United States of America v. Andres De León-Quiñones

Of the Tenth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 07-1395
UNITED STATES OF AMERICA,
Appellee,
v.
ANDRES DE LEÓN-QUIÑONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Baldock and Howard, *
Circuit Judges.
Guillermo A. Macari-Grillo for appellant.
Vernon B. Miles, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division
and Thomas F. Klumper, Assistant United States Attorney, were on
brief, for appellee.
December 7, 2009

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HOWARD, Circuit Judge. A jury convicted the appellant,
Andres De León-Quiñones ("De León"), of robbing two banks in Puerto
Rico, the EuroBank and the Doral Bank. See 18 U.S.C. § 2113(a).
The jury also convicted De León of carrying a firearm during and in
relation to the EuroBank robbery. See 18 U.S.C. § 924(c)(1)(A).
De León appeals his convictions on the firearms count and
the Doral Bank robbery count. He makes three arguments, two of
which challenge the sufficiency of the evidence presented at trial.
De León argues that the evidence presented at trial was
insufficient to establish that he carried a real firearm during the
EuroBank robbery and that he was the person who robbed the Doral
Bank. Part and parcel of his argument that he was not sufficiently
identified as the Doral Bank robber is De León's claim that the
district court violated his due process rights when it allowed two
witnesses, Doral Bank employees Sasha González ("González") and
Jaime Massanet ("Massanet"), to identify him during trial as the
robber. De León's third argument, also related to his insufficient
identification, is that the court erred when it allowed the
prosecutor to ask leading questions when examining the
identification witnesses. After review, we affirm both of the
challenged counts of conviction.

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I. Background
We provide the bulk of the facts here, adding more or
elaborating when necessary in our later discussion of the issues.
We state these facts in a manner consistent with record support.
A. The robberies
On a January morning in 2006, De León arrived at the
EuroBank branch bank located in Canovanas, Puerto Rico and waited
for it to open. After the bank manager let him in, De León pulled
out a gun and informed the manager and the other bank employees
that he was holding up the bank. De León then shepherded the
manager and employees into the manager's office. Once there, De
León asked the employees where the money was located. In response
to this query, the manager sent two employees to take De León to
the bank's safe. Once the safe was open, De León stuffed
approximately $60,000 into bags. He then directed all of the bank
employees to lay down near the register area and left the bank.
Another bank in Puerto Rico, the Doral Bank, had been
robbed by two men just a few weeks earlier. The two men had
entered the bank shortly after it opened and loitered in the lobby
area. The bank's senior officer, Massanet, approached one of the
men, later identified as De León, and asked the man if he needed
assistance. De León responded that he did and asked for the bank's
manager. When Massanet informed De León that the manager had yet
to arrive, De León told Massanet that he was holding up the bank.

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Massanet ushered De León and the other man through a door into the
vault area. As the other man waited by the door, Massanet, with De
León behind him, approached the vault door. Crouching down,
Massanet tried to open the door, which had two combination locks.
De León put on latex gloves as he watched Massanet work the
combinations. Opening the vault door, however, proved to be a two-
man job and Massanet called out for another employee to help him.
At this point, the other robber complained that Massanet was taking
too long and told De León to get money from the tellers instead.
After taking money from one teller, De León approached another
teller, González, and took money from her drawer. De León and the
other man then left the bank. Immediately after the robbery,
González told authorities that the man who took money from her
drawer wore a red shirt, a red cap, and latex gloves over his
hands. She said that the other robber wore a black shirt.
Photographs taken from the bank's surveillance video corroborated
these descriptions.
Some time after the Doral Bank robbery, authorities asked
Massanet and González, individually, whether they could identify
one of the robbers from an array of six photographs, including one
of De León. González could not identify anyone. Massanet, after
narrowing his choices to two photographs, ultimately identified De
León.

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B. The trial
At trial, the government first presented evidence on the
EuroBank robbery, calling the manager and two other employees to
testify. In addition to discussing the robbery generally, the
three employees testified specifically that De León carried a gun
during the robbery, collectively referring to it as a "pistol,"
"revolver," and "firearm." One of the bank employees who
accompanied De León to the bank's safe further described the gun as
"nickel plated." Each of the three employees explained that they
had the opportunity to view De León and the weapon at close range.
Later, the government presented evidence regarding the
Doral Bank robbery. The government first called Massanet. He
testified that the man in the lobby with whom he spoke wore a red
cap and later put on latex gloves. Massanet also stated that he
"stared" at this man when he first approached him in the bank
lobby. Nevertheless, when the prosecutor asked Massanet if this
man was present in the courtroom, Massanet testified that he did
not see him. The government then called González. She discussed
the robbery, testifying that the man who took the money from her
drawer was "very close up" to her and that she looked at him for
approximately three seconds before he told her to look away. But,
similar to Massanet, González could not identify De León in the
court room. When González finished testifying, the court took a
brief recess.

