USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1384
UNITED STATES OF AMERICA,
Appellee,
v.
TREVOR WATSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________
____________________
Before
Selya, Boudin, and Lynch,
Circuit Judges. _______________
____________________
Robert M. Pollak, by appointment of the court, for appellant. ________________
Paul G. Levenson, Assistant United States Attorney, with whom _________________
Donald K. Stern, United States Attorney, was on brief, for appellee. _______________
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February 2, 1996
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LYNCH, Circuit Judge. A pistol assault on a LYNCH, Circuit Judge. ______________
teenager in the Cathedral Housing Project of the South End of
Boston led ultimately to the conviction of Trevor Watson for
the federal offense of possession of a firearm by a person
previously convicted of a felony, 18 U.S.C. 922(g)(1).
Watson was identified by the victim within twenty minutes of
the attack in a show-up in the project conducted by the alert
Boston police officers on the scene. Watson was sentenced to
64 months of imprisonment followed by three years of
supervised release.
Watson appeals, saying the district court erred in
denying his motion to suppress the on-the-scene
identification and in denying his motion for acquittal. He
also says the government withheld exculpatory evidence.
Finding that the district court's conclusions, after it
carefully and sensitively considered these arguments at the
trial stage, were correct, we affirm.
The jury was entitled to find the following urban
saga. As Alexander Milette was bicycling home to the
Cathedral Project, a Porsche drove past him and stopped in
front of his house. Trevor Watson got out of the car,
carrying a loaded pistol of the type favored by the Boston
police, a Glock 9mm semi-automatic. After accusing Milette
of liking "hitting on" women, Watson aimed the gun at
Milette's stomach. Someone said "Don't shoot him."
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Instead, Watson pistol-whipped Milette's head,
causing the gun to fire into a building and then to jam.
Milette, bleeding, ran while Watson unjammed the gun and
fired again, hitting the building Milette ran behind.
Milette sought sanctuary at a friend's house and was helped
with his bleeding head.
Watson had jumped back into the Porsche, only to
have it stall out in a deep puddle. A nearby off-duty Boston
Police officer, Officer Christopher Shoulla, heard the shots,
drove to the project, and put out a call on his police radio.
Officer Shoulla saw Watson and asked him to stop. Watson
instead fled, clutching his right pocket, and, ironically,
ran right past Milette and past another youth. Two other
Boston officers arrived and gave chase. Watson threw the
gun, as he ran, into a small garden. Officer Shoulla stopped
Watson at gunpoint. When the officers patted down Watson and
determined he had no gun, they retraced Watson's steps and
found it within forty seconds.
One officer saw Milette, still holding a bloody
towel to his head, and had the others bring Watson over.
Watson was brought over by patrol car and Milette was asked
by the police, "What's the story?" Milette looked, and
identified Watson as his assailant. He later testified he
was 100% sure of that identification. Watson was also
identified by the other youth past whom he had run. The two
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spent cartridges from the scene of the assault matched the
pistol Watson discarded.
The Show-Up ___________
Watson attacks the show-up identification as
impermissibly suggestive and unreliable and claims error in
the denial of his motion to suppress. A district court's
denial of a motion to suppress will be upheld if any
reasonable view of the evidence supports the denial. United ______
States v. De Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993). ______ _____________
The findings of the district court after a hearing on a
pretrial motion to suppress are binding on the court of
appeals unless they are clearly erroneous. Id. ___
Evidence of pre-trial identification may be subject
to constitutional limitations under the Due Process Clause.
Manson v. Brathwaite, 432 U.S. 98 (1977). To determine ______ __________
whether evidence of a pre-trial identification should be
suppressed, a two-pronged analysis is required. De Jesus- _________
Rios, 990 F.2d at 677. First, the court must determine ____
whether the procedure was impermissibly suggestive. Id. If ___
it so finds, it must decide whether the identification itself
was reliable under the totality of the circumstances,
notwithstanding the suggestive procedure. Id. Furthermore, ___
before suppressing identification evidence, a "court must be
persuaded that there was a very substantial likelihood of
irreparable misidentification," and only in extraordinary
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circumstances should identification evidence be withheld from
the jury. Id. (internal quotations omitted). ___
There is no reason to disturb the district court's
finding here that the show-up identification procedure was
not unnecessarily suggestive, a finding that eliminates the
due process argument. Show-ups immediately after the offense
has been committed may be necessary in order to avoid the
mistaken apprehension of the wrong person. See, e.g., United ___ ____ ______
States v. Bautista, 23 F.3d 726, 730 (2d Cir.) ("where an ______ ________
officer has or should have doubts whether a detained suspect
is in fact the person sought, the officer must make immediate
reasonable efforts to confirm the suspect's identity";
internal quotations omitted), cert. denied, 115 S. Ct. 174 _____________
(1994); Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. _______ ______
1987); United States v. Bagley, 772 F.2d 482, 492-93 (9th ______________ ______
Cir. 1985) (one-on-one show-up at bank shortly after
commission of bank robbery held to be a "legitimate"
procedure), cert. denied, 475 U.S. 1023 (1986); Frank v. ____________ _____
Blackburn, 605 F.2d 910, 912-13 (5th Cir. 1979) (procedure of _________
taking suspect apprehended less than thirty minutes after
robbery seven blocks from robbery to the scene of the crime
not unnecessarily suggestive without words or actions by
police to aggravate suggestiveness), modified on other ____________________
grounds, 646 F.2d 902, cert. denied, 454 U.S. 840 (1981). _______ ____________
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The case on which Watson relies, Velez v. Schmer, _____ ______
724 F.2d 249 (1st Cir. 1984), proves no help to him, as the
police conduct there was at the other end of the scale.
