Petition for Writ of Certiorari — Perez v. United States (No. 05-596)

3

also placed a small amount of weight on Lopez's degree of

attention but found his testimony had been undermined dur-

ing cross-examination. App., infra, |7a-18a.)

- On appeal, citing empirical evidence about mis-

identifications, petitioner challenged the continuing validity

of the certainty factor. At oral argument, however, the Sec-

ond Circuit panel explained that, regardless of troubling de-

velopments in the empirical research, it had no authority to

overrule Biggers and its progeny. The court's decision re-

jected petitioner's claims regarding the reliability of the iden-

tification, stating that, “[b]ased on the district court’s analysis

in accordance with the five-part reliability test, see Neil v.

Biggers, 409 U.S. 188, 199-200 (1972), we conclude that

there was no clear error.” App., infra, 10a.

REASONS FOR GRANTING THE PETITION

In Neil v. Biggers, 409 U.S. 188 (1972), this Court an-

nounced a five-factor test for determining the reliability of

eyewitness identifications. The Biggers test was reaffirmed in

Manson v. Braithwaite, 432 U.S. 98 (1977), and remains the

law of the land today. But empirical research conducted in

the decades since Biggers and Manson establishes beyond

reasonable dispute that the test does not do what it is sup-

posed to do. In particular, at least one of the Biggers fac-

tors—the certainty with which a witness makes an

identification—has been conclusively shown to have little or

no correlation with the accuracy of that identification.

These advances in knowledge render the continued appli-

cation of Biggers untenable. And indeed, state courts of last

resort are increasingly abandoning the Biggers test in favor

of more supportable measures of reliability, or going even

further and holding that identifications based on suggestive

procedures are per se inadmussible. See Part Il, infra. But the

federal courts are bound by Biggers, and must continue to

apply its fundamentally flawed five-factor test until this

Court tells them otherwise.

4

This issue is of great significance—the lower federal

courts are asked to assess the reliability and admissibility of

eyewitness testimony virtually every day. And only this

Court can fix the problem, as Biggers and Manson are consti-

tutional decis.ons and thus cannot be abrogated by Congress.

Nor is there any reason to delay consideration of the question

presented: because lower courts are bound to follow Biggers,

no circuit split will ever arise. In |.ght of thirty years of em-

pirical research demonstrating that the “certainty” factor is

far more likely to be misleading than to be helpful in deter-

mining the reliability of eyewitness evidence, the time has

come for this Court to reconsider Biggers.

I. Review Should Be Granted Because Scientific Evi-

dence Has Undermined The Empirical Basis For This

Court’s Holding In Biggers That Courts Should Con-

sider An Eyewitness’s “Level Of Certainty Demon-

strated At The Confrontation” When Deciding

Whether To Admit Evidence Derived From Unneces-

sarily Suggestive Identification Procedures.

A. The certainty factor established in Biggers is an

improper means to ensure that evidence from a

suggestive eyewitness identification is sufficiently

reliable to satisfy the requirements of due

process.

“(Reliability is the linchpin in determining the admissi-

bility of identification testimony.’ Manson, 432 U.S. at 114;

see also Foster v. California, 394 U.S. 440, 443 (1969);

Stoval v. Denno, 388 U.S. 293, 301-02 (1967); Wade, 388

U.S. at 228. This Court's cases make clear that the “the pri-

mary evil to be avoided” by judicial scrutiny of eyewitness

identifications is the “very substantial likelihood of misiden-

tification.” Biggers, 409 U.S. at 198.’ If a defendant can

2

The standard adopted in Biggers for out-of-court identifications

is an adaptation of the standard the Court used in Simmons v.

United States, 390 U.S. 377, 384 (1968), for in-court identifica-

5

show that “the confrontation conducted * * * was so unnec-

essarily suggestive and conducive to irreparable mistaken

identification that he was denied due process of law,” the

identification evidence is not admissible. Stova/, 388 U.S. at

301-302.

The overwhelming scientific consensus now shows that

the inclusion of a witness’s certainty in the list of factors to

be considered cannot be squared with the Court’s emphasis

on avoiding misidentifications. This is so because the degree

of certainty exhibited by a witness has very little correlation

with the witness’s accuracy, and because a witness’s ccr-

tainty can easily be manipulated and affected by irrelevant

factors.’ For example, one review of the relevant literature

tions. See Biggers, 409 U.S. at 198 (“It is, first of all, apparent that

the primary evil to be avoided is a very substantial likelihood of

irreparable misidentification. While the phrase was coined as a

standard for determining whether an in-court identification would

be admissible in the wake of a suggestive out-of-court identifica-

tion, with the deletion of ‘irreparable’ it serves equally well as a

standard for the admissibility of testimony concerning the out-of-

court identification itself.)

> The degree of witness certainty is not the only Biggers factor

called into question by current scientific consensus. Research has

also found that the third Biggers factor, the “accuracy of [the wit-

ness's} prior description” of the suspect, has an insignificant corre-

lation to the accuracy of the identification. Connie Mayer, Due

Process Challenges To Eyewitness Identification Based On Pre-

trial Photographic Arrays, 13 PACE L. REV. 815, 845 & n.214

(1994) (citing Melissa Pigott & John C. Brigham, The Relationship

Between the Accuracy of Prior Description and Facial Recogni-

tion, 70 J. APPLIED PSYCHOL. 547 (1985); Alvin G. Goldstein et

al., Does Fluency of Face Description Imply Superior Face Rec-

ognition? 13 BULL. PSYCHONOMIC Soc'y 15 (1979); Brian L. Cut-

ler et al., The Reliability of Eyewitness Identification, 11 L. &

HUM. BEHAV. 233, 253-54 (1987) (showing a negative correlation

between memory for peripheral details surrounding the event and

the accuracy of the identification); Gary L. Wells & Michael R.

6

found it “safe to conclude from existing research that under

the conditions that typically prevail in short criminal encoun-

ters between victims-witnesses and perpetrators, witness

* * * confidence in having made a correct identification is, at

best, only modestly associated with identification accuracy.”

Steven Penrod & Brian Cutler, Witmess Confidence and Wit-

ness Accuracy: Assessing Their Forensic Relation, | Psycu.,

Pus. POL., & LAW 817, 825 (1995).

Various studies over many years have confirmed the

weak correlation between confidence and accuracy. See, e.g,

Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony,

54 ANNU. REV. PSYCHOL. 277, 285-290 (2003) (reviewing

major developments in the experimental literature relating to

the accuracy of eyewitness identifications) [hereinafter

“Eyewitness Testimony™|, available at http://www.psych-

ology.iastate.edu/faculty/gwells/annual_review_2003.pdf. In

fact, the consensus that witness confidence is a very poor

predictor of accuracy is strong: one recent survey found thai

73% of eyewitness experts would be willing to testify that

“confidence is not a good predictor of identification accu-

racy.” Neil Brewer, Amber Keast, & Amanda Rishworth, The

Confidence-Accuracy Relationship in Eyewitness Identifica-

tion: The Effects of Reflection and Disconfirmation on Cor-

relation and Calibration, 8 J. EXPERIMENTAL PSYCHOL. 44

(2002).

Although some studies have found a statistically signifi-

cant correlation between witness certainty and accuracy,

these studies have found such a relationship only by control-

ling factors that it is impossible or wholly infeasible to con-

trol in the real world. See, e.g, Siegfned Ludwig Sporer,

Lieppe, How Do Triers of Fact Infer the Accuracy of Eyewitness

Identification? Using Memory for Peripheral Detail Can be Mis-

leading, 66 J. APPLIED PSYCHOL. 682, 685 (1981) (showing that

jurors give more credibility to an identification where the witness

provides a more detailed description)).

-

Don Read, Steven Penrod & Brian Cutler, Choosing, Confi-

dence, and Accuracy: A Meta-Analysis of the Confidence-

Accuracy Relation in Eyewitness Identification Studies, 118

PSYCHOL. BULLETIN 315 (1995). Thus, although Sporer’s

meta-analysis produced a certainty-accuracy correlation, it

did so only by considering those subjects who make a

“choice” by making an identification, and excluding those

subjects who made no choice by making correct and false re-

jections. /d. at 316-317. But in the real world, law enforce-

ment cannot control for these factors to determine whether a

particular witness is more or less reliable. See Kenneth Def-

fenbacher, Eyewitness Accuracy and Confidence: Can We In-

fer Anything about their Reiationship, 4 L. & HUM. BEHAV.

243, 258 (1980) (reporting that a meta-analysis of twenty-

five studies on the relationship between certainty and accu-

racy shows some degree of correlation under optimal wit-

nessing conditions, but concluding that witness certainty

should not be relied upon because such factors cannot be eas-

ily ascertained in the real world).

Moreover, research has shown that the certainty of a wit-

ness is casily manipulated by a variety of factors that have

nothing to do with accuracy. See, e.g, Amy L. Bradfield,

Gary L. Wells & Elizabeth A. Olson, The Damaging Effect of

Confirming Feedback on the Relation Between Eyewitness

Certainty and Identification Accuracy, 87 J. APPLIED Psy-

CHOL. 112 (2002); Gary L. Wells & Amy L. Bradfield,

“Good, You Identified the Suspect”: Feedback to Eyewitness

Distorts Their Reports of the Witnessing Experience, 83 J.

APPLIED PSYCHOL. 360 (1998) [hereinafter “Good, You Iden-

tified the Suspect’).

For example, in one study, researchers gave some sub-

jects confirming feedback after they made misidentifcations

but gave other subjects no feedback. See Good, You /denti-

fied the Suspect, at 363. Those subjects who received con-

firming feedback reported greater certainty in their

identification—even though it was wrong—than those sub-

8

jects who received no feedback. /bid.; see also Eyewitness

Testimony, at 283 (“In actual cases, it is common for lineun

administrators * * * to give confirming feedback to eyewit-

nesses, thereby inflating the certainty of the eyewitness and

confounding the certainty-accuracy relation.”).

Similarly, some researchers have noted that “confidence

Statements from eyewitnesses can be affected dramatically by

events occurring after the identification (post-identification

events) that have nothing to do with the witness’s memory.”

