                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1698
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Ezekiel Mitchell

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                           Submitted: December 15, 2017
                              Filed: March 19, 2018
                                  [Unpublished]
                                  ____________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                         ____________

PER CURIAM.

      A jury found Ezekiel Mitchell guilty of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 120


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
months’ imprisonment. Mitchell thereafter filed a motion for a new trial, which the
district court denied. Mitchell appeals, arguing that the district court (1) abused its
discretion by denying his motion for a new trial, (2) abused its discretion when it
admitted evidence from the show-up identification, and (3) violated his Sixth
Amendment right to confront and cross-examine a witness against him when it
admitted the 911 call. We affirm.

      Mitchell and his girlfriend, Michelle Garcia, first met Faith McCombs on
November 7, 2015, at a bar in Davenport, Iowa. After a dispute between Garcia and
McCombs about Mitchell’s purchasing drinks, McCombs left the bar. Garcia
followed McCombs outside, grabbed her by the hair, and threw her to the ground. As
McCombs fought back, Garcia yelled for Mitchell to assist her. Justice Hill,
McCombs’s ex-boyfriend, tried to break up the altercation, whereupon Mitchell
stepped in and pulled out a gun. As Hill then ran from the scene, Mitchell struck
McCombs in the head with the gun.

      The fight having ended, Mitchell walked through the crowd of people that had
gathered outside of the bar, approached two men, pointed his gun at each bystander,
and asked, “Are you the guy?” Upon hearing their denials, Mitchell—still waving
his gun—then began walking towards another group of bystanders, at which point
one of the onlookers told Mitchell that Hill had left down an alley. Mitchell and
Garcia then left the scene of the fight and started down the alley.

       An onlooker had called 911 during the fight and reported the incident,
providing the dispatcher with a description of the suspect’s clothing and his physical
attributes, and stating that the suspect had been waving a gun and had left down an
alley.

       Police officers responded to the call minutes later. As they proceeded down
the alley they noticed a man matching the suspect’s description walking with a

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woman. Officers ordered the suspect, who was later identified as Mitchell, to stop.
Mitchell complied. A pat down search of Mitchell produced nothing of evidentiary
value. Because Mitchell appeared intoxicated, however, he was handcuffed and
placed in the back of the police car.

      Police attempted to stop Garcia, who was noncompliant and tried to get away
but was ultimately arrested, searched, and found with a loaded .38 revolver in her
sweatshirt pocket.

       Police officers arranged a “show-up identification” for Mitchell. Two police
cars were positioned to face each other approximately twenty-five yards apart.
Mitchell was removed from the back of the police car and positioned next to one
squad car while an officer from the other car shined a spotlight on him. Two
witnesses stepped forward and identified Mitchell as the person with the gun from the
bar fight.

       Mitchell argues that the district court should have granted his motion for a new
trial because the evidence was insufficient to sustain the jury’s verdict. A district
court may “grant a new trial [to a defendant] if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). We review the denial of a motion for a new trial for abuse of
discretion. United States v. Carlson, 613 F.3d 813, 817-18 (8th Cir. 2010) (standard
of review).

        We find to be singularly unpersuasive Mitchell’s contention that the evidence
was insufficient to show that he had knowingly possessed a firearm. Five witnesses
testified that Mitchell possessed a firearm. McCombs testified that Mitchell struck
her with a gun during the fight. Hill testified that Mitchell pointed a gun at him
during the fight. Two onlookers testified that they saw Mitchell walk through the
crowd waving a gun and looking for Hill. Finally, Garcia testified that Mitchell had
handed her a gun after the fight. The 911 call account provided a description of the

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gun-carrying suspect. In a word, then, the evidence was sufficient to establish that
Mitchell had knowingly possessed a firearm.

       Mitchell next argues that the district court abused its discretion when it denied
his motion in limine to exclude evidence from the show-up identification. See United
States v. Collier, 527 F.3d 695, 699 (8th Cir. 2008) (standard of review).

