18-434 United States v. Lawrence Brown

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of August, two thousand nineteen.

PRESENT: JON O. NEWMAN, PETER W. HALL, DENNY CHIN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 18-434

Lawrence Brown,

Defendant-Appellant. _____________________________________

For Appellant: JOHN S. WALLENSTEIN, Garden City, NY

For Appellee: ALLISON NICHOLS, Assistant United States Attorney (Anden Chow, Daniel B. Tehrani, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY Appeal from a judgment of the United States District Court for the Southern District of

New York (Román, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court as to the convictions is AFFIRMED.

Defendant-Appellant Lawrence Brown appeals from a judgment of conviction on two

counts of brandishing a firearm in furtherance of a crime of violence, in violation of

(c)(1)(A)(ii), and two counts of robbery, in violation of

. Brown also appeals

the substantive reasonableness of his aggregate sentence of 39 years’ imprisonment, which

includes concurrent terms of 84-months for the two robbery offenses and consecutive terms of 7

and 25 years, respectively, for the two firearm offenses. 1 At trial the government presented

evidence that Brown robbed a Rite-Aid pharmacy and a ShopRite grocery store at gunpoint and

tied the hands of employees in both locations with zip ties before departing with a blue plastic

grocery bag filled with the robbery proceeds. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

Brown first argues that the six-person photographic array shown to an eyewitness of the

ShopRite robbery was unduly suggestive and that the district court erred in denying his motion to

suppress the photo identification evidence and in failing to conduct an evidentiary hearing on his

suppression motion. “We review a district court’s determination of the admissibility of

identification evidence for clear error, and the decision not to hold an evidentiary hearing for abuse

of discretion.” United States v. Finley,

(2d Cir. 2001) (internal citations

1 In a separate opinion filed concurrently with this summary order, we remand the case for resentencing.

2 omitted). “We will exclude a pre-trial identification only if the procedure that produced the

identification is so unnecessarily suggestive and conducive to irreparable mistaken identification

that the defendant was denied due process of law.” United States v. Bautista,

(2d Cir. 1994) (internal quotation marks and alterations omitted).

As the district court correctly found, Brown has identified no disputed issue of fact

regarding the validity of the identification procedure. Prior to trial the government submitted an

affidavit by the detective who conducted the procedure, which asserted, inter alia, that he “did not

draw attention to, comment on, or otherwise make suggestions about, any of the photos,” and that

he “stood behind [the witness] and remained silent.” App. 112–13. On that record there is no

basis to find the district court abused its discretion in failing to conduct a hearing on whether the

identification procedure was unduly suggestive.

In the absence of any showing that the procedures were tainted, the remaining “question is

whether the picture of the accused, . . . so stood out from all of the other photographs as to ‘suggest

to an identifying witness that [that person] was more likely to be the culprit.’” United States v.

Thai,

(2d Cir. 1994) (quoting Jarrett v. Headley,

(2d Cir. 1986)).

This Court “may review the photographic array itself to assess its fairness.” United States v.

Douglas,

(2d Cir. 2008).

Brown argues that the district court clearly erred in concluding that the photo array was not

unduly suggestive because the lighting in Brown’s photograph drew attention to his face, rendering

the photo distinctive from the photographs of the five other men comprising the array. Having

reviewed the photographic array, we conclude that the district court did not clearly err when it

observed that “[w]hile there are some minor differences in lighting, this single difference does not

3 render the array suggestive.” App. 126. As the district court explained, “[t]he photographs

depict only faces and shoulders, all depict men with medium to dark skin, with little or no head

hair, wearing the same orange collar and white shirt, and similar patterns and amounts of facial

hair.” Id.; see Bautista,

(recognizing that the defendant’s photo was “slightly

brighter and slightly more close-up than the others” but rejecting notion that these differences

rendered the array suggestive when “[e]ach photograph depict[ed] a man in a frontal mug-shot,”

“[e]ach [was] in color,” “[e]ach of the men depicted [was] of roughly the same age and coloring”

and “each of the men depicted sport[ed] a moustache”). We therefore find no clear error in the

admission of the identification evidence.

Brown next argues that the evidence at trial was insufficient to establish that he was the

robber in each of the two robberies and that the Rite-Aid robber brandished a real firearm. “A

defendant challenging the sufficiency of the evidence bears a heavy burden.” United States v.

Kozeny,

(2d Cir. 2011). “We review de novo” such a challenge and will

“affirm if the evidence, when viewed in its totality and in the light most favorable to the

government, would permit any rational jury to find the essential elements of the crime beyond a

reasonable doubt.” United States v. McGinn,

(2d Cir. 2015) (internal quotation

marks omitted).

Brown’s challenge to his identification as the robber of the ShopRite due to the tainted

photo array fails for the reasons already discussed. He also asserts that there was insufficient

evidence to establish his identity as the robber of the Rite-Aid because the two eyewitnesses to

that robbery did not describe him or identify him in their testimony. This argument ignores the

other evidence presented at trial showing that Brown’s DNA was recovered from a zip tie at the

4 Rite-Aid and video surveillance footage of both robberies. “Viewing this evidence in its totality,

and in the light most favorable to the government,” we conclude that the evidence was sufficient

for a rational jury to find that Brown was the robber of the Rite-Aid.

.

Brown contends that the Rite-Aid manager’s testimony that the robber brandished a “black

gun” was insufficient to establish that the robber possessed a real firearm. This Court has held

that the “mere possibility” that a firearm observed by a witness could be “a sophisticated toy or

other facsimile does not necessarily create a reasonable doubt, nor is the government required to

disprove that theoretical possibility.” United States v. Jones,

(2d Cir. 1994); see

also United States v. Castillo,

(2d Cir. 1991) (same). Rather, it is “for the

jury to weigh the evidence and determine whether the government met its burden of demonstrating

that [Brown] possessed a ‘firearm.’” Jones,

. In addition to the Rite-Aid

manager’s testimony, which the jury was entitled to credit, see

at 490–91, the government also

presented testimony by a ShopRite eyewitness familiar with firearms, who indicated that the

ShopRite robber brandished a black snub-nose revolver with a brown handle. Given the similar

modus operandi of the two robberies and the films of the robberies, it was reasonable for the jury

to conclude that the same firearm was used during the commission of both crimes.

We have considered all of Brown’s remaining arguments and find them to be without

merit. We hereby AFFIRM the judgment of the district court as to Brown’s convictions.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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