United States v. Gallegos

111 F.4th 1068

UNITED STATES of America, Plaintiff-Appellee, v. Elias Lucas GALLEGOS, Defendant-Appellant.

No. 23-2010

United States Court of Appeals, Tenth Circuit

FILED August 5, 2024

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:21-CR-01496-KWR-1)

J.K. Theodosia Johnson, Assistant Federal Public Defender (Esperanza S. Lujan, Assistant Federal Public Defender, with her on the briefs), Albuquerque, New Mexico for Defendant-Appellant.

Emil J. Kiehne, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with him on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.

Before HOLMES, Chief Judge, McHUGH, and EID, Circuit Judges.

HOLMES, Chief Judge.

Defendant-Appellant Elias Gallegos appeals from his conviction for assaulting a federal officer with a dangerous weapon. He raises two issues on appeal. First, he argues that the district court erred in admitting the identification testimony of the victim because that testimony's reliability was outweighed by the corrupting influence of the show-up identification procedure used by the Albuquerque Police Department ("APD") officers. Second, he contends that the district court abused its discretion in admitting evidence of his flight in the aftermath of the assault.

Mr. Gallegos's arguments are unpersuasive on both fronts. Despite the undisputedly corrupting influence of the show-up identification, the victim's eyewitness testimony displayed sufficient indicia of reliability to warrant admission. Further, the record amply supports the reasonableness of the district court's admission of evidence of Mr. Gallegos's flight. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Gallegos's conviction.

I

A

In the early afternoon on September 17, 2021, Luis Quiroga—a mail carrier for the U.S. Postal Service—was delivering mail on foot in a residential neighborhood of Albuquerque, New Mexico. It was a hot, sunny day, with the temperature above eighty degrees Fahrenheit. As Mr. Quiroga walked along Constitution Avenue, he noticed a man about thirty feet ahead, walking on the sidewalk in the same direction. Mr. Quiroga noticed the man because he was not walking in a straight line, as if he were under the influence of some sort of intoxicating substance. The two continued to walk apace and with the same distance between them for the next ten minutes or so, as Mr. Quiroga delivered mail along his route. Mr. Quiroga did not see the man's face throughout this period but did observe his clothes—a yellow sweater and blue jeans.

The man then crossed into the middle of the street and knelt down to apparently pick something up. As he did so, Mr. Quiroga began to cross the street as well, to deliver mail on the other side. Suddenly, the man stood up and turned to face Mr. Quiroga, holding a two-to-three-inch knife in his hand; the man appeared to be startled. The man told Mr. Quiroga to "turn around." R., Vol. I, at 269 (Tr. Suppression Hr'g, dated Sept. 1, 2022).

During this interaction, the two men were roughly twenty feet apart, and Mr. Quiroga had a "brief," "good view" of the man's face for about five to ten seconds, but his focus then "went to the knife." Id. at 270, 272, 292. And once he saw the man brandish the knife, Mr. Quiroga felt himself to be "in danger." Id. at 270.

Complying with the man's order to "turn around," Mr. Quiroga changed directions and "walked away quickly." Id. at 269-70. Looking back, he saw that the man was "running towards [him] with the knife." Id. at 270-71. Mr. Quiroga then fled down another street "as fast as [he] could" before turning back again to see if the man was still following him. Id. at 290. In fact, the man had stopped running, and the two were roughly forty feet apart. After Mr. Quiroga turned around, the man picked up a baseball-size rock and threw it at Mr. Quiroga, who dodged it to avoid being struck. The man did not continue to pursue Mr. Quiroga, and Mr. Quiroga did not see where the man went after throwing the rock.

Mr. Quiroga returned to his delivery truck and, at 12:56 p.m., called 911 to report the encounter. He described his attacker to the dispatcher as a Hispanic man with dark hair, about 5'9" tall, weighing roughly 170-180 pounds, who appeared to be in his mid-20s or early 30s, and wearing a "yellow sweater [and] baggy blue jeans." Id. at 273; see also Aplee.'s Suppl. R., Vol. II, Ex. 1 (Recording of 911 Call, dated Sept. 17, 2021).

Emergency dispatchers relayed Mr. Quiroga's report of the attack and his description of the assailant to APD Sergeant Richard Whitten, who was on patrol in the area and driving a marked police car. At approximately 1:08 p.m., Sergeant Whitten saw a man in a yellow sweater and blue jeans roughly a half mile from the scene of the attack. The sweater in particular stood out to Sergeant Whitten, given the heat of the day. Sergeant Whitten radioed for backup and continued to observe the man while waiting for other officers to arrive. As the other officers arrived, the man turned into an alley. The officers activated the lights and sirens in their respective patrol cars but, before they could order him to halt, the man began to run away.

