* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. LUIS RAMIREZ-PIÑON,

Defendant - Appellant. No. 97-2374 (D. Ct. No. CR-97-184-JP) (D. N. Mex.)

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and KELLY , Circuit Judges.

After a jury trial, the defendant was convicted of bringing aliens into the United States for private financial gain, in violat ion of 8 U.S.C. § 1324(a)(2)(B)(ii). The defendant appeals on the grounds that the district court allowed improper opinion testimony, that the distri ct court erred in refusing to grant the defendant a continuance, and that an in-c ourt identification during trial was so unreliable that it denied the defendant his right to a fair trial. We take jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.- 2 - I. Late in the afternoon on February 21, 1997, Border Patrol Agent Patrick Mares stopped a car driven by the defendant on susp icion that illegal aliens were on board. After stopping the car, Agent Mares disc overed that there were seven people in the car including the driver, Luis Ramire z-Piñon, and that they were all Mexican nationals. Agent Mares transported the mento the local border patrol station for interrogation. There, Agent Mares and two other agents informed the men that in previous smuggling loads, some of the m aterial witnesses were granted work permits. At first, the men claimed that they had purchased t he car jointly and that there was no “coyote,” or leader. At some point du ring the questioning, two men who became witnesses at trial, Cecilio Martinez-San tos and Marcos GomezMorales, admitted that they had paid defendant Rami rez-Piñon to transport them to the United States. The four others refused to a dmit that they paid defendant to smuggle them to the United States. In subsequent interviews with the defense attorney, Mr. Martinez-Santos and Mr. Gomez-Morales repeated their initial story that the smuggling operation was a cooperative venture without a leader. The de fense’s theory of the case was that the witnesses had told the government agents w hat they wanted to hear in order to get out of jail and to obtain work permits in the United States.- 3 -

The government’s theory, on the other hand, was that in order to avoid criminal responsibility, Mr. Ramirez-Piñon had instructed his passengers to tell border agents that there was no “coyote” and that t hey had all purchased the car together. In support of this theory, Agent Mares w as allowed to testify that he had been involved in approximately thirty smuggling cases, and that in almost every one the aliens had initially claimed to be pa rt of a cooperative venture. The logical inference from that testimony was that the aliens had been coached to respond in that manner. The district court admitte d Agent Mares’s testimony about the prior cases under Fed. R. Evid. 701, “Opi nion Testimony by Lay Witnesses.” Agent Mares then discussed this particular case, an d the following exchange occurred:

Q: And you stated that two of the passengers were k ept as material witnesses. Could you explain to the ju ry what this means? A. They were witnesses that were being smuggled an d - - just exactly that. They were there while the cri me was going on. Q. Why did you pick these two over the others? A. Because they voluntarily gave us the informatio n, the correct information. R.O.A. Vol. III at 138.
II. The defense argues that by presenting this testimony of Agent Mares, the- 4 -

prosecutor was impermissibly vouching for the credi bility of witnesses Mr. Martinez-Santos and Mr. Gomez-Morales. The governm ent urges that we review the decision to admit the testimony for plai n error because the defense did not object on these grounds at trial. Whether the defendant made a proper objection is a close issue. The defense did objectto the testimony at an earlier hearing on the grounds that, among other things, itwas impermissible vouching. At trial, defense counsel referred gener ally to the objections made at the hearing, but did not mention vouching specifica lly. We find it unnecessary to determine whether the prior objection preserved the issue for appeal. Even if it did, and we review a district court’s decisio n to admit evidence for abuse of discretion instead of plain error, see Fox v. Mazda Corp. of America , 868 F.2d 1190, 1194 (10th Cir. 1989), we find no revers ible error. The presentation of evidence by the prosecutor “is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness’ credib ility, either through explicit personal assurances of the witness’ veracity or by implicitly indicating that information not presented to the jury supports the witness’ testimony.” United States v. Bowie , 892 F.2d 1494, 1498 (10th Cir. 1990) (citations o mitted). Agent Mares’s statement that the witnesses gave him“correct” information does not meet this standard. First, the prosecutormade no personal assurances- 5 -

