In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-3578 & 03-1870

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THEODORE D. ROGERS and WINFRED OWENS,

Defendants-Appellants.

____________

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 01 CR 96—James T. Moody, Judge.

____________

ARGUED MARCH 2, 2004—DECIDED NOVEMBER 5, 2004

____________

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

 RIPPLE, Circuit Judge. Pursuant to a plea agreement,

Theodore Rogers pleaded guilty to one count of possession

with intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1). The plea agreement required him to testify at the

trial of Winfred Owens. He later filed a motion to withdraw

his guilty plea; the district court denied the motion. He now

appeals that decision.

Mr. Rogers did testify at Mr. Owens’ trial, and based in

part on his testimony, Winfred Owens was convicted of
2 Nos. 02-3578 & 03-1870

multiple drug trafficking offenses in violation of 21 U.S.C.

§§ 841(a)(1) and 843(b), and of 18 U.S.C. § 1952. He appeals

his conviction. 

For the reasons set forth in the following opinion, we affirm the district court’s denial of Mr. Rogers’ motion to withdraw his plea, and we reverse the judgment of the district

court with respect to Mr. Owens’ conviction and remand the

case for further proceedings. 

I

BACKGROUND

A. Facts

On the evening of December 2, 2000, Rogers, a crack

cocaine addict living in Kentucky, agreed to accompany his

supplier, James Moorman, on a trip to Merillville, Indiana.

Rogers received some cocaine from Moorman for agreeing

to make the trip. Rogers used the cocaine that night, and the

pair set out for Merillville on the morning of December 3,

2000. During the trip, Moorman made numerous calls on his

cellular telephone. The two arrived at their destination, the

Burger King parking lot in a Merrillville mall, later in the

afternoon.

When the pair pulled into the parking lot, Moorman was

on the telephone, and Rogers noticed an African-American

male in the same lot, also talking on his cellular telephone.

After they parked, Rogers exited the vehicle, and the other

man took his place. Moorman and the man then drove away;

Rogers ate at the Burger King and looked at some clothing

in the mall. After about twenty-five minutes, Rogers returned

to the parking lot in time to see Moorman return with the

same African-American male. This passenger exited

Moorman’s vehicle, entered another waiting car, and drove

away. 
Nos. 02-3578 & 03-1870 3

Rogers and Moorman switched places for the return trip,

with Rogers driving. About thirty-five minutes later, as they

traveled south on Interstate 65, Trooper Jason Carmin of the

Indiana State Police observed Rogers’ vehicle weave in its

lane, cross by one to two feet the white (“fog”) line separating the travel lane from the shoulder and then make an

abrupt move to return to the correct side of the line. The

trooper stopped the car and, as he approached it, noticed an

odd, unidentifiable odor coming from the interior of the

vehicle. When he asked for Rogers’ license and registration,

Trooper Carmin became more suspicious because Rogers

and Moorman seemed nervous and avoided eye contact with

him. Trooper Carmin also learned by radio that Rogers had

several charges for possession of and trafficking in controlled

substances. The trooper therefore summoned assistance and

a drug-sniffing canine unit. 

The dog alerted to the presence of drugs in the car, and its

handler, Officer Myron Retske, let the dog inside the car.

The officer eventually isolated the source of the scent—the

vehicle’s glove compartment—where he found a brick of

cocaine wrapped in plastic and in a week-old Gary, Indiana

newspaper. As Officer Retske searched the passenger compartment, other officers discovered two wads of currency,

totaling approximately $2000 hidden in a spare tire in the

trunk. A search of Moorman yielded an additional $660

from his front shirt pocket. Based on their discoveries, the

police arrested Rogers and Moorman and impounded the

vehicle.

On December 7, 2000, the police continued their search of

the car, and discovered a cellular telephone registered to

Moorman. In the phone’s internal directory, the officers noticed two numbers with northwestern Indiana’s “219” area

code and a three-digit prefix for the city of Gary. One

number had been programmed with the letters “W I N”
4 Nos. 02-3578 & 03-1870

1 The record does not reflect how many photographs were shown

to Rogers, nor the form that the photographic display took. The

record also does not specify that the array contained a photograph of Mr. Owens, although this fact is implicit in the parties’

agreement that Mr. Rogers could not identify Mr. Owens’ picture

in the lineup.

identifying the owner. This number was registered to Crystal

Bryant, who had purchased the cellular telephone associated with it for Owens; Owens had been in possession of

this phone for approximately one year, from the fall of 2000

to the fall of 2001. Telephone records from Owens’ phone

indicated two calls to Moorman on December 2, and eight

calls on December 3. Police subsequently found Owens’

fingerprint on the Gary newspaper wrapped around the

seized brick of cocaine, along with Moorman’s fingerprint

and several unidentified prints.

