United States v. Constant, 814 F.3d 570

Background

Pre-dawn August 19, 2011 shooting into a first-floor apartment in Lewiston, Maine; witness Adam Dennis encountered and argued with a man on the porch shortly before the shooting.
Police arrested Brunel Constant at an apartment matching the description; they found a revolver under the back-porch rafters and obtained a videotaped confession from Constant admitting he held the gun for an acquaintance.
Detective St. Laurent created a six-photo array (all Black men with dreadlocks), but Constant’s photo was visually distinct (longer dreadlocks, white tank top); St. Laurent conducted a recorded identification with Dennis and made suggestive prompts while presenting Constant’s photo.
Dennis viewed the recorded array the next day, hesitated between photos, then signed Constant’s picture after St. Laurent prompted him and told him police had a suspect in custody.
District court found the photo array unduly suggestive but denied suppression of Dennis’s in-court ID, concluding reliability factors and the taped procedure (shown to the jury) prevented unfair prejudice.
Jury convicted Constant of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); he was sentenced to 74 months. On appeal Constant challenged the identification, counsel’s pretrial advice about ACCA exposure, denial of acceptance-of-responsibility credit, agent seating at counsel table, and sentencing factfinding standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Dennis’s in-court ID after suggestive photo array	Gov: Although array was suggestive, indicia of reliability and video of the procedure let jury evaluate credibility	Constant: Array and officer prompting created substantial likelihood of misidentification; ID should be excluded	Court: Array was impermissibly suggestive but video of the procedure plus strong independent evidence (confession, forensic match) and reliability factors meant admission did not violate due process
Ineffective assistance for erroneous ACCA advice	Constant: Trial counsel’s written letter incorrectly stated a 15-year ACCA mandatory minimum; but-for that advice he would have pled guilty and received acceptance reduction	Gov: Record incomplete; counsel may have reasonably believed ACCA applied	Held: Record insufficient to decide on direct appeal; remanded for evidentiary hearing on Strickland claim (may affect sentence)
Denial of acceptance-of-responsibility credit / variance	Constant: Denial was improper because his decision to contest flowed from bad advice; entitlement to 3E1.1 credit or variance	Gov: No clear prejudice shown; sentencing judge found trial a strategic decision	Held: Sentencing issues deferred to remand — will be resolved after Strickland determination
Presence of case agent at prosecution table and sentencing factfinding standard	Constant: Agent’s seat bolstered government's credibility; sentencing relevant-conduct finding should be jury-proven beyond a reasonable doubt	Gov: Seating is judge's discretion; sentencing facts can be found by judge by preponderance	Held: No plain error in agent seating; sentencing factfinding by judge under preponderance is consistent with circuit precedent

Key Cases Cited

Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability is the linchpin for admissibility of identification testimony)
Perry v. New Hampshire, 132 S. Ct. 716 (2012) (exclusion only required when very substantial likelihood of irreparable misidentification)
Neil v. Biggers, 409 U.S. 188 (1972) (factors to assess reliability of identifications)
Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective-assistance-of-counsel claims)
United States v. Jones, 689 F.3d 12 (1st Cir. 2012) (review standards for trial-court identification rulings)
United States v. de Jesus-Rios, 990 F.2d 672 (1st Cir. 1993) (discussion of identification reliability and jury role)
United States v. Leahy, 668 F.3d 18 (1st Cir. 2012) (judge may find sentencing facts by preponderance for Guidelines adjustments)