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Date: 08-22-2021

Case Style:

United States of America v. JUAN E. SEARY-COLÓN

Case Number: 18-1859

Judge: Ojetta Rogeriee Thompson

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Seth A. Tremble, Special Assistant United States Attorney,
with whom W. Stephen Muldrow, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief

Defendant's Attorney:


Boston, MA - Criminal defense Lawyer Directory


Description:

Boston, MA - Criminal defense lawyer represented defendant with a Hobbs Act robbery, (Count One); murdering a person through the use of a firearm during a crime of violence, (Count Two); possessing a firearm in furtherance of a crime of violence, (Count Three); and being a convicted felon in possession of a firearm, (Count Four) charges.



On April 3, 2012, around 3:20 p.m., two men entered the
Piezas Importadas located on Monserrate Avenue in Carolina, Puerto
Rico, to commit a robbery. Piezas Importadas is an auto parts
store that sells merchandise obtained from suppliers located in
the mainland and abroad. April 3rd, 2012 was a busy day at the
store, and several customers and employees were around at the time
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of the robbery. Five employees, including José Méndez-del Valle
("Méndez") and the store manager David Méndez-Calderón ("MéndezCalderón"), were working behind the service counter facing the
door through which the robbers entered. As the store owner's wife
and store accountant, María Judith Sanabria-Rivera ("Sanabria"),
was getting ready to leave for the day and was heading towards the
door, the two men burst into the store. The first man to enter
was wearing a cap and a dark hoodie. He entered the store while
brandishing a firearm, announced the robbery, and ordered everyone
to "lie on the ground." Sanabria noticed that the man had "very
specific" eyebrows that "were marked going up and then thin coming
down; not . . . like . . . regular eyebrows that men usually have."
She also noticed that he had a peculiar tattoo on his left leg,
which had light, basic colors, "not like the tattoos that are used
nowadays with . . . lot[s] of color[s]." Before anyone could get
down, the gunman walked straight to the service counter, pointed
his gun at Méndez-Calderón, and shot him once in the face. MéndezCalderón fell to the ground and died shortly thereafter as a result
of the gunshot wound. The gunman started walking from one side
of the store to the other while cursing and yelling at everyone
not to look at him. Meanwhile, the other robber jumped over the
service counter and asked Méndez for the store's petty cash.
Méndez complied and handed him a metal box with approximately
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$1,020. The robber took the box with the money, pushed Méndez to
the floor, and told him to stay on the ground and not look at him.
The robber then jumped back over the counter, joined the gunman,
and ran out of the store with the gunman. The robbery lasted
approximately forty seconds. After realizing that the robbers
were gone, Sanabria called 9-1-1, reported the robbery and asked
for help for Méndez-Calderón. The store closed to the public
after the robbery and remained closed for more than a day.
Law enforcement officers arrived at the scene shortly
thereafter. Agent Calixto Caamaño-De Jesús ("Agent Caamaño") from
the Puerto Rico Police was one of the officers who arrived at the
scene and was initially in charge of the investigation. Agent
Caamaño was at the time assigned to the Homicide Division of the
Center for Criminal Investigations in Carolina. Two Federal
Bureau of Investigation ("FBI") task force agents, Emmanuel
Martínez-Martínez ("Agent Martínez") and José Bocanegra-Ortiz
("Agent Bocanegra"), also arrived at the scene. Law enforcement
recovered from the scene a projectile jacket, a fired projectile,
and a Federal Smith & Wesson .40-caliber shell casing. They also
interviewed Méndez and Sanabria that same day.
The next day, April 4, Agent Caamaño showed Méndez a
nine-photo array that included Seary's photo, along with eight
fillers. The array included photos of male subjects of roughly
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the same ages and eye color. All subjects also had the same hair
color, and eight of the nine subjects, including Seary, had
relatively short hair. At least six of the subjects, including
Seary, seemed to have manicured eyebrows. Agent Caamaño warned
Méndez regarding the procedure for the array and instructed him
that "if he sees" the photo of the person who had shot MéndezCalderón the day before, he should let Agent Caamaño know. Méndez
picked Seary's photo, which occupied the fourth position in the
array, as that of the man who had shot Méndez-Calderón during the
Piezas Importadas robbery.
