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 PérezSosa, 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 twoman 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
 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
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 crossexamination, 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 RiveraRivera, 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.
 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
 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
González: Well, the person is the one who is sitting

between the two gentlemen and he is wearing [a] longsleeved 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.