        Police officers are not limited to station house line-ups if there is “an
opportunity for a quick, on-the-scene identification.” United States v. King, 148 F.3d
968, 970 (8th Cir. 1998). Show-up identifications are “essential to free innocent
suspects and to inform the police if further investigation is necessary.” Id. Thus,
even if the line-up is inherently suggestive, the line-up will be admissible as long as
it is not “‘impermissibly suggestive’ and unreliable.” Id. (quoting Graham v. Solem,
728 F.2d 1533, 1541 (8th Cir. 1984) (en banc), applying Manson v. Brathwaite, 432
U.S. 98, 110-16 (1977)). Factors to consider when assessing reliability are “the
opportunity of the witness to view the criminal at the time of the crime, the witness’s
degree of attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and the
confrontation.” United States v. Hadley, 671 F.2d 1112, 1115 (8th Cir. 1982) (citing
Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).

       Mitchell characterizes the line-up as impermissibly suggestive because he was
the only person in handcuffs, was placed near a squad car, and had a light shined on
him. We have previously held as not unduly suggestive a show-up identification in
which a handcuffed suspect stood near a uniformed officer in front of a police car
while a flashlight shined on his face. United States v. Pickar, 616 F.3d 821, 827-28
(8th Cir. 2010); see also United States v. Martinez, 462 F.3d 903, 911 (8th Cir. 2006)
(holding that a show-up identification was not unduly suggestive when a suspect was
driven back to the scene of the crime in a police car and stood handcuffed next to
police officers while witnesses identified him from inside a building). Likewise here,

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we conclude that Mitchell’s show-up identification was not unduly suggestive, and
we agree with the district court’s finding that it did not present a substantial
likelihood of misidentification.

       Mitchell also argues that the show-up identification is unreliable because the
two identifying witnesses were unfamiliar with him and “they had been drinking for
a considerable amount of time.” The record belies this contention, however, for both
witnesses had the opportunity to observe Mitchell when he was walking through the
crowd looking for Hill. At one point, Mitchell had come within five feet of them, and
they were able to confidently identify him based on a distinctive outfit that he was
wearing. Moreover, little time elapsed between the fight and the identification. The
district court thus did not abuse its discretion in admitting the show-up identification.

       Mitchell further contends that the court erred in admitting the 911 call because
the call’s contents were testimonial in nature and the caller did not testify, depriving
Mitchell of his Sixth Amendment right to confront and cross-examine the witness.
We review de novo Mitchell’s constitutionally based objection. United States v.
Brun, 416 F.3d 703, 706 (8th Cir. 2005) (standard of review).

       The Confrontation Clause prohibits the “admission of testimonial hearsay
unless the declarant is unavailable and the defendant has had a prior opportunity for
cross examination.” United States v. Clifford, 791 F.3d 884, 887 (8th Cir. 2015)
(citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). Witness testimony is not
testimonial, however, when “the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S.
813, 822 (2006); see also United States v. Brun, 416 F.3d at 707 (quoting State v.
Wright, 686 N.W.2d 295, 302 (Minn. App. 2004)) (stating that “statements made
during [a] 911 call, moments after the criminal offense and under the stress of that
event, are not ‘testimonial’”).



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        Because the 911 call was made to enable police to identify and apprehend an
armed, threatening individual, the caller’s statements were not testimonial in nature
and thus did not implicate the Confrontation Clause. Accordingly, they were
admissible if they were otherwise in compliance with the Federal Rules of Evidence.
See Brun, 416 F.3d at 707. The caller’s statements were admissible either as a
present sense impression or as an excited utterance. See Fed. R. Evid. 803(1)-(2).
They were admissible as a present sense impression because the caller was describing
an ongoing situation in real time, reporting that a gun-carrying man had left the scene
of a fight and was proceeding down an alley. See Fed. R. Evid. 803(1); United States
v. Dean, 823 F.3d 422, 427 (8th Cir. 2016) (noting that 911 calls that are placed with
“sufficient contemporaneity” are admissible under the present sense impression
hearsay exception). Moreover, because the caller had been witnessing a fight that had
escalated to the point at which Mitchell presented a gun, his statements could also be
admitted as an excited utterance. See Fed. R. Evid. 803(2); Brun, 416 F.3d at 707
(determining that a witness’s 911 call to report a fight that had escalated to an assault
was an excited utterance). The district court therefore did not err in admitting the
testimony regarding the 911 call.

      The judgment is affirmed.
                           ______________________________




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