On April 6, 2012, local law enforcement agents arrested
Seary at a two-level house located in Villa Fontana, Carolina,
that was shared by some of Seary's relatives. The agents found
Seary hiding inside a cut-out box spring that was under a mattress
in a bedroom located on the first floor of the house. His arrest,
however, was unrelated to the Piezas Importadas robbery and MéndezCalderón's murder. Instead, Seary's arrest was related to a local
criminal case in which he was a fugitive. Seary's arrest was
featured on the cover of Primera Hora, a local newspaper, on April
9, 2012. Two days later, Agent Caamaño called Méndez and asked
him if he had seen the April 9 Primera Hora newspaper. Méndez
responded that he had not but that he would get a copy of the
newspaper. Agent Caamaño instructed him to call him if he saw
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anything that caught his attention in the newspaper. Later that
day, Méndez obtained a copy of the newspaper and called Agent
Caamaño. Méndez told him that the man featured in the newspaper
cover was the same man that had killed Méndez-Calderón, that he
had the "same" face, and that the man was wearing the same dark
hoodie that the gunman had worn on the day of the robbery. That
same day, Agent Caamaño went to Piezas Importadas to have Méndez
date and sign the Primera Hora newspaper cover. During that
interaction, Méndez repeated that the man portrayed in the
newspaper cover had killed Méndez-Calderón and stated that "he had
the same deep look [in the picture] that he had when he had come
into the business and had killed David [Méndez-Calderón]."
Following Seary's arrest, the FBI officially took over
the case, and Agent Bocanegra became the case agent. Agents
Bocanegra and Martínez interviewed Sanabria at her house on April
11, 2012. Sanabria described the gunman to the agents and
mentioned the peculiar tattoo that he had on his left leg.1 On
April 17, 2012, Agents Bocanegra and Martínez returned to
Sanabria's house to show her a six-photo array. The array included
Seary's photo as well as those of five of the fillers from the
1 At the time of the trial, in 2018, Agent Martínez did
not remember if Sanabria had mentioned the gunman's tattoo during
her interview with him and Agent Bocanegra, though Sanabria
testified that she had mentioned it at some point.
-7-
April 4 array, though the positioning of the photos was altered.2
Hence, the photos included in the April 17 array shared the same
similarities as those in the April 4 array. Agent Martínez advised
Sanabria that the array "may or may not contain a picture of the
person who committed the crime" at Piezas Importadas. Sanabria
looked at the photo array and "quickly" picked Seary's photo.
In mid-April, several FBI task force agents executed a
search warrant in the Villa Fontana house where Seary had been
arrested the week before. During the search, one of the officers
seized a Federal Smith & Wesson .40-caliber bullet inside a pot
located on the second floor of the house.
B. Procedural Background
Based on the April 3, 2012 incident, a federal grand
jury returned an indictment on April 19, 2012, charging Seary with
Counts One through Four.
Seary moved to suppress Méndez's and Sanabria's out-ofcourt identifications and to prevent them from identifying him in
court. He argued that it was "highly questionable how [Seary's
photo] made it into the array" in the first place, that Méndez's
description of Seary "lack[ed] reliability," and that the
circumstances surrounding Sanabria's identification "raise[d]
2 In the April 4 photo array, Seary's photo occupied
position number four out of nine whereas in the April 17 photo
array Seary's photo occupied position number five out of six.
-8-
questions as to its reliability." He also complained that the
April 17 array had only six photos, that the agents conducted a
photo array instead of a line-up, and that the procedures used for
conducting the photo array did not "fully compl[y]" with the "best
practices" stated in a U.S. Department of Justice memorandum dated
January 6, 2017.
The government opposed the motion, arguing that the
photo arrays used in this case were not unduly suggestive. After
reviewing the photo arrays, the district court agreed with the
government. Accordingly, it denied Seary's motion to suppress.
