United States v. Contreras

FILED
United States Court of Appeals
Tenth Circuit

August 18, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-2145

JOHN NORBERT CONTRERAS,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 05-CR-01150-MCA)

Todd Hotchkiss, Frechette & Associates, P.C., Albuquerque, NM, for Defendant -
Appellant

Laura A. Fashing, Assistant United States Attorney, (Larry Gomez, Acting United
States Attorney, and Robert D. Kimball, Assistant United States Attorney,
Albuquerque, New Mexico, with her on the brief) Albuquerque, New Mexico, for
Plaintiff-Appellee.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

EBEL, Circuit Judge.
 Defendant-Appellant John Norbert Contreras appeals his bank robbery

conviction and life sentence pursuant to 18 U.S.C. §§ 2113(a) & 3559(c),

respectively. Contreras raises three issues. First, he contends that the district

court wrongly admitted his probation officer’s testimony—which identified

Contreras as the robber from surveillance footage—because this opinion

testimony was not helpful to the jury and therefore violated Rule 701 of the

Federal Rules of Evidence. Second, he argues that the officer’s testimony

violated Rule 403 and the Sixth Amendment because he could not effectively

cross-examine the officer. Third, Contreras asserts that the burden-shifting

provision of 18 U.S.C. § 3559(c) violates the Due Process Clause.

We find these arguments unconvincing. The probation officer’s testimony

was helpful to the jury and thus complied with Rule 701 because she identified

Contreras based on her prior familiarity with his appearance. Her testimony also

complied with Rule 403 and the Sixth Amendment because Contreras had wide

latitude to cross-examine the officer as he saw fit. We also reject Contreras’s

sentencing argument because our precedent squarely forecloses it. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

therefore AFFIRM.

I.

On April 25, 2005, a man robbed an Albuquerque, New Mexico branch of

Bank of America. The robber showed a teller a note, which demanded money and

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threatened her with harm if she did not comply. In response, the teller gave the

robber currency totaling $ 1,852. After the robbery, the Albuquerque Police

Department and the FBI found no physical evidence indicating the robber’s

identity. The only evidence of the robber’s identity consisted of the bank’s

surveillance video and the teller’s description.

After the robbery, Bank of America circulated flyers with pictures of the

robber from the surveillance video footage. New Mexico Probation and Parole

Officer Dara Ferguson received a copy of the flyer and recognized Contreras in

the photographs. Based on Ferguson’s tip, the FBI prepared a photo lineup and

the teller identified Contreras as the robber. The FBI then interviewed Contreras,

and he was subsequently arrested and charged with bank robbery.

The robber’s identity was the only disputed issue at trial. The Government

sought to call Ferguson as a witness, but Contreras objected and claimed that her

testimony would violate Rules 701 and 403 of the Federal Rules of Evidence.

The district court initially ruled that Ferguson could testify, but required the

Government to limit its direct examination to exclude details of Ferguson’s role

as Contreras’s probation officer. The district court based this ruling largely on

the fact that any prejudice from this identification testimony would be minimized

because the Government planned to introduce evidence of the robbery conviction

leading to Contreras’s probation and relationship with Ferguson. Prior to trial,

however, the Government elected not to present evidence of this prior conviction.

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The court, therefore, returned to the issue at a pretrial hearing, and Contreras

expressed concern that he could not effectively cross-examine Ferguson because

of his apprehension that his relationship with Ferguson—as his probation

officer—would come to light and prejudice the jury. The court agreed that this

dilemma was a source of concern and reserved judgment on Ferguson’s testimony

At trial, the Government called the teller to identify Contreras. During

cross-examination, Contreras asked the teller several probing questions, which

revealed weaknesses with her identification of Contreras as the robber. In light of

the defendant’s successful impeachment of the teller’s testimony, the district

court determined that Ferguson’s testimony would be probative. To reach this

decision, the court relied on the fact that Contreras could still cross-examine

Ferguson about her identification of Contreras without running a substantial risk

of revealing the prejudicial information regarding the nature of the relationship

between Contreras and Ferguson. After Ferguson’s direct testimony, however,

Contreras declined the opportunity to cross-examine Ferguson. The jury reached

a guilty verdict and the court sentenced Contreras to life in prison pursuant to 18

U.S.C. § 3559(c). Contreras now appeals both the court’s evidentiary

determination and the life sentence the court imposed.

II.