After his arraignment, Rogers moved to suppress evidence

seized from the car. He asserted that the stop and search

violated his rights under the Fourth Amendment to the

Constitution of the United States. Before this motion was

heard, however, Rogers decided to cooperate with the

Government. In September or October of 2001, almost ten

months after his arrest, he was shown some photographs

and asked if any of them depicted the man who he had seen

in the parking lot with Moorman.1

 Rogers could not identify

any photograph, but he gave a description of the man, along

with a statement, and, on October 2, 2001, he petitioned the

court to change his plea to guilty of one count of possession

with intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1), in exchange for his cooperation. The district

court scheduled a hearing for October 26, 2001, to determine

whether to accept the guilty plea.
Nos. 02-3578 & 03-1870 5

2 At his trial, the Government associated the nickname “Win”

with Winfred Owens.

3 Rogers did not mention the other man in the parking lot in

his plea colloquy, and the only reference to this man was the

Government’s description of him as a known area drug dealer.

4 Owens arrived at the courthouse before or during Rogers’ plea

hearing. Agent Riedlinger testified that he went to the cell to process Owens, and then went upstairs to watch Rogers’ hearing. At

the time Agent Riedlinger processed Owens, Rogers was not in

the same cell. It is not clear from the record whether, after the

hearing, Rogers was moved to a cell other than the one he had

occupied previously, or whether Owens was placed in the

vacated cell after Rogers went upstairs for his hearing.

During the week preceding this hearing, FBI Special

Agent Anthony Riedlinger had attempted to arrest Owens

with the help of Owens’ probation officer, Louis Fuentes,

but had to wait until Owens returned from a cruise. Officer

Fuentes, employing a ruse, convinced Owens to report to him

in person. Officer Fuentes then notified Agent Riedlinger,

who arrested Owens when he reported on October 26, 2001.

Agent Riedlinger found Owens in possession of a key chain

inscribed with the letters “W I N”—the letters programmed

in Moorman’s telephone.2

 Owens was taken to a cell in the

same federal courthouse where Rogers’ plea hearing was

scheduled for that day.

At his plea hearing, Rogers testified to the facts above.3

The district court accepted his guilty plea, and marshals

then returned him to the holding cell.4

 According to Agent

Riedlinger, he told the marshals to ensure that Rogers and

Owens were separated; nevertheless, Rogers found himself

in the cell with Owens.

Rogers claims that, upon entering the cell, he recognized

Owens as the man from the Merrillville parking lot. While
6 Nos. 02-3578 & 03-1870

the two occupied the cell, a probation officer entered and

interviewed Rogers to begin his presentence investigation.

At some point, Agent Riedlinger arrived to talk with Rogers,

saw the two men together in the cell, and immediately told

the marshals to separate them.

B. District Court Proceedings

In March 2002, Rogers moved to vacate his guilty plea. He

contended that he did not have time or adequate counsel to

make a voluntary decision to plead guilty and that he never

received a hearing on his suppression motion. The Government countered that his unconditional guilty plea constituted a waiver of his Fourth Amendment claim, which

mooted the suppression motion. The district court nevertheless held an evidentiary hearing, during which Rogers’

counsel questioned Trooper Carmin and Officer Retske about

the vehicle stop. The district court noted that both the evidence of record and Rogers’ statements during the plea

hearing indicated that he had adequate access to counsel.

Accordingly, the court rejected the voluntariness challenge.

The district court further determined his Fourth Amendment

challenge to be baseless. Concluding that Rogers did not

demonstrate a fair and just reason to change his plea, the

district court denied his motion.

Owens was tried the same month. The Government introduced evidence of the facts we have just described, and

Rogers testified against Owens. In his testimony, Rogers

identified Owens as the man he had seen in the Merrillville

parking lot and who drove away with Moorman. On cross

examination, Rogers admitted that he remembered Owens

better because he had spent time with him in the same cell

on October 26. Asked to describe the man he saw on
Nos. 02-3578 & 03-1870 7

5 Mr. Rogers and Mr. Owens are both African-American.

December 3, 2000, Rogers replied only that the man was “a

black guy” and that to him “most black guys look alike.”5

Tr.VI at 161-62. 

Owens unsuccessfully objected to the in-court identification, contending that his placement in the cell with Rogers

on October 26 was unduly suggestive. He also unsuccessfully

moved for judgment of acquittal. At the end of the two-day

bench trial, the court found Owens guilty on all counts.

Owens then filed a post-trial motion for acquittal or for a

new trial, again attacking Rogers’ identification and the sufficiency of the evidence. The district court denied this motion.

It determined that the identification procedures were reliable even if Rogers’ placement in the same cell had been

unduly suggestive. Rogers and Owens were sentenced to 51

and 97 months’ imprisonment, respectively.

II

DISCUSSION

A. Standard of Review

This court reviews the denial of a motion to withdraw a

guilty plea for abuse of discretion. United States v. RoqueEspinoza, 338 F.3d 724, 726 (7th Cir. 2003). We review the

district court’s factual findings for clear error. United States

v. Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). On Mr. Owens’

challenge to the sufficiency of the evidence, we shall affirm

his conviction if “any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003). In

making this evaluation, we must draw all reasonable infer-
8 Nos. 02-3578 & 03-1870

6 Amendments to the Federal Rules of Criminal Procedure took

effect on December 1, 2002. At the time of his plea hearing, the

plea withdrawal provisions of the Rules were located at Rule

32(e); the fair and just reason standard remains the same. See

United States v. Bennett, 332 F.3d 1094, 1099 n.1 (7th Cir. 2003).

ences in favor of the Government without reweighing the

evidence or witness credibility. United States v. Senffner, 280

F.3d 755, 760 (7th Cir. 2002). We review de novo the refusal

to suppress Mr. Rogers’ identification of Mr. Owens, with

due deference given to the district court’s findings of fact.

United States v. Harris, 281 F.3d 667, 669-70 (7th Cir. 2002). 

B. Theodore Rogers

A defendant may be allowed to withdraw a guilty plea if

he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B);6 see Bennett, 332 F.3d

at 1099. Mr. Rogers bears the burden of demonstrating a fair

and just reason. Bennett, 332 F.3d at 1099. 

Mr. Rogers submits that the district court abused its discretion in denying his motion to withdraw his plea. In his

view, he could have demonstrated a likelihood of success on

his suppression motion—had he been allowed to argue it.

Therefore, he contends, the district court’s refusal to hear

the suppression motion constituted a fair and just reason to

change his plea. Although he predicated his withdrawal

motion before the district court on both inadequacy of

counsel and unconstitutionality of the stop and search, his

submissions before this court claim only the latter ground.

At his plea hearing, Mr. Rogers did not ask to enter a

conditional plea, and therefore did not preserve his right to

seek appellate review of the stop and search. Fed. R. Crim.
Nos. 02-3578 & 03-1870 9

7 During the plea hearing, the district court expressed some concern about his giving up his right to appeal the sentence, and Mr.

Rogers did not seem to understand exactly what he was giving up.

After the court tried to explain it to him, Mr. Rogers stated that he

did not want to give up this right. The court then recessed while

Mr. Rogers conferred with his attorney, and when they came

back, he agreed that he intended to give up the possibility of

appealing his sentence. This exchange indicates that Mr. Rogers

was aware of and concerned with the idea of preserving issues

for appellate review and undermines to some extent the claim

that he did not realize that his suppression motion would be

waived.

P. 11(a)(2). His guilty plea operates as a waiver of all nonjurisdictional defects. See United States v. Galbraith, 200 F.3d

1006, 1010 (7th Cir. 2000). “In order to preserve an issue for

appeal, the plea must precisely identify the pretrial issues

which the defendant wishes to preserve for review, and

must demonstrate that a decision on one of those issues will

dispose of the case . . . by suppressing essential evidence.”

United States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998). 

We can find no statements in the record of the plea hearing that indicate Mr. Rogers’ plea of guilty was anything but

unconditional. Notably, the record indicates that he recognized the impact of his plea because his agreement to

waive the right to appeal any sentence sparked extensive

discussion with the district court.7

 Mr. Rogers thus waived

consideration of his Fourth Amendment claim. 

Despite this waiver, the district court nevertheless held an

evidentiary hearing and allowed Mr. Rogers the opportunity to establish a fair and just reason to change his plea by

demonstrating that police had conducted the stop and

search in violation of his Fourth Amendment rights. After

hearing testimony from Trooper Carmin and Officer Retske,
10 Nos. 02-3578 & 03-1870

the court found their testimony credible and determined

that the traffic violation and odor from the car had given

Trooper Carmin reasonable suspicion to detain Mr. Rogers

and to call a canine unit. From the same evidence, the district court further determined that Mr. Rogers had consented to a search of the car. The court finally held that Mr.

Rogers had provided little, if any, support for the motion to

suppress and therefore had not demonstrated a fair and just

reason to withdraw his plea. We can find no clear error in

the district court’s factual determinations, and we cannot

say that the district court abused its discretion in denying

Mr. Rogers’ motion.

