U.S. v. Holliday

• Decision Date: 02 August 2006
• Docket Number: No. 04-1372.,04-1372.
• Citation: 457 F.3d 121
• Parties: UNITED STATES of America, Appellee, v. James HOLLIDAY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

457 F.3d 121

UNITED STATES of America, Appellee, v. James HOLLIDAY, Defendant, Appellant.

No. 04-1372.

United States Court of Appeals, First Circuit.

Heard February 8, 2006.

Decided August 2, 2006.

Janet H. Pumphrey for the defendant.

Virginia M. Vander Jagt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for the United States.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

A jury convicted the defendant of being a felon in possession of a handgun. 18 U.S.C. § 922(g)(1). The defendant came into possession of the gun during a physical confrontation with a police officer. The district court concluded that the defendant fell within the ambit of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and imposed a sentence of 262 months, the low end of the applicable guideline range. The defendant now appeals both his conviction and his sentence, arguing that the district court erred in: admitting certain identification evidence; refusing to instruct the jury on the defendant's theory that he took the police officer's handgun in self-defense; applying the Armed Career Criminal Act even though the government had not supplied court records for one of the defendant's previous convictions; and concluding, for sentencing purposes, that the defendant had possessed the handgun in connection with a crime of violence. After a careful review of the record, we affirm the defendant's conviction and reject his allegations of sentencing error.

I.

Because the defendant's principal claim is that the district court failed to instruct the jury on self-defense, we review the facts relating to that theory in the light most favorable to the defendant. See United States v. Flores, 968 F.2d 1366, 1367-68 (1st Cir.1992). Although the defendant also raised a misidentification defense, he does not challenge on appeal the jury's rejection of that defense. For narrative convenience, we review the trial evidence relating to identification in the light most favorable to the verdict. See United States v. George, 448 F.3d 96, 97 (1st Cir. 2006). We draw the facts relevant to the defendant's challenge to the pretrial identification procedures from the district court's unchallenged factual findings at the motion to suppress. See United States v. Monteiro, 447 F.3d 39, 41 (1st Cir.2006). We reserve, for the moment, the facts relevant to the sentencing.

At about 10:15 p.m. on a balmy July night, Boston Police officers John Lydstone and Terence Pennington observed the defendant and six other people — two women and four men — at a park in the Roxbury section of Boston. Several people in the group were drinking beer, but the defendant was not. (As it turned out, the defendant was in the park independently from the group of drinkers.) Because it was illegal to possess alcohol in a Boston city park, Lydstone and Pennington exited their patrol cruiser and told the drinkers to put their beers down. Everyone complied. Pennington asked the group if anyone had a weapon. When no one responded, he announced that he was going to "pat-frisk" everyone present. Pennington pat-frisked four of the men and then began pat-frisking the defendant. The defendant was "compliant," and Pennington later testified that he did not have any particular concern that the defendant possessed a weapon.

While Pennington was pat-frisking the defendant, Lydstone observed one of the women drop something behind a stone wall. He yelled for Pennington to "hold up a second." Pennington stopped pat-frisking the defendant before he had checked the defendant's waist area for contraband. Lydstone then handcuffed the woman and directed her to his cruiser. As this was happening, a man with a video camera entered the park and began filming the interaction between the police and the group of beer drinkers. Alarmed, Pennington told the man with the video camera to "shut the camera off," and that by videotaping the scene he ran the risk of being "hurt or shot." Lydstone approached the man with the camera and tussled with him briefly in an unsuccessful effort to take the camera. Lydstone then told the cameraman to wait with the group of beer drinkers.

Pennington decided to see what the now-detained woman had dropped behind the stone wall. He found a bag of marijuana and a medium-caliber revolver. Pennington yelled to Lydstone, "Gun, Gun, Gun," waved the weapon he had found in the air, and told everyone to "get on the ground." At about the same time, the defendant ran away from the other people in the park, down a slope, and towards some nearby woods.