of the witnesses’ credibility. The statements obje cted to are those of Agent Mares. Furthermore, this exchange does not imply t o the jury that there are facts unknown to them that make Agent Mares’s testi mony particularly reliable. In the typical case of impermissible vouching, we r eview a statement by an attorney regarding the credibility of a witness’ s trial testimony. See, e.g. , United States v. Brooks , 940 F.2d 598, 601 (10th Cir. 1991). Here, we are dealing with a statement by a witness about the credibility of other witnesses’ pre-trial statements . There are too many degrees of separation to infe r from this transcript any link between the prosecutor andthe witnesses’ trial testimony. The defense urges us to focus on the re-direct exam ination, in which the prosecutor elicited from Agent Mares the fact that when he said correct, he meant “truthful.” The exchange on re-direct examin ation, however, is hardly more indicative of vouching on the prosecutor’s part than the first exchange. Furthermore, the prosecutor’s attempt to clarify Ag ent Mares’s definition of “correct” was a response to the questions defense c ounsel raised on crossexamination regarding that word. Thus, any vouchin g on the prosecutor’s part would be excused due to the fact that it had been i nvited by the defendant’s cross-examination. See Whiteley v. OKC Corp. , 719 F.2d 1051, 1055 (10th Cir. 1983) (quoting United States v. Regents of NewMexico School of Mines ,- 6 -

185 F.2d 389, 391 (10th Cir. 1950)).
III. Five days prior to trial, the government filed noti ce of its intent to introduce expert testimony from Border Agent Roches . The agent would have testified that smugglers such as the defendant gene rally instruct their passengers that, if caught, they should deny that t hey paid anyone to take them across the border. The day before trial, the distr ict court held a hearing and excluded this proposed testimony because the govern ment failed to give the defense timely notice of it. The court, however, r eserved a decision on whether the testimony would be admissible under Rule 701, “ Opinion Testimony by Lay Witnesses.” See Fed. R. Evid. 701. On the morning of the trial, the district court rul ed that the testimony was admissible under Rule 701. The government then not ed that if it could introduce the evidence under that rule, it would of fer the testimony of Agent Mares in place of Agent Roches. Agent Mares’s test imony would be offered in the form of inferences drawn from his prior involve ment in approximately 30 smuggling cases. The defense requested a continuan ce to investigate these cases. The court denied the motion and the case pr oceeded to trial that day. We will reverse a district court decision to deny amotion to continue only if the decision was “arbitrary or unreasonable and materially prejudiced- 7 -

the defendant.” United States v. McKneely , 69 F.3d 1067, 1076-77 (10th Cir. 1995). Whether a denial is arbitrary or unreasonab le depends on a number of factors, including: [1] the diligence of the party requesting the conti nuance; [2] the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; [3] the inconvenience to the opposing party, its witnes ses, and the court resulting from the continuance; and [4] the need as serted for the continuance and the harm that appellant might suffe r as a result of the district court’s denial of the continuance. United States v. Wynne , 993 F.2d 760, 767 (10th Cir. 1993) (citations omi tted) Here, the defendant requested the continuance immed iately upon receiving the district court’s ruling. Second, the re is almost no doubt that if the continuance were granted, the defendant could have looked into Agent Mares’s previous cases to determine how often the arrestees had untruthfully claimed that they had not paid someone to transport them to the United States. Thus, the first two factors weigh in favor of the defenda nt. Because this ruling took place on the morning of trial, however, the inconve nience to the court would have been great if a continuance had been granted. Furthermore, the defense has not made any showing of prejudice. For instanc e, on cross-examination, the defense was able to elicit from Agent Mares an admission that aliens sometimes attempt to cross in groups without paying a particular person to lead them. The defense, however, did not continue this line of questioning.- 8 -

