* District Judge of the Southern District of Texas, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60406

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACKIE HONER, also known as Earl,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

August 25, 2000

Before WIENER and STEWART, Circuit Judges, and ROSENTHAL * , District Judge.

CARL E. STEWART, Circuit Judge:

Jackie Honer (“Honer”) appeals his jury conviction and sentence for aiding and abetting the

distribution of cocaine base, where identification was the primary issue at trial. For reasons stated

below, we affirm.-2- F ACTS AND P ROCEEDINGS

On February 22, 1998 Marshall Pack (“Agent Pack”), an agent with the Mississippi Bureau

of Narcotics (“MBN”) made an arranged drug purchase in the parking lot of a Dairy Queen in

Jackson, Mississippi. The buy was facilitated by an informant, Tabitha Spann (“Spann”), who was

tape recorded by MBN agents arranging the buy with Clarence Honer, one of four Honer brothers.

The Honer brothers, including defendant Jackie Honer, also known as Earl, Charles Honer, and James

Honer had been identified by the MBN as suspected drug dealers and were the subjects of a long

term investigation. In connection with the investigation, Agent Pack had previously seen photographs

of three of the brothers including Jackie Honer. Spann believed from her conversation with Clarence

Honer that “Clarence’s brother” or someone named Earl, wo uld meet her at the Dairy Queen to

consummate the sale.

The transaction was monitored by a surveillance team. Spann and Agent Pack went to the

Dairy Queen in Jackson. Spann got out of the car and went inside to use t he rest room and buy

a

drink. While she was inside, a “box Chevy” with two persons inside parked next to Agent Pack’s

vehicle. The driver motioned for Agent Pack to roll down his window, which he did, and then asked

about Spann. Agent Pack responded that she was inside, but that he had the cash and could make

the buy without Spann. Agent Pack got into the back seat of the Chevy and conversed with the

driver while he and an unidentified passenger broke up the cocaine base, which was cooked into rock

form (commonly known as “crack”). Agent Pack paid $1,275.00, which he counted out in cash, in

exchange for one and a half ounces of cra ck. When Spann emerged from the restaurant, she

conversed with the driver of the Chevy briefly, indicating that she needed nothing else, and they all

departed.-3-

During a post-drug purchase meeting at the MBN headquarters the next day, Agent Charles

Melvin presented Agent Pack and Spann with a photo lineup containing several pictures. All of the

pictures were of young to middle aged black males with skin tones from brown to dark brown and

similar hair styles. Agent Pack and Spann independently identified Jackie Honer as the person from

whom Agent Pack made the drug purchase.

Jackie Honer was arrested in December 1998 and was indicted in a two-count indictment with

his brother Clarence Honer. Jackie Honer was identified by Agent Pack at the time of his arrest.

Count One charged Clarence Honer with possession with intent to distribute cocaine base. Count

Two charged Clarence and Jackie Honer with aiding and abetting the possession of 31.8 grams of

cocaine base with intent to distribute in violation of 18 U.S.C.§ 2 and 21 U.S.C. §841(a)(1).

During discovery and at trial, the Government could not produce the photographs of the other

subject s used in the pretrial identification photo array. Before trial, defense counsel moved to

suppress any evidence of the out-of-court and in-court identifications on the grounds that the absence

of the photo array made the identification process inherently unreliable. The Government represented

that two witnesses, Agent Pack and Spann, would identify Honer in court based on their face to face

encounters with him. The district court delayed ruling on the motion, and later denied the motion,

emphasizing that its ruling was grounded in the Government’s repres entation that two wi tnesses

would identify Honer based on their personal encoun t ers with him. Prior to opening statements

however, the G o vernment informed the court that Spann would be unable to make an in-court

identification because her encounter with the driver of the Chevy was too brief. The district court

did not change its prior ruling on the motion to suppress the identifications.-4-

Jackie Honer was convicted by a jury of Count Two of the indictment on March 16, 1999.

He was sentenced to seventy-eight months incarceration with four years supervised release. Jackie

Honer also received a $2,000 fine, and was ordered to pay a special assessment. Clarence Honer

was a fugitive at the time of his brother’s trial and did not testify. Honer timely filed a no t ice of

appeal.