Seary's jury trial began on February 20, 2018. The
government introduced Méndez's and Sanabria's out-of-court
identifications as exhibits at trial, as well as the testimony of
twelve witnesses, including both Méndez and Sanabria. Méndez
testified that he was standing next to Méndez-Calderón and
approximately three feet across from Seary when he saw Seary shoot
Méndez-Calderón. According to Méndez, he looked at Seary's face
for two or three seconds and he "couldn't forget that face because
[Seary] had a look that was cold, as if he didn't care anything
about life." Méndez admitted that he had been mistaken when on
April 11, 2012, he told Agent Caamaño that the man featured in the
newspaper cover had the same dark hoodie that the gunman had been
wearing during the Piezas Importadas robbery, and attributed the
-9-
mistake to the fact that he was focused on Seary's face and
firearm, not on his clothing, and to both pieces of clothing being
similar. For her part, Sanabria testified that she looked at
Seary for two seconds, including the exact moment when he shot
Méndez-Calderón,3 and that Seary's manicured eyebrows and unusual
tattoo on his left leg caught her attention. Sanabria also
identified Seary in court as Méndez-Calderón's shooter.
After all of the government's identification evidence
had been presented, Seary moved the district court to reconsider
its denial of his motion to suppress. Seary argued that Méndez's
identification was not reliable because Méndez had seen the
gunman's face for only two or three seconds and had admitted to
being wrong about the gunman's clothing. Seary contended that
Sanabria's identification should also be suppressed as unreliable
because she too only saw the gunman's face for approximately three
seconds, the FBI conducted a photo array instead of a line-up, her
photo array contained only six photos, and there were
inconsistencies between her testimony and that of Agent Martínez
as to whether Sanabria had previously mentioned seeing a tattoo on
the gunman's left leg. The district court denied Seary's motion
3 The government introduced into evidence a still image
of Sanabria looking at the gunman pointing a firearm at MéndezCalderón.
-10-
for reconsideration on the same grounds that it had denied his
original motion to suppress and clarified that the court's ruling
"d[id] not preclude [Seary] from arguing to the jury that the
government has not met its burden of proof as to the fact that
[he] was indeed the person who committed the crime."
At the close of the government's case, Seary moved for
a judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure, which the district court denied. Seary then
presented one witness in his defense: his stepfather, Santiago
Muñiz-Cruz ("Muñiz"). Muñiz testified that he lived on the second
floor of the Villa Fontana house where Seary had been arrested,
and that the Federal Smith & Wesson .40-caliber bullet seized from
inside a pot in mid-April 2012 belonged to him. According to
Muñiz, he practiced Santeria, and in 2006 or 2007 he found that
bullet on the street and brought it home to use in his Santeria
rites.
After presenting his witness, Seary renewed his motion
for a judgment of acquittal, which the court again denied. On
February 26, 2018, the jury found Seary guilty of all counts.
Seary renewed his motion for acquittal, which the court denied for
a third time.
On August 20, 2018, the district court sentenced Seary
to imprisonment terms of 240 months for Count One, life for Count
-11-
Two, 120 months as to Count Three, which the court merged with
Count Two after finding that Count Three was a lesser-included
offense of Count Two, and 120 months for Count Four. Seary timely
appealed.
II. Discussion
A. The Motion to Suppress
Seary challenges the district court's denial of his
motion to suppress Méndez's and Sanabria's out-of-court
identifications of him in the photo arrays and to prevent them
from identifying him in court. He generally contends that the
photo arrays constructed by the police were in violation of the
Due Process Clause. See Neil v. Biggers, 409 U.S. 188, 196–98
(1972).
Identification evidence -- both out-of-court and incourt identifications -- "should be suppressed as a matter of due
process 'only in extraordinary cases.'" United States v.
Holliday, 457 F.3d 121, 125 (1st Cir. 2006) (quoting United States
v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003)). To withhold
identification evidence from a jury, the defendant must persuade
the court that the "identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification." Biggers, 409 U.S. at 197 (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)); see also
-12-
United States v. Casey, 825 F.3d 1, 17 (1st Cir. 2016) (noting
that "[t]he defendant bears the burden to establish [that] an outof-court identification was infirm"). The defendant must first
establish that the identification procedure was unduly suggestive.
