United States v. Anthony Brewer, 36 F.3d 266, 2d Cir. (1994)
United States v. Anthony Brewer, 36 F.3d 266, 2d Cir. (1994)
3d 266
40 Fed. R. Evid. Serv. 1000
Henriette D. Hoffman, New York City (The Legal Aid Soc., Federal
Defender Div., Appeals Bureau, New York City, of counsel), for
defendant-appellant.
Mark W. Lerner, Asst. U.S. Atty. (Zachary W. Carter, U.S. Atty., Peter A.
Norling, Julie E. Katzman, Asst. U.S. Attys., E.D.N.Y., Brooklyn, NY, of
counsel), for appellee.
Before: WINTER, MINER, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
Brewer was convicted for robbing a branch of Chemical Bank located at 1500
Forest Avenue, Staten Island, New York (the "Bank"), on January 30, 1992.
The primary evidence against Brewer consisted of eyewitness identification
testimony and evidence recovered from a gray 1987 Chevrolet Celebrity
bearing New York license plate "G2J 801" (the "Car"). On this appeal, Brewer
contends that: (1) the identification testimony and the evidence from the Car
was legally insufficient to establish his participation in the bank robbery; (2)
the evidence supporting the Firearm Count was legally insufficient because no
firearm was recovered and none of the eyewitnesses was adequately familiar
with firearms to tell whether the gun used during the robbery was a firearm
within the statutory definition; and (3) the district court erred in refusing to
allow Brewer to elicit testimony from a government witness concerning five
witnesses to the bank robbery who did not select Brewer's photograph from
photo arrays that were presented to them.
Background
4
On January 30, 1992, three men robbed the Bank during the middle of the day
and made off with approximately $95,000. During the robbery, one of the
malefactors stood by the front door of the Bank displaying a large gun. Acting
on information provided by Joseph Calvanese, a bank customer waiting at the
bank's drive-through window during the robbery who followed the robbers as
they fled in the Car and then abandoned it for another vehicle, Special Agent
Edward M. McCabe of the Federal Bureau of Investigation found and searched
the Car.
Brewer was indicted and charged with the three counts that led to his
conviction and this appeal.1 On September 15, 1993, the Identifying Witnesses
viewed a lineup of Brewer and five other men of the same general physical
appearance, conducted at Brewer's request, but none of them identified anyone
in the lineup as being one of the bank robbers.
Discussion
10
At the outset, we note the " 'very heavy burden' " placed upon a defendant
challenging the sufficiency of the evidence underlying a conviction. See United
States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.1993) (quoting United States v.
Ragosta, 970 F.2d 1085, 1089 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct.
608, 121 L.Ed.2d 543 (1992)). To succeed, Brewer must demonstrate that,
"viewing the evidence in the light most favorable to the government, ... no
'rational trier of fact could have found the essential elements of the crime
charged beyond a reasonable doubt.' " United States v. Jones, 16 F.3d 487, 490
(2d Cir.1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979)); see also United States v. Gordon, 987 F.2d 902,
906 (2d Cir.1993) ("we must affirm the conviction so long as, from the
inferences reasonably drawn, the jury might fairly have concluded guilt beyond
a reasonable doubt") (collecting cases). We first address Brewer's claims of
insufficiency against these standards, and then consider his claim of evidentiary
error.
A. The Sufficiency of the Evidence on the Bank Robbery Counts.
11
12
13
14
Eight witnesses to the Bank Robbery viewed a series of four photo arrays two
weeks after the robbery. After being asked if they recognized any of the bank
robbers in the array containing photographs of Brewer and five other men, five
of the witnesses did not select any photograph from that particular array,
although one of the five selected another person, Kenneth Williams, from an
array that did not include a photograph of Brewer. The Identifying Witnesses
selected Brewer's photograph, and no other. After selecting Brewer's
photograph, each of the Identifying Witnesses wrote a statement on the back of
the photograph3 of Brewer that they had just selected from the array. Cassiliano
wrote: "May resemble man at door with machine gun." Charzewski wrote: "It
resembles man at front door with machine gun, black cap, black coat." Marrano
wrote: "This may be the man that was in the bank on 1/29/92 that inquired
about a business account and the one on 1/30/92, the day of the robbery with
the big gun."
15
Brewer argues primarily that the witnesses' statements tended to show only that
he "resembled" or "looked like" one of the bank robbers, and were accordingly
insufficient to sustain his conviction on the Bank Robbery Counts. The settled
law, however, is that the certainty of a witness' identification is only a factor in
determining its reliability. See Manson v. Brathwaite, 432 U.S. 98, 114-16, 97
S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977) (listing as factors opportunity to view,
degree of attention, accuracy of description, level of certainty, and the time
between the crime and the confrontation). Most of these factors argue in favor
of the reliability of the statements by the Identifying Witnesses. Further, in the
absence of " 'a very substantial likelihood of irreparable misidentification[,]' ...
[identification] evidence is for the jury to weigh." Id. at 116, 97 S.Ct. at 2253
(quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19
L.Ed.2d 1247 (1968) (alteration added)); see also Marchand, 564 F.2d at 996
("Protection against identifications of questionable certainty is afforded by the
requirement that the declarant be available for cross-examination; questions of
the probative value of the testimony are thus for the jury.") (citations omitted).
