United States v. Watson

United States Court of Appeals
For the First Circuit

No. 95-1384

UNITED STATES OF AMERICA,

Appellee,

v.

TREVOR WATSON,

Defendant, Appellant.

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.

February 2, 1996

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.

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.

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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