Gary L. Wells, et al., Eyewitness Identification Procedures:

Recommendations for Lineups and Photospreads, 22 Law &

HuM. BEHAV. 603, 635, (1998) [hereinafter “Recommenda-

tions for Lineups and Photospreads”), available at www.psy-

chology. iastate.edu/faculty/gwells/whitepaperpdf_pdf. Thus,

these scientists have recommended that if certainty is to be

included as a factor at all, it should be the witness's vertainty

immediately after the actual identification (and without any

influence by the lineup or array administrator). See ibid.; see

also Amy L. Bradfield & Gary L. Wells, The Perceived Va-

lidity of Eyewitness Identification Testimony: A Test of the

Five Biggers Criteria, 24 HUM. LAW & BEHAV. 581, 592

(2000).

At the same time, research shows that fact-finders place a

disproportionate weight on the confidence of the witness in

their reliability analysis. One study reported that “[t}here is

converging evidence from various streams of research that

demonstrates that both professionals and iay people (jurors)

put particular faith in the confidence a witness displays when

making a lineup decision.” Siegfried Ludwig Sporer, Eyewit-

ness Identification Accuracy, Confidence, and Decision

Times in Simultaneous and Sequential Lineups, 78 J. APPLIED

PSYCHOL. 22, 23 (1993). See also Penrod & Cutler, Wimess

Confidence, supra, at 819 (reporting a mock-jury study find-

ing that “nearly four out of five mistaken identifications are

believed”); Gary L. Wells, How Adequate Is Human Intuition

for Judging Eyewitness Testimony, in EYEWITNESS TESTI-

9

MONY: PSYCHOLOGICAL PERSPECTIVES, 256, 271 (Gary L.

Wells, Elizabeth F. Loftus, eds., 1984) (“[T]here is at least

one important aspect of eyewitness testimony that is misun-

derstood by the trier of fact, namely eyewitness confidence”’).

Another study explained that “[{j)urors appear to overestimate

the accuracy of identifications, fail to differentiate accurate

from inaccurate eyewitnesses—because they rely so heavily

on witness confidence, which is relatively nondiagnostic—

and are generally insensitive to other factors that influence

identification accuracy.”; Recommendations for Lineups and

Photospreads, at 624."

* Scientific research has also shown that other factors not consid-

ered by the Court in Biggers or Manson are more strongly corte-

lated with accuracy. See, eg, Eyewitness Testimony, at 286

(reporting that research has shown that “the ratio of accurate to in-

accurate identifications is strongly affected by whether or not eye-

witnesses have been instructed (warned) prior to the lineup that the

culprit might or might not be in the lineup.” (citing R.S. Malpass

& P.G. Devine, Eyewitness identification: lineup instructions and

the absence of the offender, 66 J. APPLIED PSYCHOL. 482, 482-489

(1981)). See also State v. Ledbetter, 881 A.2d 290, 317 (Conn.

2005) (holding that baseg on this body of research courts are re-

quired to instruct juries on the risk of misidentification that arises

when police fail to warn eyewitnesses that a suspect may not be

present at an identification procedure or indicate to a witness that a

suspect Is present).

A strong correlation has also been found between how quickly

the witness makes an identification and the accuracy of the identi-

fication. See David Dunning & Scott Perretta, Automaticity and

Eyewitness Accuracy: A 10 to 12 Second Rule for Distinguishing

Accurate from Inaccurate Positive Identifications, 87 J. APPLIED

PSYCHOL. 951, 958-960 (2002) (finding that witnesses who make

their identification in less than 10-12 seconds were 90% accurate

in their identifications in contrast to those who took longer were

50% correct); Sporer, Eyewitness Identification Accuracy, supra.

10

At this point there can be no serious dispute that Biggers’

witness certainty factor is not relevant to the determination

whether identification evidence produced from an unneces-

sarily suggestive procedure is reliable. A defendant's right to

due process is jeopardized by a court’s reliance on a legal test

that fails to achieve its purpose, furthers the admission of un-

reliable evidence, and places the defendant at risk of being

convicted by a misidentification. Only this Court can fix this

problem that is daily presented in courts across the country.

B. The use of the witness certainty factor raises

serious due process concerns because the Biggers

factors become relevant only after a court has

found that an identification was produced from

unnecessarily suggestive procedures and its

reliability is highly in doubt.

The Biggers factors, it must be recalled, assess the relli-

ability of an identification that a court has already found was

the product of unnecessarily suggestive identification proce-

dures. In other words, the accuracy of the identification is al-

ready seriously in doubt before the Biggers factors are even

applied. Even partial reliance on the certainty factor to de-

termine the reliability of the identification therefore is highly

problematic.

As this Court has explained, suggestive identification

techniques such as those that were used in this case can be

highly influential on a witness. See, e.g., Manson, 432 U.S.

at | 11-112. Particularly relevant here is the concern the Court

expressed in Simmons regarding the suggestiveness of photo

arrays that are conducted in a fashion that results in a highly

questionable identification:

Regardless of how the initial misidentification

comes about, the witness thereafter is apt to retain in

his memory the image of the photograph rather than

of the person actually seen, reducing the trustwor-

thiness of subsequent lineup or courtroom identifi-

cation.

Simmons, 390 U.S. at 383-384.

The research literature corroborates the Court's concern

about the dangers of misidentifications that result from sug-

gestive procedures. Studies have repeatedly shown that the

use of suggestive identification procedures is highly corre-

lated with inaccurate identifications. See, e.g., Eyewitness

Testimony, at 285-290 (reviewing eyewitness identification

literature discussing system variables that increase or de-

crease the likelihood of a false identification); see also Rec-

ommendations for Lineups and Photospreads, at 605

(evaluating 40 cases of defendants who were exonerated

through DNA evidence finding that 90% of the cases relied

on evidence of eyewitnesses that falsely identified the exon-

erated defendant).

A suggestive photo array, such as the one used in this

case, presents an extra challenge because the defendant does

not have the mght to counsel at this stage in the prosecution.

See United States v. Ash, 413 U.S. 300, 321 (1973) (holding

that the Sixth Amendment does not “grant the right to ~oun-

sel at photographic displays”). The district court fou... that

“the use of Jose Antonio Perez’s dark-skinned photograph

juxtaposed with all other markedly lighter faces resulted in

an identification procedure that was unduly suggestive.”

App., infra, 14a. This type of suggestive procedure has been

criticized for producing inaccurate identifications. Thus, one

of the four proposed rules recently recommended by scien-

tific experts for accurate lineups or photospreads is that

“(t]he suspect should not stand cut in the lineup or pho-

tospread as being different from the distractors based on the

eyewitness’s previous description of the culprit or based on

other factors that would draw extra attention to the suspect.”

Recommendations for Lineups and Photospréads, at 630. As

the authors of that study explain, instances in which the sus-

12

pect stands out from the distractors severely detract from our

ability to trust an identification:

Perhaps the suspect stands out because s/he is the

only one who fits the verbal description that the

eyewitness had given the police earlier, or because

the suspect is the only one dressed in the type of

clothes worn by the culprit, or because the suspect's

photo was taken from a different angle than the

other photos. The presence of features t'»»: make the

suspect stand out from the distractors confounds our

ability to conclude that the selection of the suspect

was due to true recognition versus some form of

suggestion, demand, or inference.

Id. at 24 (internal citations omitted).

In light of the evidence undermining the empirical foun-

dations on which the Biggers test rests, this Court should

grant certiorari to reconsider the Biggers factors.

Il. Review Should Be Granted Because A Series Of State

Courts Of Last Resort Have Called Into Question

The Continuing Validity Of The Biggers Factors

And, Specifically, The Witness Certainty Factor.

Review in this case is warranted not only because the

witness certainty factor applied in the federal courts-is plainly

unsupportable as a scientific matter, but also because that

factor has been expressly rejected by a number of state courts

of last resort.

In the years since this Court's decisions in Biggers and

Manson, a series of state courts of last resort have concluded

that, in light of the scientific evidence about the reliability of

eyewitness identifications, application of the Biggers fac-

tors—and especially the witness-certainty factor—cannot

adequately protect a defendant's due process rights. These

courts have acted under their authority to interpret state con-

stitutional provisions more strictly than the corresponding

13

provisions of the federal constitution, but their decisions do

not rely on textual or structural differences between the state

and federal constitutions. Rather, these courts have recog-

nized that this Court's holding in Biggers, which was explic-

itly based on the Court's empirical analysis of the

psychology of witness identification, is no longer tenable.

For example, in State v. Long, 721 P.2d 483 (Utah 1986),

the Supreme Court of Utah held that trial courts must give

cautionary instructions to the jury when the prosecution has

presented evidence of a pre-trial eyewitness identification.

The court recognized that “[t}here is no significant division

of opinion” in the psychological literature on the unreliability

of eyewitness identifications, but noted that juries routinely

fail to understand how unreliable such testimony is. The

court laid special emphasis on the proven invalidity of “the

common notion that the confidence with which an individual

makes an identification is a valid indicator of the accuracy of

the recollection,” noting that in some circumstances the accu-

racy of an identification is inversely related to the witness's

apparent confidence. /d. at 490. The court specifically faulted

this Court’s approach in Biggers, noting that ‘several of the

criteria listed by the Court [for determining reliability] are

based on assumptions that are flatly contradicted by well-

respected and essentially unchallenged empirical studies.” /d

at 491.

The Utah Supreme Court followed the logic of Long to

its inevitable conclusion in State v. Ramirez, 817 P.2d 774

(Utah 1991), holding that the Biggers test is an insufficient

guarantee of due process under the Utah Constitution. See id.

at 780-781. Rather than adopt a per se rule excluding unduly

suggestive identifications, however, the court chose to fash-

ion its own test, comparable to Biggers but “more empirically

based” and more rooted in legitimate scientific consensus.

See id. at 780. Among other differences, the court rejected

the witness-certainty factor adopted in Biggers as empirically

unsupported.

14

The Massachusetts Supreme Judicial Court went further

in Commonwealth v. Johnson, 650 N.E.2d 1257 (Mass.

