Criminal Practice – Feds could use artist promo photo for ID array

The government didn’t violate due process by showing a kidnapping victim a photo array with the defendant’s image cropped from his music group’s promotional poster, which the victim had seen before.

Background

In the summer of 2012, two U.S. citizens were separately kidnapped at gunpoint in Haiti and held captive for several days. After victim Y. Fergile escaped, Haitian police showed her a poster of a music group, recovered in the house where she’d been held. She identified two individuals in the poster as being involved in her kidnapping, including Defendant Monclair Saint Louis. Defendant Ulriste Tulin was also pictured, but Fergile didn’t identify him.

During victim A. Marcelin’s kidnapping, one of the perpetrators raped her niece. After four days, one of her captors, Samson Jolibois, was apprehended and began cooperating with Haitian and American law enforcement.

Three months after Fergile’s kidnapping, an FBI agent showed her three separate six-person photo arrays and asked if she recognized anyone. The first array contained a photo of Jolibois, but Fergile did not identify him. She did identify Saint Louis’s photo in the second array and remembered that he had bragged about driving the vehicle during the kidnapping.

The third array contained a photo of Tulin, which had been extracted from a scanned image of the poster that Haitian authorities had previously shown Fergile. Tulin’s photo was dark, appeared blurry, and showed a jagged, pixelated border from having been cropped and lifted from the rap poster. Fergile identified Tulin in the array, recalling that he’d said he needed money because he was poor and she was rich.

Saint Louis and Tulin were each charged with conspiracy and two substantive counts of hostage-taking and use of a firearm during a crime of violence. They were tried together in December 2016.

During trial, the district court limited testimony related to Marcelin’s niece to exclude references to the sexual nature of the assault. But when Jolibois testified, he referenced the rape as such. The district court struck the testimony, instructed the jury not to consider it, and denied the Defendants’ motion for a mistrial. Jolibois subsequently referred to the perpetrator “pulling up his pants.” The district court again struck the testimony and instructed the jury to disregard it. The district court further reminded jurors: “The defendants are not on trial for any act or any conduct not specifically charged in the indictment.”

The jury convicted Saint Louis and Tulin on all counts. Tulin has appealed on numerous grounds; Saint Louis joins only as to the denial of mistrial.

Photo array

Although Tulin is right that his photo was dark and blurry, it didn’t look “strikingly different” from the five filler photos in a way that would implicate due process concerns. His headshot was cropped to show only his head and neck against a dark background, removing any indication of the context of the poster. Further, Tulin’s neutral expression in the photo is similar to the other faces in the array, as is his age, build, complexion, and hairstyle. And several photos were also set against dark backgrounds.

Contrary to Tulin’s argument, an array is not unduly suggestive merely because it includes a photo of the suspect that the witness has already seen. But even assuming that the array was impermissibly suggestive, Fergile’s opportunity to view the perpetrator and her degree of attention at the time of the crime strongly support a finding of reliability. She saw and spoke with her captors during the seven days she was held, and she recalled specific details that showed a high degree of attention. Fergile also showed a high level of certainty in choosing Tulin’s photo. Even though Fergile’s reliability was inconsistent during the four years between the crime and the trial, weighing the factors together supports the reliability of the out-of-court ID, and the district court did not err in admitting that evidence.

Moreover, Tulin had ample opportunities to persuade the jury that the evidence should be discounted. The Defendants cross-examined Fergile and the FBI agent about the identification, and Fergile’s flaws as a witness were on full display at trial. The jury heard that she had a poor recollection of the photo ID she’d made , and they saw her fail to identify Tulin in the courtroom. Where an admittedly imperfect photo ID procedure isn’t unduly suggestive and the witness’s identification shows key indicia of reliability, this court relies on the jury’s judgment.

Prejudicial testimony

The district court was right to deny the Defendants’ motions for a mistrial, promptly striking the potentially prejudicial testimony from Jolibois and instructing the jury to ignore it. The district court was not convinced that the jury even heard the problematic remark, because the prosecutor immediately and loudly interjected with the word “assaulted” as Jolibois’s interpreter said “raped.” The government then went out of its way to elicit testimony that the Defendants were not involved in the “assault” and had condemned it.

Because this court presumes that juries follow curative instructions, the Defendants cannot show prejudice.

Closing arguments

This court rejects Tulin’s claims of error related to the parties’ closing arguments at trial. First, the district court didn’t violate Tulin’s Confrontation Clause rights by prohibiting his counsel from highlighting Marcelin’s alleged wave and smile at Tulin as she left the witness stand. During trial, Tulin was able to physically face Marcelin and cross-examine her, in accordance with the Sixth Amendment.

Second, Tulin was not prejudiced by the government’s closing statement to the effect that he failed to present evidence. While prosecutors must not suggest that the defendant has an obligation to prove innocence, here the government was simply responding to Tulin’s speculation about the absence of phone records in the prosecution’s case, and counsel explicitly acknowledged the correct burden of proof. Even if the remarks had been improper, there was no prejudice: The remarks were isolated and did nothing to alter the strength of proof before the jury.

Sentencing enhancement

Tulin’s objection to the district court’s two-level enhancement for serious bodily injury is without merit. Both Fergile and Jolibois testified that Fergile was beaten extensively by her captors, especially around her face, and she suffered a broken blood vessel in her eye and bleeding from her arm and nose. Tulin notes that Fergile did not seek out medical intervention and did not suffer protracted impairment of her eye, but these contentions critically overlook the very first part of the definition of “serious bodily injury”: that which causes “extreme physical pain.” The district court did not err in applying the sentence enhancement.

Affirmed.

United States v. Saint Louis (Lawyers Weekly No. 001-084-18, 21 pp.) (Diaz, J.) No. 17-4199; May 2, 2018; EDVA at Alexandria (O’Grady, J.) Vernida Rochelle Chaney and Nader Hasan for Appellants; Ronald Leonard Walutes Jr. for Appellee. 4th Cir.