior trip and delivery of mari-
juana to Sanchez in North Carolina.

As the investigation progressed, Agent McNair contacted the North
Carolina State Bureau of Investigation and spoke with Agent Tom

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Lockyer. McNair discussed the circumstances of the arrests and that
he found a particular number in Perez's pager at the time of his arrest.
Lockyer recognized the number from an on-going investigation into
marijuana trafficking. Lockyer knew the number was used by San-
chez and his associate, Marcelo Arrellano. Lockyer then sent McNair
two photographs, one of Sanchez and one of Arrellano. Subsequently,
Perez, Castillo, and Villanueva viewed the photographs and identified
Sanchez as the person with whom they had met the night before their
arrests. Perez further identified Sanchez as the person to whom the
marijuana was to be delivered.

Findings of fact made by a district court in ruling on a motion to
suppress are reviewed for clear error, but the ultimate decision on the
legal issue is reviewed de novo. See United States v. Johnson, 114
F.3d 435, 439 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3262 (U.S. Oct. 6, 1997) (No. 97-5705). An eyewitness identification
at trial following a pretrial identification by photograph should only
be suppressed when the photographic identification procedure is so
impermissibly suggestive as to give rise to the very substantial likeli-
hood of misidentification. See Simmons v. United States, 390 U.S.
377, 384 (1968); see also Harker v. Maryland, 800 F.2d 437, 443 (4th
Cir. 1986) (holding that evidence of eyewitness identification should
only be excluded from the jury's consideration if the evidence is
"manifestly suspect").

A two-step analysis is required to determine whether identification
testimony is admissible. First, the court examines whether the initial
identification was impermissibly suggestive. See United States v.
Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3204, 66 U.S.L.W. 3293, 66 U.S.L.W. 3297 (U.S.
Oct. 20, 1997) (No. 97-493) (citing Manson v. Brathwaite, 432 U.S.
98 (1977)). Second, even if the procedure was suggestive, the in-court
identification is valid provided the identification is reliable. See
Wilkinson, 84 F.3d at 695 (citing Brathwaite , 432 U.S. at 114). The
reliability of the identification is based upon the totality of the cir-
cumstances. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972);
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994).

Factors used in assessing reliability include: (1) witness' opportu-
nity to view the perpetrator at the time of the crime; (2) the witness'

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degree of attention at the time of offense; (3) the accuracy of witness'
prior description of the perpetrator; (4) the witness' level of certainty
when identifying the defendant as the perpetrator at the time of the
confrontation; and (5) the length of time between the crime and the
confrontation. See Wilkerson, 84 F.3d at 695 (citing Neil, at 199-200).

The Supreme Court has consistently questioned the use of a single
photograph for pretrial identification, and has encouraged the use of
a reasonable photographic display. See Brathwaite, 432 U.S. at 117
(holding that suggested use of display of reasonable number of per-
sons would have been better than single photograph, but finding iden-
tification reliable); Simmons v. United States , 390 U.S. at 383 (same).
Here, the witnesses were shown two photographs of men with similar
appearances. Even if we found that this photographic display was
unduly suggestive, the in-court identification was reliable.

Application of the reliability factors demonstrates that the wit-
nesses in-court identifications were sufficiently reliable. First, Perez
had two opportunities to observe Sanchez. Once during the first deliv-
ery in February 1996 for an extended period of time, and once during
the delivery of the second load of marijuana. Castillo and Villanueva
saw Sanchez while they were seated in a car while Perez had a con-
versation with Sanchez a short distance away in the front yard. Cas-
tillo testified that he observed Sanchez's face for approximately two
to three minutes from a ten meter distance, and that he paid a little
attention to Sanchez because he knew that Sanchez was receiving the
marijuana. The observation of Sanchez by the Government witnesses
was more than casual or in passing. See Brathwaite, 432 U.S. at 115.
Also, we have held that the likelihood of misidentification is substan-
tially less when a witness is asked to identify someone with whom he
is acquainted, rather than a stranger. See United States v. Burgos, 55
F.3d 933, 942 (4th Cir. 1995). Perez particularly was well acquainted
with Sanchez. Thus, the opportunity to view Sanchez and the degree
of attention paid to his appearance weigh in favor of the Government.