1995). Emphasizing the flaws in the empirical basis for this

Court's holdings in Biggers and Manson (see id. at 1260 &

n.5), and the “real threat to the truth-finding process of crimi-

nal trials” posed by suggestive eyewitness identification pro-

cedures (id. at 1261), the court held that the state constitution

requires the per se exclusion of unnecessarily suggestive

identifications. See ibid.

Most recently, after thirty years of adherence to the Big-

gers test, the Wisconsin Supreme Court has abandoned that

approach. In State v. Dubose, 699 N.W.2d 582 (Wis. 2005),

the court noted the wealth of new research over the past dec-

ade confirming that eyewitness testimony is often “hope-

lessly unreliable.” /d. at 592 (quoting Johnson, 650 N.E.2d at

1262). Acknowledging that research and experience have un-

dermined the foundations of the Biggers approach and shown

the futility of attempting to distinguish between reliable and

unreliable eyewitness testimony, the court adopted a new

test: “evidence obtained from an out-of-court showup is in-

herently suggestive and will not be admissible unless, based

on the totality of the circumstances, the procedure was neces-

sary.” Jd. at 593-594. Though the court's focus was on show-

ups, it also applied its test to an out-of-court photo

identification. See id. at 596.

In addition to the cases explicitly rejecting the Biggers

approach under state constitutional law, numerous other deci-

sions by state courts of last resort point to the growing con-

sensus that eyewitness testimony based on a suggestive

identification is unreliable, and specifically that the witness-

certainty factor is a poor indicator of reliability

For example, the Georgia Supreme Court recently in-

structed Georgia trial courts to “refrain from informing jurors

they may consider a witness’s level of certainty when in-

structing them on the factors that may be considered in decid-

15

ing the reliability of {an} identification.” Brodes v. State, 614

S.E.2d 766, 771 (Ga. 2005).

Similarly, the Connecticut Supreme Court recently noted

that “[t]he uncontradicted scientific literature * * * suggests

that the fourth Biggers factor is particularly flawed because a

weak correlation, at most, exists between the levei of cer-

tainty demonstrated bv the witness * * * and the accuracy of

that identification,” Ledbetter, 881 A.2d at 311; see also, e.g.,

Jones v. State, 749 N.E.2d 575, 586 (Ind. 2001) (recognizing

“the growing body of scientific work which has challenged

many commonly held beliefs about eyewitness credibility”);

Commonwealth v. Santoli, 680 N.E.2d 1116, 1121 (Mass.

1997) (rejecting instruction authorizing jury to “take into ac-

count * * * the strength of the identification”); Rimmer v.

State, 825 So.2d 304, 337 (Fla. 2002) (Pariente, J., dissenting

in part) (“Since Neil [v. Biggers] was decided, additional so-

cial science research, as well as actual cases, have taught us

much about the fallibility of eyewitness identification.”).

Notably, none of the state cases discussed above relics on

specific provisions of state constitutional or statutory law that

differ substantially from federal law. Rather, these courts

have all recognized that the empirical foundation upon which

this Court's holding in Biggers and Manson rested—the as-

sumption that a court can accurately determine the reliability

of a suggestive identification—is no longer tenable.

Meanwhile federal courts struggle to do justice within the

defective framework of Biggers. See, e.g, Abdur-Raheem v.

Kelly, 98 F. Supp. 2d 295, 306 (E.D.N.Y. 2000) (“The value

of at least two of the factors—accuracy of the witness’[s]

prior description and certainty at the confrontation—has been

seriously questioned. Based on empirical research into cye-

witness identifications, these factors assign too much predic-

tive value to eyewitness confidence and also to witnesses’

descriptions, neither of which is very predictive of identifica-

tion accuracy in scientific studies’’) (internal quotation marks

16

omitted), vacated on other grounds by, grant of writ of ha-

beas corpus ordered by, Abdur Raheem v. Kelly, 257 F.3d

122, 141 (2d Cir. 2001); United States v. Singleton, 702 F.2d

1159, 1179 (D.C. Cir. 1983) (Wright, J., dissenting)

(“{Ijnnumerable authorities have concluded that a witness’[s]

degree of certainty in making an identification generally does

not measure its reliability. Indeed, a negative correlation

sometimes exists between a witness’[s] confidence and the

accuracy of the identification.”) (emphasis in original) (inter-

nal citations to psychological research omitted); Ocasio v.

Artuz, No. 98-CV-7925(JG), 2002 U.S. Dist. LEXIS 9790,

*34 n.7 (E.D.N.Y. May 24, 2002) (“In truth, social science

has convincingly revealed that there is little or no correlation

between an eyewitness’[s}] confidence in an identification and

the accuracy of the identification.”) (citing psychological re-

search); Smith v. Smith, No. 02 Civ. 7308 (WHP) (JCF),

2003 U.S. Dist. LEXIS 17642, *36-37 (S.D.N.Y. Sept. 29,

2003) (“Studies have indicated that the empirical evidence

does not support the idea that eyewitness confidence is a

valid measure of eyewitness accuracy under ecologically

valid conditions. One reason for this phenomenon is the mal-

leability of eyewitness confidence.”) (internal citation and

quotation marks omitted).

This is an area in which this Court’s guidance is urgently

needed. The court should grant certiorari to reconsider the

Biggers test and, specifically, to consider whether a witness's

degree of certainty has a legitimate role in the reliability in-

quiry.

Ill. Review Should Be Granted Because DNA Exonera-

tions Of Individuals Whose Convictions Were Sup-

ported By Eyewitness Evidence Demonstrate That

Continued Reliance On The Biggers Certainty Factor

Undermines The Integrity Of The Judicial System.

The danger of allowing unreliable eyewitness evidence to

go to the jury is dramatically demonstrated by recent DNA-

17

based exonerations. A report by the National Institute of Jus-

tice-—a branch of the U.S. Department of Justice—reviewing

28 cases of defendants who were exoncrated by DNA evi-

dence concluded that “[{i]n the majority of cases, given the

absence of DNA evidence at the trial, eyewitness testimony

was the most compelling evidence.” Nat’! Institute of Justice,

Convicted by Juries, Exonerated by Science: Case Studies in

the Use of DNA Evidence to Establish Innocence After Trial,

National Institute of Justice, Dept. of Justice Pub. No. NCJ

161258, 24 (1996), available at http://www.ncjrs.gov/-

pdffiles/dnaevid.pdf. A subsequent study that added 12 cases

to the 28 reviewed in the Department of Justice study found

that 90% of the wrongly convicted had been falsely identified

through eyewitness testimony. Recommendations for Lineups

and Photospreads, at 605. The study explained that in these

40 cases, “the kind of evidence that led to these wrongful

convictions could have been anything. The fact that it hap-

pens to be eyewitness identification evidence lends support to

the argument that eyewitness identification evidence is

among the least reliable forms of evidence and yet persuasive

to juries.” /bid.

The Innocence Project, a nonprofit legal organization

dedicated to exonerating the wrongfully convicted, has re-

ported that at last count 125 of the 163 defendants who have

been exonerated through DNA evidence, or 77%, had convic-

tions that were supported in part by eyewitness misidentifica-

tions. See http://www.innocenceproject.org/causes/mistaken-

id.php. In many of these cases, the exonerces tried to

challenge the identification evidence used by the state as be-

ing suggestive. The courts found that the challenged identifi-

cation evidence was reliable and admissible, contributing to a

wrongful conviction. Only later after years of incarceration

were these individuals exonerated through the use of DNA

evidence. See ibid. These numbers should not be surprising

given what we know about jurors overestimating eyewitness

reliability and the fallibility of eyewitness identifications. See

18

also Jim DwYeER, PETER NEUFELD, & Barry SCHECK, AC-

TUAL INNOCENCE 41-77 (2000) (discussing misidentifcations

and eyewitness testimony in cases of the wrongly convicted).

The number of DNA exonerations where the conviction was

based on eyewitness misidentifications demonstrates the in-

adequacy of the Biggers factors to determine the reliability of

identification evidence once a court has determined the evi-

dence was derived from suggestive procedures. And surely

the number of defendants who, on the basis of mis-

identification, were wrongfully convicted of crimes for which

no DNA evidence exists is many times the number exoner-

ated by DNA testing. This is further evidence that the time

has come for this Court to revisit Biggers.

IV. Stare Decisis Is No Bar To Granting The Petition.

“When governing decisions are unworkable or are badly

reasoned, this Court has never felt constrained to follow

precedent. [The Court’s] willingness to reconsider [its] ear-

lier decisions has been particularly true in constitutional

cases, because in such cases correction through legislative

action is practically impossible.” Seminole Tribe v. Florida,

517 U.S. 44, 63 (1996) (internal citations and quotation

marks omitted).

In Planned Parenthood v. Casey, 505 U.S. 833 (1992),

the Court listed several factors to be considered when decid-

ing whether to overturn one of its prior precedents. These

factors include: “whether the rule has proven to be intoler-

able simply in defying practical workability”; “whether the

rule is subject to a kind of reliance that would lend a special

hardship to the consequences of overruling and add inequity

to the cost of repudiation”; “whether related principles of law

have so far Geveloped as to have left the old rule no more

than a remnant of abandoned doctrine”; or “whether facts

have so changed, or come to be seen so differently, as to have

robbed the old rule of ~ gnificant application or justification.”

Id. at 854-855 (interna! citations and quotation marks omit-

19

ted). See also Atkins v. Virginia, 536 U.S. 304, 306-307

(2002) (overturning the Court’s decision in Penry v. Ly-

naugh, 492 U.S. 302 (1998) by evaluating the consensus

reached by the “American public, legislators, scholars, and

judges” in deliberating over the question whether executing

mentally retarded persons violates the Eighth Amendment).

Several of these factors weigh strongly in favor of over-

turning the Court’s decisions in Biggers and Manson to the

extent that these decisions require courts to evaluate the level

of certainty of a witness in determining the reliability of evi-

dence that was derived from unnecessarily suggestive identi-

fication procedures.

