United States v. Tristan Green
543 F. App'x 266
3rd Cir.2013Background
- Two masked men robbed Fulton Bank on Sept. 16, 2011; getaway vehicle identified by license plate; police stopped a Chevrolet Blazer and arrested Willie Elmore, recovering bait bills and other evidence linking the vehicle to the robbery. Green’s grandparents lived at an address found in the vehicle.
- Elmore, while being questioned, refused to look at a photo of Green, snapped his head when Green’s name was mentioned, and asked questions but verbally denied knowing Green or participating in the robbery.
- Two eyewitnesses separately identified Green from photographic arrays prepared by Sgt. Lutz; each array contained eight photos and Green’s photo was placed randomly among comparably selected photos.
- Green and Elmore were jointly tried and convicted of armed bank robbery and a § 924(c) firearms count; Green was later classified as a Career Offender based in part on a 2009 conviction under 18 U.S.C. § 111.
- Green appealed, arguing (1) the photographic identifications were unduly suggestive, (2) admission of Elmore’s nonverbal reaction violated the Confrontation Clause, and (3) the § 111 conviction was not a qualifying “crime of violence” for Career Offender treatment and the district court relied on improper records at sentencing.
Issues
| Issue | Green's Argument | Government's Argument | Held |
|---|---|---|---|
| Photographic identification suggestiveness | Array was suggestive because Green was the only photo with parted hair/thicker braids and the only one in light-colored clothing | Array members were reasonably comparable; differences were minor and did not single out Green | Court: Not unduly suggestive; identification admitted |
| Admission of co-defendant Elmore’s reaction (Confrontation Clause) | Elmore’s head-turn and behavior were an out-of-court assertion implicating Confrontation/Bruton | Elmore’s reaction was nonverbal, involuntary, not intended as an assertion; thus not testimonial/hearsay | Court: Reaction was not an intended assertion; admission did not violate Confrontation Clause |
| § 111 conviction as a "crime of violence" for Career Offender | § 111 covers violent and nonviolent conduct; cannot be categorically treated as a crime of violence | § 111’s "forcibly" modifier requires forcible conduct; felony § 111 convictions involve forcible conduct and present serious risk of injury | Court: § 111 felony conviction qualifies as a crime of violence under both elements of the Guidelines; Career Offender designation affirmed |
| Use of records under modified categorical approach | District court improperly relied on certain records to determine § 111 elements | Court may consult Shepard-authorized documents (plea colloquy transcript, plea agreement) to determine the conduct of conviction | Court: Reliance on change-of-plea transcript admissible; modified categorical approach properly applied |
Key Cases Cited
- United States v. Brownlee, 454 F.3d 131 (3d Cir.) (due process test for pretrial ID: suggestiveness and risk of misidentification)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability standard for eyewitness ID)
- Perry v. New Hampshire, 132 S. Ct. 716 (2012) (no judicial reliability inquiry absent suggestive law-enforcement conduct)
- United States v. Mathis, 264 F.3d 321 (3d Cir.) (identification procedure jurisprudence)
- Reese v. Fulcomer, 946 F.2d 247 (3d Cir.) (minor photo differences do not render array unduly suggestive)
- United States v. Dowling, 855 F.2d 114 (3d Cir.) (array admissibility even with clothing differences)
- Bruton v. United States, 391 U.S. 123 (1968) (limits on admitting co-defendant’s extrajudicial confession)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay and Confrontation Clause)
- Davis v. Washington, 547 U.S. 813 (2006) (testimonial vs. non-testimonial statements)
- United States v. Rivera, 944 F.2d 1563 (11th Cir.) (distinguishing purely physical acts from communicative nonverbal conduct)
- United States v. Stinson, 592 F.3d 460 (3d Cir.) (categorical approach and crime-of-violence analysis under Guidelines)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for prior offenses)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits on using modified categorical approach)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (residual clause risk comparison for violent-offense analysis)
- Shepard v. United States, 544 U.S. 13 (2005) (documents a sentencing court may consult under modified categorical approach)