United States v. Constant

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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