Most importantly, the psychological research on eyewit-

ness identifications has “robbed the old ruie of significant

application or justification” because the foundations of the

Court’s analysis have been undermined. The Court selected

the level of certainty of the witness as one of the Biggers fac-

tors assuming that it would provide courts with an indication

of the reliability of the identification. The consensus in the

research literature on the certainty of a witness has shown

that the Court’s assumption is false. Because this is a consti-

tutional rule, the Court must address this question as other

courts are bound to follow this Court’s precedent.

Overruling this portion of Biggers and Manson would not

impose a special hardship because courts would still consider

the other four Biggers factors, and would still be bound by

the Court’s primary holding that identification evidence that

is the product of unnecessarily suggestive identification pro-

cedures must be determined to be independently reliable be-

fore such evidence is admitted to a jury.

Finally, although courts may find the “certainty” factor

workable—in that it is a fact that can be readily deter-

mined—the “certainty” factor does not achieve its intended

purpose of determining whether tainted evidence is nonethe-

20

less reliable. Therefore, the certainty factor is not “workable”

in the most fundamental sense.

Thus, this Court should not rely on the principle of stare

decisis to refuse to revisit Biggers, given the overwhelming

consensus that the witness-certainty factor identified in Big-

gers is scientifically unsupportable.

CONCLUSION

The petition for a writ of certiorari should be granted.

21

Respectfully submitted.

DAVID M. GOSSETT ANDREW H. SCHAPIRO

Mayer, Brown, Rowe & Counsel of Record

Maw LLP Mayer, Brown, Rowe &

1909 K Street, NW Maw LLP

Washington, DC 20006 1675 Broadway

DIANE POLAN New York, NY 10019

Law Offices of Diane Polan, (2!) 506-2500

LLC CHRISTOPHER MONSOUR

129 Church Street Mayer, Brown, Rowe &

Suite 802 Maw LLP

New Haven, CT 06510 71 S. Wacker Dr.

Chicago, IL 60606

Counsel for Petitioner

NOVEMBER 2005

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT

UNITED STATES OF AMERICA, APPELLEE,

V.

JOSE ANTONIO PEREZ, AKA TONY, RAYMOND

PINA, AKA SHORTY, DEFENDANTS-APPELLANTS.

DOCKET NOS. 03-1445(L), 04-0751-CR(CON).

ARGUED: MAY 26, 2005.

DECIDED: JULY 11, 2005.

Before: CALABRES], KATZMANN, and B.D. PARKER,

Circuit Judges.

PER CURIAM.

Defendant-Appellant Jose Antonio Perez (“Perez”), a

member of the “Perez Organization,” appeals from the judg-

ment of the district court (Arterton, J.), convicting him on

five counts’ related to the murder-for-hire killing of Theo-

| The five counts were:

1. Conspiracy to commit murder-for-hire involving interstate

travel or the use of an interstate facility, in violation of 18

U.S.C. § 1958,

2. Using interstate travel for murder-for-hire, with the intent

that the murder be committed in violation of federal or state

laws as consideration for the promise to pay something of

value, 18 U.S.C. § 1958,

3. Using an interstate facility for murder-for-hire, with the in-

tent that the murder be committed in violation of federal or

state laws as consideration for the promise to pay something of

value, 18 U.S.C. § 1958,

4. Committing a violate crime in aid of racketeering (VICAR),

under 18 U.S.C. §§ 1959(b)(2), 1961, and

2a

dore Casiano (“Casiano”), the leader of a rival narcotics or-

ganization in Hartford, Connecticut. Perez was sentenced to

four concurrent terms of life imprisonment and one consecu-

tive five-year term.”

Most of Perez's claims on appeal have been denied in an

unpublished summary order, which we issue together with

this opinion, see United States v. Perez, 138 Fed. Appx. 379

(2d Cir. 2005). We write here separately to address a ques-

tion that, for this circuit, is one of first impression: whether a

defendant can be convicted of using a facility in interstate

commerce with the intent that a murder-for-hire be commit-

ted when the defendant's usage of that facility is wholly in-

trastate.

In May 1996, in retaliation for the Savage Nomads’ ag-

gressive efforts to regain their share of the Hartford area’s

narcotics trade,’ members of the Perez Organization decided

that Casiano should be killed. Accordingly, a professional

“hit man” (and his associates) from the Bronx was hired to

travel to Connecticut to murder Casiano.

For purposes of the legal question before us, it suffices to

say that one of Perez’s responsibilities—and the only one

5. Causing death by use of a firearm during a crime of violence,

18 U.S.C. §§ 924(c), 924(j)(1), 2.

? Raymond Pina, who was tried with Perez, withdrew his appeal

prior to the date of oral argument.

> Casiano had been the leader of a gang called the Savage No-

mads. The Nomads were, among other things, heavily involved in

the sale of narcotics. While Casiano was in federal prison, the Sav-

age Nomads’ market share declined considerably—-and they lost

particular ground to the Perez Organization, which at al! times was

led by the appeliant’s brother, Wilfredo Perez. Ever since Casiano

was released from prison in 1995, tension between the Savage

Nomads and the Perez Organization ran high.

3a

currently at issue—was to call Casiano on the telephone (as

well as “page” his beeper) and invite him to a meeting, osten-

sibly to resolve their differences, at Perez Auto, a garage in

Hartford owned by Wilfredo Perez. In fact, however, Perez

was luring Casiano to the garage to give the hit men a clear

opportunity to kill their target.

It was established at trial, by a representative of the local

telephone company (“Southern New England Telephone” or

“SNET”), that the calls made by Perez to Casiano on the day

of the shooting were wholly intrastate calls. That is, the calls

did not require any switching or routing connections outside

of the State of Connecticut. As a general matter, however,

SNET did provide local customers with access to long-

distance calling plans and, as such, the SNET network was

undeniably a facility involved in interstate communication.

Il.

Perez argues that, because his calls to Casiano from Perez

Auto were local and did not involve any interstate communi-

cation, he should not have been found guilty under 18 U.S.C.

§ 1958, which proscribes the use of interstate facilities in the

commission of a murder-for-hire.*

* Prior to amendment in 2004, 18 U.S.C. § 1958 read:

Use of interstate commerce facilities in the commission of

murder-for-hire

(a) Whoever travels in or causes another (including the in-

tended victim) to travel in interstate or foreign commerce, or

uses or causes another (including the intended victim) to use

the mail or any facility of interstate or foreign commerce, with

intent that a murder be committed in violation of the laws of

any State or the United States as consideration for the receipt

of, or as consideration for a promise or agreement to pay, any-

thing of pecuniary value, or who conspires to do so, shall be

fined under this title or imprisoned for not more than ten years,

or both; and if personal injury results, shall be fined under this

4a

He notes that § 1958(a)}—the substantive subsection of

the provision, uses the language: “Whoever ... uses ... any fa-

cility in interstate ... commerce ....” (emphasis added). By

contrast, § 1958(b)}—the definitional subsection—describes

“facility of interstate commerce” (emphasis added) to include

means of transportation and communications. Perez therefore

contends that the meaning in § 1958(a) is narrower than

§ 1958(b). In other words, whereas “use of a facility of inter-

State commerce” (subsection (b)) applies to any use of a fa-

cility that happens—at times—to be involved in interstate

commerce, “use of a facility in interstate commerce” (subsec-

tion (a)) requires the defendant to have actually used the fa-

cility in its interstate capacity in furtherance of the murder-

for-hire.

There is a circuit split on the question of whether the ac-

tual use by the defendant must be an interstate one. Support-

ing the position taken by the district court in the instant

case—that is, not requiring an actual interstate usage—are

opinions by the Fifth and Seventh Circuits. See United States

v. Marek, 238 F.3d 310, 313 (Sth Cir. 2001) (en banc) (hold-

ing that § 1958(a)’s “use of a facility in interstate commerce”

title or imprisoned for not more than twenty years, or both; and

if death results, shall be punished by death or life imprison-

ment, or shall be fined not more than $ 250,000, or both. (b) As

used in this section and section 1959 [18 U.S.C. § 1959]—

(1) “anything of pecuniary value” means anything of value in

the form of money, a negotiable instrument, a commercial in-

terest, or anything else the primary significance of which is

economic advantage;

(2) “facility of interstate commerce” includes means of trans-

portation and communication; and

(3) “State” includes a State of the United States, the District of

Columbia, and any commonwealth, territory, or possession of

the United States.

Sa

is synonymous with § 1958(b)’s “use of a facility of inter-

state commerce” and therefore that § |958(a) satisfies the ju-

risdictional element of the federal murder-for-hire statute,

irrespective of whether the particular usage in questicn was

itself interstate or intrastate, so long as the facility is one in-

volved in interstate commerce); United States vy. Richeson,

338 F.3d 653, 660 (7th Cir. 2003) (“We wholly agree with

the Fifth Circuit that § 1958's construction, plain language,

context in the realm of commerce clause jurisprudence, and

legislative history all lead to the conclusion that ‘it is suffi-

cient [under § 1958] that the defendant used an interstate

commerce facility in an intra state fashion.’ (quoting Marek,

238 F.3d at 315)).

Bolstering Perez’s claim, at least to a limited extent, is an

opinion of the Sixth Circuit, as well as two district court de-

cisions in our circuit. See United States v. Weathers, 169

F.3d 336, 341-43 (6th Cir. 1999) (holding that the communi-

cation itself involved in the murder-for-hire conspiracy must

affect interstate commerce); United States v. Paredes, 950 F.

Supp. 584, 590 (S.D.N.Y. 1996) (holding that an intra state

“page” was insufficient to establish jurisdiction even when

pager company itself also had the capacity to transmit—and

regularly did transmit—its signals inter state); United States

v. Stevens, 842 F. Supp. 96, 98 (S.D.N.Y. 1994) (holding that

intra state “page” to a beeper was sufficient to establish mur-

der-for-hire jurisdiction only because the pager company

transmitted its signals through an interstate facility). But see

United States v. Cope, 312 F.3d 757, 771 (6th Cir. 2002)

(limiting Weathers to its facts).

