                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 25 1998
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
          Plaintiff -Appellee,
 v.                                                      No. 97-4179
 DONNY JACE HENNEFER,                              (D.C. No. 96-CR-24-1)
          Defendant -Appellant.                           (D. Utah)


                             ORDER AND JUDGMENT *


Before BRORBY, McKAY, and MURPHY, Circuit Judges.
                  __________________________



      After examining the briefs and the appellate record, this panel unanimously

has determined to grant the parties’ request for a decision on the briefs without

oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Defendant Donny Jace Hennefer and his co-defendant, Lonnie Lee Moore,

were arrested in connection with the robbery of a convenience store in Ogden,



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Utah. After the robbery, two persons were seen driving away from the

convenience store in an El Camino which was light blue or grey. 1 When the El

Camino was later located in a snow bank, Defendant had left the scene. However,

a police officer traced Defendant’s footsteps in the snow to a room in a nearby

motel. Police apprehended Defendant at the motel and then brought several

witnesses there to identify him. The witnesses who identified Defendant at the

motel included Cathryn DeFoer and Brian Keith Wilks, store employees, and

Chance and Eddie Butterfield, patrons of the convenience store who witnessed the

El Camino leaving the store and later saw Defendant walking away from the El

Camino in the snow. At trial, only the Butterfields made in-court identifications

of Defendant.

      Following a jury trial, Defendant was convicted on the following three

counts: violating the Hobbs Act, 18 U.S.C. § 1951(a); using or carrying a firearm

in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and

possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). In this

appeal, 2 Defendant challenges his convictions on the basis of evidentiary rulings


      During the trial in this matter, the color of the El Camino seen leaving the
      1

convenience store has been described in a variety of ways.
      2
       Although Defendant filed his notice of appeal after the expiration of the
10-day period provided for in Federal Rule of Appellate Procedure 4(b),
Respondent agrees that the delay was due to excusable neglect caused by the
withdrawal of Defendant’s counsel. Thus, this court has jurisdiction over this
appeal, and we do not address the timeliness of Defendant’s notice of appeal.

                                        -2-
made by the district court. 3

      Defendant first asserts that the Butterfields’ in-court identifications of him

violated his Fifth Amendment due process rights because they were based on an

impermissibly suggestive show-up identification. “The ultimate question of

whether the admission of pre-trial identification testimony violates due process is

reviewed de novo on appeal.” Grubbs v. Hannigan, 982 F.2d 1483, 1489, n.5

(10th Cir. 1993) (citing Sumner v. Mata, 455 U.S. 591, 597 (1982) (per curiam)).

However, “[t]he ‘clearly erroneous’ standard applies with respect to the trial

court’s factual findings ‘even when those findings relate to a constitutional

issue.’” United States v. Thody, 978 F.2d 625, 629 (10th Cir. 1992) (quoting

Hernandez v. New York, 500 U.S. 352, 366 (1991)), cert. denied, 513 U.S. 907

(1994).

      Evaluating the constitutionality of pretrial identification procedures

involves a two-step analysis. First, we examine whether the procedure employed

was unnecessarily suggestive. See Grubbs, 982 F.2d at 1489; Archuleta v. Kerby,



      3
        Defendant also argues that he should not have been sentenced under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), because “his prior convictions
were not sufficiently distinct criminal episodes.” Appellant’s Opening Br. at 29.
We do not address this issue because, as Appellant acknowledges in his brief, his
argument is against controlling precedent. See United States v. Tisdale, 921 F.2d
1095, 1098-99 (10th Cir. 1990), cert. denied, 502 U.S. 986 (1991). Appellant
raised this issue only “in order to preserve it for possible certiorari review.”
Appellant’s Opening Br. at 29.

                                         -3-
864 F.2d 709, 711 (10th Cir.), cert. denied, 490 U.S. 1084 (1989). “If the

procedure is found to have been unnecessarily suggestive, we must then weigh the

corrupting influence of the suggestive procedure against the reliability of the

identification itself.” Grubbs, 982 F.2d at 1489-90 (citing Manson v. Brathwaite,

432 U.S. 98, 114 (1977)); see also Thody, 978 F.2d at 629 (stating that once a

pretrial identification procedure is found to have been unnecessarily suggestive,

reliability must be evaluated in light of the “‘totality of the circumstances’ in

order to determine whether the suggestive lineup created a substantial likelihood

of irreparable misidentification and thus violated due process”). A pretrial

identification procedure does not violate due process unless it is “so unnecessarily

suggestive that it is ‘conducive to irreparable mistaken identification.’” Grubbs,

982 F.2d at 1490 (quoting Kirby v. Illinois, 406 U.S. 682, 691 (1972)).

“[R]eliability is the linchpin in determining the admissibility of identification

testimony.” Brathwaite, 432 U.S. at 114.