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At some point during this recess, González approached the
prosecutor. She told him that when De León left the courtroom
during the recess, she recognized him as the man who had robbed
her. Around this same time, Massanet approached a government law
enforcement agent and told him the same thing. Shortly after
passing this information along, both González and Massanet saw De
León being led back into the courtroom in handcuffs.
When proceedings resumed, the government informed the
court of these developments. With the court's permission, the
government recalled both witnesses, starting with González. The
prosecutor asked González if it was true that she recognized De
León as he left the courtroom. De León objected to this question
as leading but the court permitted it. González answered
affirmatively. The prosecutor then asked González whether or not
the person who robbed her was in the courtroom. González again
said yes and identified De León. When the prosecutor asked her why
she had been unable to identify De León previously, she indicated
that computer monitors in front of De León had obscured her view of
him. A similar exchange occurred between the prosecutor and
Massanet. Massanet identified De León as the Doral Bank robber and
testified that he had been unable to identify De León previously
because De León's head was down, and he thought that De León was
just another lawyer. When cross-examined, both witnesses

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For purposes of § 924(c), a firearm is defined as: 1
(A) any weapon (including a starter gun) which will or is
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acknowledged that they had seen De León return to the courtroom in
handcuffs.
The jury ultimately convicted De León on all three counts
of the indictment. This appeal ensued.
II. Discussion
A. Sufficiency of the evidence: firearms count
De León argues that the evidence presented at trial was
insufficient to allow a reasonable jury to convict him of carrying
a firearm during the EuroBank robbery. Because he moved for an
acquittal on these grounds, our review is de novo. See United
States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir. 2008). In
assessing sufficiency, "we examine the evidence, both direct and
circumstantial, in the light most favorable to the prosecution and
decide whether that evidence, including all plausible inferences
drawn therefrom, would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant committed the charged
count or crime." United States v. Cruz-Díaz, 550 F.3d 169, 172 n.3
(1st Cir. 2008).
A conviction under 18 U.S.C. § 924(c) requires proof that
the defendant used a real firearm when committing the predicate
offense. See United States v. Taylor, 54 F.3d 967, 975 (1st Cir.
1995) (noting that "a toy or replica will not do"). "Although § 1

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deigned to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame
or receiver of any such weapon; (C) any firearm or
firearm silencer; or (D) any destructive device. Such
term does not include an antique firearm.
18 U.S.C. § 921(a)(3).
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924(c) requires proof that the gun is real, the government's proof
need not 'reach a level of scientific certainty.'" United States
v. Roberson, 459 F.3d 39, 47 (1st Cir. 2006) (quoting Taylor, 54
F.3d at 976). Indeed, as we have said many times, "[d]escriptive
lay testimony can be sufficient to prove that the defendant used a
real gun." Cruz-Díaz, 550 F.3d at 173.
Here, there was sufficient evidence, both direct and
circumstantial, that De León used a real firearm during the
EuroBank robbery. The direct evidence included the testimony of
three bank employees. These employees, each of whom observed the
object carried by De León at close range, called it either a
"revolver," "pistol," or a "firearm." See Taylor, 54 F.3d at 967
("Three eyewitnesses to the BayBank robbery, each of whom observed
the object gripped by appellant at close range, testified that it
was a gun. This evidence is enough to allow a rational jury to
find that appellant carried a real gun."). One employee further
testified that the "pistol or revolver" carried by De León was
"nickel plated," a description which is consistent with the jury's
finding that De León carried a real gun. See Cruz-Díaz, 550 F.3d
at 173 (holding that the evidence was sufficient to establish that

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the defendant used a real firearm where, among other things, a
witness described the gun as being "nickel plated"). Moreover,
none of the witnesses called the gun a "toy gun," or "replica gun"
or otherwise described it in a way that would indicate that the gun
was not real. See id. (finding that the evidence was sufficient to
establish that the defendant used a real firearm where, among other
things, "none of the witnesses in this case, all of whom had ample
time to view the gun, described it as a BB or toy gun").
There was also circumstantial evidence indicating that De
León carried a real firearm. At trial, some of the employees
stated that they were "afraid" that De León might hurt someone with
the gun. And, throughout the robbery, the employees at the bank
reacted as if the gun was real, following De León's various orders.
See id. From the totality of the evidence, including the reactions
of the witnesses, the jury was entitled to infer that De León
carried a real firearm. See id.
De León's opening salvo is that the prosecutor was
legally required to ask the witnesses whether they thought that De
León's firearm was real. This argument is a non-starter. De León
does not cite, nor are we are aware of, any precedent that requires
the prosecution to specifically ask witnesses whether the firearm
carried was real in order to establish a violation of § 924(c).
Although asking such a question might inure to the government's
benefit, particularly in cases where the government is relying