We adopt the reasoning of Marek and today hold that the

phrases “facility of interstate commerce” and “facility in in-

terstate commerce” are to be used interchangeably. See

Marek, 238 F.3d at 321. Moreover, we agree with the Gov-

ernment’s argument that taking “in” and “of” to connote dif-

ferent scopes of coverage is difficult to square with the

structure of the statute, which makes “the use of a facility in

6a

interstate commerce” part of the substantive law of

§ 1958(a), and defines “facility of interstate commerce” in

§ 1958(b). If the phrases have different meanings, then

§ 1958(b) defines a phrase with no application to the substan-

tive offense, and leaves undefined the phrase that does appear

in the substantive law. We note that the question we settle

today will have little importance going forward, as Congress

has recently amended the statute to climinate any confusion

over the scope of § 1958(a).

As a result, even though Perez’s calls to Casiano were

wholly intrastate communications, the fact that they were

made using the SNET network, a facility involved in inter-

state commerce, leads us to conclude that Perez was properly

subject to prosecution for using interstate commerce facilities

in the commission of murder-for-hire. Accordingly, we AF-

FIRM the judgment of the district court.

> The Intelligence Reform and Terrorism Prevention Act of 2004,

Pub. L. No. 108-458, 118 Stat. 3638, in part amended § 1958(a) by

striking “facility in” and replacing it with “facility of.” This spe-

cific amendment was entitled “Clarification of Definition” and

purported to seek to eliminate any confusion that had previously

existed, as evidenced by the circuit split. Because we agree with

the Fifth Circuit, we, also, view what Congress was doing as clari-

fying rather than expanding the scope of the criminal law.

7a

APPENDIX B

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT

UNITED STATES OF AMERICA, APPELLEE,

V.

JOSE ANTONIO PEREZ, AKA TONY, RAYMOND

PINA, AKA SHORTY, DEFENDANTS-APPELLANTS.

DOCKET NO. 03-1445.

JULY 11, 2005.

Appeal from the United States District Court for the Dis-

trict of Connecticut (Arterton, J.).

UPON DUE CONSIDERATION, IT IS HEREBY OR-

DERED, ADJUDGED, AND DECREED that the case be

AFFIRMED.

Present: CALABRESI, KATZMANN, and B.D. PARKER,

Circuit Judges.

SUMMARY ORDER

Defendant-Appellant Jose Antonio Perez (“Perez”) was

convicted by a jury on five counts related to the murder-for-

hire killing of Theodore Casiano, the leader of a rival narcot-

ics Organization in Hartford, Connecticut, and sentenced to

four concurrent terms of life imprisonment and one consécu-

tive five-year term. We assume familiarity with the facts, the

procedural history, and the issues on appeal, and also cross-

reference this panel’s accompanying per curiam, which ad-

dresses a question of law that this circuit has not previously

had occasion to consider. See United States v. Perez, 414

F.3d 302 (2d Cir. 2005).'

' Raymond Pina, who was tried with Perez, withdrew his appeal

prior to the date of oral argument.

On appeal from his conviction and sentence from the

judgment of the district court (Arterton, J.), Perez raises a

cavalcade of claims centered around seven principal allega-

tions: (1) that, because he joined the criminal enterprise only

after that crime had been completed, the district court erred

in denying his Rule 29(c) motion for judgment of acquittal

on several federal murder-for-hire counts, 18 U.S.C. § 1958:

(2) that, because 18 U.S.C. § 1959 does not cover the act of

aiding and abetting in the commission of predicate vi. .ent

crimes in aid of racketeering (“VICAR”) offense, the district

court erred in denying his Rule 29(c) motion for judgment of

acquittal on one count of aiding and abetting in the commmis-

sion of a “VICAR” murder, under that section of the criminal

code; (3) that the district court erred in failing to instruct the

jury on the elements of aiding and abetting under Connecti-

cut law; (4) that, because he was not acting in furtherance of

any racketeering enterprise, Perez could not be held liable

under the VICAR statute; (5) that the district court commit-

ted clear error in admitting a suggestive and unreliable out-

of-court identification; and (6) that the district court abused

its discretion in admitting testimony regarding his co-

conspirators’ possession of weapons and narcotics. A seventh

claim, involving the question of whether a conviction for us-

ing a facility in interstate commerce in the commission of a

murder-for-hire is appropriate when the actual usage of that

facility by the defendant in a particular instance is wholly in-

trasiate, raises issues of first impression that require a pub-

lished opinion.

Perez’s argument, that he could not be part of the con-

spiracy to commit federa! murder-for-hire because that con-

spiracy was completed before he cver became involved, is

without merit. Irrespective of whether his co-conspirators sat-

isfied the basic elements of conspiracy prior to Perez’s arri-

val, the fact that there were more instances of planning

murder-for-hire using interstate travel and facilities after

9a

Perez joined is sufficient to establish a basis for his convic-

tion.

Perez claims that 18 U.S.C. § 1959(a) does not apply to

persons who only aid and abet another individual in the

commission of a predicate VICAR offense. But, “murder” in

§ 195%) is defined according to the state or federal law con-

trolling the predicate murder offense. See United States v.

Mapp, 170 F.3d 328, 335-36 (2d Cir. 1999). Under Con-

necticut law, Conn. Gen. Stat. §§ 53a-54a, 53a-8, and under

the federal murder-for-hire provision, 18 U.S.C. § 1958, ac-

complice liability is built into the respective murder stat-

utes—and therefore Perez's aiding and abetting constitutes

murder under the VICAR statute, too.

Perez's argument that the district court failed to instruct

the jury on the elements of aiding and abetting under Con-

necticut state law, too, is without merit. Given that the dis-

error (since Perez failed to object at the time of the charge),

we reject this claim. See United States v. Wilkerson, 361

F.3d 717, 732 (2d Cir. 2004); United States v. Whab, 355

F.3d 155, 158 (2d Cir. 2004).

With respect to the contention that Perez was not acting

to further a racketecring enterprise, we conclude that there

was sufficient evidence for the jury to find that he had been

doing precisely that. See United States v. Bruno, 383 F.3d

65, 83 (2d Cir. 2004).

? Because Perez's corollary claims—{a) that he cannot be con-

victed of using interstate travel to commit federal murder-for-hire,

(b) that he cannot be convicted of aiding and abetting federal mur-

der-for-hire, and (c) that he cannot receive a firearm enhancement

in conjunction with federa] murder-for-hire—rest entirely on this

same argument, they likewise are unavailing.

10a

The claim that the district court improperly admitted a

suggestive and unreliable out-of-court identification also

fails. The district court conducted a multi-day Wade hearing,

see United States v. Wade, 388 U.S. 218 (1967), and rea-

sonably determined that though the procedures used in ob-

taining the identification of Perez were suggestive, the

identification by one of his co-conspirators was itself reli-

able. See Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001);

see also United States v. Simmons, 923 F.2d 934, 950 (2d

Cir. 1991) (noting that an out-of-court identification tainted

by procedures which were unduly suggestive may still be

admissible if “it possesses sufficient indicia of reliability’).

Based on the district court's analysis in accordance with the

five-part reliability test, see Neil v. Biggers, 409 U.S. 188,

199-200 (1972), we conclude that there was no clear error.

See United States v. Finley, 245 F.3d 199, 203 (2d Cir.

2001).

Finally, the district court did not abuse its discretion in

admitting testimony regarding the possession of weapons and

narcotics by Perez’s co-conspirators. See United States v.

Becerra, 97 F.3d 669, 671 (2d Cir. 1996).

We have here considered all of Perez’s claims, except for

those involving whether Perez was properly convicted for us-

ing a facility in interstate commerce in the commission of

murder-for-hire, and find the ones addressed above to be

without merit. The judgment of the district court is therefore

AFFIRMED.

lla

APPENDIX C

UNITED STATES DISTRICT COURT,

D. CONNECTICUT

UNITED STATES

V.

PEREZ ET AL.

NO. 3:02CR7 (JBA).

MARCH 7, 2003.

Ruling on Motion to Suppress Identification [Doc. # 264]

ARTERTON, District Judge.

Defendant Jose Antonio Perez has moved to suppress a

December 10, 2001 photo array identification of him by

Mario Lopez and any in court identification of him based on

the photo array. A Wade hearing’ was held at which DEA

Special Agent Chris Matta and Lopez testified, and pertinent

notes from Government interviews with Lopez were intro-

duced into evidence. For the reasons set out below, the mo-

tion is DENIED.

I. Background

At the hearing, Agent Matta testified that during a May

25, 2001 interview with Lopez, Lopez described the “owner”

of Perez Auto (a Hartford auto repair shop Lopez was taken

to on May 23 and 24, 1996) as having a ponytail, being eight

' See United States v. Wade, 388 U.S. 218 (1967); see also Wat-

kins v. Sowders, 449 U.S. 341, 349 (1981) (“A judicial determina-

tion outside the presence of the jury of the admissibility of

identification evidence may often be advisable.”’).

12a

years older than Lopez, and having no facial hair.’ Notes

taken by the Assistant U.S. Attorney during that same inter-

view recount that Lopez described the owner as “dark

skinned.” At the December 10, 2001 identification session,

the DEA report prepared by Matta recounts Lopez's descrip-

tion of the “owner” as looking “indian” (but not Native

American or from India) because the “owner” was dark and

had what Lopez called a year-round tan. Lopez also stated

that the “owner” had jong hair and facial hair.’ Agent Matta’s

notes of the December 10, 2001 interview use the descriptor

“indian” seven times in reference to the “owner.” At the De-

cember 10, 2001 interview, Lopez was shown three photo ar-

rays. He identified defendant Raymond Pina by name,

designated defendant Wilfredo Perez as looking familiar, and

? While defendant's post-hearing brief [Doc.# 359] states that

Lopez described the “owner” as being taller than he (Lopez) and

weighing between 175 and 190 pounds, this is not supported by the

testimony at the hearing or the exhibits, as this description (found

in Agent Matta’s May 25, 2001 notes [Ex. B] ) is in reference to

Ollie Berrios: the notes first describe someone as having long hair,

being eight years older than Lopez, having a ponytail and no facial

hair, and then (several lines down) describe a second “brother.”