      The district court’s conclusion that the show-up identification employed in

this case was unnecessarily suggestive is not in dispute. The question is whether

the Butterfields’ in-court identifications of Defendant were unreliable because of

the antecedent, unnecessarily suggestive show-up identification procedure. The

following factors are relevant in determining whether testimony is reliable in spite

of being founded on an unnecessarily suggestive identification procedure:


                                          -4-
      the opportunity of the witness to view the criminal at the time of the
      crime, the witness’ degree of attention, the accuracy of the witness’
      prior description of the criminal, the level of certainty demonstrated
      by the witness at the confrontation, and the length of time between
      the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Depending on the circumstances,

“the degree of governmental complicity in a suggestive procedure” may also be a

factor in assessing reliability. United States v. Emanuele, 51 F.3d 1123, 1128 (3d

Cir. 1995). All of these factors “must be weighed against the corruptive effect of

a suggestive pre-trial identification procedure to determine whether the

identification testimony should have been suppressed.” Grubbs, 982 F.2d at 1490.

      With respect to the first and second factors, the record indicates that not

only did the Butterfields have a sufficient opportunity to view Defendant at the

time of the robbery but both of them devoted a significant degree of attention to

ascertaining Defendant’s identity. Each of the Butterfields saw the robber exiting

the convenience store in well-lighted conditions, and, when they later saw

Defendant walking away from the El Camino, they turned their own vehicle

around and slowly drove past Defendant again so as to view him with a greater

degree of scrutiny. Although it was after dark at the time, the Butterfields were

within seven to fourteen feet of Defendant and were able to examine his clothing,

hair, height, and even his eyes as they drove slowly past him. As to the third

factor, Defendant contends that no evidence was offered to support the accuracy


                                         -5-
of the Butterfields’ prior descriptions of Defendant. While the evidence on this

point may have been scant at the time of the suppression hearing, the Butterfields

adequately described Defendant’s vehicle, clothing, hair, and approximate age at

trial. Thus, although this factor does not weigh heavily in favor of reliability, it

does not require a determination of unreliability. The fourth factor is also

satisfied because the record shows that the Butterfields demonstrated a substantial

degree of certainty about Defendant’s identity when police showed him to them at

the motel. With respect to the fifth factor, Defendant suggests that a time period

of one to two hours does not weigh in favor of either side. However, such a short

period of time clearly weighs in favor of reliability. See, e.g., Grubbs, 982 F.2d

at 1490 (stating that where confrontation occurred within a week of crime,

identification was sufficiently reliable); Thody, 978 F.2d at 629 (determining that

period of only one week between robbery and confrontation supported finding of

reliability). Finally, Defendant contends that the Government influenced the

suggestiveness of the show-up identification procedure because a police officer

lied about the color of Defendant’s eyes to Ms. DeFoer. However, there is no

suggestion in the record that the Butterfields were misled in this manner. In light

of these factors, we conclude that the district court did not err in finding that the

Butterfields’ in-court identifications were reliable notwithstanding the

impermissibly suggestive show-up identification procedure.


                                          -6-
      Defendant also argues that the district court improperly admitted certain

hearsay testimony. We review evidentiary rulings by the trial court for abuse of

discretion. See United States v. Cass, 127 F.3d 1218, 1222 (10th Cir. 1997), cert.

denied, __ U.S. __, 118 S. Ct. 1101 (1998). Under the abuse of discretion

standard, we will reverse a district court’s decision only when it is “‘arbitrary,

capricious, whimsical, or manifestly unreasonable.’” United States v. Hernandez-

Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (citations omitted).

      Defendant challenges the testimony of Russell Hartley, who was called to

testify by the Government. During cross-examination, Co-defendant Mr. Moore’s

counsel questioned Mr. Hartley, an employee of the convenience store, about a

conversation he had with a defense investigator. See R., Vol. VI, Trial Tr. 7 at

95. Defendant did not object to this question. Mr. Hartley testified that Brady

Antonich, a former employee of the convenience store, told him that he (Mr.