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solely on eyewitness testimony to prove that a real firearm was
used, the government is entitled, within reason, to present its
case as it sees fit.
De León's next argument, tangentially related to the
first, is similarly unavailing. He begins by observing that the
witnesses never specified whether his gun was real, merely
testifying that he carried a "pistol," "revolver," or "firearm."
He argues that because the witnesses never used the word real, or
some comparable adjective when describing the object he carried,
the testimony was not specific enough to enable a rational
factfinder to convict him of the firearms offense.
Through this argument, De León asks us to divorce the
words "pistol," "revolver," and "firearm" from their natural
meanings. We decline the invitation. These words are most
naturally understood to refer to real firearms, and the jury was
entitled to take the words at face-value when reaching its verdict.
See Taylor, 54 F.3d at 967. We note that this conclusion that the
government satisfied its burden in no way handicaps a defendant's
ability to cast doubt on the government's proof. During cross-
examination, De León easily could have tested the witnesses'
perceptions of the object he was carrying or further could have
emphasized the lack of specificity in witness answers during
closing argument. His failure to do either, although lost

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opportunities to be sure, does not somehow render the evidence the
government presented insufficient.
B. Sufficiency of the evidence: identification
De León argues that the district court erred when it did
not suppress the identification evidence on due process grounds.
Without this identification evidence, his argument continues, the
evidence presented was insufficient to convict him of the Doral
Bank robbery. Because the success of De León's sufficiency claim
hinges on the success of his due process argument, we examine the
due process argument first.
Typically, the district court's ultimate decision to
admit or suppress identification evidence is subject to a plenary,
de novo standard of review, with the underlying findings of fact
reviewed for clear error. See United States v. Rivera-Rivera, 555
F.3d 277, 283 (1st Cir. 2009). But because De León never sought to
suppress the identification evidence below, our review is for plain
error only. See United States v. Henderson, 320 F.3d 92, 102 (1st
Cir. 2003); see also United States v. Sanders, 547 F.2d 1037, 1040
(8th Cir. 1976). To establish plain error, a defendant "must show
an error that was plain, (i.e., obvious and clear under current
law), prejudicial (i.e., affected the outcome of the district court
proceedings), and seriously impaired the fairness, integrity, or
public reputation of the judicial proceedings." United States v.
Griffin, 524 F.3d 71, 76 (1st Cir. 2008).

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Identification evidence is for the jury in all but
"extraordinary cases." Henderson, 320 F.3d at 100. That said, a
trial court should suppress identification evidence on due process
grounds where there is a "very substantial likelihood" that there
was an "irreparable misidentification." Rivera-Rivera, 555 F.3d at
282; see also Simmons v. United States, 390 U.S. 377, 395-96
(1968). Determining whether suppression is necessary involves a
two-step analysis. Rivera-Rivera, 555 F.3d at 283; United States
v. Holliday, 457 F.3d 121, 125 (1st Cir. 2006). First, the court
should determine whether the identification procedure that preceded
the identification was "unnecessarily suggestive." Rivera-Rivera,
555 F.3d at 283. If it was, the court must then decide whether the
identification itself is reliable "notwithstanding the suggestive
procedure." United States v. Lopez-Lopez, 282 F.3d 1, 10 (1st Cir.
2002). If the court finds the identification to be reliable, it is
admissible. See Henderson, 320 F.3d at 101; see also United States
v. Alexander, 868 F.2d 492, 495 (1st Cir. 1989) (explaining that
even if the procedure at issue "could be termed unnecessarily
suggestive, a court need not suppress the identification unless it
lacked a sufficient basis for reliability").
As the sequence of this analysis makes clear, reliability
is the key. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977)
(observing that "reliability is the linchpin in determining the
admissibility of identification testimony"). Reliability is