Next, the description Perez gave to Agent McNair largely matched
Sanchez's description.1 Also, the testimony at trial and during the
_________________________________________________________________
1 Perez was the only witness who was asked to give a description of
Sanchez prior to identifying him.

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suppression hearing revealed that the witnesses expressed no hesi-
tancy in the initial identification when shown the two photographs.2
Finally, the witnesses identified Sanchez by photograph approxi-
mately six months after their last meeting with him. Although such
a long delay may have affected their memory, they were able to
immediately identify Sanchez upon viewing the photographs. In addi-
tion, Perez gave an accurate description to Agent McNair soon after
his last meeting with Sanchez. The Supreme Court has found that an
identification made seven months after a crime was not by itself suffi-
cient to find the identification unreliable. See Neil, 409 U.S. at 201.
We find that the other factors outweigh whatever unreliability may be
inferred by the temporal gap. Thus, under the totality of the circum-
stances, the witnesses's in-court identification was sufficiently reli-
able. Therefore, we affirm the district court's denial of Sanchez's
motion to suppress the in-court identifications.

Finally, Sanchez argues that the district court erred in giving him
a sentencing enhancement for perjury at trial because the district
court's finding of perjury was based upon the testimony of Govern-
ment witnesses who at first lied to law enforcement officials before
cooperating with them. A two-level increase may be applied under
USSG § 3C1.1, "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of the instant offense
. . . ." USSG § 3C1.1 (1997). Perjury is conduct that warrants the
enhancement. See USSG § 3C1.1 n.3. An enhancement for perjury is
sufficient if the court's finding "`encompasses all of the factual predi-
cates for a finding of perjury.'" United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995) (quoting United States v. Dunnigan, 507
U.S. 87, 94-95 (1993)). The court must find that a defendant "`gave
false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake,
or faulty memory.'" Id. The court found that Sanchez completely
denied any involvement in drug activity and that his testimony was
contradicted in several respects. In addition, the court found that San-
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2 At the suppression hearing, Villanueva was not certain that the two
photographs shown to him at the hearing were exactly the same ones
shown to him at the first photo identification. He was able to identify that
the persons depicted in the photos were the same as in the prior photos.

                    5
chez's testimony was made regarding a material matter "and it was
made with the willful intent to provide false testimony, and it was not
made as a result of confusion, mistake or faulty memory." (JA 330).

The district court may base its finding of perjury upon the state-
ments of a witness who lied in a prior proceeding or context. See
United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995). Further,
defense counsel fully explored the veracity and motivations of the
witnesses during cross-examination. This court gives due regard to
the opportunity of the district court to judge the credibility of wit-
nesses and accepts the findings of fact of the district court unless they
are clearly erroneous. See United States v. Uwaeme, 975 F.2d 1016,
1018 (4th Cir. 1992). We therefore find that the district court did not
clearly err in relying upon the testimony of the Government witnesses
in finding that Sanchez committed perjury.

Sanchez also argues that it is possible that the jury found him guilty
based upon the circumstantial evidence of phone records and cellular
phone numbers and not the testimony of the Government witnesses.
He argues that if his conviction was based solely upon the circum-
stantial evidence, and not the direct testimony, then his own testimony
denying his involvement in drug activity may not have been perjuri-
ous. Sanchez partially bases his argument on speculation that the
Government witnesses confused him with his partner, Arrellano.
However, this argument fails because all three witnesses who identi-
fied Sanchez by photograph were shown a photograph of Arrellano
at the same time. We therefore find this argument to be speculative
and not supported by the record. The district court's findings were
sufficient as a matter of law, and were not clearly erroneous. See
Castner, 50 F.3d at 1279.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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