United States v. Watson

Opinion

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

                                 ____________________



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.
            _____________________


____________________



            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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