United States Court of Appeals
For the First Circuit
No. 04-1419
UNITED STATES OF AMERICA,
Appellee,
v.
John Brennick,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Leval,* Senior Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, for
appellant.
Mark E. Howard, Assistant United States Attorney, with
whom Thomas P. Colantuono, United States Attorney, and Peter E.
Papps, First Assistant United States Attorney, were on brief, for
appellee.
April 26, 2005
*
Of the Second Circuit Court of Appeals, sitting by
designation.
LEVAL, Senior Circuit Judge. Defendant John Brennick
appeals from his conviction in the United States District Court for
the District of New Hampshire under the Hobbs Act, 18 U.S.C. §
1951, for interference with commerce through robbery. Found to be
a career offender under § 4B1.1 of the United States Sentencing
Guidelines, he was sentenced to the maximum term of 240 months in
prison, followed by three years of supervised release. Brennick
contends that (i) the indictment should have been dismissed by
reason of prosecutorial misconduct before the grand jury; (ii)
evidence of his identification from a photo array should have been
suppressed because the array was impermissibly suggestive; (iii)
the conviction should be reversed because of absence of evidence
that the robbery affected interstate commerce as required by 18
U.S.C. § 1951; and (iv) under Blakely v. Washington, 542 U.S. ___,
124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___,
125 S. Ct. 738 (2005), Brennick is entitled to resentencing. We
reject each of Brennick’s arguments and affirm his conviction.
I. BACKGROUND
Brennick was indicted on January 8, 2003. A grand jury
issued a superseding indictment on July 9, 2003. The charges were
two counts of interference with commerce through robbery, in
violation of 18 U.S.C. § 1951 (Counts I and III), and one count of
interstate transportation of a stolen motor vehicle, in violation
of 18 U.S.C. § 2312 (Count II). The district court denied
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Brennick’s motion to dismiss the indictments based on allegations
of prosecutorial misconduct in the grand jury, as well as his
motion to suppress the evidence of the photo identification based
on the allegation that the photo array was impermissibly
suggestive.
Brennick was tried before a jury and convicted only on
Count I, for the robbery of a Wal-Mart store in Concord, New
Hampshire. We recite the facts in the light most favorable to the
verdict. United States v. Diaz, 300 F.3d 66, 69 (1st Cir. 2002).
Around 1 or 1:30 AM on December 29, 2002, Brennick
entered a Wal-Mart store in Concord, New Hampshire. After
approaching a couple of other cashiers, he asked cashier Mark
Parker to change a dollar bill. When Parker said he had no way of
making change, Brennick purchased a pack of gum. As Parker opened
his register and began giving Brennick change, Brennick grabbed
Parker by his wrist. The next thing Parker knew, he was on his
back on the ground, looking up to see Brennick taking money out of
his register. Parker screamed for help, at which point Brennick
pulled a knife from his jacket and pointed it at him.
Brennick fled to the parking lot and drove away in an
Oldsmobile. Shortly after 2 AM, Mark Beaudoin of the New Hampshire
State Police spotted a speeding Oldsmobile driven by Brennick
roughly 20 or 25 minutes from the Wal-Mart store. When the trooper
signaled the car to stop, it accelerated, which led to a high-speed
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chase, which ended when Brennick crashed. He was apprehended with
nearly $500 cash in his wallet.
The trial evidence included a knife found in a garbage
can outside the Wal-Mart, which bore Brennick’s partial left
thumbprint, and the identification of Brennick’s photo in an array
by three Wal-Mart employees who saw Brennick in the store,
including Parker. The jury found Brennick guilty on Count I, and
not guilty on Counts II and III. At sentencing, the court
determined that Brennick was a Career Offender under United States
Sentencing Guidelines § 4B1.1 based on its finding of his long
history of criminal acts. He was sentenced to the maximum term of
240 months in prison, followed by three years of supervised
release.
II. DISCUSSION
A. Prosecutorial misconduct before the grand jury.
Brennick contends that the district court erred in
denying his motion to dismiss the indictments because of
prosecutorial misconduct before the grand jury. He suggests first
that in the grand jury proceedings the prosecutor suborned perjury
and misrepresented the evidence, overstating its capacity to
incriminate Brennick. Brennick also protests a colloquy between a
grand juror and a witness, which revealed that Brennick had a drug
problem and had attended Narcotics Anonymous.
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We find no merit in Brennick’s arguments. “All but the
most serious errors before the grand jury are rendered harmless by
a conviction at trial.” United States v. Reyes-Echevarria, 345
F.3d 1, 4 (1st Cir. 2003). Brennick is correct that in the grand
jury proceedings the prosecutor and police witnesses overstated the
evidence in certain respects.1 We need not decide whether these
errors would warrant dismissing the indictment prior to trial. See
Bank of Nova Scotia v. United States 487 U.S. 250, 256 (1988).
This is because, given Brennick’s subsequent conviction in an
error-free trial, the grand jury errors were not of a magnitude
that would warrant overturning the trial judgment. See Reyes-
Echevarria, 343 F.3d at 4.