This second brother is described as taller than Lopez and between

175 and 190 pounds. Agent Matta’s testimony at the hearing made

clear that the only description given by Lopez of the “owner” at

the May 25, 2001 meeting was of the “owner” as having long hair,

being eight years older than Lopez, having a ponytail and no facial

hair. Defendant’s confusion no doubt arises from the confusing la-

bel of “brother” given to both the “owner” and Berrios, although

this labeling choice is explained by agent Matta's belief at the

time that Berrios and the “owner” were brothers (hence both would

be appropriately labeled “brother”).

> There is a discrepancy as to whether Lopez's description of the

“owner” prior to the December 10, 2001 interview included having

facial hair. Matta testified that Lopez had so stated but was unable

to reference any report or interview notes reflecting such a descrip-

tion.

13a

identified Jose Antonio Perez as the “owner.” Lopez was

once again shown the Wilfredo Perez photo array, about

which he said the person he designated as familiar looked

like the “owner” but his face was too fat and his complexion

too light.

At the Wade hearing, Lopez testified that he had met the

“owner” on two consecutive days at the auto shop in the

summer of 1996, but could not specify the dates or the city in

which the shop was located. Lopez testified that the “owner”

was five feet eight inches to five feet ten inches tall, weighed

between 180 and 200 pounds, had hair tied in a ponytail, and

was Puerto Rican. He testified that the “owner” was wearing

a motorcycle jacket and leather boots, jeans, possibly a gold

chain tucked under his t-shirt. He stated that the “owner” was

older than he (Lopez), possibly between 37 and 40 years of

age. He described the owner as looking “indian,” which he

specified meant dark-skinned or light dark-skinned. Finally,

he described the “owner” as having light facial hair and pos-

sibly a full goatee.

Il. Analysis :

“When objection is made to a pre-trial identification, an

analysis of whether the witness may identify the defendant at

trial generally involves a two-step inquiry.” United States v.

Tortora, 30 F.3d 334, 338 (2d Cir. 1994). First, the Court

must determine whether the identification procedures “un-

duly and unnecessarily suggested that the defendant was the

perpetrator.” Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir.

2001). If not, there is no due process obstacle to admissibility

of a subsequent in court identification, and the reliability of

an eyewitness identification is a matter for the jury. /d. (cita-

tions and quotations omitted). “If the court finds, however,

that the procedures were suggestive, it must then determine

whether the identification was nonetheless independently re-

liable. * * * In sum, the identification evidence will be ad-

missible if (a) the procedures were not suggestive or (b) the

l4a

identification has independent reliability.” /d. (citations omit-

ted); see also Manson v. Brathwaite, 432 U.S. 98, 112 (1977)

(“Wade and its companion cases reflect the concern that the

jury not hear eyewitness testimony unless that evidence has

aspects of reliability.”).

On every occasion that Lopez has been asked to describe

the “owner” (the May 25 and December 10, 2001 interviews,

as well as the Wade hearing) his description has included the

subject’s dark skin, and he specifically distinguished the pho-

tograph of Jose Antonio Perez (whom he identified as the

“owner’) from the photograph of Jose Antonio Perez’s simi-

lar-looking brother, Wilfredo Perez, on the grounds that, in-

ter alia, Jose Antonio Perez had a darker complexion. In the

eight photographs presented in the photo array, Jose Antonio

Perez’s photograph is undisputedly the darkesi, notably more

so than all others. While Jose Antonio Perez Joes not appear

in court to be a markedly dark-skinned person, what is rele-

vant is that Lopez considered him dark-skinned after seeing

him during the two-day period in 1996. See Raheem, 257

F.3d at 134 (“Where one witness has emphasized a particular

characteristic of the perpetrator in giving a description .o the

police, a lineup in which only the defendant has that charac-

teristic may weil taint the identification of the defendant only

by that viewer.”). Given Lopez’s repeated reference to Jose

Antonio Perez’s dark complexion on every occasion, and

given his further use of Jose Antonio Perez’s skin color as a

distinguishing referent in examining another photo array, the

Court concludes that the use of Jose Antonio Perez’s dark-

skinned photograph juxtaposed with all other markedly

lighter faces resulted in an identification procedure which

was unduly suggestive to Lopez. See id. at 135-137 (lineup

in which defendant appeared in a black leather coat was sug-

gestive to two witnesses who had given the police descrip-

tions that emphasized the suspect's black leather coat);

United States v. Eltayib, 88 F.3d 157, 166-167 (2d Cir. 1996)

(photo array unduly suggestive where witness had described

15a

perpetrator as having “a head full of hair, real bushy hair,

afro-type hair,” defendant's photo was the only one showing

a full head of hair, and the other photos pictured subjects

with darker skin than the defendant).

The Court’s conclusion that the December 10 photo array

was unduly suggestive does not end the matter, however, as

the suggestive pretrial identification and any subsequent in-

court identification may still be admissible if such identifica-

tions are nonetheless independently reliable. See United

States v. Simmons, 923 F.2d 934, 950 (2d Cir. 1991) (“even a

suggestive out-of-court identification will be admissible if,

when viewed in the totality of the circumstances, it possesses

sufficient indicia of reliability”) (citation omitted); United

States v. Salameh, 152 F.3d 88, 126 (2d Cir. 1998) (“A wit-

ness who identified a defendant prior to trial may make an in-

court identification of the defendant if ... the in-court identifi-

cation is independently reliable, even though the pretrial

identification was unduly suggestive.) (citations omitted).

The standard for assessing independent reliability is almost

identical for both pretrial identifications and subsequent in-

court identifications, see Neil v. Biggers, 409 U.S. 188, 199

(1972); see also 2 LaFave et al., Criminal Procedure § 7.4(c)

* The dispute over whether Lopez had described Perez as having

facial hair or not is immaterial! to the question of undue suggestion

because the presence or absence of facial hair would not have

made Perez's photo stand out from the others: each photograph in

the array pictured a subject with facial hair. See United States v.

Thai, 29 F.3d 785, 808 (2d Cir. 1994) (“If there is nothing inher-

ently p. judicial about the presentation, such as use of a very small

number of photographs or the utterance of suggestive comments

before an identification is made, the principal question is whether

the picture of the accused, matching descriptions given by the wit-

ness, 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.) (internal citations, quotations and alterations omitted).

16a

at 673-674 (2d ed. 1999)’, requiring evaluation of the “total-

ity of circumstances,” Neil, 409 U.S. at 199. In making this

determination, the factors to be considered “include the op-

portunity of the witness to view the criminal at the time of

the crime, the witness’ degree of attention, the accuracy of

the witness’ prior description of the criminal, the level of cer-

tainty demonstrated by the witness at the confrontation, and

the length of time between the crime and the confrontation.”

Id. at 199-200.

Having spent some time with Jose Antonio Perez on two

consecutive days, Lopez had a significant opportunity to

view him. Lopez testified that on the first day, he saw the

“owner” (the man he subsequently identified in the photo

spread in question) in the office and bay area of the Perez

auto shop and outside in front of the garage. He was with

Jose Antonio Perez in the office for between five and fifteen

minutes, then walked outside with him to view a Grand Na-

tional which Jose Antonio Perez owned in which Lopez was

interested, for between five and ten minutes. On the second

day, he again saw Jose Antonio Perez when the latter came

into the office and mechanics’ bay area. He recalled over-

hearing a conversation between Ollie Berrios and Jose Anto-

nio Perez in which Jose Antonio Perez stated that once the

job was complete, he was going to give the money to his

“brother,” referring to Berrios. Later that day, Lopez saw

Jose Antonio Perez in the bay area making a telephone call,

and subsequently saw him come into the office area and

speak with the victim. These repeated opportunities to view

Jose Antonio Perez are strong evidence of independent reti-

ability.

* “tt is unlikely but theoretically possible that there could be a

risk of misidentification which was substantial but not ureparable,

meaning that ... the pretrial identification would be suppressed but

not the at-trial identification by the same person.” (footnote omit-

ted).

17a

Lopez’s degree of attention adds somewhat to the reli-

ability of his identification of Jose Antonio Perez. Lopez tes-

tified that he was aware by the second day of his role in the

events (that he would be driving the motorcycle from which a

shooter would kill the victim), thus supporting an inference

that “the circumstances prompted a high degree of attention

by the witness.” LaFave, supra, § 7.4(c) at 675 (footnote

omitted). This inference is buttressed by Lopez’s ability to

remember in great detail the layout of the auto shop, as well

as details such as the make of a car (Corvette) on the lift in

the shop and the color of the van (sky blue) in which he was

riding.” Lopez's testimony at the hearing, with its relatively

detailed description of the “owner,” further shows that Lopez

had a high degree of attention. The otherwise strong showing

on this factor is diminished. somewhat, however, by Lopez’s

statements on cross examination that his memory was not

* Defendant discounts Lopez’s degree of attention, arguing that

he was able to recall only details of those things he cared about

(automobiles and motorcycles in the shop), and not facial features

or other physical characteristics of the people he observed. This

contention is belied by Lopez's relatively detailed Wade hearing

description of Jose Antonio Perez. While Lopez's May 25 and De-

cember 10, 2001 descriptions of Jose Antonio Perez to Agent

Matta are less than comprehensive, the record is scant as to what

degree of detail was sought by Agent Matta’s questions about Jose

Antonio Perez’s appearance. Finally, there is no evidence that Lo-

pez’s recollection was in any way bolstered or aided prior to the

Wade hearing, and thus no reason to believe that his detailed Wade

hearing description of Jose Antonio Perez does not reflect his true

attention to detail during the 1996 encounter.

Similarly, defendant's contention that Lopez's belief that Jose

Antonio Perez “owned” the garage (when im fact Jose Antonio

Perez does not actually hold title to the garage) shows Lopez's lack

of attention to detail (and thus undercuts the reliability of Lopez's

independent recollection) lacks merit. The record is silent as to

why Lopez considered Jose Antonio Perez to be the “owner” and

thus it is unknown what caused his erroneous belief.

18a

good because of stress and that at times he was not paying

particular attention to the owner.

