United States v. Constant , 814 F.3d 570 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1066
UNITED STATES OF AMERICA,
Appellee,
v.
BRUNEL CONSTANT, a/k/a Jamal,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Kayatta, Circuit Judges.
Kathryn Hayne Barnwell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
February 29, 2016
KAYATTA, Circuit Judge. A jury convicted Brunel
Constant of illegally possessing a firearm after he had been
previously convicted of a crime punishable by imprisonment for a
term of more than one year. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Sentenced to 74 months of imprisonment, Constant now appeals. His
principal challenge is to the denial of his pretrial motion to bar
a government witness, Adam Dennis, from identifying Constant at
trial. He also challenges (1) trial defense counsel's pretrial
advice concerning application of the Armed Career Criminal Act
("ACCA") to his case; (2) the district court's denial of an
acceptance of responsibility reduction; (3) the presence of the
government's testifying case agent at government counsel's table
during trial; and (4) the preponderance of the evidence standard
employed by the district court at sentencing to find that Constant
had used the firearm to commit another felony offense.
For the following reasons, including the fact that the
police videotaped Dennis's pretrial identification of Constant in
an otherwise problematic photo array, we affirm the conviction,
but vacate the sentence.
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I. Background
The charge in this case emanates from a shooting that
occurred in the pre-dawn hours of August 19, 2011, in Lewiston,
Maine. Earlier that morning, Adam Dennis and Alan Roy had been
hanging out in a three-story, six-unit apartment building on Walnut
Street. As Dennis began to head home at roughly 4 a.m., he and
Roy encountered a man sleeping on the back porch of the first-
floor apartment belonging to Roy's mother, Jeannette Cloutier, and
his sister, Nancy Cote. Dennis roused the man, and an argument
between the two ensued.
The argument, which lasted approximately five to ten
minutes, moved from the back porch of the apartment through a lit
hallway to the front porch. During this time, the man mentioned
that Cote owed him money.1 Ronald Coleman, another first-floor
resident at the apartment building, did not view the encounter but
heard someone swear "I'll be back." Sometime thereafter, still
pre-dawn, Coleman heard two gunshots and observed that the shooter
was a black man with long braids who was wearing a white tank top.2
The two bullets had been fired into Cloutier and Cote's first-
1 While Dennis did not testify to this particular detail at
trial, he included it in his description of the encounter at his
interview with Detective Derrick St. Laurent conducted on the
afternoon following the encounter.
2 At the pretrial suppression hearing, Coleman testified that
the shooter had long braids, while at trial he simply stated that
the shooter had braids.
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floor apartment. Because he had heard a loud sound, saw a flame,
and did not hear casings fall to the ground, Coleman described the
gun as a revolver.
Later that morning, Detective Derrick St. Laurent--then
an officer with the Lewiston Police Department--began
investigating the shooting. He interviewed Roy, who, after making
some inquiries, gave St. Laurent the name "Jamal" and a general
location on Bradley Street.3 St. Laurent subsequently canvassed
that area and identified a particular apartment in which a man
fitting the general description of the shooter lived with his
girlfriend. When St. Laurent and other law enforcement personnel
approached this apartment, they encountered Constant, a black man
with long dreadlocks wearing a white tank top. Detective James
Theiss, who was investigating the matter with St. Laurent, obtained
Constant's identification. After determining that there existed
a warrant for Constant's arrest, the officers placed Constant under
arrest and transported him back to the police station.
During this time, St. Laurent spoke to Constant's
girlfriend, who consented to a search of the apartment. The search
uncovered a revolver hidden underneath the back porch rafters.
Later testing of a slug found inside Cloutier's microwave confirmed
that that revolver could have been the firearm from which the slug
3 Cote did not observe the shooter, and neither Roy nor Cote
testified at trial.
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was shot. St. Laurent and Theiss then returned to the police
department and interviewed Constant. Constant denied being
involved in the shooting, but eventually confessed to holding for
an acquaintance the gun found under the porch rafters.