D ISCUSSION

The question of whether identification evidence “and the fruits therefrom are adm issible at

trial is a mixed question of law and fact.” United States v. Fletcher

, 121 F.3d 187, 194 (5 th Cir. 1997).

Such mixed questions are subject to de novo review. See Buser by Buser v. Corpus Christi Indep.

Sch.

, 51 F.3d 490, 492 (5 th Cir.1995). However, we review the district court’s underlying factual

findings for clear error. See Fletcher , 121 F.3d at 194.

I. I N -C OURT AND O UT

- OF -C OURT I DENTIFICATIONS

H o ner contends that the admission of evidence concerning the out-of-court photographic

identification deprived him of due process and constituted reversible error. He asserts that the photo

line-up was impermissibly suggestive and that the admission of the evidence of the photo line-up was

error, as it bolstered the in-court identification and thus affected the verdict. He also contends that

the Government, by failing to produce the photographs used in the photo lineup, deprived him of the

right of confrontation. He also argues that the government violated the rules of discovery, deprived

him of exculpatory evidence, and generally deprived him of an opportuni ty to challenge the fairness

of the lineup. Honer asserts that these errors accumulated, and constitute reversible error.

A conviction based on an eyewitness identification at trial following a pretrial photographic-5-

identification mu st be set aside “only if the photographic identification procedure was so

impermissibly suggestive as to give rise to a very substantia l likelihood of irreparable

misidentification.” Simmons v. United States

, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247

(1968). We apply a two-prong test to determine whether to exclude an in-court identification.

First, we ask whether the photographic line-up is impermissibly suggestive. S ee Fletcher, 121 F.3d

at 194. If it was not, our inquiry ends. If the photographic line-up was impermissibly suggestive, we

next ask whether based upon the totality of circumstances, “the display posed a ‘very substantial

likelihood of irreparable misidentification.’” I d. ; see Manson v. Brathw aite

, 432 U.S. 98, 114, 97

S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977).

Regarding the first prong, the government contends that the photographic line-up was not

impermissibly suggestive. However, when the government fails to preserve the photographic array

used in a pretrial line-up “there shall exist a presumption that the array is impermissibly suggestive.”

United States v. Sonderup

, 639 F.2d 294, 298 (5 th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059,

69 L.Ed.2d 426 (1981)(quoting Branch v. Estelle , 631 F.2d 1229, 1234 (5th Cir. 1980))(emphasis

added). The Government disclosed that the photo array was not preserved and thus would not be

entered into evidence prior to trial. Though the record discloses no evidence of bad faith by the

government, the presumption that the array was impermissibly suggestive applies nonetheless.

Because the government does not overcome the presumption that the pretrial photo line-up

was impermissibly s uggest ive, we next must determine whether under the totality of the

circumstances, the pretrial photo line-up “was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” S ee

, Simmons

, supra. In other words, we

must determine whethe r t he in-court identification is reliable, notwithstanding the impermissibly-6-

suggestive pretrial photo line-up. S ee Manson

, 432 U.S. at 114, 97 S.Ct. at 2252 (asserting that the

gravamen of this determination is reliabilit y). In the landmark case of N eil v. Biggers

, 409 U.S. 188,

199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the Court set forth factors to determine whether

under the totality of the circumstances, an in-court identification was reliable. These factors include:

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 ; t he level of certainty

demonstrated by the witness at the confrontation; and the length of time between the crime and the

confrontation. See Neil , 409 U.S. at 199, 93 S.Ct. at 382.

In-court Identification of Agent Pack

Agent Pack had ample opportuni ty to observe Jackie Honer at the time of the drug purchase.

At trial, Agent Pack identified Honer with certainty as the man who sold him one and a half ounces

of crack cocaine from the car Honer parked at the Dairy Queen on February 22

, 1998. Agent Pack

testified that h e had undergone extensive training on observations and studying faces for

identification. He testified that the night of the purchase, he was parked in front of a well lit Dairy

Queen when Jackie Honer parked next to his vehicle, and that he studied Honer’s face as he rolled

down the window and the two conversed. Agent Pack testified that he studied Honer’s face at closer

range when he got into his car and carried out the transaction, as $1,275 dollars in cash was counted

and the crack was broken down into rocks. He further testified that he studied Honer’s face when

Spann returned from inside the Dairy Queen and the three briefly conversed before Honer departed.