We review a district court’s determination regarding the admissibility of

evidence under an abuse of discretion standard. United States v. Bush, 405 F.3d

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909, 915 (10th Cir. 2005). Thus, “[w]e will not disturb an evidentiary ruling

absent a distinct showing that it was based on a clearly erroneous finding of fact

or an erroneous conclusion of law or manifests a clear error in judgment.” Id.

(quotation marks omitted) (quoting United States v. Jenkins, 313 F.3d 549, 559

(10th Cir. 2002)).

A.

Rule 701 of the Federal Rules of Evidence contains three requirements for

lay witness opinion testimony. First, the testimony must be “rationally based on

the perception of the witness.” Fed. R. Evid. 701. Second, the testimony must be

“helpful to a clear understanding of the witness’ testimony or the determination of

a fact in issue.” Id. Third, the testimony must not be “based on scientific,

technical, or other specialized knowledge within the scope of Rule 702.” Id.

Contreras contends that Ferguson’s testimony violated the second requirement of

Rule 701 because the jury could review the surveillance footage and determine for

themselves, based on Contreras’s presence in the courtroom, whether he was the

bank robber.

We disagree. Ferguson’s familiarity with Contreras offered the jury a more

sophisticated identification than they could make on their own. She had repeated

interactions with Contreras, and thus could identify him based on many factors

that would not be apparent to a jury viewing the defendant only in a courtroom

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setting. Accordingly, the district court did not abuse its discretion by concluding

that Ferguson’s testimony complied with Rule 701.

A witness’s identification testimony satisfies Rule 701’s second

requirement if “there is some basis for concluding that the witness is more likely

to correctly identify the defendant from the photograph than is the jury . . . . ”

United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986), vacated on other

grounds, 479 U.S. 1077 (1987) (quotation marks omitted) (quoting United States

v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984)). The witness’s prior

familiarity with the defendant’s appearance is the most critical factor to determine

if such a basis exists. Id.; see also United States v. Beck, 418 F.3d 1008, 1014

(9th Cir. 2005); United States v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998);

United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991); United States v.

Ingram, 600 F.2d 260, 261 (10th Cir. 1979). As the Fourth Circuit recognized in

Allen,

testimony by those who knew defendants over a period of time and in
a variety of circumstances offers to the jury a perspective it could not
acquire in its limited exposure to defendants. Human features
develop in the mind’s eye over time. These witnesses had interacted
with defendants in a way the jury could not, and in natural settings
that gave them a greater appreciation of defendants’ normal
appearance. Thus, their testimony provided the jury with the opinion
of those whose exposure was not limited to three days in a sterile
courtroom setting.

Allen, 787 F.2d at 936.

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 Contreras argues that Ferguson’s opinion testimony would only be

admissible if he had changed his appearance during the time between the robbery

and trial. Although a change in appearance is one factor we take into account to

determine if opinion identification testimony would be helpful to a jury, see

United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir. 1980), it is not a

necessary factor. See Allen, 787 F.2d at 936 (“We disagree with appellants’

suggestion that identification testimony by lay witnesses should be considered

helpful only when a defendant’s appearance has changed between the crime and

trial . . . we see no reason to make evidence of changed appearance a prerequisite

to the use of identification testimony.”).

Here, Ferguson’s prior familiarity with Contreras made her identification

helpful. She met with Contreras for between five and ten minutes on multiple

occasions. These meetings gave Ferguson the opportunity to develop a more

sophisticated mental picture of Contreras’s appearance outside the sterile, one-

dimensional atmosphere of the courtroom. Therefore, her identification was

helpful to the jury because she had a “greater appreciation of [Contreras’s]

normal appearance.” Id. Accordingly, the district court did not abuse its

discretion by concluding that the testimony complied with Rule 701.

B.

Under Rule 403, a district court may exclude evidence “if its probative

value is substantially outweighed by the danger of unfair prejudice . . . .” Fed. R.

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Evid. 403. Contreras contends that any probative value of Ferguson’s testimony

was substantially outweighed by the unfair prejudice created because he could not

effectively cross-examine Ferguson. In support of his argument, Contreras cites

United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976). The district court in

Calhoun overruled the defendant’s objection to identification testimony from his

parole officer. Id. at 293. On appeal, the Sixth Circuit held that the parole

officer’s identification testimony was unfairly prejudicial, and thus should be

excluded pursuant to Rule 403, because the relationship between the defendant

and the officer prevented the defendant from freely cross-examining the officer.