1
For example, in the superseding grand jury, an exchange
between the prosecutor and a police officer gave the strong
impression that Brennick was observed fleeing the Wal-Mart and
jumping into a car with an identified license plate number and
model description. The prosecutor asked a police officer about
the individual who fled after robbing the Wal-Mart, “The
individual who fled, did he flee in a 1983 Oldsmobile Royal,
Massachusetts registration 591TTX?” The police officer
responded, “Yes.” The prosecutor then proceeded to ask the
officer about a witness who saw the robber “jump into a car” and
“gave the police a vehicle description.” At trial, however, the
witness at issue made clear that she did not get a license plate
number. She did not see Brennick jump into the car, but only saw
the car pulling out. Though she identified the car as a “later
eighties . . . Oldsmobile”, her description was far from the
level of detail indicated by the prosecutor and police officer
before the grand jury. Brennick correctly argues that the
evidence against him would have been far stronger if, as
suggested to the grand jury, the witness in the parking lot had
in fact observed the license plate number and the model
identification of the car in which Brennick was soon thereafter
captured.
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Similarly, while the revelation of Brennick’s drug
problem to the grand jury may have been inappropriate, any
prejudice was wholly superseded by the proper conduct of a trial at
which the jury found Brennick guilty. See id.
We find no error in the district court’s denial of
Brennick’s motion to dismiss, much less abuse of discretion. See
id.
B. The photograph array.
Brennick contends the district court should have
suppressed identifications by witnesses of Brennick’s photograph in
a photo array, which he asserts was impermissibly suggestive. Neil
v. Biggers, 409 U.S. 188, 196 - 98 (1972); Simmons v. United
States, 390 U.S. 377, 384 (1968). His attack on the array rests on
the following factors: At least four of the photographs were
booking photographs while Brennick’s was obtained from a New
Hampshire non-driver identification card (Brennick’s photograph was
digitally copied, cropped, and changed from color to black and
white so as to conform in size and appearance to the others);
Brennick’s photograph was located in the second position (of four)
from the left in the top row, and the man in the first position had
a darker complexion than Brennick’s; Brennick’s photograph and one
other have a slightly darker background than three others; and
Brennick’s hairstyle, forehead, and clothing differ from the
others. Our review of the district court’s denial of Brennick’s
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motion to suppress the photo identification is plenary. See United
States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996). We review
the district court’s findings of fact for clear error. Id.
We have examined the photo array and find nothing
suggestive in it. It is true that Brennick’s photograph, unlike
some of the others, was not a booking photograph. The police used
a different photo because Brennick’s booking photo showed
scratches on his face, which might have called attention to it.
Neither the source of the photograph nor the minimal alterations to
it are apparent in the array or make the photograph stand out
suggestively in any way. While the placement of Brennick’s photo
in the array may have caused a witness to encounter it prior to
most of the others, it was not suggestive. And while the lighting
of the photograph on the man in the number one position is less
strong than on Brennick, so that his skin is less illuminated, it
does not appear that he has significantly different pigmentation
from Brennick’s. As none of the witnesses described Brennick as
wearing a zippered mock turtleneck and the other men pictured in
the array are not uniformly dressed in a manner that makes Brennick
stand out, it is irrelevant that he is the only one pictured
wearing one. Brennick’s hairstyle and forehead are not so
different from the others as to exclude the others from reasonable
consideration. The background of Brennick’s photo is the same as
two others and not sufficiently distinct from other backgrounds in
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the array as to be impermissibly suggestive. Furthermore, three of
the other photographs differ in background from others. On the
whole, there is a high degree of similarity among the eight men
depicted, as well as among the eight photographs. The array does
not in any way draw suggestive attention to Brennick.
C. The robbery’s effect on interstate commerce.
Brennick next contends that the evidence was insufficient
to establish that the robbery affected interstate commerce. He
argues that the $522.37 taken from a store with gross sales for the
month of $8.5 million was insufficient to cause the kind of effect
on commerce necessary to trigger the applicability of the Hobbs
Act.
In United States v. Capozzi, considering the effect of
United States v. Lopez, 514 U.S. 549 (1995), and United States v.
Morrison, 529 U.S. 598 (2000), we reaffirmed that, to establish the
requisite effect on interstate commerce for a Hobbs Act violation,
the government need show only that the conduct created a “realistic
probability” of a minimal effect on interstate commerce. Capozzi,
347 F.3d 327, 335 (1st Cir. 2003).
The Concord Wal-Mart store manager testified at trial
that if the stolen money had not been taken, it would have been
reinvested in the purchase of goods manufactured outside the state
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of New Hampshire. That evidence sufficed to show the necessary
effect on commerce.2 See Capozzi at 335.
D. Resentencing under Blakely/Booker.
In his original brief, Brennick made the argument, for
the first time on appeal, that it was plain error to sentence him
as a Career Offender under U.S.S.G. § 4B1.1 without a jury finding
of the required elements because, under the reasoning of Blakely,
the Sixth Amendment right to jury trial applies to sentencing
increases specified in the United States Sentencing Guidelines.