Mr. Rogers’ submission to this court might be construed

as an invitation to revisit the merits of his claim that the

vehicle search violated his constitutional rights. We simply

cannot accept such an invitation. At the time of his plea,

Federal Rule of Criminal Procedure 11(a)(2) provided that

“a defendant may enter a conditional plea of guilty or nolo

contendere, reserving in writing the right, on appeal from

the judgment, to review the adverse determination of any

specified pretrial motion. If the defendant prevails on appeal,

he shall be allowed to withdraw his plea.” Fed. R. Crim. P.

11(a)(2) (1999). Consistent with the views of our sister circuits, we have held that a defendant’s failure to preserve a

pre-trial motion for review under Rule 11(a)(2) constitutes

a waiver of the issue. See, e.g., Galbraith, 200 F.3d at 1010; see

also, e.g., United States v. Bell, 350 F.3d 534, 535 (6th Cir. 2003);

United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003); United

States v. Lampazianie, 251 F.3d 519, 526 (5th Cir. 2001). 

Mr. Rogers’ situation differs from that of other instances

of waiver by a failure to preserve through Rule 11(a)(2); he

does not seek to appeal an adverse ruling on his suppression motion but asserts that he may withdraw his plea

because the district court never considered the suppression
Nos. 02-3578 & 03-1870 11

8 The Sixth Circuit considered and rejected the argument that,

when—as here—a defendant explicitly agrees to waive appeal of

his sentence, the maxim expressio unius est exclusio alterius could

lead us to construe this express waiver as an implicit preservation

of every other issue. See United States v. Bell, 350 F.3d 534, 536 n.2

(continued...)

motion. His unconditional guilty plea, however, waived his

right to have this court review his Fourth Amendment

claim: 

[A] guilty plea represents a break in the chain of events

which has preceded it in the criminal process. When a

criminal defendant has solemnly admitted in open court

that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims

relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea. He may

only attack the voluntary and intelligent character of the

guilty plea . . . .

Tollett v. Henderson, 411 U.S. 258, 267 (1973). 

Notably, Mr. Rogers does not assert here that he was

coerced into pleading guilty; he does not attempt to show

that his plea was involuntary; and he does not suggest any

misapprehension on his part that his suppression motion

would survive the plea. See United States v. Muniz, 882 F.2d

242, 243-44 (7th Cir. 1989). Although this court has relaxed

the Rule 11(a)(2) requirement that a condition be in writing,

see United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989),

we find no statements from Mr. Rogers in his change of plea

hearing or otherwise that his intent to plead guilty depended

on the outcome of his suppression motion, or that his plea

was conditioned on the preservation of his suppression motion.8

 Because Mr. Rogers’ asserted constitutional viola-
12 Nos. 02-3578 & 03-1870

8 (...continued)

(6th Cir. 2003). We agree with our sister circuit, however, that

“Rule 11(a)(2) mandates that [the] defendant not get the benefit

of such silence.” Id.

tion is non-jurisdictional, he “waived his right to appeal the

suppression issue by entering this unconditional plea, [and]

we will not review his Fourth Amendment claims.” Galbraith,

200 F.3d at 1010. 

In its response to Mr. Rogers’ change of plea motion, the

Government argued in the district court that Mr. Rogers

waived his right to consideration of the Fourth Amendment

claim. The district court nevertheless chose to conduct an

evidentiary hearing to determine whether Mr. Rogers could

establish, through the asserted Fourth Amendment violation, a fair and just reason to change his plea. See United

States v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). The

Government does not present its waiver argument here, but

limits its brief to the district court’s fair and just determination based on the search issue. We have nevertheless

held that a defendant’s failure to preserve a constitutional

claim for appeal through a Rule 11(a)(2) conditional plea

deprives this court of authority to hear the claim. United

States v. Adams, 125 F.3d 586, 588-89 (7th Cir. 1997). This

view is consistent with the holdings of some of our sister

circuits, and seems consistent with the Supreme Court’s

view in Tollett. See, e.g., United States v. Herrera, 265 F.3d 349,

351 (6th Cir. 2001) (“It is elemental that a guilty pleading

defendant may not appeal an adverse pre-plea ruling . . . .”

