2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2015

USA v. Brent Antoine

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Recommended Citation

"USA v. Brent Antoine" (2015). 2015 Decisions. Paper 289.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/289
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-2867

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UNITED STATES OF AMERICA

v.

BRENT KEVIN HERCULES ANTOINE,

Appellant

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-10-cr-00229-003)

District Judge: Honorable Maurice B. Cohill, Jr.

________________

Submitted Under Third Circuit LAR 34.1(a)

January 12, 2015

Before: AMBRO, FUENTES, and ROTH, Circuit Judges

(Opinion filed March 25, 2015)

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OPINION*

________________

AMBRO, Circuit Judge

Brent Antoine appeals his convictions of conspiracy to commit access device 

fraud, 18 U.S.C. § 371, possession of fifteen or more counterfeit or unauthorized access 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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devices, id. § 1029(a)(3), and three counts of aggravated identity theft, id. § 1028A(a)(1). 

He argues that the District Court erred in denying his motion to suppress an arresting 

officer’s out-of-court identification of him and in permitting the same officer to identify 

him in court. Because the identifications were sufficiently reliable to justify their 

admission at trial, we affirm.

I. Facts

In March 2010, Robert Dean, an asset protection associate at the Walmart in 

Carnegie, Pennsylvania, called 911 to report that an unspecified number of people had 

just attempted to buy electronics with multiple credit cards that were rejected. Dean 

watched the men get into a Dodge Caravan; he took the license plate number and relayed 

what he had seen to Sergeant Stephen Fury, the officer who answered the call.

Two minutes after the call, Fury came to the parking lot of the shopping center 

where the Walmart was and stopped the van. Officer Douglas Burek arrived soon after. 

They learned that the van was rented, and the rental agreement did not authorize any of 

the occupants to drive it. Fury and Burek therefore ordered the men out of the van so that 

they could tow it away for the rental company. Antoine left the van in a well-lighted area 

near the exit of the shopping center, where he told Burek his name, birth date, and 

address.

Fury and Burek told the occupants to retrieve their belongings from the car; one 

passenger took a black duffel bag from the trunk, but a locked safe in the van remained 

unclaimed. After the stop, police obtained a search warrant for the safe, which contained 
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gift cards from various retail stores and the 39 credit cards used to purchase them. 

Further investigation revealed that the credit cards were fraudulent.

A few days after the stop, Secret Service Special Agent Michael Radens 

interviewed Burek. Radens presented Burek with photographs of suspects believed to 

have been in the van Fury had stopped and asked if Burek recognized anyone. After 

seeing a photo of Brentt Antoine (not the defendant, whose first name only has one “t”), 

Burek said that he was not sure if it depicted one of the people he had stopped but that it 

might. For reasons the record does not disclose, Radens recorded Burek’s response as a 

positive identification, and Brentt Antoine was arrested. Eventually the mistake was 

cleared up, and Brentt Antoine was cleared. 

In January 2011, Radens showed Burek another photograph, this one of the 

defendant Brent Antoine. Burek identified Antoine, and he was arrested on the strength 

of Burek’s identification.

Before his trial, Antoine moved to suppress Burek’s out-of-court identification as 

the result of an impermissibly suggestive procedure, and he moved to preclude Burek 

from identifying Antoine in court. The District Court held a hearing and denied 

Antoine’s motions. Antoine moved for reconsideration after the Government’s case-inchief, and reconsideration was also denied. A jury convicted him of all counts, and he 

appeals.

II. Discussion

“[W]e review a decision to admit identification testimony over an objection for 

abuse of discretion.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). 
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Identification testimony violates a criminal defendant’s due process rights when it is both 

“unnecessarily suggestive” and “creates a substantial risk of misidentification.” Id. 

The District Court held—and the Government does not contest—that the January 

2011 identification procedure was unduly suggestive.1 We need to decide only whether 

the District Court correctly ruled that the identification was sufficiently reliable to justify 

its admission at trial. In determining whether a suggestive identification is reliable, we 

consider: “[(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 criminal, [(4)] the level of certainty demonstrated by the witness at the 

confrontation, and [(5)] the length of time between the crime and the confrontation.” 

Young v. Conway, 698 F.3d 69, 78 n.6 (2d Cir. 2012) (alterations in original) (quoting 

Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).

Although some facts here argue in favor of suppression, this is not one of the 

“extraordinary cases that identification evidence should be withheld from the jury.” 

United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012). That when Burek viewed 

Antoine on March 3, 2010 it was after nightfall, and that Burek’s correct January 2011 

identification took place over a year later, both weigh in favor of suppression. However, 

 

1 No doubt the identification procedure could and should have been better: no testimony 

suggests that Radens showed Burek an array or a series of pictures or that Burek had 

reason to doubt that Radens was trying to identify Antoine. Confirming any suspicion 

that the January 2011 procedure was suggestive, a similar interaction between Radens 

and Burek in March 2010 led to the arrest of the innocent Brentt Antoine. Where, as 

here, there was no emergency requiring Burek to make an identification on the spot, “it is 

little to ask that law enforcement take some additional time and conduct a less suggestive 

identification procedure.” Brownlee, 454 F.3d at 138 n.4.
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the following considerations developed during Burek’s direct and cross-examinations at 

the suppression hearing trump those factors: (1) Burek viewed Antoine’s face at close 

range for three to five minutes using a flashlight and floodlights in a parking lot lit by 

overhead lights; (2) the observation took place in calm circumstances by a trained and 

attentive law-enforcement officer; (3) Burek’s written report completed soon after, while 

general, was accurate in its description of Antoine; (4) Burek’s confidence in his January 

2011 identification was absolute; and (5) Antoine’s name matches that given to Burek on 

the night in question. And although Radens noted that Burek had positively identified the 

wrong suspect on March 24, 2010, Burek testified at the suppression hearing that he 

actually told Radens that this photograph of the incorrect individual “could be [Antoine], 

but [he] c[ouldn’t] say for certain” and that “[i]t may [have] be[en] a different time in his 

life, but it wasn’t what he looked like that night.” Mot. to Suppress Hr’g Tr. 84:1–3 Aug. 

21, 2012, ECF No. 202. The District Court concluded that Burek’s testimony at the 

suppression hearing was credible, and we must defer to this finding. Moreover, defense 

counsel vigorously cross-examined Burek at trial on the reliability of the January 2011 

identification, and the District Court specifically instructed the jury on how to weigh ID 

evidence. Accordingly, we affirm the District Court’s decision not to suppress the outof-court identification.

Burek’s in-court identification is admissible unless “the ‘very substantial 

likelihood of misidentification’ was ‘irreparable,’ despite the defendant’s opportunity to 

cross-examine the witness about the accuracy of the identification.” United States v. 

Holliday, 457 F.3d 121, 125 (1st Cir. 2006) (quoting Simmons, 390 U.S. at 384). For the 
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same reasons that Burek’s January 2011 identification was reliable, we cannot doubt that 

his in-court testimony rested on an independent recollection of talking with Antoine for 

three to five minutes in an illuminated area under calm circumstances. See United States 

v. Crews, 445 U.S. 463, 473 (1980).

* * * * *

The January 2011 identification, though unduly suggestive, was reliable, and thus 

the District Court properly admitted it. Nor do we believe any pretrial identification 

unduly influenced Burek’s in-court identification. In this context, we affirm.