See id. at 295 (“[T]he main defect in permitting [the officer] to testify was that

his broad assertion could not be tempered or probed by cross-

examination. . . . The defendant could not freely examine the relationship with

[the officer] on which [the officer’s] perception was founded.”).

Calhoun notwithstanding, we conclude that the district court did not abuse

its discretion by admitting Ferguson’s testimony because the testimony was not

unfairly prejudicial. As an initial matter, we conclude that in light of her past

experiences with Contreras, Ferguson’s identification offered probative evidence

regarding the identity of the robber in the surveillance footage.

Turning to the other side of Rule 403’s balancing test, we disagree with

Calhoun and conclude that Ferguson’s testimony was not unfairly prejudicial

because Contreras could freely cross-examine Ferguson. Contreras could have

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limited the scope of his cross-examination to exclude details of the nature of their

relationship and focus solely on questions regarding whether Ferguson’s past

interactions with Contreras adequately enabled her to identify him from the

surveillance photographs. Contreras also could have elected to fully cross-

examine Ferguson without concern about testimony regarding her role as

Contreras’s probation officer. 1 Instead, Contreras elected, as a tactical matter, to

decline to cross-examine Ferguson. We cannot conclude that this tactical

decision resulted in unfair prejudice. See Allen, 787 F.2d at 937 (“Limitation of

cross-examination was thus the result of a tactical choice by defendants similar to

those frequently faced at trial. Nothing in the Rules of Evidence or any other

source is intended to relieve criminal defendants from difficult strategic

decisions. . . . Defendants chose to limit cross-examination, and we see no reason

to insulate them from the natural consequences of that choice.”); see also

Farnsworth, 729 F.2d at 1161 (rejecting the per se rule of Calhoun). Therefore,

because Ferguson’s testimony offered probative evidence and was not unfairly

prejudicial, we conclude that the district court did not abuse its discretion by

allowing Ferguson to testify.

1
We note that there was other evidence in the record that Contreras had
another bank robbery conviction, although Ferguson’s relationship as Contreras’s
probation officer was not related to that prior conviction.

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 C.

Contreras also contends that because he could not effectively cross-examine

Ferguson, her testimony violated his Sixth Amendment right to confront the

witnesses the government presented against him. We review de novo whether

restrictions on cross-examination violate the Sixth Amendment. United States v.

Geames, 427 F.3d 1333, 1337 (10th Cir. 2005). Although the Sixth Amendment

requires that a defendant “be afforded the opportunity to confront and cross-

examine his opponent witnesses,” id., the Amendment does not require “cross-

examination that is effective in whatever way, and to whatever extent, the defense

might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quotation

marks omitted) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per

curiam)). Thus, “the right to confront one’s accusers is satisfied if defense

counsel receives wide latitude at trial to question witnesses.” Pennsylvania v.

Ritchie, 480 U.S. 39, 53 (1987).

In the instant case, Contreras received the widest possible latitude to cross-

examine Ferguson. Although the district court instructed the Government to

avoid eliciting any testimony that would reveal Ferguson’s role as Contreras’s

probation officer, the court placed no restrictions on Contreras. Therefore,

Ferguson’s testimony did not violate the Sixth Amendment because Contreras

received the required opportunity to cross-examine Ferguson. The fact that he

elected not to carry out such a cross-examination does not alter this result. See

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United States v. Helmstetter, 479 F.3d 750, 755 (10th Cir. 2007) (concluding that

a defendant’s Sixth Amendment rights were not violated because the district court

did not restrict cross-examination of a witness in any way); see also United States

v. Pace, 10 F.3d 1106, 1114 (5th Cir. 1993) (holding that the testimony of a

probation officer did not violate the defendant’s Sixth Amendment rights because

“the trial court did not impose restrictions on appellant’s cross-examination of

[his probation officer] in violation of the Sixth Amendment. . . . The trial court

submitted the witness to appellant for open cross-examination; the appellant

voluntarily declined the offer.”); Farnsworth, 729 F.2d at 1162 (holding that a

defendant’s voluntary choice to restrict cross-examination of two parole officers

did not present a Sixth Amendment violation).

III.