(emphasis added) (citing Tollett, 411 U.S. at 267)); United

States v. Arrellano, 213 F.3d 427, 430 (8th Cir. 2000) (noting

“well established” rule that a defendant pleading guilty

waives non-jurisdictional defenses); United States v. Cordero,

42 F.3d 697, 699 (1st Cir. 1994) (“We have assiduously fol-
Nos. 02-3578 & 03-1870 13

9 We note that, even if we were to reach the point, we would find

the Fourth Amendment issue without merit. Trooper Carmin testified that he observed Mr. Rogers’ vehicle cross the fog line before making an abrupt correction. This erratic behavior gave the

trooper probable cause to believe that Mr. Rogers had committed

a traffic violation. We have no reason to suspect that Trooper

Carmin had an ulterior motive in stopping Mr. Rogers, but, even

if we did, his subjective motive for making the stop is not relevant;

the only relevant inquiry for Fourth Amendment purposes is

whether the evidence, when objectively assessed, gave the officer

probable cause for the stop. See Whren v. United States, 517 U.S.

806, 813 (1996); United States v. Bass, 325 F.3d 847, 850 (7th Cir.

2003). Although Mr. Rogers asserts that the stop was pretextual,

the evidence establishes both that Trooper Carmin had probable

cause to stop the car, and that he was authorized to make the

stop. See generally United States v. Trigg, 878 F.2d 1037 (7th Cir.

1998).

We further agree with the district court’s determination that,

based on Mr. Rogers’ nervous behavior, the odd odor emanating

(continued...)

lowed the letter and spirit of Tollett, holding with monotonous regularity that an unconditional guilty plea effectuates

a waiver of any and all independent non-jurisdictional

lapses that may have marred the case’s progress up to that

point . . . .”); United States v. Pickett, 941 F.2d 411, 415 (6th

Cir. 1991) (Rule 11(a)(2) “prevents our hearing [the defendant’s] appeal.” (emphasis added)); United States v. Carrasco,

786 F.2d 1452, 1453-54 (9th Cir. 1986) (“We do not have

jurisdiction to decide Carrasco’s appeal of the denial of the

suppression motion unless she entered a valid conditional

plea.”). But see United States v. Robinson, 20 F.3d 270, 273 (7th

Cir. 1994); Garcia, 339 F.3d at 118; cf. United States v. Davis,

900 F.2d 1524, 1526 (10th Cir. 1990) (noting that the court

“need not” entertain appeal of an unpreserved pre-trial

motion).9
14 Nos. 02-3578 & 03-1870

9 (...continued)

from the vehicle, and his prior drug history, Trooper Carmin had

reasonable suspicion to believe that the vehicle’s occupants were

engaged in drug activity and to justify calling a canine unit. See

United States v. Finke, 85 F.3d 1275, 1281-82 (7th Cir. 1996). Although, given the traffic violation and the occupants’ suspicious

behavior, the officers may have had sufficient probable cause to

place Mr. Rogers under arrest and search the vehicle incident to

that arrest, see New York v. Belton, 453 U.S. 454, 460-61 (1981);

Chimel v. California, 395 U.S. 752, 760 (1969); United States v.

Hernandez-Rivas, 348 F.3d 595, 599 (7th Cir. 2003); United States v.

Wimbush, 337 F.3d 947, 950-51 (7th Cir. 2003), we need not

address that question because the evidence supports the district

court’s determination that, based on the officers’ testimony, the

vehicle occupants consented to the search, see Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973); United States v. West, 321 F.3d

649, 651-52 (7th Cir. 2003). In the alternative, we agree with the

district court’s determination that once the canine alerted to the

presence of drugs in the vehicle the officers’ reasonable suspicion

elevated to probable cause to further search the car. See United

States v. Ganser, 315 F.3d 839, 844 (7th Cir. 2003).

Thus, although his unconditional plea waived consideration of

his Fourth Amendment claim, we, like the district court, see no

merit to Mr. Rogers’ suppression motion. We therefore find no

abuse of discretion in the district court’s determination that the

asserted Fourth Amendment violation did not constitute a fair

and just reason for changing the plea.

Accordingly, we find no error in the district court’s denial

of Mr. Rogers’ motion to withdraw his guilty plea, and we

affirm Mr. Rogers’ conviction.

C. Winfred Owens

Mr. Owens appeals his conviction on two grounds, both

for sufficiency of the evidence and trial court error. Specifi-
Nos. 02-3578 & 03-1870 15

cally, he claims that the evidence presented was insufficient

to convict him of the charged crimes. He also asserts that the

district court erred in refusing to suppress Mr. Rogers’

identification because the placement of the two in the same

cell was unduly suggestive and inherently unreliable. 

A finding of insufficient evidence is akin to an acquittal

and bars the defendant’s retrial under the Double Jeopardy

Clause. Burks v. United States, 437 U.S. 1, 18 (1978); see generally United States v. Lanzotti, 90 F.3d 1217, 1220-24 (7th Cir.

