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United States v. Duprey

decided: July 12, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HARRY DUPREY, JUAN BOLIVAR AND CESAR A. BOLIVAR, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division, No. 87 CR 73--Allen Sharp, Judge.

Cudahy and Easterbrook, Circuit Judges, and Henley, Senior Circuit Judge.*fn1

Author: Henley

HENLEY, Senior Circuit Judge.

In these consolidated appeals, two defendants, Juan Bolivar and Harry Duprey, challenge various aspects of their convictions for numerous drug-related charges. For reversal, Duprey argues that the district court erred in (1) permitting certain in-court identification testimony; (2) admitting certain identification testimony of a police officer; (3) holding that he lacked standing to challenge the search of a 1978 Ford Fairmount; and (4) refusing to grant his motion for acquittal. Juan Bolivar challenges the sufficiency of the evidence against him. A third defendant, Cesar A. Bolivar, joins Duprey and Juan Bolivar in asserting that the district court erred in sentencing them under 21 U.S.C. § 841(b) as amended in 1986. We conclude that the various assignments of error challenging the defendants' convictions are without merit and affirm those portions of the cases. However, we agree that some adjustment in sentencing is required; thus the sentences are vacated and the cases remanded for resentencing.

I.

On October 17, 1987, as part of an ongoing investigation, Corporal Terry Miller of the narcotics division of the South Bend, Indiana, Police Department went to Room 12 at the Kenrose Motel in South Bend to consummate a drug sale arranged by a confidential informant. Officer Miller and the informant were admitted into the room by defendant Cesar Bolivar. Cesar's younger brother Juan was also present. Miller purchased 1.77 grams of cocaine from Cesar. In addition, Miller and Cesar made tentative arrangements for the purchase of a kilogram of cocaine which Cesar planned to obtain from New Jersey.

Through the informant, the sale of the kilogram was set for October 20, 1987. The site chosen for the transaction was the parking lot of the North Village Mall in South Bend. Miller and several other officers arrived at the Mall at approximately three o'clock that afternoon. Shortly thereafter, the informant arrived in a separate vehicle followed by Cesar Bolivar, who arrived in a 1988 Chevrolet Corsica, and Juan Bolivar and Harry Duprey, who arrived together in a 1978 Ford Fairmount. After the defendants had left their vehicles, Cesar Bolivar and Miller entered the Ford while Duprey and Juan Bolivar conducted countersurveillance. Cesar retrieved a Cheerios box from behind the front seat of the car and removed the cocaine from it. Miller then signaled to the other officers present at the scene, and the three defendants were arrested. Searches of the defendants produced weapons, large amounts of cash and various items tending to connect the defendants to one another. A search of the Ford yielded 983 grams of 97% pure cocaine and some ammunition.

A federal grand jury returned a four-count indictment charging all three defendants with conspiracy to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession with intent to distribute 1000 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and possession of firearms during the commission of a federal felony in violation of 18 U.S.C. §§ 924(c)(1) and (2). In addition, Cesar Bolivar was charged with possession with intent to distribute 2 grams of cocaine on October 17, 1987 in violation of 21 U.S.C. § 841(a)(1).

Cesar Bolivar pleaded guilty to the possession with intent to distribute counts. The conspiracy and firearm charges against him were severed from the case against Juan Bolivar and Duprey. The case against the latter two defendants was tried to a jury, which returned a verdict of guilty on all three counts. Thereafter, the district court sentenced Cesar Bolivar to twelve years imprisonment on the conspiracy count and twenty years on the count charging possession with intent to distribute 1000 grams of cocaine, the sentences to be served concurrently. Juan Bolivar was sentenced to consecutive terms of ten years on both the conspiracy and possession with intent to distribute counts, and to a concurrent five year term on the count charging possession of a firearm. Harry Duprey was sentenced to consecutive terms of ten and eighteen years on the conspiracy and possession with intent to distribute counts respectively, and to a concurrent term of five years on the firearm count. These appeals followed.

II.

A. In-court identification testimony. Duprey's first assignment of error concerns his in-court identification by Donna Gimson, a clerk at the Knight's Inn motel in South Bend. Gimson testified that she was on duty October 20, 1987 when, at approximately 8:30 a.m., a man named Peter Smith and another man checked into the motel. That night the police showed Gimson photographs of Juan and Cesar Bolivar; she identified Cesar as the man who had checked in under the name Peter Smith. Gimson indicated that Juan Bolivar was not the man at the motel with Cesar.*fn2

On February 17, 1988, a week prior to trial, the Assistant United States Attorney handling the case showed Gimson a photographic display consisting of the arrest photos of the three defendants. These photos depicted the defendants with their hands cuffed behind their backs, sitting in postures of submission. Gimson indicated that she was not sure whether she could identify the man who had accompanied Cesar at the motel. As Gimson walked into the courtroom at trial, however, she informed the Assistant United States Attorney that she recognized Duprey as the man who had been with Bolivar.*fn3 Duprey objected to Gimson's subsequently proffered in-court identification on the ground that it was tainted by the allegedly improper photographic display shown to her the previous week. The objection was overruled.

On appeal, Duprey reiterates his contention that the district court erred in permitting the in-court identification because it resulted from an unduly suggestive photographic display. In particular, Duprey contends that the display was improper because (1) on October 20, 1987 Gimson was shown a display containing photos of only Juan and Cesar Bolivar but in February, 1988 she was shown a display which also contained a photograph of Duprey, placing unfair emphasis on it; and (2) the photographic display shown to Gimson in February, 1988 depicted the defendants with their arms behind their backs immediately after being taken into custody. In addition, Duprey argues that the in-court identification does not carry sufficient indicia of reliability on its own because (1) at the time that Gimson allegedly observed Duprey, her focus was on Cesar Bolivar, who was checking into the motel; (2) Gimson's description of the person accompanying Bolivar included an inaccurate recitation of his clothing; and (3) four months elapsed between Gimson's alleged opportunity to observe Duprey at the motel and the date of the trial.

Recently, in Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir. 1989), this court reiterated the analysis undertaken in determining the admissibility of challenged identification testimony. The test employed in making this determination is two-part. First, the defendant bears the burden of establishing that the identification procedure was impermissibly suggestive. If the defendant satisfies this burden, the court must consider "whether the procedure was so unduly suggestive as to give rise to irreparable mistaken identification -- or stated in the affirmative, whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure." Id.; see also Manson v. Brathwaite, 432 U.S. 98, 107-14, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); Neil v. Biggers, 409 U.S. 188, 198-99, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). Thus, if an initial confrontation procedure is found to have been ...


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