UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-31320

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERNARD LEWIS,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana (98-CR-207-13-N)

January 29, 2001

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Primarily at issue is an eyewitness identification of Jernard

Lewis for a murder he committed. Lewis also challenges the

sufficiency of the evidence for his drug conspiracy conviction and

the exclusion of impeachment testimony by his former attorney. We

AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.

On 15 April 1997, Albert Cortez, a crack cocaine addict who

lived in the Seventh Ward of New Orleans, was shot and killed.

Leshara El-Amin, a resident of that ward, claimed she witnessed the

murder. After giving Lewis’ nickname to the police that May, she

selected his photograph from a lineup that August. That December,

El-Amin was approached by Adonis Thompkins, Christopher Frank, and

another; Frank shot El-Amin. As a result, she is confined to a

wheelchair.

In January 1999, Lewis and 12 co-defendants were charged with

conspiracy to distribute cocaine base and cocaine hydrochloride, in

violation of

(a)(1) and 846. Lewis was also

charged with using a firearm in relation to a drug-trafficking

crime, in violation of

(c)(1); this charge concerned

the fatal shooting of Cortez, an alleged crack cocaine customer.

Severed from his co-defendants’ trial, Lewis’ commenced in

August 1999. El-Amin testified that, on the night of Cortez’s

murder, she had just spoken with him on the telephone, and planned

to meet him on the street. As Cortez approached her, she saw a car

pull beside him. Someone in the car called to Cortez; El-Amin

heard a gunshot, saw Cortez fall to the ground, and saw Lewis exit

the car and shoot him several more times.

Being frightened, El-Amin ran to her home. A few minutes

later, the same car stopped at El-Amin’s house; Lewis and another

2 exited and told El-Amin not to say anything, or they would kill

her. El-Amin recalled that, a few days before Cortez was killed,

she overheard Cortez tell Lewis he did not have his money, and

Lewis reply, “You better have”.

Regarding El-Amin’s being shot in December 1997, Thompkins,

one of Lewis’ co-defendants, testified that Trevor Williams,

another co-defendant, offered him nine ounces of cocaine to kill

El-Amin, so that Lewis could be released from pre-trial detention

by Christmas. (Lewis had been arrested on 7 August 1997, the day

El-Amin picked him from the photographic lineup.) Thompkins denied

having played a part in the shooting, but acknowledged that he took

one-third of the payment.

Lewis’ motion to suppress concerning the photographic

identification by El-Amin was denied; she identified him in-court.

A jury found Lewis guilty. He was sentenced, inter alia, to life

in prison for the conspiracy conviction, and to a consecutive 60-

month sentence for the firearm conviction.

II.

Lewis contends the district court erred by: admitting into

evidence El-Amin’s identification testimony; denying his motion for

judgment of acquittal; and refusing to admit the testimony of his

former attorney.

3 A.

Concerning the denial of Lewis’ motion to suppress El-Amin’s

identification testimony, “[t]he admissibility of identification

evidence and the fruits therefrom raises a mixed question of law

and fact on appeal”. United States v. Brown,

(5th Cir.), cert. denied,

(2000). The district

court’s factual findings are reviewed for clear error. Id.

A suppression hearing was held in July 1999. Detective

Stoltz, the lead homicide detective, testified that, in May 1997

(approximately one month after Cortez’s murder), El-Amin told the

police “Nardi” killed Cortez. Believing Jernold Parker to be

“Nardi”, the police, on 28 July 1997, showed El-Amin a photographic

lineup, which included Parker’s photograph. El-Amin picked Parker,

telling the police she was 40 percent sure he killed Cortez. The

police, however, later eliminated Parker as a suspect, and began to

suspect Lewis. On 5 August 1997, El-Amin told the police that the

killer was 5'8" tall and had gold teeth; Lewis, however, is

approximately 6'1" tall and has no gold teeth.

Two days later, on 7 August, a second photographic lineup,

which included Lewis’ photograph, was shown to El-Amin. Because

she did not cooperate with the police, they warned her she could be

charged with obstruction of justice if she did not identify a

suspect. El-Amin picked Lewis’ photograph.