Perry v. New Hampshire, 565 U.S. 228, 241-42 (2012). "If it was
not, the inquiry ends," United States v. Melvin, 730 F.3d 29, 34
(1st Cir. 2013), and it is for the jury to determine how much
weight to afford the identification evidence, Casey, 825 F.3d at
17. If, however, the defendant can successfully establish that
the identification procedure was unduly suggestive, we must "then
examine the totality of the circumstances to ascertain whether the
identification was nevertheless reliable."4 Melvin, 730 F.3d at
4 In Biggers, the Supreme Court set forth the following
factors for evaluating the reliability of identifications:
[(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.
409 U.S. at 199-200. "Against these factors is to be weighed the
corrupting effect of the suggestive identification itself."
Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Absent a finding
of a "substantial likelihood of irreparable misidentification,"
"such evidence is for the jury to weigh," as "some element of
untrustworthiness is customary grist for the jury mill" because
"[j]uries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some
questionable feature." Id. at 116.
-13-
34 (citing United States v. DeCologero, 530 F.3d 36, 62 (1st Cir.
2008)). "[I]f the indicia of reliability are strong enough to
outweigh the corrupting effect of the police-arranged suggestive
circumstances, the identification evidence ordinarily will be
admitted, and the jury will ultimately determine its worth."
Perry, 565 U.S. at 232. The same analysis applies to both pretrial
and in-court identifications. See Holliday, 457 F.3d at 125
(noting that the two steps outlined above apply "[b]oth as to
pretrial identifications and in-court identifications"); id.
("When the conviction is 'based on eyewitness identification at
trial following a pretrial identification by photograph,' we will
reverse on a constitutional basis only if the 'very substantial
likelihood of misidentification' was 'irreparable,' despite the
defendant's opportunity to cross-examine the witness about the
accuracy of the identification." (quoting Simmons, 390 U.S. at
384)).
We review de novo the district court's denial of a motion
to suppress a photo identification. Id. Seary asserts two
grounds as to why Méndez's identification of him in the April 4
photo array should have been suppressed. First, he contends that
Méndez's identification should have been suppressed because "[i]t
is highly questionable" and "suspicious" how Seary made it into
the array in the first place. This, however, is not enough to
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suppress Méndez's identification of Seary. The record shows that
Seary was the only suspect included in the arrays -- the rest were
fillers -- and there is no evidence in the record suggesting that
he was improperly included as a suspect. Although Seary complains
that the record is silent as to why he was included in the photo
arrays, he had the burden of establishing improper police conduct
and developing the record below in this respect. See Casey, 825
F.3d at 17; see also Moore v. Dickhaut, 842 F.3d 97, 101 (1st Cir.
2016). Second, Seary argues that the gunman's description that
Méndez provided "lacks reliability," which may lead to a mistaken
identification. The fatal flaw with Seary's argument, however,
is that it centers on the reliability of Méndez's identification.
We do not, however, reach the reliability issue unless the
defendant first establishes that the identification procedure was
unduly suggestive. See Moore, 842 F.3d at 101 (stating that "the
issue of reliability 'comes into play only after the defendant
establishes improper police conduct'" (quoting Perry, 565 U.S. at
241)). And here, Seary does not claim, let alone establish, that
the April 4 photo array was unduly suggestive. "Absent
unnecessarily suggestive procedures, reliability is ensured
through traditional trial protections, such as '. . . vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness identification
-15-
and the requirement that guilt be proved beyond a reasonable
doubt,'" id. (quoting Perry, 565 U.S. at 233), which Seary received
in this case.
Next, Seary argues that Sanabria's identification of him
in the April 17 photo array should have been suppressed because:
(1) the array contained only six photos and not nine, as the
April 4 photo array; (2) the procedures used for conducting the
photo array did not "fully compl[y]" with "best practices" stated
in a U.S. Department of Justice memorandum dated January 6, 2017;
(3) "it would have been the best investigative course of action to
conduct a line-up" where defense counsel could have participated,
instead of a photo array; (4) Seary's photo had been featured in
the Primera Hora newspaper cover and Sanabria was allegedly aware
that Seary had been arrested at the time of her identification;
and (5) Sanabria allegedly failed to mention Seary's leg tattoo
before trial.