St. Laurent thereafter requested and received six
photographs for a photo array identification. While all of the
individuals depicted in the array were black men with dreadlocks
who appeared to be between the ages of 18 and 40, no one other
than Constant had dreadlocks extending well below his shoulders or
was wearing a white tank-top. St. Laurent presented the array to
a number of persons, including Dennis. Dennis viewed the array on
the afternoon following the shooting. St. Laurent recorded the
entire viewing and the associated interview of Dennis on video.
As depicted in the video recording, at the start of the
interview St. Laurent informed Dennis that "it looks like we got
the guy that did it." St. Laurent then asked Dennis a series of
questions about that night. Dennis described the man on the porch
as a "black guy" with "dreadlocks" who was wearing a baseball hat
and jewelry. St. Laurent asked Dennis if he could identify the
man from a photo lineup; Dennis replied "I guess so." Just before
Dennis viewed the array, St. Laurent, holding two manila folders
in his hand, removed Constant's photograph from one folder and
transferred it without apparent concealment to a second folder as
Dennis looked on closely. St. Laurent then removed six photos
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from the second folder, placing them on the table, centering
Constant's photo directly in front of Dennis.
Dennis, after viewing the array for a few seconds,
singled out Constant's photo and stated, "I'm guessing it's him,
that would be the one I'd be putting my money on, either him or
him [indicating another photo]." St. Laurent thereupon cut off
any further consideration by tapping Constant's photo with his
finger and asking, "So you think it's him right here?" When Dennis
reflexively answered, "Yeah," St. Laurent grabbed a pen and quickly
had Dennis sign and date Constant's photograph. Immediately after
Dennis signed, St. Laurent told Dennis that the individual he chose
was the suspect police had in custody.
After two pretrial hearings and a viewing of Dennis's
recorded identification, the district court denied Constant's
motion to suppress Dennis's in-court identification of Constant as
the man with whom he had argued on the night of the shooting. The
district court found that while the photo array shown to Dennis
was unduly suggestive, his identification was nevertheless not so
unreliable as to require its exclusion.
At trial, the government called only four witnesses:
Dennis, Coleman, Theiss, and St. Laurent. The government also
introduced a video recording of Constant's interview with St.
Laurent and Theiss, which it played to the jury. On direct
examination, Dennis identified Constant as the man with whom he
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argued on the porch on the evening in question. After the defense
cross-examined St. Laurent, it introduced the video recording of
Dennis's interview with St. Laurent, including the photo array
procedure, and played it to the jury.
The jury found Constant guilty of being a felon in
possession of a firearm, and the district court sentenced him to
74 months of imprisonment. This timely appeal followed.
II. Discussion
A. Dennis's In-Court Identification
We agree with the district court that the identification
procedure used in this case was impermissibly suggestive. Nor
does the government now claim otherwise. This leaves us to answer
the pivotal question of whether Dennis's subsequent in-court
identification should have been excluded as the unreliable
artifact of the impermissibly suggestive pretrial identification
procedure.
The Supreme Court has several times considered whether
witness identifications that follow impermissibly suggestive
police conduct must be excluded in order to maintain due process.
See Perry v. New Hampshire, 132 S. Ct. 716, 723–24 (2012)
(summarizing cases). In a nutshell, whether the identification
evidence must be excluded turns on a case-by-case assessment of
the reliability of the identification notwithstanding the
suggestive actions of the police. Manson v. Brathwaite, 432 U.S.
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98, 114 (1977) ("[R]eliability is the linchpin in determining the
admissibility of identification testimony . . . ."). In plain
terms, we distinguish between, at one end of the spectrum, a
witness who would have easily identified the defendant without the
suggestive police misconduct and, at the other end of the spectrum,
a witness whose identification is very likely simply a product of
that suggestion.
The factors to be considered include:
[1] the opportunity of the witness to view the criminal
at the time of the crime, [2] the witness’ degree of
attention, [3] the accuracy of the witness’ 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.
Neil v. Biggers, 409 U.S. 188, 199–200 (1972). The corrupting
effect of the unduly suggestive procedure is then weighed against
an analysis of these factors. Manson, 432 U.S. at 114.
If this weighing points to "a very substantial
likelihood of irreparable misidentification," the identification
evidence must be suppressed. Perry, 132 S. Ct. at 720 (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)). "But if the
indicia of reliability are strong enough to outweigh the corrupting
effect of the police-arranged suggestive circumstances, the
identification evidence ordinarily will be admitted, and the jury
will ultimately determine its worth." Id. And because we usually
entrust the jury with the responsibility of determining whether
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lay witness testimony is reliable, we have said that only
extraordinary circumstances warrant the withholding of
identification evidence from it. United States v. de Jesus-Rios,
990 F.2d 672, 677 (1st Cir. 1993); see also Perry, 132 S. Ct. at
723 ("Only when evidence is so extremely unfair that its admission
violates fundamental conceptions of justice have we imposed a
constraint tied to the Due Process Clause." (internal quotation
marks and citation omitted)).
Some tension exists in our case law discussing the
standard of review brought to bear in considering a district
court's decision not to exclude identification evidence. In United
States v. Jones, 689 F.3d 12 (1st Cir. 2012), we looked for an
"abuse of discretion," thereby signifying "reasonable latitude for
case-specific decisions" of this type. Id. at 18; see also United
States v. Brown, 510 F.3d 57, 66 (1st Cir. 2007) (reviewing a
district court's decision to admit voice identification "for abuse
of discretion"). More recently, we spoke in terms of "de novo"
review, albeit while assaying factual findings for clear error.
United States v. Espinal-Almeida, 699 F.3d 588, 602 (1st Cir.
2012); see also United States v. De León-Quiñones, 588 F.3d 748,
753 (1st Cir. 2009) ("Typically, the district court's ultimate
decision to admit or suppress identification evidence is subject
to a plenary, de novo standard of review, with underlying findings
of fact reviewed for clear error.").
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This tension may be more apparent than real. In none of
the cases employing the de novo standard did the standard make any
difference; that is to say, in each case we affirmed under that
stricter standard, and thus clearly would have affirmed under any
other standard. In all cases, too, we reviewed de novo the
articulation of the correct legal standard, while examining the
underlying findings of fact only for clear error. Tension remains
concerning only how we review the application of the correct legal
standard to the facts of a specific case. And even that tension
is less than it seems, as "abuse of discretion" in this context is
"perhaps more misleading than helpful," representing in substance
an assessment of "reasonableness" in the district court's fact-
bound application of the law. United States v. Bater, 594 F.3d
51, 54 (1st Cir. 2010). All that remains unclear, in sum, is
whether we ask whether the district court's application of law to
fact was reasonable, or whether we ask whether we would have
reached the same conclusion. We opt for the more deferential
formulation. Simply put, gauging the reliability of a witness's
testimony in a case like this is precisely the type of judgment
that trial judges are both well-equipped and well-positioned to
make.
Dennis had a significant, face-to-face, five-to-ten
minute conversation with the subject less than twenty-four hours
before he viewed the photo array. And, unlike the witness in de
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Jesus Rios, Dennis's oral, unprompted description of the subject
at least matched the defendant in its most salient respects. See
de Jesus Rios, 990 F.2d at 678 (wrong on height and race). On the
other hand, even when doubly prompted to pick Constant--first,
through the presentation of an unduly suggestive photo array and,
second, through St. Laurent's improperly suggestive behavior
during the presentation--Dennis clearly hesitated to settle
confidently on Constant rather than another individual who did not
look much like Constant.
In assessing the reasonableness of the district court's
reliability determination, we think it significant that the entire
photo array procedure containing all of the suggestive conduct is
recorded in a video that allows any viewer to see and hear
firsthand both the suggestive prompts and Dennis's response to
them. In the ordinary case, the evidence about how the witness
first identified the defendant consists largely of oral testimony,
usually from the witness and/or the police. See, e.g., de Jesus-
Rios, 990 F.2d at 678. Lost in such testimony are important,
unspun details of tone, expression, timing, and body language. A
jury might therefore quite reasonably and unwittingly assign the
in-court identification more value than its actual provenance
supports. Here, by contrast, the jurors' ability to see for
themselves the original identification and all police prompting
empowered them to assess more accurately the extent to which "the
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evidence should be discounted as unworthy of credit." Perry, 132
S. Ct. at 723. In short, the existence of the video recording
guarded against the harm that the district court might have
otherwise guarded against by excluding the identification:
misleading a jury into thinking that evidence is more probative
than it really is. And the video guarded against that harm in a
manner that both avoids overshooting the mark and relies on jurors
to do no more than that which we routinely rely on them to do.
We note, too, that the evidence in this case entirely
apart from Dennis's identification was very strong. Constant
confessed to the only crime for which he was charged: possessing
the revolver found under the porch rafters. While his trial
counsel argued that the confession was false, that argument was a
tough sell considering that the confession was video-recorded and
evidence of a motive to falsely admit possession was thin. And
while Constant was not charged with the shooting, the rough fit
between the descriptions of the shooter and his gun matched that
of Constant and the revolver he confessed to possessing, which
added cause to regard the confession as very likely true.
For all of these reasons, we find that admission of the
identification evidence did not violate Constant's due process
rights.
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B. Ineffective Assistance of Counsel
Constant next argues that his trial counsel was
ineffective in advising him that he would be exposed to the ACCA's
mandatory 15-year sentence. This claim is based on a letter from
his trial counsel dated February 12, 2013--approximately 3 months
before trial commenced--in which counsel advised him that he would
face a mandatory minimum 15-year sentence if he pleaded guilty
when, in fact, no such mandatory minimum sentence applied. That
letter also refers to an earlier October letter, described in the
February letter as having first rendered the opinion. But for
that erroneous advice, Constant claims that he would have entered
a straight or conditional guilty plea, likely triggering a
straightforward application of at least a two-point reduction in
his total offense level for acceptance of responsibility under
U.S. Sentencing Guidelines ("U.S.S.G.") § 3E1.1(a). Therefore, he
reasons that he should be resentenced with the benefit of, at
least, the two-point reduction to remedy the ineffective
assistance of counsel.
To succeed on an ineffective assistance of counsel
claim, Constant must show that (1) "counsel's representation fell
below an objective standard of reasonableness," and (2) "there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In
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assessing prong one, we must make "every effort . . . to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time." Id. at 689.
As we have often repeated, this court customarily will
not entertain ineffective assistance of counsel claims on direct
review, but will instead leave such fact-bound determinations to
the trial court to decide in the first instance. See, e.g., United
States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). This is because
"the trial judge, by reason of his familiarity with the case, is
usually in the best position to assess both the quality of the
legal representation afforded to the defendant in the district
court and the impact of any shortfall in that representation."
Id. An exception to this rule exists where "the critical facts
are not in dispute and the record is sufficiently developed to
allow reasoned consideration of the claim." Id. Here, though,
the record is not sufficiently developed to allow us "to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689. As Constant admits in his brief,
while the prosecutor stated at sentencing that ACCA's application
to this case turned on whether a juvenile adjudication in
Constant's criminal history qualified as a predicate offense under
the statute, the record is incomplete as to why trial defense
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counsel anticipated that the ACCA would apply. This information,
along with testimony as to the exact advice that trial defense
counsel gave to Constant, could be critical in assessing counsel's
performance.
That leaves us with two options. As we usually do, we
could require "'that such claims "must originally be presented to
the district court" as a collateral attack under 28 U.S.C. § 2255'
due to the paucity of the record and the district court's 'better
position to adduce the relevant evidence' as to whether counsel's
performance was deficient and whether such deficiency prejudiced
the defendant." United States v. Kenney, 756 F.3d 36, 48-49 (1st
Cir. 2014) (quoting United States v. Colón–Torres, 382 F.3d 76,
84–85 (1st Cir. 2004)). Alternatively, in "special
circumstances," United States v. Vega Molina, 407 F.3d 511, 531
(1st Cir. 2005), we have stated that where "the record is embryonic
but 'contain[s] sufficient indicia of ineffectiveness,' we may opt
to remand for an evidentiary hearing without requiring the
defendant to bring a collateral challenge." Kenney, 756 F.3d at
49 (alteration in original) (quoting Colón–Torres, 382 F.3d at
85). For three reasons, we opt for such a remand in this case.
First, and most importantly, we have significant
"indicia of ineffectiveness." The challenged advice at issue is
written and unequivocal. While the government echoes the district
court's conclusion that "[trial defense counsel] was basically
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advising in this letter that [Constant] might be [subject to the
ACCA] and that it's possible that [he] wouldn't be," the
February 12 letter was plainly more definitive, and the government
points to nothing else in the record that supports its claim that
the advice only posited a possible outcome. The written,
unequivocal advice was also both incorrect and material. The
sentencing range under the Guidelines of 210 to 262 months as
calculated by trial defense counsel in the February 12 letter far
exceeded Constant's actual Guidelines range of 53 to 78 months.
Based on this large disparity, trial defense counsel informed the
court at sentencing that Constant's decision to proceed to trial
"was driven by the ACCA," and that "[h]is only hope to avoid
[ACCA's 15-year minimum sentence] was to have a trial."
Second, this is not a case in which the ineffective
assistance claim calls into question a broad array of issues. We
instead have here "an isolated and easily analyzed trial decision."
See Kenney, 756 F.3d at 49 (requiring the filing of a habeas claim
where "the alleged deficiency . . . did not consist of an isolated
and easily analyzed trial decision").
Finally, resolution of the Strickland claim may shed
light relevant to the district court's exercise of its sentencing
discretion and its denial of a downward adjustment for acceptance
of responsibility. At sentencing, Constant argued that the
circumstances here warranted a discretionary variance even if a
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reduction for acceptance of responsibility was not permitted under
the Guidelines. The district court's rejection of that argument
was likely predicated in large part on its understanding that trial
defense counsel did not definitively advise Constant that he would
be subject to the 15-year mandatory minimum and that Constant's
decision to proceed to trial was "a real strategy call." After
considering the record as it now stands--specifically the
February 12 letter--it is unclear how and why the district court
came to such a conclusion. It may be that the advice contained in
the October letter referenced in the February letter was less
definitive, and that the district court was referring to that
letter. The government, though, points to no such letter in the
record before us. Having the Strickland claim resolved on remand
will therefore allow the court to simultaneously revisit its
discretionary ruling.
None of this is to preordain the outcome. As we have
noted, the record--as is usual on Strickland claims--is not fully
developed, containing neither the original October letter nor an
explanation of counsel's thought process. Establishing
ineffective assistance requires Constant to show that his trial
counsel's performance "was not only substandard, but also
'deficient in some way sufficiently substantial to deny him
effective representation.'" Logan v. Gelb, 790 F.3d 65, 71 (1st
Cir. 2015) (quoting Epsom v. Hall, 330 F.3d 49, 53 (1st Cir.
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2003)). Courts considering such alleged deficiencies "must judge
the reasonableness of counsel's challenged conduct on the facts of
the particular case, viewed as of the time of counsel's conduct."
Strickland, 466 U.S. at 690. Only if a court after this
consideration finds that counsel's conduct was "outside the wide
range of professionally competent assistance" may it grant an
ineffective assistance claim. Id.
In remanding, we, nevertheless, expressly reject
Constant's argument that his Strickland claim calls into question
the conviction itself. Constant was convicted after a trial, while
his Strickland claim is that, but for bad advice, he would have
pleaded guilty. In either case, he ends up guilty of the same
charge. The only question concerns his sentence.
C. Acceptance of Responsibility
Constant next argues that the district court erred by
denying him a downward adjustment for acceptance of responsibility
or a downward variance based on his uninformed decision to proceed
to trial. As a practical matter, this issue will be subsumed by
the district court's evaluation of the Strickland issue on remand.
If the district court finds that counsel's assistance fell below
an objective standard of reasonableness, and that Constant would
have pled guilty but for bad advice, it will then be free to
determine whether, but for that advice, Constant would have
received the adjustment. Conversely, if it determines that
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Constant was not harmed by any ineffective assistance of counsel,
then its ruling on any adjustments will likely stand. In any case,
our decision to vacate the sentence to allow consideration of the
Strickland issue will allow the district court to evaluate the
appropriateness--or not--of this adjustment upon a more complete
record.4
D. Remaining Claims
Constant makes two other challenges to his conviction
and sentence. First, he argues that the district court committed
reversible error when Detective St. Laurent sat at government
counsel table throughout jury empanelment and trial. At the
pretrial suppression hearing, the district court asked trial
defense counsel whether he objected to St. Laurent's presence at
government counsel table. Trial defense counsel replied that he
did not object, but requested that St. Laurent testify as the
government's first witness, which he did. At trial, Constant then
raised no objections to St. Laurent's presence at government
counsel table and did not request that St. Laurent testify first.
The government contends that this acquiescence arguably
constituted waiver, but we need not pursue that suggestion because
Constant's claim cannot survive the plain error review we apply to
unpreserved claims of error. To establish plain error, Constant
4 The same reasoning applies to Constant's variance request.
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must show that "(1) an error occurred, (2) the error was obvious,
(3) the error affected substantial rights, and (4) the error
'seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.'" United States v. LaPlante, 714 F.3d
641, 643 (1st Cir. 2013) (quoting United States v. Vargas–De Jesus,
618 F.3d 59, 67 (1st Cir. 2010)).
We find no obvious error here. We have previously held
that whether to allow a case agent to sit at counsel table is a
matter within the discretion of the trial judge. See United States
v. Charles, 456 F.3d 249, 259–60 (1st Cir. 2006); United States v.
Anagnos, 853 F.2d 1, 4 (1st Cir. 1988). There is nothing in the
facts of this case that points to any obvious abuse of that
discretion. And while Constant now argues on appeal that St.
Laurent's seat at counsel table unfairly bolstered St. Laurent's
credibility to the jury, the record suggests that his presence
could have been seen by trial defense counsel as a two-edged sword
cutting more sharply against the prosecution by suggesting that
the same guy who skewed the witness identification interview was
co-piloting the prosecution.
Finally, Constant argues that the district court’s
relevant conduct determination that he was the shooter, which
enhanced his base offense level under the Guidelines by four
points, should have been proven beyond a reasonable doubt to a
jury. This argument, as Constant concedes, contravenes this
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circuit's precedent and must therefore be rejected. See United
States v. Leahy, 668 F.3d 18, 22 (1st Cir. 2012) (affirming that
"sentencing factors affecting a judge's discretion within a
statutorily prescribed range may be proved to a judge at sentencing
by a preponderance of the evidence" (emphasis omitted)).
III. Conclusion
Based on the foregoing, the conviction is affirmed but
the sentence is vacated and the case is remanded to the district
court so that it can conduct an evidentiary hearing and make a
determination on whether trial defense counsel provided
ineffective assistance in advising Constant on his ACCA exposure
and whether, in light of that determination, the sentence
previously chosen should be re-affirmed or changed.
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