APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]
Kathryn Hayne Barnwell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
A jury convicted Brunel Constant of illegally possessing a firearm after he had been previously convicted of a crime punishable by imprisonment for a term of more than one year. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Sentenced to 74 months of imprisonment, Constant now appeals. His principal challenge is to the denial of his pretrial motion to bar a government witness, Adam Dennis, from identifying Constant at trial. He also challenges (1) trial defense counsel's pretrial advice concerning application of the Armed Career Criminal Act ("ACCA") to his case; (2) the district court's denial of an acceptance of responsibility reduction; (3) the presence of the government's testifying case agent at government counsel's table during trial; and (4) the preponderance of the evidence standard employed by the district court at sentencing to find that Constant had used the firearm to commit another felony offense.
For the following reasons, including the fact that the police videotaped Dennis's pretrial identification of Constant in an otherwise problematic photo array, we affirm the conviction, but vacate the sentence.
The charge in this case emanates from a shooting that occurred in the pre-dawn hours of August 19, 2011, in Lewiston, Maine. Earlier that morning, Adam Dennis and Alan Roy had been hanging out in a three-story, six-unit apartment building on Walnut Street. As Dennis began to head home at roughly 4 a.m., he and Roy encountered a man sleeping on the back porch of the first-floor apartment belonging to Roy's mother, Jeannette Cloutier, and his sister, Nancy Cote. Dennis roused the man, and an argument between the two ensued.
The argument, which lasted approximately five to ten minutes, moved from the back porch of the apartment through a lit hallway to the front porch. During this time, the man mentioned that Cote owed him money. Ronald Coleman, another first-floor resident at the apartment building, did not view the encounter but heard someone swear "I'll be back." Sometime thereafter, still pre-dawn, Coleman heard two gunshots and observed that the shooter was a black man with long braids who was wearing a white tank top.The two bullets had been fired into Cloutier and Cote's first- floor apartment. Because he had heard a loud sound, saw a flame, and did not hear casings fall to the ground, Coleman described the gun as a revolver.
Later that morning, Detective Derrick St. Laurent--then an officer with the Lewiston Police Department--began investigating the shooting. He interviewed Roy, who, after making some inquiries, gave St. Laurent the name "Jamal" and a general location on Bradley Street. St. Laurent subsequently canvassed that area and identified a particular apartment in which a man fitting the general description of the shooter lived with his girlfriend. When St. Laurent and other law enforcement personnel approached this apartment, they encountered Constant, a black man with long dreadlocks wearing a white tank top. Detective James Theiss, who was investigating the matter with St. Laurent, obtained Constant's identification. After determining that there existed a warrant for Constant's arrest, the officers placed Constant under arrest and transported him back to the police station.
During this time, St. Laurent spoke to Constant's girlfriend, who consented to a search of the apartment. The search uncovered a revolver hidden underneath the back porch rafters. Later testing of a slug found inside Cloutier's microwave confirmed that that revolver could have been the firearm from which the slug was shot. St. Laurent and Theiss then returned to the police department and interviewed Constant. Constant denied being involved in the shooting, but eventually confessed to holding for an acquaintance the gun found under the porch rafters.
St. Laurent thereafter requested and received six photographs for a photo array identification. While all of the individuals depicted in the array were black men with dreadlocks who appeared to be between the ages of 18 and 40, no one other than Constant had dreadlocks extending well below his shoulders or was wearing a white tank-top. St. Laurent presented the array to a number of persons, including Dennis. Dennis viewed the array on the afternoon following the shooting. St. Laurent recorded the entire viewing and the associated interview of Dennis on video.
As depicted in the video recording, at the start of the interview St. Laurent informed Dennis that "it looks like we got the guy that did it." St. Laurent then asked Dennis a series of questions about that night. Dennis described the man on the porch as a "black guy" with "dreadlocks" who was wearing a baseball hat and jewelry. St. Laurent asked Dennis if he could identify the man from a photo lineup; Dennis replied "I guess so." Just before Dennis viewed the array, St. Laurent, holding two manila folders in his hand, removed Constant's photograph from one folder and transferred it without apparent concealment to a second folder as Dennis looked on closely. St. Laurent then removed six photos from the second folder, placing them on the table, centering Constant's photo directly in front of Dennis.
Dennis, after viewing the array for a few seconds, singled out Constant's photo and stated, "I'm guessing it's him, that would be the one I'd be putting my money on, either him or him [indicating another photo]." St. Laurent thereupon cut off any further consideration by tapping Constant's photo with his finger and asking, "So you think it's him right here?" When Dennis reflexively answered, "Yeah, " St. Laurent grabbed a pen and quickly had Dennis sign and date Constant's ...