Seary's first two arguments relate to the procedure
selected by law enforcement to conduct the April 17 photo array.
These arguments, however, lack merit because Seary has failed to
establish that the procedure followed in this case made the photo
array unduly suggestive. Furthermore, although Seary complains
that the April 4 array had nine photographs, whereas the April 17
array had only six, the evidence shows that the number of photos
-16-
varied because each photo array identification was conducted by a
different law enforcement agency following its own standard
procedures. The first array was conducted by Agent Caamaño, a
local law enforcement officer, who testified that in conducting
the array he followed the Puerto Rico Police's "Norms that Govern
the Photographic Identification Procedure," which establish that
"the witness will be shown no less than nine photographs including
the one of the suspect with similar traits to the suspect." The
April 17 array, however, was conducted by FBI task force agents
after the case had been transferred to the federal jurisdiction
and followed FBI's "custom[s] at th[e] time." In addition,
although Seary argues that the FBI did "not fully compl[y] with"
all of the "best practices" for conducting photo arrays stated in
a January 6, 2017 U.S. Department of Justice memorandum, he
acknowledges that said memorandum was issued almost five years
after the April 17 photo array was conducted.5 Moreover, that
memorandum clearly states that the procedures outlined therein
"are not a step-by-step description of how to conduct photo arrays,
but rather set out principles and describe examples of how to
perform them." Sally Yates, U.S. Dep't of Just., Eyewitness
5 In any event, we note that the memorandum establishes
that a photo array should include only one suspect and at least
five filler photographs, which the April 17 photo array clearly
complied with. See Sally Yates, U.S. Dep't of Just., Eyewitness
Identification: Procedures for Conducting Photo Arrays 3 (2017).
-17-
Identification: Procedures for Conducting Photo Arrays 2 (2017).
It further clarifies that "nothing in th[at] memorandum implies
that an identification not done in accordance with th[ose]
procedures is unreliable or inadmissible in court." Id.
Seary's third argument fares no better. Although he
might have preferred that the FBI conduct a line-up in the presence
of defense counsel instead of a photo array identification, he has
failed to show any illegality behind the FBI's decision to conduct
a photo array. In fact, Agent Martínez testified that the FBI's
usual practice is to conduct photo arrays instead of line-ups,
that during his approximately seven years working with the FBI he
had conducted over forty photo arrays and not a single line-up,
and that the fact that defense counsel might have been present
during a line-up had no bearing on the FBI's decision to conduct
a photo array in this case.6
6 We note that Seary had not yet been indicted when the
FBI conducted the April 17 photo array. Thus, the constitutional
right to counsel would not have attached if a line-up had been
conducted at that time. See Gullick v. Perrin, 669 F.2d 1, 3 n.5
(1st Cir. 1981) ("At the time of the lineup, the petitioner had
not yet been indicted and, thus, his right to counsel at the lineup
had not yet attached." (citing Kirby v. Illinois, 406 U.S. 682,
690 (1972))); but cf. Roberts v. Maine, 48 F.3d 1287, 1291 (1st
Cir. 1995) (considering the possibility that an exception to that
rule might apply in "extremely limited" circumstances not present
in this case).
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Seary's next contention also fails. Although Seary's
photo had been featured in the newspaper cover eight days before
Sanabria identified him in the April 17 photo array, there is no
evidence that law enforcement showed Sanabria Seary's photo in the
newspaper or directed her to that photo, or that she had even seen
it.7 Accordingly, any potential suggestiveness stemming from
Sanabria having seen the newspaper cover is not subject to
suppression under the two-step analysis. See Perry, 565 U.S. at
243-44, 248 (noting that a witness's out-of-court identification
of a "defendant to police officers after seeing a photograph of
the defendant in the press captioned 'theft suspect,'" might be
affected by "[e]xternal suggestion," but holding that the two-step
"due process check" does not apply "when the identification was
not procured under unnecessarily suggestive circumstances arranged
by law enforcement"). Furthermore, the newspaper article was
unrelated to the Piezas Importadas robbery, and Sanabria was
informed that the array "may or may not contain a picture of the
person who committed the [robbery]." Nor is there any evidence
that Méndez's prior identification of Seary influenced Sanabria's
identification. Sanabria denied having learned of Seary's arrest
from Méndez, who in turn denied having told anyone that he had
7 There is no evidence that Sanabria was aware that
Seary had been arrested at the time that she identified him in the
photo array.