There, the show-up was staged at 3:00 a.m., nine and a half
hours after the crime, at the station house, and the
defendant was presented to the youthful victims who were
asked "This is him, isn't it?" Id. at 250. Here, the crime ___
was very fresh, the police not suggestive, and had Watson not
been the assailant, Milette could easily have said so. While
show-ups, as the district court recognized, contain some
inherent element of suggestiveness, the finding that this one
did not cross the line was not erroneous.1
____________________
1. The district court's second-level finding that the
identification was reliable under the five-factor test
articulated in De Jesus-Rios was also not erroneous. See De _____________ ___ __
Jesus-Rios, 990 F.2d at 677 (court should consider "(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"; internal quotations omitted); see ___
also Manson v. Brathwaite, 432 U.S. 98, 114-16 (1977); Neil ____ ______ __________ ____
v. Biggers, 409 U.S. 188, 199-200 (1972). The only factor _______
that weighs against admitting the out-of-court identification
is that there was no prior description of the assailant.
However, "'the absence of a prior description by the witness
does not necessarily render his or her subsequent
identification suspect.'" United States v. Mohammed, 27 F.3d _____________ ________
815, 822 (2d Cir.) (quoting United States v. Concepcion, 983 _____________ __________
F.2d 369, 377-78 (2d Cir. 1992), cert. denied, 114 S. Ct. 163 ____________
(1993)), cert. denied, 115 S. Ct. 451 (1994). Here, like in ____________
Mohammed, where the witness had ample opportunity to focus ________
his attention on the suspect and identified the suspect
minutes after the assault, we agree that the identification
was reliable.
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The Brady Argument ____ _________
Defendant also argues, without avail, that the
government failed to disclose two items of information in
violation of Brady v. Maryland, 373 U.S. 83 (1963). _____ ________
Rumor _____
The first has to do with a rumor. The pre-sentence
report recounted a rumor that Milette's brother, who looks
like Milette, threw water at a woman described as Watson's
girlfriend some time before the assault. Defendant moved for
a new trial based on this "new" evidence, which the district
court denied.
To show a Brady violation, the defendant must show _____
that the withheld "evidence was exculpatory, as measured by
its materiality." United States v. Hemmer, 729 F.2d 10, 14 ______________ ______
(1st Cir.), cert. denied, 467 U.S. 1218 (1984). Evidence is ____________
material if there is a reasonable probability that the
outcome of the proceeding would have been different had the
evidence been disclosed. United States v. Bagley, 473 U.S. _____________ ______
667, 682 (1985).
The rumor was obviously inculpatory, not
exculpatory. The argument presented -- that if he had known
of the rumor, Watson could have found a woman, not Watson's
girlfriend, who had water thrown on her and thus come up with
a different assailant out to get Milette's brother (and
inadvertently Milette) -- is sheer speculation and not enough
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to meet Watson's burden.2 In light of the identification of
Watson by Milette and by the youth, the gun evidence, and the
police testimony, there is no "reasonable probability that .
. . the result of the proceeding would have been different."
Id. ___
Exposure to Photograph ______________________
A federal agent may have shown Milette a photograph
of Watson before Milette testified at the suppression
hearing. While such conduct, if it occurred, was both
improper and could have jeopardized the government's case,3
on the facts here there is no resulting reversible error.
That is because Watson was given this information before
trial, the government did not attempt an in-court
identification after the purported showing, and Watson's case
was helped, not hurt, by such conduct. The agent's usual
practice was to carry photographs of the defendant and
subpoenas in the same file, which may have resulted in
Milette seeing Watson's photograph.
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2. Defendant also claims that he could have put Watson's
girlfriend on the stand to testify that no one threw water at
her. However, the relevancy of that testimony would depend
upon the admission of the rumor, which the district court
correctly found was inadmissible hearsay.