1996). Improper admission of evidence, on the other hand,

is “trial error,” the double jeopardy bar does not attach, and

a retrial may be had on remand. Lockhart v. Nelson, 488 U.S.

33, 40-42 (1988); United States v. Hudspeth, 42 F.3d 1015, 1025

(7th Cir. 1994) (en banc). 

1. Sufficiency of the Evidence

Mr. Owens argues that the Government offered evidence

insufficient to support his convictions. To prove that he

possessed with intent to distribute 500 or more grams of

cocaine in violation of 21 U.S.C. § 841(a)(1), the Government

was required to establish that (1) he possessed more than 500

grams of cocaine; (2) he knew the drug was a controlled

substance; and (3) he intended to distribute it. See United

States v. Jones, 248 F.3d 671, 675 (7th Cir. 2001). To prove a

violation of 21 U.S.C. § 843(b), the Government had to

demonstrate that Mr. Owens used a communication device

in furtherance of the § 841(a)(1) offense. See United States v.

Binkley, 903 F.2d 1130, 1136 (7th Cir. 1990). To meet its

burden on the alleged violations of 18 U.S.C. §§ 2 and 1952,

the Government had to show that Mr. Owens knowingly

aided and abetted another person’s interstate travel with the

intent of promoting the § 841(a)(1) offense. See United States

v. O’Hara, 301 F.3d 563, 570 (7th Cir. 2002). 
16 Nos. 02-3578 & 03-1870

There was ample circumstantial evidence of record to

convict Mr. Owens on all three counts. At trial, the Government introduced evidence that Moorman and Mr. Rogers

traveled from Kentucky to Merrillville for the apparent sole

purpose of buying cocaine. After arriving, Moorman and

another man drove away for twenty to twenty-five minutes

before returning to the parking lot. Mr. Rogers identified

Mr. Owens as that man, and Mr. Owens’ fingerprint was

found on the newspaper covering a one-kilogram brick of

cocaine in Moorman’s glove box. Police found a large quantity

of currency on Moorman’s person and even more money

hidden in the vehicle. Mr. Rogers testified that Moorman

made several telephone calls to the man during their trip,

and noticed the man in the parking lot on a telephone at the

same time Moorman talked on his. Telephone records

indicated eight calls placed that day between Moorman’s

cellular telephone and a cellular telephone in Mr. Owens’

possession. In his phone directory, Moorman had programmed the letters “W I N” next to the number associated

with the telephone in Mr. Owens’ possession, and these

same letters were inscribed on a keychain in Mr. Owens’

possession at his arrest.

Before this court, Mr. Owens points to the evidence that

was not presented. He notes that the fingerprint evidence is

inconclusive because it does not rule out the possibility that

he read the newspaper and discarded it, only to be picked

up and used to wrap cocaine. Along the same lines, he

argues that evidence did not rule out the possibility that

another person used his cellular telephone that day. He also

asserts that no trial witness saw him with the cocaine or

testified about the substance of any telephone calls. Mr.

Owens made these arguments at his bench trial, and the

district court nevertheless found them unconvincing. 
Nos. 02-3578 & 03-1870 17

Drawing all reasonable inferences in the Government’s

favor, as we must, see Senffner, 280 F.3d at 760, we believe

that a rational trier of fact could have inferred that Moorman

and Mr. Rogers traveled to Merrillville at least partly with

the aid or encouragement of Mr. Owens. The same rational

factfinder could have determined that Mr. Owens intended

to, and did, transfer over 500 grams of cocaine to Moorman,

and that the participants facilitated the transaction by using

telephones. The evidence was thus sufficient to convict

Mr. Owens of all three counts.

2. Identification

A criminal defendant has a due process right not to be

identified before trial “in a manner that is ‘unnecessarily

suggestive and conducive to irreparable mistaken identification.’ ” Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000)

(quoting Stovall v. Denno, 388 U.S. 293, 301-02 (1967)). We

conduct a two-step analysis to determine whether an identification procedure comports with due process. Gregory-Bey

v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003). First, Mr.

Owens “must demonstrate that the identification procedures

were unduly suggestive.” Id. (citing United States v. Traeger,

289 F.3d 461, 474 (7th Cir. 2002)). Second, “we ask whether,

under the totality of the circumstances, the identification

was reliable despite the suggestive procedures.” Traeger, 289

F.3d at 474. 

