Appeal from a judgment of conviction of the United States District Court for the Eastern District of New York entered on February 2, 1979, after a jury trial before Henry Bramwell, Judge, for distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The claim on appeal is that the in-court identification of appellant by an undercover agent should have been suppressed because of impermissibly suggestive prior photographic identifications. Affirmed.
Before Lumbard, Mansfield and Gurfein, Circuit Judges.
Ceasar Sanchez appeals from a judgment of the United States District Court for the Eastern District of New York entered on February 2, 1979, convicting him after a jury trial before Henry Bramwell, Judge, of distribution of heroin on August 23, 1977, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The only issue on appeal is whether the in-court identification of Sanchez by an undercover agent should have been excluded from evidence because of impermissibly suggestive prior photographic identifications. Although the photographic identification procedure used by the Drug Enforcement Administration (DEA) Task Force must be condemned as impermissibly suggestive, the district court did not err in finding that under the totality of the circumstances this impropriety did not lead to a substantial likelihood of misidentification. Accordingly, we affirm the conviction.
Assuming that the admission of the agent's in-court identification testimony was proper, the evidence of appellant's guilt was clearly sufficient. The testimony at trial, viewed in the light most favorable to the Government, established that at approximately 5 p. m. on August 23, 1977, Frank Marrero, a detective with the New York City Police Department assigned to the DEA Task Force, went to the El Obrero Market on Central Avenue in Brooklyn in an undercover capacity to purchase heroin. He was accompanied by one David Vega, a confidential informant. The informant introduced Marrero to one Luis Sanchez (hereinafter referred to as "Luis"), appellant's uncle. Luis told Marrero and the informant to wait in the store while he went to get the "stuff." Luis then left the store, walked across the street, and entered 142 Suydam Street; he returned soon thereafter and told Marrero he was "ready to do business." Marrero and the informant were instructed to go around the corner and enter the first building on Suydam Street, which was next to the El Obrero Market, with a door from the Market entering on to a hallway of the building.
When Marrero and the informant got to the building, Luis was already inside and let them into the hallway. Luis then opened the door leading from the Market, and a person later identified at trial by Marrero as appellant, Ceasar Sanchez, entered the hallway. Luis introduced appellant to Marrero as "Ceasar" and instructed Sanchez to give Marrero the heroin. Luis and Marrero discussed a possible future sale of heroin and then Luis left. Appellant then gave Marrero two bags of heroin. In response to Marrero's question appellant stated that the heroin would take a "three cut." Sanchez and Marrero had a brief discussion of possible future sales, and then Marrero gave appellant $2,700, the price quoted by Sanchez for the two bags. The entire transaction took approximately five to ten minutes.
"Ceasar" then re-entered the Market through the back door. Marrero and the informant exited on to Suydam Street and got into their car in front of the Market. As he entered the car, Marrero saw appellant leave the Market, pass in front of the detective's car, and enter 142 Suydam Street.
The testimony of Detective Marrero was corroborated in certain respects by Detective Arthur Drucker. Drucker, who was conducting surveillance near the Market as part of the back-up team for Marrero, observed the detective and the informant enter the Market around 5 p. m. He then saw Luis leave the Market and walk up Suydam Street out of Drucker's sight, returning within a few minutes. Drucker watched Marrero and the informant leave the Market, walk up Suydam Street until they were out of view, and return approximately ten minutes later to their car. He also testified that he observed appellant leave the market and walk up Suydam Street.*fn1
Appellant, testifying in his own behalf, admitted that he lived at 142 Suydam Street in August of 1977 and that Luis Sanchez was his uncle. He denied having ever seen Marrero or having delivered heroin.
Immediately before the trial a suppression hearing was held when it was revealed by the Government that Marrero had on two prior occasions selected appellant's photograph out of photographic spreads and that the Government did not plan to introduce evidence of these identifications at trial but would rely upon Marrero's in-court identification.*fn2 At the hearing Marrero testified that he had two years experience as a detective and eight years experience on the New York City Police Department; that he had spoken to Sanchez for five to ten minutes in the hallway during the heroin sale, that the hallway was illuminated by sunlight coming through clear glass windows in the door, and that he had observed Sanchez' face. Appellant was standing one to two feet away from the detective during the transaction. Marrero also testified that when appellant passed in front of the car after the sale, the detective had another opportunity to observe Sanchez' face for 10 to 15 seconds. Marrero had not seen Sanchez in person between the date of the sale, August 23, 1977, and the first day of trial, December 5, 1978.
The first photographic identification, according to Marrero, was made one or two days after the sale. Marrero stated he selected appellant's picture from a photo spread of approximately ten pictures. The detective testified that the second photographic identification occurred in January of 1978; this time Marrero selected defendant's picture from a spread of approximately eight photographs. Detective Drucker testified at the suppression hearing that he was present at the first photographic identification. He could not remember how many pictures were in that spread.
Detective Steve Caracappa testified that he had composed the August, 1977, spread, consisting of approximately six pictures. Caracappa thought the identification occurred five to seven days after the sale, at the DEA Building. After Marrero selected appellant's photograph, all the other pictures were returned to various files without any special marking of the photographs used or initialing of the one selected by Marrero. Caracappa also composed the January, 1978, spread, which he stated also contained approximately six photographs. As before, after Marrero selected appellant's photo the other pictures were returned to various files without taking any steps to insure that the photos could be retrieved if needed again.
Both Caracappa and Marrero testified that it is the normal procedure of the DEA not to make any effort to preserve the photographic spreads shown to undercover agents.*fn3 No report of any kind was ever made of the first photographic identification; a report was made of the second photographic identification, but it did not contain any information as to which pictures were used in the spread and made no mention of the prior photo identification. No identifying marks were ever made on the pictures of appellant actually selected by Marrero. Caracappa was unable to remember whether the same mug shot of appellant was used each time, and Marrero stated that he believed different pictures of the appellant had been used. Appellant was not arrested until January, 1978, after the second photographic identification and over four months after the heroin sale which was the subject of the indictment; the in-court identification was made over fifteen months after the sale.
At the end of the suppression hearing Judge Bramwell denied appellant's motion to suppress the in-court identification by Marrero. The court ruled that "the impermissible suggestiveness, if any, in the photo arrays, does not give rise to the substantial likelihood of misidentification. Officer Marrero is an experienced and trained undercover police officer who spoke to the defendant for five to ten ...