United States v. Nolan

Decision Date15 April 2020
Docket NumberAugust Term 2019,16-3423-pr(L),18-1113-pr(CON)
Parties UNITED STATES of America, Appellee v. Ralph NOLAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

APPEARING FOR APPELLANT: Susan J. Walsh (Yannick Allan Grant, on the brief), Vladeck, Raskin & Clark, P.C., New York, NY

APPEARING FOR APPELLEE: Richard Cooper, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY

Before: Sack and Hall, Circuit Judges, and Rakoff, District Judge.1

RAKOFF, District Judge:

Eyewitness identification testimony is notoriously prone to error. As the Supreme Court recognized over a half-century ago, "[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; see also Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The results can be devastating. For example, as Appellant here points out, according to the Innocence Project, eyewitness misidentification was present in an astonishing 71 percent of the cases in which subsequent DNA testing established the factual innocence of wrongfully convicted defendants. See Innocence Project, Eyewitness Identification Reform, www.innocenceproject.org/eyewitness-identification-reform (Last Visited Mar. 16, 2020).

In the instant case, even though many of the typical causes of mistaken eyewitness identifications were apparent, defendant's trial counsel did almost nothing to challenge the introduction of such identifications or combat these problems. We conclude that given the obvious materiality of the eyewitness testimony in the case at bar, this failure amounted to ineffective assistance of counsel, requiring reversal of the district court's judgment, vacatur of Nolan's conviction, and remand to the district court for further proceedings consistent with this opinion.

In brief summary, on April 10, 2015, a jury sitting in the Southern District of New York, relying almost entirely on eyewitness identifications, convicted Defendant-Appellant Ralph Nolan of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count One), attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count Two), and brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Three). Specifically, Nolan was found to have joined in an armed robbery of an apartment occupied by a family, some of whose members had been dealing drugs. Four of the five adults present in the apartment at the time of the robbery—all testifying at Nolan's trial pursuant to grants of immunity—identified Nolan as one of the robbers. On September 28, 2016, the district judge sentenced Nolan to 120 months' imprisonment followed by three years of supervised release. Nolan is currently serving his sentence.

All four identifications bore significant indicia of unreliability. The robbers were partially disguised. They carried guns, on which the eyes of the victims were likely focused. Initially, the victims were unable to give investigators a detailed description of the robbers beyond noting that they were light-skinned or Hispanic. The four victims did not identify Nolan (who is white) as one of the intruders until they saw his photo in a photo array presented to them more than a month after the crime. Even then, at least one of the victims did not firmly identify Nolan until law enforcement allowed that victim to view photos of Nolan on Facebook. That victim discussed with two other victims her identification of Nolan and showed the other two victims his Facebook photo before these victims were asked to identify Nolan from a photo array.

Nolan's defense counsel nonetheless did virtually nothing to contest the admissibility of these identifications. In particular, defense counsel abandoned a pre-trial motion to preclude the eyewitness identifications for reasons that counsel has failed to explain. And both then and after the testimony had been introduced at trial, defense counsel failed to call or even consult an expert witness who could have informed the judge and jury about the multiple, well-established ways in which these identifications were unreliable.

Arguing that his lawyers' errors prejudiced the outcome of his trial, Nolan petitioned the district court under 28 U.S.C. § 2255 for a writ of habeas corpus on the ground of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On February 20, 2018, the district court (Daniels, J .) denied the petition without a hearing. No. 14-cr-555 (GBD), 2018 WL 1166726 at *1 (S.D.N.Y. Feb. 20, 2018). Nolan appeals from this denial.2 We have jurisdiction under 28 U.S.C. §§ 2253 and 2255(d), and we review Nolan's ineffective assistance claims de novo. Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). For the following reasons, we reverse the district court and vacate Nolan's conviction.

Background

By finding Nolan guilty, Nolan's jury effectively found that on December 16, 2013, Nolan and an accomplice committed an armed home invasion of an apartment in the Bronx, known by the robbers to be home to a family, some of whose members had been dealing drugs, from whom the robbers were seeking to steal marijuana and other valuables. (Evidence at trial also established the involvement of a third co-conspirator, Shaun Odiot, who had canvassed the apartment earlier that day but did not enter it during the robbery.) According to trial testimony, upon entering the apartment, Nolan and the other robber threatened the victims in the apartment with guns and demanded marijuana and money. In the course of the robbery, Nolan is alleged to have pistol-whipped one victim, leaving her unconscious. He also purportedly ripped cable wires out of the wall and used them to bind the hands of the victims. According to the victims' testimony, Nolan stole a small amount of marijuana as well as some electronic devices from the apartment.

There were five adult victims in the apartment at the time of the robbery: Lorraine Scroggins, the primary resident; Desiree Scroggins, Lorraine's daughter; Christopher Martinez, Desiree's boyfriend; Sandra Martinez, Christopher's mother; and Deyanira Beriguete, a home health aide who took care of Lorraine, who is quadriplegic. Christopher's and Desiree's infant daughter was also in the apartment during the robbery.

In the immediate aftermath of the crime, several of the victims indicated that the robbers may have been Hispanic, and none identified Nolan (who is white and who was previously known to two of the victims) as one of the culprits.3 Law enforcement initially showed Desiree, Lorraine, and Christopher photo arrays that did not include Nolan's picture, and all three of these victims said that they did not recognize anyone in the photos as one of the robbers.

Law enforcement did not add Nolan's picture to the photo array until several weeks later. Specifically, after the NYPD detective investigating the robbery began to suspect that Odiot was the third co-conspirator, the detective "searched [Odiot's] address for anybody that had been arrested using that address in the past," Det. E. Deloren, trial tr. at 449, and created a new photo array including people who turned up in that search and who matched the general description of the other robber. This new photo array included a picture of Nolan.

The detective first showed this new photo array to Desiree. She testified that she identified Nolan from his photo as one of the robbers but was at first only about 75% sure in her identification. The detective then went into another room and showed the photos to Lorraine, who identified Nolan as the robber. At that point, Desiree entered the room where Lorraine was. Lorraine, referring to Nolan's photo, asked Desiree, "that's him, right?" L. Scroggins, trial tr. at 152. Desiree and Lorraine, in the detective's presence, then looked at photos of Nolan on his Facebook page.4 And after viewing Nolan's Facebook photos, Desiree testified, she became certain of her identification.

On the same day, according to Desiree's testimony, she discussed her identification of Nolan with Sandra and Christopher Martinez, to whom law enforcement had not yet showed a photo array that included Nolan's picture. She also showed them Nolan's Facebook photos.

The following day, NYPD showed a "six-pack" photo array containing Nolan's photograph to Sandra, who identified Nolan and testified that she was "pretty confident" in her identification. S. Martinez, trial tr. at 626. Sandra also testified that, at that point, she recognized Nolan as the person she knew of as "White Boy" from her old neighborhood. About two weeks later, law enforcement showed the photo array to Christopher, who also identified Nolan as one of the robbers and stated that he recognized him as "White Boy." Christopher testified that he was confident in his identification. He also testified that his mother, Sandra, had shown him a picture of Nolan before law enforcement showed him the photo array.5

The Government heavily relied in its summation on the victims' identifications of Nolan, arguing to the jury that:

There's absolutely no dispute in this trial that this heinous crime happened. ... The only issue that's really in dispute is whether Ralph Nolan was one of the robbers, and not one, not two, not three, but four of the victims took that witness stand and told you he was. Back closer to the robbery, when they talked to the police, they looked at his picture and said that's the guy who robbed us, and right here in this courtroom you saw them, one
...

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