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United States v. Henderson

United States District Court, W.D. Texas, San Antonio Division

June 20, 2019

UNITED STATES OF AMERICA,
v.
MELVIN HENDERSON

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this day came on to be considered various motions filed by the Defendant.

         Indictment

         On June 19, 2019, a superseding indictment was filed in this case. In Count One, the Government alleges that from January 2015 until February 2016, the Defendant recruited, enticed, harbored, transported, provided, obtained and maintained, a minor (R.L.L.), knowing that means of force, threats of force, fraud, and coercion would be used to cause R.L.L. to engage in a commercial sex act, in violation of Title 18, United States Code, Sections 1591(a) and l591(b)(1).

         Motion to Suppress out of court identification (dkt. no. 37)

         Defendant argues that on August 26, 2016, law enforcement personnel conducted an impermissibly suggestive pretrial identification procedure with the complainant by using a one-photo show, with the only photo being that of the Defendant. The complainant then identified the Defendant as the actor in this case. Defendant seeks the suppression of the following:

         1. All testimony concerning any eyewitness identification of the Defendant.

         2. All evidence, tangible or otherwise, that may be shown to have been a product of the impermissibly suggestive pretrial identification procedure.

         In July 2016, a minor (R.L.L.) reported that she had been prostituted and sexually assaulted by multiple persons, including “Don Don” or “Duarte.” During their investigation, investigators showed R.L.L. a photograph of Defendant, whom she identified as one of the people who prostituted her. The Defendant had allegedly sold drugs to R.L.L. for an extended period of time prior to the alleged prostitution acts.

         “The Due Process Clause protects against the use of evidence obtained from impermissibly suggestive identification procedures.” United States v. Delgado, 364 Fed.Appx. 876, 879 (5th Cir. 2010). “The admissibility of identification evidence is governed by a two-step test.” Id. First, we ask whether the identification procedure was impermissibly suggestive. Second, we ask whether the procedure used posed a “very substantial likelihood of irreparable misidentification.” Id. “Identification testimony is inadmissible only if both questions are answered in the affirmative. The linchpin of the admissibility inquiry is whether the identification is reliable.” Id.

         “The Supreme Court has identified several factors to help determine the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the crime scene; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.” United States v. Moody, 564 F.3d 754, 762-63 (5th Cir. 2009).

         Without deciding whether the Defendant's identification was impermissibly suggestive, the Court concludes that there was not a “very substantial likelihood of irreparable misidentification.” Id. R.L.L. had an opportunity over an extended period of time to view Defendant. During the identification procedure, R.L.L. stated that she was positive that Defendant was “Don Don.”

         Defendant's Motion to Suppress Cell Tower Info (dkt. no. 38)

         Defendant seeks to suppress all historical cell-site location information (CLSI) ...


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