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United States v. Brennick

Court: Court of Appeals for the First Circuit
Date filed: 2005-04-26
Citations: 405 F.3d 96
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             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

                                -2-
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


                                         -3-
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.




                                            -4-
          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.

                                 -5-
           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


                                       -6-
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


                                     -7-
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




                                 -8-
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.

                                 -9-
             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


                                      -10-
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


                                      -11-
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.

                                  -12-