In addition to having previously seen a photograph of Jackie Honer because he and hi s

brothers were the subjects of a lo ng t erm investigation, Agent Pack identified Jackie Honer’s

photograph the day after the transaction occurred. Agent Pack was also present at Honer’s arrest2 There is no merit to Honer’s claim that the Government’s failure to produce the array

de prived him o f an opportunity to confront the witness, as the trial transcript reveals that defense

counsel conducted a thorough cross examination of Agent Pack. Honer’s other claims that the error

vio lated the rules of discovery and deprived him of exculpatory evidence are undevelo ped and

unsupported by the record.

-7- when he again identified Honer.

Also, Agent Pack provided a reasonably accurate description of Jackie Honer, as he described

him in his report as being approximately six feet tall and 185 lbs. Agent Pack further indicated that

the man from whom he made the drug purchase at the Dairy Queen, had gold teeth. The defense

argues that Agent Pack’s description of Honer was inaccurate. The presentence report reveals that

Jackie Honer is actually 5'11" in height and 170 lbs., close to Agent Pack’s description which was

only an estimation he noted in his report. Honer did not present any evidence at trial, other than to

walk up and down in front of the jury box, displaying his teeth without gold features. Arguing that

he was misident ified, Honer contends that Agent Pack’s written description of the seller does not

comport with his actual physical description because he had no gold tee th at trial . We are

unpersuaded by this argument because of the temporality of gold “fronts” or caps, popularly worn.

Considering the strength of Agent Pack’s testimony regarding the duration of the drug transaction

and Agent Pack’s previous and repeated exposure to Honer, the in-court identification of Honer was

reliable. Although the Government’s failure to preserve the photographic array was careless and

inexcusable, that error is not dispositive in this case because there was little likelihood of

misidentification. 2

In-court Identification of Spann3 When the Government moved to admit the single photo into evidence, the defense renewed

its previous objection, and the district court admitted the photograph into evidence. The defense

moved, prior to opening, for suppression of the in-court and out-of-court identification evidence on

the grounds that the process was unreliable, thereby resulti ng in a substantial likelihood of

misidentification, and other grounds associated wit h the absence of the array at trial. The defense

renewed this objection through out the proceedings. The Government represented:

“The way it’s going to play out, Your Honer, both of them were present,

had the face-to-face encounters with the defendant at the Dairy Queen,

and their recognition is based on face-to-face encounters. They simply

confirmed the day after, yes, this is the guy we saw at the Dairy Queen.”

The district court ruled:

“Based on the representations made by the attorneys, ... this procedure was not

impermissibly suggestive; and under the totalit[y] of the circumstances, there

is not a substantial[] likelihood of irreparable harm so the motion is overruled.”

When the district court was informed that Tabitha Spann would not make an in-court identification,

it did not change its ruling.

-8- Honer also contests the admission of Spann’s pretrial identification of his photograph. Spann

was unable to identify Honer at trial. On cross-examination she recounted that her interaction with

the driver only lasted “a second.” In so far as Spann had identified Honer’s picture out of the line up

the day after the purchase, she could only testify that the photograph she picked out “by glancing at

him that night [] looked like the same person.” The single photo Spann identified of Jackie Honer

was admitted into evidence. 3

Because the government failed to present the compl et e photo line-up at trial, we again

presume the line up was impermissibly suggestive because of the absence of the array at trial.

Sonderup

, 639 F.2d at 298-2 99. For reasons stated above, the governm ent does not rebut thi s

presumption.

T herefore, we next ask whether Spann’s in-court identification, notwithstanding the

government’s failure to introduce the complet e photo line-up, was reliable. Our review of the4 The Governm ent argues that testimony regarding Spann’s identification at the pre-trial

photographic spread was proper because evidence of prior identification is admissible, pursuant to

F ED .R.E VID ., Rule 801(d)(1)(C), and United States v. Ow ens , 484 U.S. 554, 108 S.Ct. 838,

98 L.Ed.2d 951 (1988). The requirement that evidence of prior identification not be the product of

an impermissibly suggestive out-of-court identification nevertheless applies. See Owens

, 484 U.S.