In this case, the district court allowed, over Mr. Owens’

objection, Mr. Rogers to identify Mr. Owens in court. That

identification is tainted, according to Mr. Owens, because

placing him alone in the same cell with Mr. Rogers, when

the latter previously had been unable to identify him from

a photo lineup, was unduly suggestive. In this vein, he likens

the situation to a “showup,” in which only one suspect,
18 Nos. 02-3578 & 03-1870

10 Mr. Owens does not claim the picture lineup shown to Mr.

Rogers in September or October 2001 to be unduly suggestive,

and the record is insufficient to determine whether it was so. We

therefore consider only how Mr. Rogers’ viewing of the photographs affected his identification after the two were placed in the

same cell on October 26.

rather than a lineup, is presented to a witness. See Armstrong

v. Young, 34 F.3d 421, 427 (7th Cir. 1994). The district court

denied Mr. Owens’ post-conviction motion for acquittal but

nevertheless characterized the identification as “less than

ideal.” R.88 at 9. It assumed that the situation in the holding

cell “could be construed as a suggestive pre-trial identification.” R.88 at 10. The court nevertheless found the in-court

identification reliable. Mr. Owens claims that this determination was erroneous, and that, under the totality of the

circumstances, the in-court identification was unreliable.

The Government contends that the placement of Mr.

Rogers in a cell with Mr. Owens represented a simple chance

encounter between the two and was not unduly suggestive

because law enforcement authorities did not present Mr.

Owens to Mr. Rogers. Assuming that the encounter was unduly suggestive, however, the Government further argues

that the in-court identification of Mr. Owens was sufficiently and independently reliable under the totality of the

circumstances. 

a. suggestiveness

We agree with the district court that Mr. Rogers’ identification of Mr. Owens was “less than ideal.”10 There is no

evidence that the Government intentionally placed Mr.

Rogers in the cell to identify Mr. Owens; the lapse in appropriate procedures appears to have been inadvertent. The
Nos. 02-3578 & 03-1870 19

agents did not present him to the witness for identification.

The Government, however, goes too far in characterizing

the events of October 26 as a chance encounter. 

To be sure, courts have held accidental encounters between a witness and a suspect to be non-suggestive. See, e.g.,

United States v. Briggs, 700 F.2d 408, 411-13 (7th Cir. 1983)

(witness recognized defendant after seeing him in courthouse hallway); see also United States v. Lopez-Lopez, 282 F.3d

1, 11 (1st Cir. 2002) (narcotics agents had unsuccessfully pursued defendants and spontaneously recognized the defendants upon entering police station and seeing them in

custody); United States v. Domina, 784 F.2d 1361, 1369-70 (9th

Cir. 1986) (witness waiting to testify recognized defendant

in group of people exiting courtroom during recess); United

States v. Hensel, 699 F.2d 18, 40 (1st Cir. 1983) (witness

waiting to testify spontaneously recognized defendant at

courthouse snack bar). 

The facts before us indicate that the meeting between

Mr. Rogers and Mr. Owens was more than an accidental encounter in a hallway or a snack bar. Both men were in the

cell because of their complicity in the same criminal transaction. A probation officer interviewed Mr. Rogers,

in preparation for sentencing on that offense, while Mr.

Owens sat close by. Mr. Rogers had been shown a picture of

Mr. Owens in the photo array a few weeks earlier at most,

and he may well have determined—if only subconsciously—

that finding the same man in his cell on the day he pleaded

guilty was no coincidence. Mr. Rogers’ failure to recognize

Mr. Owens from the photo array casts suspicion on his “immediate” recognition in the holding cell. 

It is irrelevant that police unintentionally placed the two

men in one cell. Manson v. Brathwaite, 432 U.S. 98, 112-14

(1977). The circumstances were, as the district court assumed,

unduly suggestive. Mr. Owens has met his burden of demonstrating the first element of the two-part inquiry.
20 Nos. 02-3578 & 03-1870

b. reliability of the in-court identification

Having determined the identification procedure to be

unduly suggestive, we must consider whether, under the

totality of the circumstances, Mr. Rogers’ in-court identification was reliable despite his having been placed in a cell

with Mr. Owens. In assessing the reliability of an identification despite unduly suggestive pre-trial procedures, we

must consider the five so-called “Biggers factors”: (1) the

witness’ opportunity to view the suspect at the scene of the

crime; (2) the witness’ degree of attention at the scene; (3)

the accuracy of his pre-identification description of the

suspect; (4) the witness’ level of certainty in the identification; and (5) the time elapsed between the crime and the

identification. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972);

McFowler v. Jaimet, 349 F.3d 436, 449 (7th Cir. 2003). Applying these factors to the facts of this case casts very serious

doubt on the reliability of this in-court identification. 

It is not clear from Mr. Rogers’ testimony how long he

observed the other man in the Merrillville parking lot. He

saw the man twice within the space of twenty-five minutes,

and testified to observing him in the parking lot, entering

Moorman’s car and driving away, returning, and then

leaving in another vehicle. But there is no indication how

close the two came to each other or for how long Mr. Rogers

observed him. Mr. Rogers’ view may have been obstructed

at almost every stage: the man held a telephone to his ear in

the parking lot at first, and was then observed in a vehicle.