The accuracy of Lopez’s description of Jose Antonio

Perez weighs slightly in favor of a coriclusion of independent

reliability. Lopez’s Wade hearing description of the “owner”

as between 37 and 40 at the time of their summer 1996 en-

counter is close to Jose Antonio Perez’s January 2, 1960 date

of birth.’ While defense counsel argues that the description

given by Lopez at the hearing is inaccurate because Jose An-

tonio Perez is allegedly only five feet seven inches® (while

Lopez testified five feet eight inches to five feet ten inches

tall), the difference in perceived height of an inch or two is

not significant, particularly as it could be attributable to the

heel height of the leather boots that Lopez testified Jose An-

tonio Perez had been wearing. Cf. Dunnigan v. Keane, 137

F.3d 117, 130 (2d Cir. 1998) (two inch height discrepancy in

identification was not substantial “given that, while in [the

witness's] presence, the robber was not standing still but was

squatting, running, or sitting”). The facial hair issue detracts

somewhat, however, because the photograph of Jose Antonio

Perez used in the photo array (which was taken close in time

to Lopez’s 1996 meeting with Jose Antonio Perez’ distinctly

shows Jose Antonio Perez with facial hair (both a goatee and

a mustache), but Lopez initially told Matta that Jose Antonio

Perez had no facial hair (although he may have later de-

scribed him with facial hair, see supra note 3) and testified at

the hearing that Jose Antonio Perez had only a light mustache

and possibly a goatee.

? See Govt’s Response Ex. E (Hartford Police mug shot listing

Jose Antonio Perez's date of birth).

* There is no evidence of his actual height in the record.

* As defendant's post-hearing brief notes, see [Doc. # 359] at 4,

Agent Matta testified that the photo of Jose Antonio Perez used in

the photo array was taken on June 1, 1996.

19a

Lopez's level of certainty in his identification of Jose An-

tonio Perez also weighs in favor of a conclusion of independ-

ent reliability. In contrast to Lopez’s designation of Wilfredo

Perez’s photograph only as looking familiar (and not as

someone he recalled seeing at the auto shop on either of the

two days in 1996), he testified to no uncertainty as to his

identification of Jose Antonio Perez as the owner. Defense

counsel concedes that Lopez appeared certain of this identifi-

cation.

The five year time lapse between Lopez's observing Jose

Antonio Perez and Lopez’s selecting his photo from the

photo array weighs against a finding of independent reliabil-

ity, as the Government concedes. Cf Nei!, 409 U.S. at 201

(“There was, to be sure, a lapse of seven months between the

rape and the confrontation. This would be a seriously nega-

tive factor in most cases.”’). Further time will have passed be-

fore any in-court identification is made. This significant lapse

is not dispositive, however, as similar lapses have not auto-

matically presented insurmountable barriers. See United

States v. Kwong, 69 F.3d 663, 667 (2d Cir. 1995) (five year

passage of time outweighed by other factors evidencing reli-

ability) (citing Tortora, 30 F.3d at 338-339 (same) and

United States v. Hill, 967 F.2d 226, 232-233 (6th Cir. 1992)

(same)).

In considering the Neil factors in light of the totality of

the circumstances, the Court concludes that Lopez's signifi-

cant opportunity to view Jose Antonio Perez, coupled with

the showing of a fair degree of attention and significant level

of certainty, is sufficient to counterbalance: (1) the lengthy

passage of time between the 1996 encounter and both the

2001 identification and any future in-court identification, and

(2) “the corrupting effect of the suggestive confrontation,”

Dunnigan, 137 F.3d at 128 (citations omitted). Lopez's two-

day opportunity to view Jose Antonio Perez significantly ex-

ceeded what has been held sufficient in othe: cases. See, e.g.,

United States v. Wong, 40 F.3d 1347, 1360 (2d Cir. 1994)

20a

(two to three seconds during restaurant murder); Salameh,

152 F.3d at 126-127 (time spent pumping gas); United States

v. Jacobowitz, 877 F.2d 162, 168 (2d Cir. 1989) (five min-

utes in a well-lighted hotel lobby plus a “brief[]” delivery of

tickets to hotel room); see also United States v. Frank, No.

97cr26H DLC), 1998 WL 292320 at *3 (S.D.N.Y. June 3,

1998) (summarizing additional cases); cf. Ocasio v. Artuz,

No. 98-CV-7925(JG), 2002 WL 1159892 at *11 (E.D.N.Y.

May 24, 2002) (independent reliability based almost exclu-

sively on witness's extensive opportunity to view defendant).

The Court’s conclusion is one of “a threshold level of re-

liability” only, with doubts about the reliability of the identi-

fication “go[ing]} only to the identification’s weight, not to its

admissibility,” Dunnigan, 137 F.3d at 128 (citations omit-

ted), and the significant time gap will presumably be fertile

ground for cross examination and argument to the jury:

It is part of our adversary system that we accept at

trial much evidence that has strong elements of un-

trustworthiness—an obvious example being the tes-

timony of witnesses with a bias. While identification

testimony is significant evidence, such testimony is

still only evidence, and, unlike the presence of

counsel, is not a factor that goes to the very heart the

‘integrity’ of the adversary process. Counsel can

both cross-examine the identification witnesses and

argue in summation as to factors causing doubts as

to the accuracy of the identification including refer-

ence to both any suggestibility in the identification

procedure and any countervailing testimony such as

alibi.

Manson, 432 U.S. at 113 n. 14 (quoting Clemons v.

United States, 408 F.2d 1230, 1251 (D.C. Cir. 1968) (Leven-

thal, J., concurring)) (internal quotations and alterations omit-

ted).

2la

Ill. Conclusion

For the reasons set out above, the Court concludes that al-

though the photo array was unduly suggestive, there exists a

sufficient independent basis for Lopez's identification of Jose

Antonio Perez such that admitting Lopez's identification tes-

timony would work no due process violation. Jose Antonio

Perez’s motion to suppress identification testimony [Doc. #

264] is DENIED.

IT IS SO ORDERED.

| No. 05-596

In the Supreme Court of the United States

JAN 3 0 2006

OFFICE OF THE CLERK

JOSE ANTONIO PEREZ, AKA TONY, PETITIONER

g°.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Paut D. CLEMENT

Solicitor General

Connsel of Record

ALICE 5S. FISHER

Assistant Attorney General

DANIELS. GOODMAN

Altorney

Department of Justice

Washingtow. D.C 20530-0001

(202) 515-2217

QUESTION PRESENTED

Neil v. Biggers, 409 U.S, 188 (1972), and Manson v.

Brathwaite, 432 U.S. 98 (1977), hold that, in deciding

whether an out-of-court identification was reliable, and

therefore admissible, despite an unduly suggestive

identification procedure, a trial court should consider a

number of factors, including the level of certainty

demonstrated by the witness. The question presented

is whether Biggers and Brathwaite should be overruled

insofar as they include the witness's certainty on the list

of factors to be considered.

(1)

TABLE OF CONTENTS

Page

CIO cccccctccucvctcdésecdieciccvecéeesecvaves l

I, ON i ce ected aie aaa kata ae ]

EES FE TREES ee PE Roe Oe LS a SEN RE a 2

PD Gen ccedwhasddedbouneéedahsdcdeduredecevasessel 7

I lal 17

TABLE OF AUTHORITIES

Cases:

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ....... 14

Brodes v. State, 614 S.E.2d 766 (Ga. 2005) ............. 13

Commonwealth v. Cruz, 839 N.E.2d 324 (Mass. 2005) ... 9

Commonwealth v. Johnson, 650 N.F.2d 1257 (Mass.

DE wesbaccunedetededsadebacecdsdatadecteedéeses 1S

Commonwealth v. Santoli, 680 N.E.2d 1116 (Mass.

SD shiebsenddceurddce an darodachhdeeseeekoesiast 13

Dickerson v. United States, 530 U.S. 428 (2000) ....... 12

Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004),

cert. denied, 125 S. Ct. 1293 (2005) 0.2.0... cece ees 15

Harris v. United States, 536 U.S. 545 (2002) ........... 12

Lopez v. Davis, 531 U.S. 230 (2001) 2.2... 2c e eee eee l4

Manson v. Brathwaite, 482 U.S. 98 (1977) .. 2... 4,6, 7, 8,9

Neil v. Biggers, 409 U.S. 188 (1972) .........--. 4,5, 7, 8,9

Pasquantino v. United States, 125 S. Ct. 1766 (2005) .... 14

Roper v. Simmons, 1258. Ct. 1183 (2005) ............. 12

Stanford v. Kentucky, 492 U.S. 361 A989) 2... eee. 12

State ex rel. Simmons v. Roper, 112 S.W3d 397 (Mo.

2003), aff'd, 543 U.S. 551 (2005) 2... ccc eee eee: 13

State v. Dubose, 699 N.W 2d 582 (Wis. 2005) 2.2.2.2... 13

(ITT)

IV

Cases-——Continued: Page

State v. Ledbetter, 881 A.2d 290 (Conn. 2005) ...... 9,10, 13

State v. Long, 721 P.2d 483 (Utah 1986) ............... 13

State v. Ramirez, 817 P.2d 774 (Utah 1991) ............ 13

United States v. IBM Corp., 517 U.S. 843 (1996) ........ 12

United States v. Wade, 388 U.S. 218 (1967) .......6600es 4

United States v. Yousef, 327 F.3d 56 (2d Cir.), cert.

denied, 540 U.S. 933 and 993 (2003) ...........2605. M4

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

Se sab ech dues bu eahsedsceonddudnbdeeekentscres 14

Constitution, statutes, and rule:

U.S. Const.:

Amend. V (Due Process Clause) ............0e0eee. 13

Amend. XIV (Due Process Clause) ............6005:. 13

LC ci vichvdecoedaded ies sone ine aaa a 2

a CRED 8% o'0:r000-edeiw ide stuuks se vadeedee 2

SPUN MD. 656 5 caeebd davdds od Aisetuesatisedeeern 2

Se EP cnncnisnsvnséedéesteciesksstdaisecuiel 2

PE < ghee dakdbetceewsls bovenes sabntens 10

Miscellaneous:

Amy L. Bradfield & Gary L. Wells, The Perceived

Validity of Eyewitness Identification Testimony:

A Test of the Five Biggers Criteria, 24 Law &

SD, SON, SUNOON vcsvieckccdetéscectservoesdus I]

Connie Mayer, Due Process Challenges to Eyewitness

Identification Based on Pretrial Photographic

Arrays, 13 Pace L. Rev. S15 (1994) oo... eee eee. 10

Miscellaneous—Continued: Page

Siegfried Ludwig Sporer et al., Choosing, Confidence,

and Accuracy: A Meta-Analysis of the Confidence

Accuracy Relation in Eyewitness Identification

Studies, 118 Psychol. Bull, 315 (1995) ....... 10)

Gary L. Wells et al., Eyewitness Identification

Proce dure s he Corie; ndations for Line ps and

Photospreads, 22 Law & Hum. Behav. 603 (1998) ..... y

Gary L. Wells & Elizabeth A. Olson, Eyewitness

Testimony, 54 Ann. Rev. Psychol. 277 (2008) ... ¥, 10

In the Supreme Court of the Gnited States

No. 05-596

JOSE ANTONIO PEREZ, AKA TONY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The summary order of the court of appeals (Pet. App.