554, 561, 108 S.Ct. 838, 843, 98 L.Ed.2d 951 (1988).

-9- totality of circumstances reveals that Spann’s in-court ident ific at io n was not reliable. Spann’s

inabilit y to identify Honer at trial was arguably due to her brief interaction with him, and the fact that

the trial was more than one year after the transaction occurred. Spann was not an eye-witness to the

offense because at the time of the transaction she was inside the Dairy Queen. When she emerged,

her only conversation with the seller was “probably three words.” On cross examination Spann could

not recall anything distinctive about the driver of the Chevy. If, as the Government concedes, Spann

did not see the seller long enough to make an identification, then her photographic identification was

likewise flawed. Beginning with o ur presumption that the line up was impermissibly suggestive,

conside ring Spann’s low degree of certainty regarding the factors set forth in N eil v. Biggers, and

noting the improper admission into evidence of Honer’s single photograph, we find that admission

into evidence of Spann’s pretrial identification of Honer’s photograph was error. 4

Based on these deficiencies, Honer argues that his conviction should be reversed. We do not

agree . Spann’s unreliable identification did not affect the reliability of Agent Pack’s in-court

identification. Thus, Spann’s in-court identification of Honer did not cumulatively or individually,

fatally damage the reliabilit y of Agent Pack’s in-court identification or rise to the level of establishing

reversible error. An error is harmless if it is “beyond a reasonable doubt that the error complained

of did not co nt ribute to the verdict obtained.” Chapman v. California

, 386 U.S. 18, 24, 87 S.Ct.

824, 828, 17 L .Ed.2d 705 (1967). Having carefully reviewed the record in this case, we are-10-

convinced that Agent Pack’s testimony was so independently reliable that the jury could have, and

did, render a guilty verdict that was not tainted by the government’s miscues. Accordingly, t he

identification of Jackie Honer was reliable and we have confidence in the verdict obtained.

II. M ISTRIAL

Finally, Honer contends that the government bolstered its case with hearsay testimony and

unfair opinion testimony. As such, Honer contends that the admission of this evidence constituted

an abuse of discretion by the district court. Honer argues that Agent Pack’s testimony on redirect,

that the Honer brothers had been targeted as drug dealers, and that the police had information that

the Honers were “moving crack” through the Jackson area was highly prejudicial evidence of other

crimes or bad acts that warranted the district court declaring a mistrial.

We review the denial of a motion for mistrial for abuse of discretion. U nited States v.

Mills aps , 157 F.3d 989, 993 (5 t h Cir. 1998). Admission of extrinsic evidence under Fed. R. Evid.

404(b) is subject to reversal upon a clear showing of abuse of discretion. United States v. Guerrero

,

169 F.3d 933, 943 (5 th Cir. 1999). Federal Rule of Evidence 404(b) mandates that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.” A new trial is necessary when there is a significant possibility that

the prejudicial evidence had a substantial impact on the verdict, viewed in light of the entire record.

See United States v. Millsaps, 157 F.3d 989, 993 (5 th Cir. 1998).

The defense raised the issue of Honer and h is brothers being the subjects of a narcotics

investigation during cross-examination of Agent Pack. The Government’s response is valid, that it

only pursued the issue on redirect to show that Honer was not randomly or unfairly targeted. The

district court cautioned the jury at the time the objection was made, that there was no proof that-11-

Honer “was actually doing what [] Pack said he heard they were doing[]” and l ater appropri atel y

charged the jury accordingly.

Considering the net effect of the cautionary instruction given, and the curative jury charge,

even if the colloquy was presumed to be improper, the prejudice was rendered harmless. See United

States v. Nguyen

, 28 F.3d 477, 483 (5 th Cir. 1994). Our review of the record indicates that the

district court did not abuse its discretion in denying a mistrial.

Honer sought leave to file a supplemental brief but did not do so until after his case was taken

under submission on appeal. The motion to file a supplemental brief is denied.

C ONCLUSION

Honer’s convictions and sentences are AFFIRMED. Honer’s motion to file a supplemental

brief is DENIED.

AFFIRMED.