Furthermore, the defense did not include anything i n the record regarding Agent Mares’s previous cases that demonstrates mate rial prejudice. On balance, the weighing of the Wynne factors does not demonstrate that the district court acted arbitrarily or unreasonably in denying the motion to continue.
IV. Next, the defendant argues that the in-court identi fications of the defendant by Mr. Martinez-Santos and Mr. Gomez-Mora les were so unreliable that they violated the defendant’s right to a fair trial. We review the constitutionality of identification procedures de novo . See Archuleta v. Kerby , 864 F.2d 709, 710-11 (10th Cir. 1989). We review any factual basis for that conclusion for clear error. See id. Mr. Martinez-Santos was the first to identify the d efendant. The exchange between him and the prosecutor went as fol lows: Q. So you went to the plaza to look for someone to cross you into the United States? A. Yes. Q. Did you find someone? A. Yes, him. Him. Q. Who do you mean by “him”? A. The defendant who is here. Q. The man sitting to your right? MS. GARDNER: Your Honor, I’m going to object. She’ s being leading. MS. MICKEY: Your Honor, I believe one of the except ions to leading questions on direct examination is if you h ave a- 9 -

witness who is having difficulty understanding. THE COURT: Well, this is being interpreted to him. But ask your questions in a form that are not leading. Q. (By Ms. Mickey) What do you mean by “him”? A. The one who was bringing us. Q. Who was that person? A. I really don’t know the person. Q. Is he in the courtroom today? A. I don’t know. Q. Could you please take a look to your right? MS. GARDNER: Your Honor, I’m going to object that this is unduly prejudicial. THE COURT: It’s overruled. Q. (By Ms. Mickey) Mr. Martinez, would you please t ake a look to your right. Is that the man who agreed to help you get to the United States? MS. GARDNER: Object. THE WITNESS: Yes. R.O.A. Vol III at 175-76. Mr. Gomez-Morales identi fied the defendant next. His testimony was as follows: Q. And did you find someone that would cross you? A. Yes. Q. Who was that person? A. The one who brought us. Q. Who was that? A. The one who brought us. Q. Can you look around the courtroom and tell me i f that person is here today? A. No, I don’t find him present. Q. Can you look to the defense table and look clos ely at the man to your right in the pink shirt? A. Yes, that man. Q. That’s the man who brought you into the United States? A. Yes. R.O.A. Vol III at 238.- 10 -

The prosecutor’s questions in this case were extrem ely suggestive. The threat to defendant’s right to a fair trial, howeve r, is much less serious in this case than when the in-court identification is based on a prior, suggestive outof-court identification. The concern with in-court identification, where the re has been suggestive pretrial identification, is that the wit ness later identifies the person in court, not from his or herrecollection of observations at the time of the crime charged, b ut from the suggestive pretrial identification. Because the ju rors are not present to observe the pretrial identification, the y are not able to observe the witness making that initial identifi cation. . . . When the initial identification is in court, there are different considerations. The jury can observe the witness d uring the identification process and is able to evaluate the reliability of the initial identification. United States v. Robertson , 19 F.3d 1318, 1323 (10th Cir. 1994) (quoting United States v. Domina , 784 F.2d 1361, 1367-69 (9th Cir. 1986) (citations omitted)). Given the considerations above, any sug gestiveness in the courtroom identification procedures is generally a matter for the jury to consider during deliberations. See Romero v. Tansy , 46 F.3d 1024, 1032 (10th Cir. 1995). The district court should take the ide ntification issue away from the jury only if “there is a ‘very substantial likeliho od of irreparable misidentification.’” United States v. Kimball , 73 F.3d 269, 273 (10th Cir. 1995) (quoting Robertson , 19 F.3d at 1323). Although the questions were suggestive, they did no t present a- 11 -

substantial likelihood of irreparable misidentification. First, the eyewitnesses both spent a number of hours with the defendant, wh ich minimizes the chances that they would misidentify him even under such sug gestive questioning. More importantly, perhaps, the questioning proceeded in a way that exposed the effect of the leading questions. Each witness was asked to pick the defendant out of the courtroom and neither could do it. Only when they were led by the prosecution to the defense table did they positivel y identify the defendant as the man they paid. The jury, therefore, was capable of weighing the eyewitnesses’ credibility in light of the prosecution’s method of questioning. Any misidentification that took place was reparable—that is, the identifications could have been discounted in the jury room.
V. We find that the prosecution did not impermissibly vouch for the credibility of the alien witnesses, that the distri ct court did not abuse its discretion in denying the defense’s request for a c ontinuance, and that the incourt identifications of the defendant did not viol ate his right to a fair trial. Given the above, we find it unnecessary to address the defendant’s claim of

cumulative error.- 12 -

We AFFIRM. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge