
USCA1 Opinion

	




                            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."                                         -2-                                          2                      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                                         -3-                                          3            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                                         -4-                                          4            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).            _______                ____________                                         -5-                                          5                      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.                                         -6-                                          6            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                                         -7-                                          7            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."                                         -8-                                          8                      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                                         -9-                                          9            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                                         -10-                                          10            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                                         -11-                                          11            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.                                         -12-                                          12