16
17
18
Brewer also asserts that his conviction is undermined by: (1) the inherent
In sum, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences in its favor, and in the absence of any claim
that the procedures which elicited the statements by the Identifying Witnesses
were suggestive or improper, we conclude that the evidence at trial sufficed to
sustain Brewer's conviction on the Bank Robbery Counts.
Brewer contends that even if the evidence was legally sufficient to sustain the
Bank Robbery Counts, it is insufficient to support his conviction on the
Firearm Count. Brewer was charged in this count with using or carrying a
firearm during and in relation to a crime of violence in violation of 18 U.S.C.
Sec. 924(c). It is undisputed that the underlying Bank Robbery constitutes a
crime of violence within the meaning of this statute. See United States v.
Bernier, 954 F.2d 818, 819 (2d Cir.1992) (per curiam) (affirming Sec. 924(c)
conviction for using a gun during bank robbery), cert. denied, --- U.S. ----, 113
S.Ct. 2417, 124 L.Ed.2d 640 (1993); United States v. McCormack, 829 F.2d
322, 323 (2d Cir.1987) (same).
22
For purposes of Sec. 924(c), a firearm is defined, inter alia, as "any weapon
(including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive." 18 U.S.C. Sec.
921(a)(3)(A). Accordingly, a fake or toy gun does not come within this
definition. Although three witnesses identified Brewer as being the bank robber
in possession of a weapon described alternatively as the "machine gun" or the
"big gun," Brewer contends that this evidence is legally insufficient because
none of the witnesses describing the weapon had sufficient familiarity with
guns to tell whether the weapon viewed was in fact a firearm within the
24
In Jones, three witnesses described the gun only as "silver ... with a white
handle." Id. at 491. In the instant case, both Cassiliano and Charzewski
identified Brewer as the man at the front door with the "machine gun," and
Marrano identified Brewer as the man "with the big gun." Charzewski
described the gun as "look[ing] like a machine gun, but a shorter version."
Further, in addition to the consistent testimony of three witnesses describing the
gun, corroborating evidence was present here that was not present in Jones--the
live ammunition recovered from the Car. Once the jury concluded that Brewer
participated in the robbery, the evidence of this ammunition certainly supported
the jury's conclusion that the gun described by the witnesses was a firearm
within the meaning of Sec. 921(a)(3)(A).
25
Based upon both the consistent testimony of the Identifying Witnesses and the
live ammunition recovered from the Car, we conclude that a rational jury could
have found beyond a reasonable doubt that the "gun" described by the witnesses
was a firearm within the meaning of Secs. 921(a)(3)(A) and 924(c)(1).
28
28
29
30
Brewer's own description of Rule 803(1) shows why his contention must fail.
Quoting 4 Louisell, Federal Evidence Sec. 438 (1980), Brewer describes the
rationale of Rule 803(1) as follows: "Statements of present sense impression are
considered reliable because the immediacy eliminates the concern for lack of
memory and precludes time for intentional deception." The essence of an
identification such as at a photo array or a lineup, however, is a comparison
between what the witness is contemporaneously viewing and the witness'
recollection of a prior event, in this case the bank robbery. As the district court
aptly noted: "The heart of a photographic identification [is that] you are asking
someone about their perception of a past event.... [Y]ou are asking them to
recall[,] by definition[,] what happened in the past." Brewer's characterization
of observations made during the viewing of a photo array as "highly
trustworthy because they were made simultaneously with the event being
perceived, namely, the photo array", ignores the vital element of memory.
31
The two cases relied on by Brewer to support his contention that the
nonidentifications come within Rule 803(1) are inapposite. In United States v.
Hinton, 719 F.2d 711 (4th Cir.1983), cert. denied, 465 U.S. 1032, 104 S.Ct.
1300, 79 L.Ed.2d 699 (1984), the court concluded that a police officer's
"contemporaneous response" to a defendant's offer to "cop" to a particular
charge came within Rule 803(1), and alternatively, that any error in admitting
this statement was harmless. Id. at 712-13. In MCA, Inc. v. Wilson, 425
F.Supp. 443, 450-51 (S.D.N.Y.1976), modified, 677 F.2d 180 (2d Cir.1981), a
copyright infringement case in which the issue was "whether the allegedly
infringing work is recognizable by ordinary observation as having been pirated
from the copyrighted source," id. at 450, the court concluded that out-of-court
declarants' immediate reactions to a musical work were admissible pursuant to
Rule 803(1). The statements admitted in both cases were obviously
33
Accordingly, once Brewer had made it clear that he would not be calling the
Nonidentifying Witnesses to testify, the district court correctly concluded that
Rule 803(1) did not permit Brewer to cross-examine McCabe about the
Nonidentifying Witnesses' failure to identify Brewer.
Conclusion
34
Rule 801(d)(1)(C) provides that: "A statement is not hearsay if-- ... [t]he
declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is ... one of identification of a
person made after perceiving the person."
The photo arrays shown to the various witnesses each contained duplicate
copies of the same photographs. Accordingly, when the Identifying Witnesses
wrote their statements on the back of the photograph of Brewer, they were each
writing on different copies of the same photograph
It is not at all clear from the colloquy regarding this issue at trial that Brewer
sought cross-examination regarding the failure by all five witnesses to identify
Brewer, but this datum does not affect the legal analysis of this issue
5
Rule 803(1) provides that a "present sense impression" is "not excluded by the
hearsay rule, even though the declarant is available as a witness." A "present
sense impression" is defined as: "[a] statement describing or explaining an
event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter." Id