7a-10a) is not published in the Federal Reporter but is

reprinted in 138 Fed. Appx. 379. The opinion of the dis-

trict court (Pet. App. lla-2la) is reported at 248

F. Supp. 2d 111. An opinion of the court of appeals de-

ciding an issue not raised in the petition (Pet. App. la-

Ha) is reported at 414 F.3d 302.

JURISDICTION

The judgment of the court of appeals was entered on

July 11, 2005. On October 5, 2005, Justice Ginsburg ex-

tended the time within which to file a petition for a writ

of certiorari to and including November 10, 2005, and

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District Court

for the District of Connecticut, petitioner was convicted

of conspiracy to commit murder for hire, interstate

travel to commit murder for hire, and using an inter-

state facility to commit murder for hire, in violation of

18 U.S.C. 1958; committing a crime of violence in aid of

racketeering, in violation of 18 U.S.C. 1959; and causing

death by use of a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. 924(c) and

(j)(1). He was sentenced to four concurrent terms of life

imprisonment and one consecutive term of five years of

imprisonment. The court of appeals affirmed.

1. After his release from federal prison in early

1995, Teddy Casiano returned to Hartford, Connecticut,

where he resumed his leadership of a gang called the

Savage Nomads. In the meantime, a family-based drug

organization led by Wilfredo Perez, David Perez, and

petitioner (the Perez organization) had been reaping

large profits through the sale of kilogram quantities of

cocaine at wn establishment in Hartford called the Hour

Glass Café. Casiano became angry that the Perez orga-

nization refused to pay sufficient respect to the Savage

Nomads and did not provide him with a greater share of

the profits from its drug business. In late 1995, Casiano

and his gang kidnapped Ollie Berrios, a member of the

Perez organization; forced him to reveal where the

Perezes kept their drugs and money; and then stole a

large quantity of cocaine and cash. Gov't C.A. Br. 5-9.

Tensions between Casiano and the Perez organiza-

tion continued to mount until, in May 1996, Wilfredo

Perez concluded that Casiano had to be killed. Berrios

and his friend Santiago Feliciano recruited Fausto Gon-

3

zalez and Mario Lopez to do the job. Together with

Berrios and Feliciano, Gonzalez and Lopez then met

with Wilfredo Perez and petitioner at Perez Auto, a ga-

rage that Wilfredo Perez owned and operated, to plan

the murder, Gov't C.A. Br. 9-12,

The next day, May 24, 1996, Gonzalez and Lopez

traveled from the Bronx, New York, to Connecticut and

again met with Wilfredo Perez and petitioner. Wilfredo

Perez gave Berrios $6000 to pay Gonzalez once Casiano

was killed, and petitioner agreed to let Berrios use his

Cadillac to take Gonzalez and Lopez back to New York

after the killing. Wilfredo Perez and petitioner then

lured Casiano to the garage. After Casianc left, Lopez

and Gonzalez followed him on a motoreycle driven by

Lopez. The motorcycle pulled up to Casiano’s car, and

Gonzalez killed Casiano by shooting him several times at

point-blank range. Once Gonzalez and Lopez were in

petitioner’s Cadillac, Berrios gave Gonzalez the S6000,

Petitioner was observed at the scene of Casiano’s mur-

der, and acknowledged that Casiano had been at the

garage shortly before the killing. Gov't C.A, Br. 12-17.

2. A few months after Casiano’s murder, members

of the Perez organization, including petitioner, were

indicted on federal drug charges. Petitioner ultimately

pleaded guilty to conspiracy to distribute more than five

kilograms of cocaine. In January 2002, petitioner,

Wilfredo Perez, and others were charged in a separate

indictment with five offenses relating to Casiano’s mur-

der. Gov't C.A. Br. 3-4, 17.

3. On becember 10, 2001, in an out-of-court photo-

array identification procedure, Lopez had identified pe-

titioner, among the eight men depicted in the array, as

the “owner” of Perez Auto. Petitioner filed a motion to

suppress the identification, on the ground that the photo

array was unduly suggestive. He argued that Lopez had

described the “owner” as having dark skin, and that pe-

titioner had the darkest skin of any of the men pictured

in the array. Pet. App. lla, Ma.

The district court held a hearing pursuant to l/nited

States v. Wade, 388 U.S. 218 (1967), to determine

whether to admit Lopez's out-of-court identification at

petitioner's trial. Chris Matta, a Special Agent with the

Drag Enforcement Administration, and Lopez testified

at the hearing. Lopez described the “owner” of Perez

Auto in significant detail, based on their two meetings at

the garage. Pet. App. Lla-l3a.

1. The district court denied the motion to suppress.

Pet. App. Lla-2la,

The court agreed with petitioner that the use of his

“dark-skinned photograph juxtaposed with all other

markedly lighter faces resulted in an identification pro-

cedure which was unduly suggestive.” Pet. App. l4a.

Recognizing that a “suggestive pretrial identifica-

tion and any subsequent in-court identifica-

tion may still be admissible if such identifications

are * * * independently reliable,” id. at 15a, the court

then applied the standard for assessing independent

reliability set forth in Nei/ v. Biggers, 409 U.S. 188

(1972), and Manson v. Brathwaite, 482 U.S. 98 (1977).

Under that standard, the court said, it was required to

evaluate the “totality of the circumstances,” including

“the opportunity of the witness to view the criminal at

the time of the crime, the witness’ degree of attention,

the accuracy of the witness’ prior description of the

criminal, the level of certainty demonstrated by the wit-

ness at the confrontation, and the length of time bhe-

tween the crime and the confrontation.” Pet. App. 16a

(quoting Biggers, 409 U.S. at 199-200). Of those five

factors, the court determined that four weighed in favor

of an independently reliable identification. /d. at

l6a-20a.

First, the court found that Lopez had “spent some

time with [petitioner] on two consecutive days,” and thus

had had “a significant opportunity to view him.” Pet.

App. l6a. The court concluded that Lopez's “repeated

opportunities to view | petitioner] are strong evidence of

independent reliability.” /bid. Indeed, the court noted

that “Lopez's two-day opportunity to view [petitioner]

significantly exceeded what has been held sufficient in

other cases.” /d. at 19a-20a (citing cases).

Second, the court found that “Lopez's degree of at-

tention adds somewhat to the reliability of his identifica-

tion.” Pet. App. 17a. The court relied, in part, on

“Lopez's ability to remember in great detail the layout

of the auto shop, as well as details such as the make of a

car (Corvette) on the lift in the shop and the color of the

van (sky blue) in which he was riding.” /bid. Pointing

to Lopez's “relatively detailed” description of petitioner

at the Wade hearing, the court rejected petitioner's con-

tention that Lopez did not pay close attention to “facial

features or other physical characteristies of the people

he observed.” /d. at 17a n.6.

Third, the district court found that “|t}he accuracy of

Lopez's description of [petitioner] weighs slightly in

favor of a conclusion of independent reliability.” Pet.

App. lSa. The court relied on Lopez's “Wade hearing

description of the ‘owner’ as between 57 and 40 at the

time of their summer 1996 encounter,” which is consis-

tent with petitioner's “January 2, 1960 date of birth.”

Ibid. Rejecting petitioner's argument that Lopez's de-

scription at the hearing was inaccurate, the court ex-

plained that the difference “of an inch or two” between

(

Lopez's description of petitioner's height and his actual

height was “not significant, particularly as it could be

attributable to the heel height of the leather boots that

Lopez testified [petitioner] had been wearing.” Jbid.

Fourth, the district court found that “Lopez's level of

certainty in his identification of | petitioner] also weighs

in favor of a conclusion of independent reliability.” Pet.

App. 19a. The court noted that Lopez had “testified to

no uncertainty as to his identification” of petitioner, and

that defense counsel had “concede|d| that Lopez ap-

peared certain of | |his identification.” bid.

The only factor found by the district court to weigh

against the independent reliability of Lopez's identifica-

tion was the “time lapse between Lopez’s observing | pe-

titioner| and Lopez's selecting his photo from the photo

array.” Pet. App. 19a. Noting that “similar lapses have

not automatically presented insurmountable barriers” to

the admission of identification evidence, the court deter-

mined that the time lapse was “not dispositive,” and that

the other factors were “sufficient to counterbalance” it.

Ibid. (citing cases). The court emphasized that it was

ruling only on the admissibility of the identification, not

on its weight, and that the lapse of time between Lopez's

meetings with petitioner and his photo identification

would “presumably be fertile ground for cross examina-

tion and argument to the jury.” /d. at 20a (citing Brath-

waite, 432 ULS. at 115 n.14).

5. At trial, the photo array and Lopez's identifica-

tion of petitioner were admitted over petitioner's objec-

tion. In addition, Berrios and Feliciano testified that

petitioner was involved in Casiano’s murder, and

Casiano’s girlfriend, Maritza Alvarez, testified that peti-

tioner had tried to lure Casiano to Perez Auto on the day

of his murder. Pet. C_A. Br. 9; Gov't C.A. Br. 15, 61-62.