-19-
identified Seary in the April 4 array. There is simply nothing
in the record to conclude that Sanabria's identification procedure
was unduly suggestive or otherwise tainted by either the photo on
the newspaper cover or Méndez's prior identification.
Seary's last contention -- that Sanabria allegedly
failed to mention his leg tattoo before trial -- relates to the
reliability of Sanabria's identification, and not to the
suggestiveness of the identification procedure. Yet, as discussed
above, when, as here, a defendant fails to establish that the
identification procedure was unduly suggestive, we do not reach
the reliability issue. See Moore, 842 F.3d at 101; Perry, 565
U.S. at 241. Instead, "reliability is ensured through traditional
trial protections," and it is up to the jury to determine how much
weight to afford to the identification evidence. Moore, 842 F.3d
at 101 (citing Perry, 565 U.S. at 233).
Finally, Seary also contests Sanabria's in-court
identification, arguing that it was "tainted by [her] earlier
[improper pretrial] identification and therefore it must also be
excluded." Because the success of Seary's challenge to Sanabria's
in-court identification is contingent on the success of his
arguments contesting her pretrial identification, which we have
already rejected, his challenge to the in-court identification
likewise fails.
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In sum, identification evidence should be withheld from
a jury "only in extraordinary cases." Melvin, 730 F.3d at 34
(quoting United States v. Rivera–Rivera, 555 F.3d 277, 282 (1st
Cir. 2009)). Seary has failed to show that the district court
erred in denying his motion to suppress the identification evidence
here.
B. Sufficiency of the Evidence
Seary's sufficiency-of-the evidence challenge on appeal
is quite limited. Seary concedes that an armed robbery took place
at Piezas Importadas on April 3, 2012, during which Méndez-Calderón
was murdered, but he claims that the evidence is insufficient to
link him to the armed robbery and murder.
Because Seary preserved his challenge to the sufficiency
of the evidence, we review de novo the district court's denial of
his motion for a judgment of acquittal. United States v. TrinidadAcosta, 773 F.3d 298, 310 (1st Cir. 2014), superseded in part on
other grounds, U.S.S.G. App. C Supp., Amend. 794, as recognized in
United States v. De la Cruz-Gutiérrez, 881 F.3d 221, 225 (1st Cir.
2018). In so doing, we determine whether "any reasonable jury
could find all the elements of the crime [proven] beyond a
reasonable doubt." United States v. Santos-Soto, 799 F.3d 49, 57
(1st Cir. 2015) (quoting United States v. Azubike, 564 F.3d 59, 64
(1st Cir. 2009)). We need not conclude that "no verdict other
-21-
than a guilty verdict could sensibly be reached, but must only
[be] satisf[ied] . . . that the guilty verdict finds support in a
plausible rendition of the record." United States v. Hatch, 434
F.3d 1, 4 (1st Cir. 2006) (internal quotation marks omitted).
In determining whether the record provides such support,
we do not view each piece of evidence separately, re-weigh the
evidence, or second-guess the jury's credibility calls. SantosSoto, 799 F.3d at 57; United States v. Acosta-Colón, 741 F.3d 179,
191 (1st Cir. 2013). Instead, we evaluate the sum of all the
evidence and inferences drawn therefrom in the light most favorable
to the government, resolve all credibility disputes in its favor,
and "determine whether that sum is enough for any reasonable jury
to find all the elements of the crime proven beyond a reasonable
doubt, even if the individual pieces of evidence are not enough
when viewed in isolation." Santos-Soto, 799 F.3d at 57; see also
United States v. Gaw, 817 F.3d 1, 3-4 (1st Cir. 2016). We will
only reverse on a sufficiency challenge if, "after viewing the
evidence and reasonable inferences in the light most flattering to
the prosecution, [we conclude that] no rational jury could have
found him guilty beyond a reasonable doubt." Acosta-Colón, 741
F.3d at 191.