Contreras also challenges the mandatory life sentence the district court

imposed. He contends that 18 U.S.C. § 3559(c) violates the Due Process Clause

of the Fifth Amendment by assigning the burden of proof for mitigating

circumstances to the defendant. 18 U.S.C. § 3559(c) 2 imposes a mandatory life

2
18 U.S.C. § 3559(c)(1) states:
Notwithstanding any other provision of law, a person who is
convicted in a court of the United States of a serious violent felony
shall be sentenced to life imprisonment if--

(A) the person has been convicted (and those convictions have
become final) on separate prior occasions in a court of the United
States or of a State of--
(continued...)

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sentence for any person convicted of a serious violent felony with two prior

convictions for serious violent felonies. 3 The statutory scheme also provides a

safety valve, whereby a defendant can demonstrate that a prior conviction should

not count as a serious violent felony because of mitigating factors. 4 The statutory

scheme explicitly assigns the burden of proving the mitigating factors to the

2
(...continued)
(i) 2 or more serious violent felonies.

3
Section 3559(c)(2)(F)(i) defines “serious violent felony” as:
a Federal or State offense, by whatever designation and wherever
committed, consisting of murder (as described in section 1111);
manslaughter other than involuntary manslaughter (as described in
section 1112); assault with intent to commit murder (as described in
section 113(a)); assault with intent to commit rape; aggravated sexual
abuse and sexual abuse (as described in sections 2241 and 2242);
abusive sexual contact (as described in sections 2244(a)(1) and
(a)(2)); kidnapping; aircraft piracy (as described in section 46502 of
Title 49); robbery (as described in section 2111, 2113, or 2118);
carjacking (as described in section 2119); extortion; arson; firearms
use; firearms possession (as described in section 924(c)); or attempt,
conspiracy, or solicitation to commit any of the above offenses . . . .
4
18 U.S.C. § 3559(c)(3)(A) states:
Robbery, an attempt, conspiracy, or solicitation to commit robbery;
or an offense described in paragraph (2)(F)(ii) shall not serve as a
basis for sentencing under this subsection if the defendant establishes
by clear and convincing evidence that--

(i) no firearm or other dangerous weapon was used in the
offense and no threat of use of a firearm or other dangerous
weapon was involved in the offense; and

(ii) the offense did not result in death or serious bodily injury
(as defined in section 1365) to any person.

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defendant. Specifically, robbery is not to be convicted under this enhancement

provision if the defendant establishes by clear and convincing evidence that no

firearm or other dangerous weapon was used or threatened in the offense and the

offense did not result in death or serious bodily injury. See 18 U.S.C.

§ 3559(c)(3)(A).

We have held that the burden allocation provision in § 3559(c)(3)(A) does

not violate the Due Process Clause. United States v. Smith, 208 F.3d 1187, 1190

(10th Cir. 2000). We first determined that it was constitutionally permissible for

a legislature to assign the burden of proof for an affirmative defense to the

defendant. Id. (citing Patterson v. New York, 432 U.S. 197, 207–08, 210 (1977)).

We therefore concluded that “[i]f Patterson allows such a result even at the stage

of a trial where guilt or innocence is decided, it follows that due process does not

prohibit the kind of affirmative defense . . . found in § 3559(c)(3)(A).” Id.

(quoting U.S. v. Wicks, 132 F.3d 383, 389 (7th Cir. 1997)).

Although we decided Smith before the Supreme Court handed down its

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Apprendi does not alter

the “principle that while the prosecution must indeed prove all the elements of the

offense charged beyond a reasonable doubt, the legislation creating the offense

can place the burden of proving affirmative defenses on the defendant . . . .”

United States v. Brown, 276 F.3d 930, 932 (7th Cir. 2002) (citation omitted).

Accordingly, we continue to apply the same logic to due process challenges to the

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burden-shifting provision of § 3559(c)(3)(A) after Apprendi. See United States v.

Cooper, 375 F.3d 1041, 1052 n.3 (10th Cir. 2004) (holding that Apprendi did not

affect sentences pursuant to § 3559(c) because the Supreme Court created a

specific exception for “prior convictions”); see also United States v. Snype, 441

F.3d 119, 149–50 (2d Cir. 2006) (holding that Patterson continues to apply after

Apprendi). Therefore, we hold Contreras’s due process challenge to the burden-

shifting provision in § 3559(c) fails because Smith remains binding precedent on

this court post-Apprendi.

IV.

For the reasons outlined above, we AFFIRM both the district court’s

decision to admit Ferguson’s testimony and the mandatory life sentenced imposed

by the district court.

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