With the officers in pursuit, the man ran through the alley and several residential backyards as he made "abrupt turns," seemingly to evade the officers. R., Vol. I, at 228. The chase ended when the man ran into the backyard of a home and entered an unlocked shed. Four APD officers— including Sergeant Whitten—surrounded the shed, and Sergeant Whitten informed the man that he was being detained and ordered him to come out. The man emerged from the shed, but walked toward the house, rather than surrendering. He was now shirtless and still wearing blue jeans.

As the man approached the backdoor of the house, Sergeant Whitten—concerned that the man intended to break in to the house while still armed with a knife—shot him in the upper back with a non-lethal sponge round, stopping his progress. Sergeant Whitten then engaged with the man and encouraged him to surrender peacefully, which he did after roughly 20 minutes. The man identified himself as "Yoshi" and claimed that he lived at the house, but the homeowner confirmed that the man did not live there and did not have permission to be on the property. Id. at 231-32. Later, the man was identified as Elias Gallegos.¹ A search of the shed revealed a knife that the homeowner confirmed did not belong to him.

Meanwhile, during the pursuit and arrest of Mr. Gallegos, another APD officer arrived at Mr. Quiroga's location at approximately 1:20 p.m., and Mr. Quiroga repeated his description of the assailant— describing him as "wearing a yellow sweater, really baggy blue pants, ... I think Hispanic." Aplee.'s Suppl. R., Vol. II, Ex. 2, at 3:03-3:19 (Lapel Camera Video, dated Sept. 17, 2021). He also noted this time that the man had curly, dark hair "kind of like a[n] [A]fro" and was not heavy-set. Id. at 3:21-3:23.

After Mr. Gallegos was arrested, at around 2:00 p.m., an APD officer approached Mr. Quiroga, informed him that a suspect who matched Mr. Quiroga's description was in custody, and drove Mr. Quiroga to the scene of Mr. Gallegos's arrest. The officer also told Mr. Quiroga that the suspect appeared to be homeless and under the influence of drugs. When they arrived at the scene, Mr. Quiroga stayed in the patrol car—at least 30 feet from where Mr. Gallegos was standing. Mr. Gallegos was shirtless, in handcuffs, and surrounded by police officers. When asked by an officer if he was "a hundred percent sure" the man in handcuffs was his assailant, Mr. Quiroga affirmed that he was. R., Vol. I, at 294-95.

B

On October 14, 2021, a federal grand jury indicted Mr. Gallegos for assault of a federal officer with a deadly or dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b).

Before trial, Mr. Gallegos moved to suppress evidence of Mr. Quiroga's identification of him, arguing that it was unreliable and inadmissible under the Due Process Clause of the Fifth Amendment.² Specifically, he maintained that the show-up procedure that the APD used was "so suggestive that it irreparably damaged the reliability of any subsequent identification made by [Mr. Quiroga]." Id. at 67 (Def.'s Opposed Mot. to Suppress Evid. and Identification, filed Aug. 2, 2022). The government opposed Mr. Gallegos's motion but conceded that the show-up procedure was unduly suggestive.

On September 1, 2022, the district court held a hearing on Mr. Gallegos's motion to suppress, at which Mr. Quiroga, Sergeant Whitten, and several other witnesses testified. Mr. Quiroga described the assault, his description of the assailant to the 911 operator and investigators, and his identification of Mr. Gallegos. Notably, Mr. Quiroga had difficulty identifying Mr. Gallegos in court at the hearing; he explained that Mr. Gallegos's appearance that day was "very different" because—at the time of the assault —Mr. Gallegos's skin was "a little darker" and his hair was longer. Id. at 296-97. As such, Mr. Quiroga was "[n]ot a hundred percent sure" that, sitting in the courtroom, Mr. Gallegos was the same individual who attacked him. Id. at 296.

The district court denied Mr. Gallegos's motion. It agreed that the show-up procedure was "unnecessarily suggestive." Id. at 330 (Mem. Op. and Order, filed Sep. 19, 2022). Nevertheless, it noted that evidence stemming from the identification could be admitted because "an identification procured through unnecessarily suggestive means is still admissible if it is sufficiently reliable." Id. at 329. Proceeding from that premise, the district court applied the factors that the Supreme Court identified in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); these factors address the admissibility of identification evidence procured by unnecessarily suggestive methods.³ It concluded that "the identification was not so unreliable as to...