2
The government’s brief, which consisted largely of conclusory
assertions, was not as helpful as it might have been. In response
to Brennick’s contention that the evidence failed to show a
sufficient effect on interstate commerce, the brief neglects to
tell us what evidence was introduced to show the effect on
commerce. It asserts that “courts of appeals, including this one,
have repeatedly and uniformly upheld Hobbs Act convictions where
the victim of the robbery was a commercial establishment that
regularly purchased goods or sent profits across state lines.” The
brief, however, fails to cite to any cases in support of the
proposition.
Its discussion of Brennick’s contention of misrepresentation
of the evidence in the grand jury fails to discuss or even mention
any of the instances of misrepresentation, although as noted above,
they were not insignificant. The “Statement of the Facts” was
copied almost verbatim from a pretrial district court order,
including a footnote stating: “As an evidentiary hearing on this
motion was not held, the recitation of facts is largely derived
from the police report.” Needless to say, because in the
intervening time since the district court’s order there had been a
trial, the government had access to a better source of facts than
either a police report or a pretrial order of the district court.
We might, of course, have declined to consider contentions not
adequately presented in a party’s brief. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In future cases, where
the answer to the point in issue is less clear, we may well
exercise our discretionary authority differently.
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After oral argument in this case, the Supreme Court
decided United States v. Booker. We invited both parties to file
supplemental briefs on the point. Brennick now contends that he is
entitled to a remand for resentencing at which he and his counsel
would have an opportunity to present mitigating evidence.
We reject Brennick’s argument. As Brennick concedes in
his supplemental brief, the Booker error was not preserved by
objection during the proceedings below. As we made clear in United
States v. Antonakopoulos, under the Supreme Court’s teachings of
United States v. Olano, for a court of appeals to notice and
correct an error not objected to in the district court, “[t]here
must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial
rights.’” Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005) (quoting
Olano, 507 U.S. 725, 732 (1993)). Once these three requirements
are met, “the court of appeals then has discretion to correct the
error only if it ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting Olano,
507 U.S. at 736). To meet these requirements, a defendant
sentenced prior to Booker who failed to preserve the objection
“ordinarily . . . must point to circumstances creating a reasonable
probability that the district court would impose a different
sentence more favorable to the defendant under the new ‘advisory
Guidelines’ Booker regime.” Id. at 75. And, in United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir. 2005), we noted that “we are
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inclined not to be overly demanding as to proof of probability
where, either in the existing record or by plausible proffer, there
is reasonable indication that the district judge might well have
reached a different result under advisory guidelines.”
Brennick has not shown any indication, let alone a
“reasonable probability,” that the district court would have
imposed a more favorable sentence if it had understood the
Guidelines to be advisory. The district court did understand that
it had discretion to sentence at any level within the range of 210
to 240 months. It chose the top of the range, and explained, “In
fact, if I wasn’t capped by a maximum sentence, I would give you a
higher sentence than 240 months because I think given your crimes
that’s what you deserve.” Given the court’s exercise of discretion
to sentence at the most severe end of the range and its assertion
that it would have given a more severe sentence if it had the
latitude to do so, we can see no reasonable probability that the
court would have sentenced more leniently had it understood that it
was not constrained by the Guidelines. See United States v.
González-Mercado, 402 F.3d 294, 304 (1st Cir. 2005).
Brennick argues that we should remand for resentencing so
that the district court may give more emphasis to mitigating
factors that ordinarily have little influence under the Guidelines,
such as his troubled childhood and drug addiction. The argument is
not persuasive. At sentencing, Brennick did speak at length about
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these considerations and the district court acknowledged them. The
court nevertheless sentenced Brennick to the statutory maximum,
thirty months above the Guidelines minimum, and explained, “I
appreciate your remarks. I’ve taken them into account. I do think
the government is right here, that a sentence at the top end of the
range is appropriate . . . .” We find no reasonable probability
that the district court would have imposed a more lenient sentence
had it understood that the sentencing Guidelines were advisory.3
III. CONCLUSION
For the reasons set forth above, we affirm Brennick’s
conviction and sentence.
3
Brennick also argues, referring to the district court’s
Career Offender determination, that his “Sixth Amendment right to
have a jury determine all sentence-enhancing facts, including
those supporting Career Offender sentencing, warrants a remand
for re-sentencing.” In Antonakopoulos, we “reject[ed] the view
that a Blakely [Sixth Amendment] error automatically requires a
Booker remand” for resentencing. 399 F.3d at 79. We were very
clear that the judge’s finding of “additional facts which raised
the sentence authorized solely by the jury verdict or guilty plea
. . . is insufficient to meet the third and fourth Olano prongs
on plain-error review.” Id. Instead, this court must find a
reasonable probability that advisory Guidelines would have
produced a more favorable sentence.
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