Appellant Pedro Luis appeals from a judgment of conviction rendered in the United States District Court for the Southern District of New York (Broderick, J.) on May 21, 1987 after a jury trial in which he was found guilty of violating 21 U.S.C §§ 812, 841(a)(1), (b)(1), (c), 846 (1982 & Supp. III 1985) and 18 U.S.C. § 2 (1982). The sole issue raised is appellant's claim that the trial court's charge failed to instruct the jury on the defense' theory that the government's proof lacked reliable eyewitness identification of his involvement in the crime. Judgment affirmed.
Oakes, Cardamone and Mahoney, Circuit Judges.
Pedro Luis appeals from a judgment of the United States District Court for the Southern District of New York (Broderick, J.), rendered on May 21, 1987 that convicted him, after a jury trial, of one count of conspiracy to distribute and possess cocaine in the form commonly known as "crack", in violation of 21 U.S.C. § 846 (1982), and one count of distributing "crack" in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1), (c) (1982 & Supp. III 1985), and 18 U.S.C. § 2 (1982). Appellant was sentenced to concurrent terms of 18 months' imprisonment, a special parole term of five years, and a $50 assessment on each count.
This appeal raises a question of whether the trial court's charge fairly focused the jury on the defense's theory of mistaken identification. Relying on the well-documented dangers inherent in eyewitness identification appellant argues that the trial court's failure to give a special charge on that issue warrants reversal of his conviction. It may be that in some cases where the victim or observer had only a brief glimpse of the suspect under poor conditions, the vagaries of human recollection make such person a weak witness, requiring a more pointed charge on identification. Those are not the circumstances of the present case, and the charge that was given fairly and adequately presented the theory of the defense to the jury. Hence, we affirm.
In order to place appellant's contention in context, we review the facts briefly. In the late afternoon of January 6, 1987 two New York City Police Officers with long experience in undercover narcotics investigations were assigned to make purchases of "crack", a purified form of cocaine, in a building located at 302 West 46th Street in Manhattan. The five-story residential structure, at the time abandoned and frequented by prostitutes and drug users, is one where the two officers had made buys previously. At approximately 4:45 P.M. the officers entered the illuminated building and walked to a second floor landing where they were approached by codefendant Glen Rock. At that point, one of the officers asked Rock if he "had anything." Rock replied that he "didn't have anything on him," but that he could supply them with "good rocks," -- referring to "crack" -- by going to get the person who had some. The officers followed him down the staircase and waited on a landing while he momentarily left the building. Upon his return, Rock was accompanied by appellant Pedro Luis and codefendant Stephen Wood. Standing together with Luis, Rock, and Wood, the officers observed Luis place two small vials of crack into Rock's open hand. Luis then ran past the undercover officers and up a flight of steps to the second floor landing. The officers testified that they observed him there watching Rock hand the two vials of crack he had received from Luis to one of the officers in exchange for $20 cash in prerecorded buy money. Rock then passed the $20 to Wood.
The officers left the building, proceeded to their undercover vehicle, and notified a police backup team by radio that they had completed a narcotics purchase. They provided a description of the three defendants, depicting Lusi as follows: "J.D. [John Doe] Mustache, male Hispanic, five-foot-eight [inches], slim, denim jacket, tan pants and work boots." Approximately ten minutes later at about 5 P.M. the backup team arrived at the scene and arrested Rock and Wood, who had been observed crossing 48th Street as they walked north on 8th Avenue away from the building. The arresting officers then returned to 302 West 46th Street and arrested Luis, who was still inside. All three defendants were directed to stand in front of the building while the two undercover officers drove by and identified the three as the same individuals involved a half hour earlier in the "buy and bust" narcotics transaction. The undercover officers were 15 feet from the defendants when they made their identification.
At trial Wood testified and denied any complicity in the sale of narcotics. In his direct examination, he did acknowledge that he had been inside 302 West 46th Street and had seen "the two womens [sic]" together with Rock and Luis. He also testified that he was trying to buy crack, but was not selling it. Rock offered no evidence. The only evidence offered by Luis was a stipulation that he had been arrested on January 6, 1987 inside a room at 302 West 46th Street and that he and the room's other occupants had been searched but were not in possession of any narcotics or prerecorded currency.
DEFENSE THEORY AND TRIAL COURT'S CHARGE
The defense theory was that at the time of Luis' arrest he was in the apartment of a building frequented by drug users and that he had no drugs or prerecorded buy money in his possession. Appellant further claimed that the principal undercover officer's identification of him at trial should not be credited because she had viewed a picture taken of him at the time of his arrest. Defense counsel therefore requested that the trial court include in its charge that the "identification of the defendant as the perpetrator" has to be proved by the government beyond a reasonable doubt.
With respect to the identification of the defendants as participants, Judge Broderick explicity directed the jury to consider the credibility and reliability of the identification witnesses:
Now, this first element implicates who the defendant is. The government must establish that the defendant that you have under consideration -- remembering that you are going to consider each defendant individually -- the defendant who either possessed this substance with intent to distribute it or distributed the substance. This is a matter of identification and you will predicate the question of whether or not the government has established the activities of the defendant you have under consideration on all of the evidence that has come before you in the case.
Everything that I had to say earlier about the believability and the reliability of witnesses is something which you will want to consider in determining whether the government has established beyond a reasonable doubt that the defendant that you have under consideration is a person who either distributed the substance or possessed the substance with intent to distribute.
Before concluding his charge, the trial judge asked counsel whether they were satisfied with the charge as given. Louis' counsel excepted to the above instruction, claiming that it was unclear whether the instructions concerning identity applied equally to the conspiracy charges in count one and the substantive distribution charges in count two of the indictment. Defense counsel therefore asked the trial judge to ...