3. If the single photo indeed had been shown to Milette in
an effort to bolster his identification of Watson, we join
the comments of the experienced district judge that he was
"astonished that a federal investigative agency has an agent
who goes out, opens her file folder with a picture of the
defendant as a matter of course."
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Immediately on learning that Milette said he had
been shown a photograph of Watson, the prosecutor notified
defense counsel shortly before trial began on October 3,
1994. On October 5, the district court held a voir dire on _________
the issue at which federal agent Sheila O'Hara testified that
she carried photographs of defendant in her case file and may
have inadvertently exposed them to Milette when serving him
with one of several subpoenas. The district court found that
this happened no sooner than the day of the suppression
hearing. The defendant used the information to his advantage
by calling Agent O'Hara as his sole defense witness to
testify that Milette did not identify the defendant as his
assailant even if he saw a photograph of him and to attack
the investigation.
Watson's Brady violation argument is misplaced _____
because the evidence was disclosed before trial and there was
no demonstrable prejudice from the delay in the disclosure.
See United States v. Innamorati, 996 F.2d 456, 480 (1st Cir.) ___ _____________ __________
(citing United States v. Devin, 918 F.2d 280, 290 (1st Cir. _____________ _____
1990)), cert. denied, 114 S. Ct. 409 (1993). Defendant does ____________
not even argue that the delay, if any, was prejudicial.
Indeed, in light of the district court's careful handling of
this matter and the failure of the defendant to seek a
continuance upon learning that Milette may have been exposed
to a photograph of Watson, any delay was not materially
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prejudicial. See United States v. Osorio, 929 F.2d 753, 758 ___ _____________ ______
(1st Cir. 1988) ("Generally we have viewed the failure to ask
for a continuance as an indication that defense counsel was
himself satisfied he had sufficient opportunity to use the
evidence advantageously.").
Further, the only identification Milette made was
at the show-up within 20 minutes of the assault. No in-court
identification was sought by the government. At the
suppression hearing, almost a year after the assault, Milette
testified that at the time of the show-up identification he
was sure Watson was his assailant, and agreed that he had
recently told Agent O'Hara that he could no longer identify
his assailant. The fact that he may have been shown a photo
after the show-up is not material, and the district court
correctly found that it could not be the basis for a new
trial.
Motion for Acquittal ____________________
Defendant also argues that the district court erred
in denying his motion for judgment of acquittal. We review
the evidence presented at trial, viewed in the light most
favorable to the government, to see if it could establish
each element of the offense charged beyond a reasonable
doubt. United States v. Hernandez, 995 F.2d 307, 311 (1st _____________ _________
Cir.), cert. denied, 114 S. Ct. 407 (1993). Watson argues ____________
that the motion should have been granted because his right
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under the Sixth Amendment to cross-examine Milette was
impaired because of the out-of-court nature of Milette's
identification of Watson.
But United States v. Owens, 484 U.S. 554 (1988), ______________ _____
forecloses any such argument. The Court there said:
"[T]he Confrontation Clause is generally
satisfied when the defense is given a
full and fair opportunity to probe and
expose . . . infirmities [such as
witness' forgetfulness, confusion or
evasion] through cross-examination,
thereby calling to the attention of the
factfinder the reasons for giving scant
weight to the witness' testimony."
Id. at 558 (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22 ___ ________ _________
(1985) (per curiam)). Defense counsel's vigorous attack on
the reliability of Milette's out-of-court identification
itself refutes the argument that Watson did not have a full
and fair opportunity to probe. Indeed, this case presented a
significantly better opportunity to cross-examine than did
Owens. _____
Watson also argues that the use of Milette's
statement at the suppression hearing -- that he was 100% sure
at the show-up that the person he identified was his
assailant -- to refresh his memory at trial violated the
Confrontation Clause. Watson's claim is that the statement
of certainty was not subject to unrestricted cross-
examination because defense counsel did not know at the time
of the suppression hearing that Milette may have been
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suggestively exposed to Watson's photograph. Accepting the
dubious premise that Milette was not subject to unrestricted
cross-examination at the suppression hearing,4 there was
ample opportunity to cross-examine the witness as to the
reliability of that statement at trial. There was no
violation of the Confrontation Clause. See Owens, 484 U.S. ___ _____
at 560. As a result, the district court correctly denied the
motion to acquit.
Conclusion __________
We find no error in the proceeding of the trial.
The district court admirably handled these issues. The ___
judgment is affirmed. _____________________
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4. Defendant did not argue in his brief that this alleged
impairment of his opportunity to cross-examine Milette at the
suppression hearing affected the outcome of that hearing.
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