14‐4352‐cr United States v. Marsh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of March, two thousand sixteen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 14‐4352‐cr

JAMES MARSH, AKA Cowboy, AKA Joe Black, Defendant‐Appellant.

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FOR APPELLEE: Joseph J. Karaszewski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLANT: M. Kirk Okay, The Okay Law Firm, Batavia, New York.

Appeal from the United States District Court for the Western District of

New York (Larimer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Following a jury trial in the district court, defendant‐appellant James

Marsh was convicted of one count of narcotics conspiracy involving oxycodone, in

violation of

. Marsh appeals a judgment entered November 3, 2014,

sentencing him principally to 60 monthsʹ imprisonment. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

On appeal Marsh challenges the admission of (1) identification testimony

and (2) co‐conspirator statements. We address each issue in turn.

1. Pretrial Identification Procedures

Marsh was identified at trial by two witnesses, Shantel Williams and

Anestacia Wilson. He challenges those identifications, arguing that they were tainted

by unduly suggestive police photo arrays presented to the witnesses when they were

interviewed by law enforcement officers during the investigation of the crimes in

question.

When a defendant challenges the admissibility of identification testimony

given by a witness who made a pretrial identification, we conduct a two‐part inquiry,

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asking first whether the pretrial identification procedures were unduly suggestive and,

if so, whether the identification is ʺnonetheless independently reliable.ʺ Raheem v. Kelly,

(2d Cir. 2001). ʺ[A] suggestive procedure ʹdoes not in itself intrude

upon a constitutionally protected interestʹ if it did not contribute significantly to the

identification of the defendant.ʺ

at 135 (quoting Manson v. Brathwaite,

,

113 n.13 (1977)). Identification testimony will generally be suppressed only if the

identification procedures were ʺso impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.ʺ Simmons v. United States,

(1968). ʺWe review the district courtʹs determination of the admissibility of

identification evidence for clear error.ʺ United States v. Douglas,

(2d

Cir. 2008). We may also review the array itself to assess fairness.

First, with respect to the Williams identification, we have reviewed the

array and surrounding circumstances, and find no error in the district courtʹs

conclusion that the six‐photograph array was not unduly suggestive. The array

contains photographs of six African‐American men of similar age, three of whom, in

addition to Marsh, have slightly longer hair. Marsh and two others have gray in their

hair. Four, including Marsh, are wearing glasses. Moreover, none of the headshots fails

to meet Williamsʹs prior vague description of a ʺtall, skinny, [Black male].ʺ App. 88.

Thus, the district courtʹs finding that ʺit is a fair array depicting six black men with

sufficiently similar characteristics,ʺ App. 173, was not clearly erroneous. See United

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States v. Maldonado‐Rivera,

(2d Cir. 1990) (ʺ[T]he ʹprincipal question is

whether the picture of the accused, matching descriptions given by the witness, so

stood out from all of the other photographs as to suggest to an identifying witness that

[that person] was more likely to be the culprit.ʺ (quoting Jarrett v. Headley,

(2d Cir. 1986)). Because the array was not unduly suggestive, the district court

properly admitted the identification testimony ʺwithout further inquiry into the

reliability of the pretrial identification[s].ʺ Id. at 973.

Second, the Wilson identification was also properly admitted by the

district court. Wilson had been shown a different, eight‐photograph array that the

magistrate judge had deemed suggestive enough to inquire about the independent

reliability of her testimony. At a hearing to assess independent reliability, Wilson

testified that Marsh is her cousin, that she has known him her entire life, and that she

has seen him ʺ[a]bout a hundred time[s].ʺ App. 144. Because Wilson had a prior long‐

standing and familial relationship with Marsh, the district court did not err in

concluding that there was an independent basis for the identification testimony. See

Maldonado‐Rivera,

(identification by co‐conspirator who had spent

several days with defendant resulted in no likelihood of misidentification). Thus, there

was no ʺsubstantial likelihood of irreparable misidentification,ʺ and suppression was

not warranted. Perry v. New Hampshire,

(2012) (quoting Simmons,

).

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2. Out of Court Statements by Co‐Conspirator

Out of court statements made by co‐conspirators are not hearsay as to

other co‐conspirators under Federal Rule of Evidence 801(d)(2)(E). Under Rule

801(d)(2)(E), ʺa district court may admit an out‐of‐court declaration that would

otherwise be hearsay if it finds ʹby a preponderance of the evidence (a) that there was a

conspiracy, (b) that its members included the declarant and the party against whom the

statement is offered, and (c) that the statement was made during the course of and in

furtherance of the conspiracy.ʹʺ United States v. Coppola,

(2d Cir. 2012)

(quoting United States v. Farhane,

(2d Cir. 2011)). We review admission

of such evidence for clear error.

During Williamsʹs trial testimony, she discussed a telephone conversation

she had with Jimmie Lee Simmons. Simmons had been paying Williams, the office

manager at a doctorʹs office, to prepare fraudulent OxyContin prescriptions that

Simmons would then fill and resell on the street. After he was arrested, Simmons called

Williams from jail to let her know that Marsh would be taking over Simmonsʹs role in

the prescription writing scheme. The telephone call from Simmons occurred in October

2008. The indictment states that the conspiracy commenced ʺin or about November

2008.ʺ App. 11.

On appeal, Marsh argues that because the telephone call took place in

October 2008, pre‐dating the beginning of the conspiracy as alleged in the indictment, it

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was not part of the conspiracy and thus not admissible under Rule 801(d)(2)(E). The

duration of the conspiracy charged in the indictment, however, did not preclude the

Court from finding by a preponderance of the evidence that there was a conspiracy

among Simmons, Williams, Marsh, and others beginning earlier, and that Simmonsʹs

comments were made in furtherance of and during the conspiracy. See United States v.

Russo,

, 46 n.3 (2d Cir. 2002) (ʺThe conspiracy between the declarant and the

defendant need not be identical to any conspiracy that is specifically charged in the

indictment.ʺ (quoting United States v. Gigante,

(2d Cir. 1999)). The district

court did not err in finding that Simmonsʹs statement was made during the conspiracy

or that the conspiracy had begun by October 2008. Before Simmons was arrested,

Marsh had expressed interest in selling OxyContin, been introduced to Williams, and

had driven Simmons to fill prescriptions and sell OxyContin.

Accordingly, the district court did not clearly err in admitting Simmonsʹs

statement as a statement in furtherance of and during an ongoing conspiracy under

Rule 801(d)(2)(E).

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We have considered all of defendantʹs additional arguments and find

them to be without merit. For the reasons stated herein, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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