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assessed by taking into account the "totality of the
circumstances." Neil v. Biggers, 409 U.S. 188, 199 (1972). Among
other things, the reliability assessment entails considering "(1)
the opportunity of the witness to view the criminal at the time of
the crime; (2) the witness' degree of attention; (3) the accuracy
of the witness' prior description of the defendant; (4) the level
of certainty demonstrated by the witness at the confrontation;
[and] (5) the length of time between the crime and the
confrontation." Henderson, 320 F.3d at 100 (citing Neil, 209 U.S.
at 199-200).
The two-step inquiry into suggestiveness and reliability
applies to both the in-court and out-of-court identifications,
provided that the defendant claims that an unnecessarily
suggestive, extra-judicial confrontation or procedure "tainted" the
identification at issue. Id. at 100. That analysis applies here,
as De León claims that the in-court identifications were tainted by
an unnecessarily suggestive confrontation that occurred outside the
presence of the jury -- before identifying him in court, both
identification witnesses saw De León returning to the courtroom in
handcuffs. De León further argues, as he must, that the
identifications are unreliable under the totality of the
circumstances.

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1. Suggestiveness
The encounter that De León labels as unnecessarily
suggestive may be likened to a "one-man show up," a classically
suggestive identification procedure. See Stovall v. Denno, 388
U.S. 293, 302 (1967). Both witnesses saw De León, and only De
León, in handcuffs before they identified him in court.
The government asserts that this confrontation cannot be
deemed unnecessarily suggestive because it was not orchestrated or
staged by the government. This argument is not particularly
persuasive, however, and we have rejected a similar one in the
past. In United States v. Bouthot, we explained: "Because the due
process focus in the identification context is on the fairness of
the trial and not exclusively on police deterrence, it follows that
federal courts should scrutinize all suggestive identification
procedures, not just those orchestrated by the police, to determine
if they would sufficiently taint the trial so as to deprive the
defendant of due process." 878 F.2d 1506, 1516 (1st Cir. 1989);
but see Lopez-Lopez, 282 F.3d at 10-11 (holding that no
impermissibly suggestive confrontation occurred where the witnesses
identified a handcuffed defendant after inadvertently confronting
him at a police station). Accordingly, we will assume that the
encounter was unnecessarily suggestive and turn to the second step
of the analysis.

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2. Reliability of the in-court identifications
The reliability analysis is inherently witness-specific.
González's identification of De León presents a closer case than
Massanet's does, and we begin with her. As noted above, five
factors guide the inquiry.
Application of the first four factors supports a finding
of reliability. First, during the commission of the crime,
González had the opportunity to view the robber from a close
vantage point. The photographs taken from the bank's surveillance
video show that the robber stood next to González when he took
money from her drawer. And González testified at trial that the
robber was "very close up" to her, and that she looked at him for
three seconds before he told her to look away.
Second, González's testimony further indicates that she
paid a high degree of attention to both the defendant and her
surroundings during the robbery. She stated that, after the
robbery, she told the authorities that the other robber wore a
black shirt and that the person who took money from her drawer wore
a red shirt, a red cap, and latex gloves. These detailed
descriptions were corroborated by Massanet's testimony and
photographs taken from the bank's surveillance video. See Rivera-
Rivera, 555 F.3d at 284 (finding the identification reliable where,
among other things, the witness' "recollection of detail
reflect[ed] attentiveness to his surroundings"). Third, González

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also provided an accurate description of the defendant, and fourth,
she expressed certainty when finally identifying De León in open
court.
The fifth and final factor, the length of time between
the crime and the in-court identification, points in neither
direction. The in-court identification was not particularly fresh,
coming seven months after the robbery. But this lapse of time does
not severely undermine the reliability of the in-court
identification, especially since we have found similar lapses to be
"de minimis compared to other cases." See Rivera-Rivera, 555 F.3d
at 284-85 (discussing a six-month lapse between the crime and the
in-court identification).
For his part, De León attacks the reliability of
González's in-court identification in three ways. First, he
suggests that the opportunity for observation factor cannot support
a finding of reliability since González only looked at the robber
for a few seconds. Second, he notes that González initially failed
to identify him in open court and had to be recalled to the stand
to identify him. Finally, he presses the fact that González was
unable to pick him out of a pre-trial photographic lineup arranged
by the authorities.
We begin with the last point, the appellant's strongest.
If González had an adequate opportunity to observe him during the
robbery and paid close attention during this time, it stands to