Antonich) told the robbers where the safe was located. See id. at 95-96. On

redirect, counsel for the Government asked Mr. Hartley the names of the persons

to whom Mr. Antonich disclosed the location of the safe. See id. at 97. Mr.

Hartley testified that Mr. Antonich told him that he told Defendant where the safe

was located. See id. At this point, Defendant objected to the Government’s

question and moved to strike Mr. Hartley’s response. See id.

      Mr. Hartley’s testimony describing his conversation with Mr. Antonich


                                          -7-
most assuredly contains hearsay. The Government claims that, once the door to

the hearsay testimony was opened, it was necessary to elicit testimony on redirect

to “cure” the impression that Mr. Antonich was involved in the robbery. We

decline to reach the issue of whether Mr. Moore’s counsel opened the door to the

testimony, because we conclude that the district court’s admission of the

testimony was harmless in any event. See Cass, 127 F.3d at 1225 (“A trial court’s

admission of inadmissible evidence will disturb a defendant’s conviction only if

the error is not harmless.”); United States v. Tome, 61 F.3d 1446, 1455 (10th Cir.

1995) (noting that harmless error standard applies to erroneous admission of

hearsay testimony). The harmless error inquiry focuses on “whether the

admission of the statements substantially influenced the jury’s verdict.” Cass,

127 F.3d at 1225; see also Kotteakos v. United States, 328 U.S. 750, 765 (1946)

(indicating that harmless error analysis requires asking whether the error itself

substantially influenced the jury’s verdict).

      While Mr. Hartley’s testimony may have led the jury to believe that

Defendant knew where the safe was located, this information likely did not

constitute a critical piece of evidence against Defendant. Abundant additional

evidence in the record pointed to Defendant’s guilt. As we discussed above, the

Butterfields testified that they observed Defendant leaving the store after the

robbery in well-lighted conditions and that they later saw Defendant walking


                                         -8-
away from the get-away car in the snow. The Butterfields also testified that they

confidently and accurately identified Defendant at a motel within a couple of

hours after the robbery, and, at trial, they identified Defendant as the person they

saw at the motel. Moreover, the record shows that police were able to track

Defendant’s footprints in the snow from the El Camino to the location where he

abandoned his shotgun and knit cap and then to the specific motel room in which

Defendant was apprehended. Cumulatively, this evidence leads us to conclude

that the admission of the hearsay testimony was harmless.

      In connection with his arguments regarding the district court’s admission of

hearsay testimony, Defendant also alludes to a violation of his constitutional

rights under the Confrontation Clause. Because Defendant did not raise this

objection at trial, we review it only for plain error. See Cass, 127 F.3d at 1225;

United States v. Perez, 989 F.2d 1574, 1582 (10th Cir. 1993) (en banc). “Plain

error is that which is obvious, or which seriously affects the fairness or integrity

of the trial.” United States v. Enjady, 134 F.3d 1427, 1435 (10th Cir.), cert.

denied, __U.S.__, 119 S. Ct. 202 (1998). We conclude that the district court’s

admission of the hearsay evidence did not constitute plain error because the

testimony did not seriously affect the fairness or integrity of the trial.

      Defendant also argues that his convictions should be reversed because the

district court failed to instruct the jury that it had stricken certain testimony from


                                           -9-
the record. Specifically, Defendant objects to a statement made by Officer Tony

Fox, who testified that when he arrived at the El Camino, he saw a brown paper

bag containing “money from the robbery.” R., Vol. VI, Trial Tr. 7, at 171.

Defendant’s counsel properly objected to the testimony because the prosecutors

had not provided any foundational evidence connecting the money in the bag to

the robbery. Although the district court later ordered the words, “from the

robbery,” stricken from the record, it did not so inform the jury nor did it instruct

the jury to disregard the testimony.

      After ruling that testimony should be stricken, a trial court judge ordinarily

should deliver an appropriate instruction to the jury. The district court’s

inadvertent failure to do so in this case, however, is typical of errors that

commonly occur at trial. Such errors are readily correctable by counsel. If

counsel believes that the error is so serious that it threatens his client’s

substantive rights, then he should call it to the attention of the trial judge before

the jury retires by, for example, again requesting an instruction. Under these

circumstances, we review for plain error. Cf. United States v. Hill, 60 F.3d 672,

675 (10th Cir.) (indicating that review is for plain error where defendant fails to

deliver contemporaneous objection), cert. denied, 516 U.S. 970 (1995); Aspen

Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir.