4 At the suppression hearing, El-Amin testified: she witnessed

Cortez’s murder, and knew the perpetrator from the neighborhood;

although she did not know the perpetrator’s name, she knew his

nickname was “Nardi”; she had lied to the police, but did so

because she wanted to get them “off of [her] back”; at the 7 August

lineup, she kept picking people and “playing games with the police”

because she “was scared” and “didn’t want to get involved”;

although the police would say “[t]hat’s not true, or I know it’s

not true” when she picked someone other than Lewis, they did not

make her pick Lewis or ask her to lie; and when she witnessed

Cortez’s murder and made this identification, she was addicted to

crack cocaine. (Emphasis added.)

At the hearing’s conclusion, the district court denied Lewis’

suppression motion. It found: “the identification procedure was

not impermissibly suggestive” and “did not pose a substantial

likelihood of irreparable misidentification”. (Emphasis added.)

Determining the admissibility of an eyewitness identification

at trial, following a pre-trial photographic identification,

requires examining two elements — those considered by the district

court: whether the photographic array was impermissibly

suggestive; and, if so, whether, based upon the totality of the

circumstances, “the display posed a very substantial likelihood of

irreparable misidentification”. Brown,

(emphasis

5 added; citations omitted). For this determination, “reliability is

the linchpin”. Manson v. Brathwaite,

(1977).

The following factors should be considered: opportunity of

the witness to view the perpetrator at the time of the crime; the

witness’ degree of attention; the accuracy of the witness’ prior

description of the perpetrator; the level of certainty demonstrated

at the confrontation; and the length of time between the crime and

the confrontation.

“Against these factors is to be weighed

the corrupting effect of the suggestive identification itself.”

(emphasis added).

As noted, El-Amin testified at the suppression hearing that

she knew Lewis from her neighborhood, thereby converting the issue

into one of credibility, not reliability. United States v.

Fernandez-Roque,

(5th Cir. 1983). Thus, even

assuming the photographic lineup was impermissibly suggestive, see

Brown,

, there was not, under the totality of the

circumstances, a substantial likelihood of irreparable

misidentification.

Accordingly, the district court did not err in allowing the

jury to consider El-Amin’s identification testimony. Manson,

. Any inconsistencies in it were properly resolved by

the jury.

(“Juries are not so susceptible that they cannot

measure intelligently the weight of identification testimony that

has some questionable feature.” (emphasis added)). For example, at

6 Lewis’ trial, El-Amin testified, for the first time, that she had

purchased crack cocaine from Lewis. She also testified she

prostituted herself with Lewis after Cortez was murdered.

Lewis contends, for the first time on appeal, that the

photographic arrays were impermissibly suggestive because they

included photographs of individuals with common names, not physical

similarities. Lewis’ failure to raise this issue at trial

constituted a waiver. United States v. Chavez-Valencia,

(5th Cir.), cert. denied,

(1997).

B.

After the jury returned its guilty verdict, Lewis moved for

judgment of acquittal, pursuant to Federal Rule of Criminal

Procedure 29(c). Concluding that the evidence, when viewed in the

light most favorable to the verdict, would permit a rational trier

of fact to find Lewis guilty beyond a reasonable doubt on both

charges, the district court denied the motion. Lewis contests that

denial only as to his conspiracy conviction.

We review de novo the denial of an acquittal motion. E.g.,

United States v. Medina,

(5th Cir. 1998), cert.

denied,

(1999); United States v. Allison,

(5th Cir.), cert. denied,

(1980). Lewis

having timely moved for judgment of acquittal, and because the

motion is treated as a challenge to the sufficiency of the evidence

to convict, we view the evidence in the light most favorable to the

7 Government, with all reasonable inferences made in support of the

jury’s verdict. E.g., United States v. Gallardo-Trapero,

(5th Cir. 1999), cert. denied,

(2000).