Lydstone gave chase and caught the defendant "roughly two to three seconds" after he had run off. Lydstone grabbed the defendant's shirt and wrestled him to the ground. The two men rolled down the slope, and the defendant ended up on top of Lydstone. Lystone attempted to get the defendant off of him, and the two men fought. Lydstone tore the defendant's shirt, punched him in the face, and attempted to push him away. Despite these efforts, Lydstone did not gain control over the situation, and the defendant remained on top of him. Then, Lydstone testified, he saw "a shiny object" in the defendant's waistband. Lydstone "reached down and retrieved" his own handgun and placed his gun directly under the defendant's chin. His finger was not on the trigger, but the gun was positioned so that, if fired, it would send a bullet through the defendant's brain and out the back of his head.

The defendant shouted "No, No, No!" He grabbed for Lydstone's gun. After a struggle, the defendant seized the gun. He stood up and pointed the gun at Lydstone. Lydstone rose to his feet to run away from the defendant. As Lydstone was getting up, the defendant fired at least one shot,¹ which did not cause any damage.² The defendant disappeared from the scene. The next day, a Connecticut Department of Transportation worker found Lydstone's handgun in the southbound breakdown lane of Interstate 95.

Officers Lydstone and Pennington described the defendant as an African-American man with dreadlocks and "burn marks" on his face. The police gathered information that appeared to implicate the defendant. They prepared an array of photographs. The district court later described the array as follows:

[The defendant] has generally dark skin but a very noticeable patch of lighter skin in the areas of his chin, nose, and eyes. . . . [The police] produced a series of pictures in which all of the men are of similar build, four of the men are black with skin discoloration (though none of the four has the dramatic skin pattern that the defendant has) and the remaining four males have hairstyles similar to [the defendant's] dreadlocks. Although none of the men shown in the array are likely to be readily confused with [the defendant], they do resemble, to varying degrees, the description that Pennington and Lydstone gave before the array was assembled.

Lydstone and Pennington both identified the defendant with certainty. Roughly two weeks after the incident in the park, deputy U.S. Marshals arrested the defendant in Atlanta, Georgia. He returned to Boston, initially to face state assault charges. Later, the state charges were dismissed. The case was tried in federal court on the felon in possession charge alone.

The district court rebuffed the defendant's effort to suppress the officers' identification of him, reasoning that the photographic array had not been inappropriately suggestive. The case proceeded to trial. The defendant presented no witnesses. His principal theory of defense was misidentification — the police officers had described Lydstone's assailant as a man much larger than the defendant, and there were discrepancies in their versions of the facts.³ The defendant also sought to show that he had acted in reasonable fear for his life in seizing Lydstone's gun. The district court refused, however, to instruct the jury on a self-defense or necessity theory. The court's reasoning, drawn from the pattern jury instructions for this circuit,⁴ was that the defendant waived any justification defense by failing to provide evidence that "there was no [] alternative but to violate the law."

Despite the district court's refusal to give any justification instruction, the jury gave some indications that it was prepared to consider the defendant's proposed theory. During its first day of deliberations, the jury sent the court questions asking, "Willing possession, does it have anything to do with being threatened with death, self-defense, and an out-of-control officer?" and, "Do you have the right to touch a gun in self-defense if you are a convicted felon?" The district court responded by reminding the jurors of its definition of the felon in possession law and telling them that they should "avoid resorting to other sources of information you might have or ideas you might have about what the [legal] principles were." The next day, after several additional hours of deliberation, the jury returned a guilty verdict.

II.

A. The Motion to Suppress

The defendant contends that the photo array constructed by the police was "impermissibly suggestive," in violation of the Due Process Clause. See Neil v. Biggers, 409 U.S. 188, 196-98, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). He asserts that the district court should have suppressed Pennington and Lydstone's out-of-court identifications and barred them from identifying him in court.

We have said that identification evidence — identifications made before trial and in the courtroom — should be suppressed as a matter of due process "only in extraordinary cases." United States v. Henderson, 320 F.3d 92, 100 (1st Cir.2003). (Out-of-court identification evidence routinely is admitted in federal courts. See Fed.R.Evid. 801(d)(1)(C).) When identification evidence is suppressed, it is "primarily to avoid an unfair trial." United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir.1...