Here, the government presented several pieces of
evidence to prove that Seary was the armed robber who murdered
-22-
Méndez-Calderón. During the government's case in chief, Méndez
testified that he was behind the service counter facing the door
through which Seary and his accomplice entered the store in the
afternoon of April 3, 2012. Méndez further testified that he
looked at Seary for two or three seconds as Seary entered the store
while brandishing a firearm, walked towards Méndez-Calderón,
pointed his firearm at Méndez-Calderón, and shot him. Méndez
explained that this occurred while he was standing next to MéndezCalderón, approximately three feet away from Seary, that his
attention was focused on Seary's face and firearm, and that he
could not forget the facial expression that Seary had as these
tragic events unfolded. Méndez further testified that he
identified Seary in the nine-photo array presented to him on the
day following the robbery and again in a picture featured in the
cover of the Primera Hora newspaper published on April 9, 2012.8
Agent Caamaño also testified as to both of Méndez's out-of-court
identifications of Seary. In addition, the government presented
Sanabria's testimony. Sanabria's testimony corroborated Méndez's
account of how Seary entered the store with a firearm at hand and
murdered Méndez-Calderón. She testified that she looked at Seary
for approximately two seconds, noticed his "very specific"
8 We note that the cover of the April 9 Primera Hora
newspaper was introduced at trial without objection, and Seary
does not challenge that evidence on appeal.
-23-
eyebrows and the peculiar tattoo on his left leg, and saw the exact
moment when Seary shot Méndez-Calderón. Sanabria identified Seary
as the robber who murdered Méndez-Calderón both in the six-photo
array conducted on April 17, 2012, and in court. FBI task force
Agent Martínez also testified as to Sanabria's out-of-court
identification of Seary and how "quickly" she had picked Seary's
photo from the array conducted on April 17, 2012. Additional
evidence, including two surveillance videos and still images from
those videos, corroborated Méndez's and Sanabria's accounts. In
addition, other government witnesses testified to having recovered
a projectile jacket, a fired projectile, and a Federal Smith &
Wesson .40-caliber shell casing from the scene, and having later
found a matching Federal Smith & Wesson .40-caliber bullet during
the execution of a search warrant at the Villa Fontana house where
Seary was arrested.
Seary argues that this evidence is insufficient because
only two eyewitnesses identified him in photo arrays despite there
being several other employees and customers at the store when the
robbery occurred, and only one of them also identified him in
court. Seary's argument is a non-starter as we have repeatedly
held that "[t]estimony from even just 'one witness can support a
conviction.'" United States v. Alejandro–Montañez, 778 F.3d 352,
357 (1st Cir. 2015) (quoting United States v. De La Paz–Rentas,
-24-
613 F.3d 18, 25 (1st Cir. 2010)); Foxworth v. St. Amand, 570 F.3d
414, 426 (1st Cir. 2009) (noting that "a criminal conviction can
rest on the testimony of a single eyewitness" and "[e]ven if the
eyewitness's testimony is uncorroborated and comes from an
individual of dubious veracity, it can suffice to ground a
conviction"). Furthermore, "[t]here is no requirement . . . that
a witness who makes an extrajudicial identification must repeat
the identification in the courtroom." Foxworth, 570 F.3d at 427.
Seary also argues that the evidence supporting his
convictions is insufficient because the identifications made by
Méndez and Sanabria are unreliable and their testimony was
untrustworthy. Specifically, Seary argues that Méndez and
Sanabria "did not have much time to view the [gunman]," and that
they must have been in a state of "panic, stress[,] and anxiety"
during the robbery, which casts doubts about the accuracy of their
recollections. Seary also contends that it strains credulity that
Méndez "allegedly saw [him] but cannot state what [he] was saying
[during the robbery]" or that Méndez did not speak with Sanabria
about his identification of Seary as the gunman. In addition, he
notes that there were some inconsistencies between Sanabria's and
Agent Martínez's testimony regarding whether Sanabria had
previously mentioned to law enforcement that the gunman had a
tattoo on his left leg, which makes Sanabria's testimony "highly
-25-
suspicious." Seary further notes that Sanabria testified to
having heard two gunshots, yet, because law enforcement recovered
only one shell casing at the scene, there was no evidence
corroborating Sanabria's version.