As for the second Biggers factor, the record raises doubts

about the amount of attention Mr. Rogers gave to events in

that parking lot. On one hand, Mr. Rogers was a knowing

participant in a criminal transaction and may have been

particularly attentive as a result. See United States v. Plunk,

153 F.3d 1011, 1021-22 (9th Cir. 1998), abrogated on other grounds

by United States v. Hankey, 203 F.3d 1160, 1169 n.7 (9th Cir.
Nos. 02-3578 & 03-1870 21

2000). He also had used cocaine seven to eight hours before

arriving in the parking lot, but we defer to the district court’s

factual determination that he was free from the drug’s influence at the time. See Harris, 281 F.3d at 669-70. However,

Mr. Rogers played a limited role in the transaction—he only

accompanied Moorman in exchange for the cocaine. He

appears to have been uninterested in Moorman’s scheme;

Mr. Rogers exited the vehicle once they arrived at the

parking lot, allowed Moorman and the other man to drive

away, spent his time eating and looking at clothes until they

returned, and then immediately began driving back to

Kentucky. There is no evidence that Mr. Rogers ever spoke

to the other man or that he even asked Moorman about the

transaction. Moreover, Mr. Rogers’ statement that “most black

guys look alike” to him casts doubt on any attention that he

paid to the man in the parking lot.

The record is silent as to the quality or content of any description Mr. Rogers gave of the other man. Again, though,

his admitted inability to distinguish African-Americans

would give us pause in considering his description. Perhaps

instructively, at trial the best description Mr. Rogers could

give of himself was “a black guy and I got a little bit of

hair.” Tr.VI at 162. 

Mr. Rogers expressed no uncertainty about identifying

Mr. Owens in court. We give this factor little weight in the

present circumstances, however, because the presence at a

criminal trial of a single defendant like Mr. Owens can be

suggestive, see McFowler, 349 F.3d at 450, and it is not surprising that Mr. Rogers would express certainty with respect

to his in-court identification. Indeed, “the most certain witnesses are not invariably the most reliable ones.” Rodriguez

v. Young, 906 F.2d 1153, 1163 (7th Cir. 1990). It is telling that

when asked to describe the individual who drove the man

identified as Mr. Owens away from the parking lot, Mr.
22 Nos. 02-3578 & 03-1870

Rogers’ certainty faltered, and the most he could manage

was in response to prodding from Mr. Owens’ counsel:

Q: So, the other person in that car was a male, not a

female?

A: It was a back [sic]—yeah, black male.

Tr.VI at 162. In addition, here, where Mr. Rogers’ certainty

is a product of the suggestive earlier identification in the

cell, we are particularly skeptical. See Cossel, 229 F.3d at 656

n.4. Moreover, as certain as Mr. Rogers may have been in

the identification at trial, his failure to identify Mr. Owens’

photograph before the suggestive encounter makes his actual degree of certainty doubtful. 

Finally, consideration of the fifth Biggers factor reveals

that a significant amount of time elapsed between the parking lot transaction and his identification of Mr. Owens. Mr.

Rogers did not recognize Mr. Owens until, as a cooperating

witness, he walked into the holding cell on October 26, 2001,

almost eleven months after seeing the man in the parking lot

and weeks after failing to identify Mr. Owens’ photograph.

See Cossel, 229 F.3d at 656 (seven months between encounter

and identification would “be a seriously negative factor”

(quoting Biggers, 409 U.S. at 201)). He did not identify Mr.

Owens in court for a further five months. 

We conclude that Mr. Rogers’ identification was unduly

suggestive and, under the totality of the circumstances, unreliable, and it should have been excluded. At oral argument

the Government conceded that if we found the identification

to be inadmissible its admission would not be considered

harmless. We agree that the error was not harmless, and

therefore reverse Mr. Owens’ convictions. Because we

reverse based on trial error, we remand to the district court

for further proceedings consistent with this opinion. 
Nos. 02-3578 & 03-1870 23

Conclusion

For the foregoing reasons, we affirm the district court’s

denial of Mr. Rogers’ motion to withdraw his guilty plea.

With respect to Mr. Owens, we hold that there was sufficient evidence to support his convictions, but we reverse on

all three counts because the in-court identification of Mr.

Rogers improperly was admitted into evidence. Mr. Owens’

case is remanded to the district court for further proceedings.

AFFIRMED in part; REVERSED and REMANDED in part

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-5-04