The verdict must be affirmed if a reasonable jury could have found,

beyond a reasonable doubt, that the evidence proved the essential

elements of the crime. Id. at 314.

As noted, Lewis challenges the sufficiency of the evidence

only for his conspiracy conviction; he does not do so for his

firearm conviction. In order to establish a drug conspiracy under

, the Government must prove: (1) an agreement

existed between two or more persons to violate the narcotics laws;

(2) each alleged conspirator knew of, and intended to join, the

conspiracy; and (3) each alleged conspirator voluntarily

participated in it. E.g., Brown,

. “A

conspiratorial agreement may be tacit and may be proved by

circumstantial evidence, including evidence of concerted action

among co-conspirators.”

Of course, mere presence and

association with wrongdoers is insufficient to authorize a

conviction; but, it is a fact the jury may consider in conjunction

with other evidence in reaching its verdict.

The evidence at trial was that, beginning in the early 1990s,

co-defendants Brian Jones and Clifford Baptiste supplied drugs to

the other co-defendants who, acting as street-level dealers, openly

sold those drugs to customers on two street corners in their

8 neighborhood in the Seventh Ward. Generally, the men sold drugs in

two separate groups, although occasionally group members would “mix

and mingle”. One group sold drugs at the corner of Rocheblave and

LaHarpe Streets (the Rocheblave group); the other, at the nearby

corner of Dorgenois and Lapeyrouse (the Dorgenois group). Lewis

usually sold with the latter.

Thomas Enclarde, one of the sellers from the Rocheblave group,

testified: “[I]f me, you, and somebody else [are] sitting on a

porch [in the neighborhood], we all have drugs. Now, every time

somebody come[s] up, like we might take a turn. I take this one,

you take that one, you take the next one”. Beginning in January

1994, however, a “turf war” developed between the two groups,

resulting in the murders of a number of the sellers, mainly from

the Rocheblave group.

There is ample evidence there was an “open-air market” for

cocaine in the Seventh Ward. As discussed, co-defendants Jones and

Baptiste were the main suppliers, with Lewis being one of the

street-level dealers. They shared the same motive, drug

distribution for financial gain, and acted together in a spirit of

cooperation, even referring customers to each other. The fact that

at least two of Lewis’ co-defendants attempted to murder El-Amin

also supports the inference of a conspiracy and Lewis’

participation in it. In short, the evidence was sufficient.

C.

9 Finally, Lewis maintains the district court erred by refusing

to admit, under the residual exception to the hearsay rule, the

testimony of David Belfield, Lewis’ attorney during the state

prosecution of the Cortez murder. See FED. R. EVID. 807.

The exclusion of evidence is reviewed for abuse of discretion.

E.g., United States v. Perez,

(5th Cir.),

cert. denied,

(2000). But, a ruling on the

admissibility of evidence under the residual hearsay exception will

not be reversed “absent a definite and firm conviction that the

[district] court made a clear error of judgment”. Id. at 330

(citations omitted).

At the trial’s conclusion, Lewis made the following offer of

proof. Belfield would have testified: shortly before El-Amin’s

sister, Fatima Walters, was murdered, she told him (Belfield) that

El-Amin had been “stunting” on the night Cortez was killed; Walters

explained that meant El-Amin had “r[u]n off her mouth in the

neighborhood, basically claiming that she had witnessed this Cortez

murder, when she had in fact not”. (Emphasis added.)

Rule 807 requires the proponent of the evidence to give notice

of his intention to offer it “sufficiently in advance of the trial

or hearing”. FED. R. EVID. 807. Lewis did not do so. But, even if

he had, no “truly exceptional circumstances” exist which would

warrant the admission of Belfield’s testimony. United States v.

Williams,

, 1083 (5th Cir.), cert. denied,

(1987). Moreover, such evidence lacks the requisite

“circumstantial guarantees of trustworthiness”. FED. R. EVID. 807;

United States v. Metz,

(5th Cir. 1979) (sworn

statement taken by attorney in nonadversarial setting did not meet

trustworthiness standards of residual hearsay exception), cert.

denied,

(1980).

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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