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reason that she would have been able to identify De León from the
photographic line-up, something she failed to do. Naturally, this
casts some doubt upon the reliability of her in-court
identification. But the prevailing view is that where there has
been a prior "failed" identification, it is typically grist for the
jury's mill. See 2 Wayne R. LaFave et al., Criminal Procedure §
7.4 (3d ed. Supp. 2008-2009). As one court observed, "a witness's
prior inability to identify a defendant goes to the credibility of
the in-court identification and not to its admissibility, and thus
raises a proper question of fact for the jury to determine."
United States v. Briggs, 700 F.2d 408, 413 (7th Cir. 1983); see
also United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1160
(7th Cir. 1987) ("[A] previous failure to make a positive
identification from a photo array does not necessarily, or even
normally, make the later identification less certain.") (citations
omitted); United States v. Douglas, 489 F.3d 1117, 1126 (11th Cir.
2007); State v. King, 934 A.2d 556, 562 (N.H. 2007). The view is
sound. A variety of reasons might exist for a witness's previous
inability to identify the defendant, none of which would cast
serious doubt on the reliability of a later identification. For
example, the previous opportunity to identify the defendant could
have come on the heels of the crime, at a time when the witness was
too traumatized to think clearly. Or the witness may have been
unable to identify the defendant not out of uncertainty, but

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because the witness feared retaliation upon a positive
identification. To allow a failed identification to always bar a
later identification would make little sense.
Of course, in some cases a witness's failure to identify
the defendant on a prior occasion, in conjunction with other
factors, might create enough doubt about the reliability of a later
identification to preclude its admission. The question is whether
this is such a case, given González's relatively brief opportunity
to view the robber and her initial failure to identify De León in
open court.
We have our doubts. González's initial in-court failure
to identify was partially explained at trial. She testified that
a computer monitor obscured her view of De León. The district
court further found -- and De León does not contest -- that De León
avoided looking at González during her initial identification
attempt. And although González's original encounter with De León
was brief, she observed him from a very close distance and
carefully enough to allow her to recall specific details about his
clothing. At the least, given these tensions, we cannot say that
the district court committed plain or obvious error in allowing
González to identify De León, especially in light of the rule that
a court should only withhold identification evidence from the jury
in "extraordinary cases." Henderson, 320 F.3d at 100.

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De León does not claim that this photographic lineup was 2
suggestive.
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As to Massanet's identification of De León, we may be
brief. In all material respects, Massanet's in-court
identification of De León is more reliable than González's. He had
an equal, if not better, opportunity to observe De León during the
robbery. He spent more time with De León during the robbery and
acknowledged that he "stared" at De León when approaching him in
the bank lobby. And, unlike González, Massanet successfully
identified De León on a previous occasion, picking De León's
photograph out of a six-picture photographic lineup.2
As with González's identification, we conclude that the
district court committed no clear or obvious error in allowing
Massanet to identify De León. Because we reject De León's due
process argument, his sufficiency argument also is doomed. A
rational factfinder could have concluded, based on testimony from
Massanet and González, that De León was the individual who robbed
the Doral Bank. We therefore uphold De León's conviction on the
count charging him with that robbery.
C. Leading questions
De León advances an additional, related, evidentiary
argument. He asserts that the district court abused its discretion
when it allowed the prosecutor to ask González and Massanet leading

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A similar exchange occurred between the prosecutor and 3
Massanet.
The exchange between the prosecutor and González is 4
illustrative:
Prosecutor: And what I would like for you [to] do,
ma'am, is take a look around the courtroom, and stand up
if you have to, and tell the Court whether or not you see
the person who robbed you on December 30th, 2005?
González: Yes, I recognize that person.
Prosecutor: And will you point to him and describe what
he is wearing, please?
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questions when they returned to the stand to identify him. The
exchange between the prosecutor and González was as follows:
Prosecutor: When I questioned you earlier and
asked you if you recognized the person who
robbed you on December 30th, 2005 and you said
no; is that correct?
González: My answer was that I did not
recognize the person.
Prosecutor: Thank you. And is it correct
that it was brought to my attention that as a
particular person was leaving the courtroom
that you did recognize that person?
González: Yes, that's correct.3
Although the questions asked were undoubtedly leading,
any error in allowing them was harmless. The questions were geared
toward explaining why the witnesses were back on the stand, not
toward garnering a positive identification of De León. The
questions that the witnesses were asked immediately before they
identified De León were not leading questions. Moreover, "[t]he 4

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González: Well, the person is the one who is sitting
between the two gentlemen and he is wearing [a] long-
sleeved white shirt.
A similar exchange occurred between the prosecutor and
Massanet.
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evil of leading a friendly witness is that the information may
supply a false memory." United States v. Hansen, 434 F.3d 92, 105
(1st Cir. 2006). Here, De León does not claim that the leading
questions prompted inaccurate testimony from the witnesses, nor
does the record support such a claim.
III. Conclusion
For the reasons provided above, the convictions are
affirmed.
AFFIRMED.

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