U.S. v. Brewer

• Decision Date: 28 September 1994
• Docket Number: No. 1649,D,1649
• Parties: 40 Fed. R. Evid. Serv. 1000 UNITED STATES of America, Appellee, v. Anthony BREWER, Defendant-Appellant. ocket 93-1861.
• Court: U.S. Court of Appeals — Second Circuit

Page 266

36 F.3d 266

40 Fed. R. Evid. Serv. 1000

UNITED STATES of America, Appellee, v. Anthony BREWER, Defendant-Appellant.

No. 1649, Docket 93-1861.

United States Court of Appeals, Second Circuit.

Argued June 20, 1994.

Decided Sept. 28, 1994.

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:

Defendant-appellant Anthony Brewer appeals from a judgment entered December 16, 1993 in the United States District Court for the Eastern District of New York, Carol Bagley Amon, Judge, that, following a jury trial, convicted Brewer of: conspiracy to commit bank robbery in violation of 18 U.S.C. Sec. 371 and armed bank robbery in violation of 18 U.S.C. Secs. 2113(a) and (d) (collectively the "Bank Robbery Counts"); and the use of a firearm in connection with a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1) (the "Firearm Count"). The court sentenced Brewer principally to concurrent terms of sixty and eighty months imprisonment on the Bank Robbery Counts, to be followed by a mandatory consecutive sixty month term of imprisonment on the Firearm Count, further directing that the overall sentence run concurrently with a state sentence that Brewer was then serving.

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.

We reject Brewer's arguments, and affirm the judgment of conviction.

Background

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.

The search recovered numerous rounds of live ammunition, an empty ammunition box, an owner's manual for an AP-9 firearm, a hand-held radio, a police scanner, an economics textbook, a piece of cardboard, two pullover ski masks, and a copy of a book, the Holy Koran. An envelope was inserted between the book's pages, addressed to Anthony J. Brewer and containing a letter, a card, and a photograph, all signed by "Sherry Ann." Brewer's fingerprints were found on the Holy Koran, the envelope and the photograph inside it, the economics textbook, and the piece of cardboard. The car was registered to an individual named Abdul Mohammed, 190 Wilson Avenue, Brooklyn, New York, whose date of birth was listed as November 3, 1967. It was stipulated that Brewer's birth date was November 3, 1967, and that he had stated on a previous occasion that he resided at the Wilson Avenue address.

This evidence focused suspicion on Brewer, and led McCabe to include Brewer's photograph in one of four six-photograph arrays shown to several witnesses to the Bank robbery. On February 14, 1992, McCabe interviewed the various witnesses and had each of them view the arrays. Each array contained a photograph of a man whom McCabe suspected of participating in the Bank Robbery, and individual photographs of five other men of like appearance. One of these arrays included Brewer's photograph. Three Bank employees who had been present during the robbery, Kathleen Cassiliano, Marta Marrano, and Agnes Charzewski (collectively the "Identifying Witnesses"), selected the photograph of Brewer as "resembling" the robber who had been stationed at the front door of the Bank, holding the large gun. Five other eyewitnesses viewed the photo arrays and did not select Brewer's photograph (the "Nonidentifying Witnesses").

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.

At trial, the government's case consisted primarily of the statements made by the Identifying Witnesses when viewing the photo arrays and the evidence recovered from the Car. The government placed in evidence a photograph of Brewer taken on February 17, 1992, contending that it would enable the jury to perceive a change in his appearance from February 14, 1992, when the photo arrays were shown to the Identifying Witnesses, to the time of the lineup, when they failed to identify him. At the close of the government's case, Brewer moved for a directed verdict of acquittal pursuant to Fed.R.Crim.P. 29, which the court denied. After a brief case by the defense relating peripherally to the issue of identification, the jury returned a verdict of guilty on the Bank Robbery Counts and the Firearm Count. Brewer renewed his Rule 29 motion, which the court again denied, and sentence was imposed as previously indicated.

This appeal followed.

Discussion

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.

The evidence against Brewer consisted primarily of evidence recovered from the Car and statements made by the Identifying Witnesses while viewing the photo arrays. The statements of the Identifying Witnesses were admitted both through their own testimony, and through the testimony of McCabe, pursuant to Fed.R.Evid. 801(d)(1)(C). ² See United States v. Marchand, 564 F.2d 983, 996 (2d Cir.1977) (" 'Rule 801(d)(1)(C) should ... be interpreted as allowing evidence of prior identification by the witness of a photograph of the person whom he had initially perceived.' ") (quoting 4 Weinstein & Berger, Commentary on Rules of Evidence for the United States Courts and Magistrates 801-107 to 108 (1976) (alteration in Marchand )), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978).

Brewer contends that this evidence is insufficient to prove his participation in the Bank Robbery because: (1) the statements of the Identifying Witnesses were not actual identifications since, even if credited, they established only that Brewer "resembled" one of the bank robbers; and (2) the evidence recovered from the Car connected Brewer to the Car, but not to the Car on the date of the robbery.

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 photograph ³ 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."

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...