1984) (stating that when an objection is not made before jury retires, court


                                          -10-
reviews only plainly erroneous and prejudicial instructions), aff’d, 472 U.S. 585

(1985). We will not reverse the district court’s readily correctable error unless it

“placed the underlying fairness of the entire trial in doubt, or it affected one of

the defendant’s substantial rights.” Hill, 60 F.3d at 675 (internal citations

omitted). The stricken testimony at issue does not meet this standard. In addition

to hearing Defendant’s objection to Officer Fox’s testimony along with an

explanation of why the testimony was objectionable, the jury also heard the

Government’s concession that it had not established a direct connection between

the money and the robbery. In light of these facts, we conclude that the district

court’s failure to instruct the jury that it had stricken or to disregard Officer Fox’s

testimony was not plain error.

      Finally, we note that Defendant has properly objected to a special

assessment of $100.00 per count, instead of $50.00 per count, on his three

convictions. The incident from which Defendant’s convictions stemmed occurred

on February 4, 1996. The special assessment provision was amended on April 24,

1996, and therefore is not applicable to Defendant’s convictions. See 18 U.S.C. §

3013; United States Sentencing Guidelines § 5E1.3 (special assessment is $50.00

for felonies committed prior to April 24, 1996). Defendant should have been

assessed a $50.00 per-count penalty on each of his three counts, for a total of

$150.00.


                                          -11-
      Defendant’s convictions and sentence are AFFIRMED. The special

assessment portion of the sentence is VACATED and REMANDED to the district

court for resentencing in accordance with this opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.

                                               Entered for the Court

                                               PER CURIAM




                                        -12-
No. 97-4179, United States v. Hennefer

McKAY, Circuit Judge, concurring:



      Although I concur in the outcome of this case, I write separately to express

my disagreement with the court’s treatment of the issue involving the trial court’s

admission of hearsay testimony. While my view is neither mandated nor

forbidden by existing circuit law, I maintain that before engaging in the harmless

error analysis, we must first address the merits of the issue presented to determine

if in fact an error has been committed. Only after determining that an error has

occurred would I proceed to the harmless error analysis.

      In this case, I would first reach the merits of the issue raised by Defendant,

namely, whether a defendant may open the door to testimony with respect to his

or her co-defendant. Like the United States Court of Appeals for the District of

Columbia Circuit, I would decline to extend the curative admissibility doctrine to

encompass testimony elicited by co-defendants. See United States v. White, 887

F.2d 267, 270 (D.C. Cir. 1989) (“The prosecution may not gain, through the

device of a joint trial, admission against one defendant of otherwise inadmissible

evidence on the happenstance that the door to admitting the evidence has been

opened by a co-defendant.”). But see United States v. Sullivan, 911 F.2d 2, 8 (7th

Cir. 1990) (noting in dicta that cross-examination by counsel for co-defendant

opened the door to redirect examination on the same subject by the government).
See generally 22 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice

and Procedure § 5165 n.70 (Supp. 1998) (criticizing Sullivan as “egregious

abuse” of the opening the door doctrine). This court previously has explained

that the doctrine of curative admissibility is “‘dangerously prone to overuse’” and

“is limited to the prevention of prejudice and used ‘only to the extent necessary to

remove any unfair prejudice which might otherwise have ensued from the original

evidence . . . .’” United States v. Morales-Quinones, 812 F.2d 604, 610 (10th Cir.

1987) (citations omitted).

      This situation, in which a co-defendant introduced inadmissible testimony

that the Government then sought to use against Defendant, is a telling example of

overusing the curative admissibility doctrine. Defendant was not responsible for

the admission of the evidence, nor did the evidence unfairly prejudice the

Government to any meaningful degree. While the hearsay testimony may have

suggested that Mr. Antonich knew where the safe was located, it also indicated

that the “robbers” knew where the safe was located. For these reasons, I would

hold that the district court erroneously allowed the Government to elicit

inadmissible hearsay testimony on redirect. Only after reaching this result would

I proceed to the harmless error analysis. Like the majority, I would then conclude

that the admission of the hearsay testimony was harmless in any event.




                                         -2-