In making these arguments, Seary tries to call into
question the credibility of the witnesses' testimony and the
reliability of their out-of-court identification of him. Yet, in
assessing the sufficiency of the evidence supporting a defendant's
conviction, we do not re-weigh the evidence or second-guess the
jury's credibility determinations. Santos-Soto, 799 F.3d at 57,
61. Defense counsel vigorously cross-examined the witnesses and
tried to undermine their credibility by highlighting these
inaccuracies and inconsistencies, but the witnesses' testimony
"was neither inherently improbable nor materially undermined by
any other unimpeachable proof." Foxworth, 570 F.3d at 426. The
jurors were free to credit the witnesses' testimony, and we cannot
disturb their decision. See Santos-Soto, 799 F.3d at 57.
Seary next argues that Méndez's identification of him in
the nine-photo array "may have been compromised [by] the
newspaper['s] . . . front page photograph of [Seary]," and that
the "reliability and trustworthiness" of Sanabria's out-of-court
identification of him may have also been "affect[ed]" because the
array shown to her had fewer photos than the one shown to Méndez.
-26-
Seary's argument regarding Méndez's identification is
based on an incorrect premise. The evidence shows that Méndez
first identified Seary in the nine-photo array on April 4, 2012,
one day after the robbery, and that Seary's photo was featured on
the newspaper cover five days later, on April 9, 2012. Hence,
Méndez's prior identification of Seary in the nine-photo array
could not have been influenced by something that had not yet
occurred. The evidence also shows that while Méndez's photo array
was conducted by local law enforcement officers pursuant to local
standard procedures, Sanabria's photo array was conducted by the
FBI pursuant to FBI standard procedures. In any event, the
reliability of the identification of Seary in the photo arrays was
a matter to be determined by the jury after defense counsel argued
the point vociferously to the jury. We cannot re-weigh the
evidence presented to the jury or second-guess the jury's
credibility determinations. Id.
Finally, Seary protests that law enforcement did not
test the clothes he was wearing when he was arrested for DNA,
analyze "blood spatter or gun powder residue," "conduct any
ballistic test or examination," lift any fingerprints from the
scene, or enhance the surveillance footage for a better image of
the robbers. Nor did law enforcement recover physical evidence
linking him to the crime scene, such as the clothes he was wearing
-27-
during the robbery or the metal box and money taken from Piezas
Importadas. Although Seary acknowledges that the Federal Smith &
Wesson .40-caliber bullet that was seized from his house matched
the Federal Smith & Wesson .40-caliber shell casing recovered at
the crime scene, he attempts to undermine the significance of this
evidence by arguing that this is "a very common ammunition" and
that his stepfather testified at trial that the bullet belonged to
him, not to Seary.
We decline Seary's invitation to overturn his
convictions because the government did not procure additional
testing. When assessing the sufficiency of the evidence
supporting a conviction, we look only at the evidence presented at
trial. See Trinidad–Acosta, 773 F.3d at 310–11. We do "'not
consider the potential magnitude of the evidence not presented,'
because doing so would be 'an invitation to examine whether the
Government might have presented a more convincing case, not whether
it in fact presented a sufficient one.'" Santos-Soto, 799 F.3d
at 62 (quoting United States v. García, 758 F.3d 714, 721–22 (6th
Cir. 2014)). Lastly, we note that, although Seary's stepfather
testified at trial that the bullet recovered during the execution
of a search warrant was not Seary's but his, "[t]he actual
resolution of the conflicting evidence, the credibility of
witnesses, and the plausibility of competing explanations is
-28-
exactly the task to be performed by a rational jury." Foxworth,
570 F.3d at 427 (quoting Matthews v. Abramajtys, 319 F.3d 780, 790
(6th Cir. 2003)); Acosta-Colón, 741 F.3d at 191 (noting that in
assessing the sufficiency of the evidence, we must choose the
inference "most compatible with the jury's guilty verdict" when
confronted with competing inferences). Moreover, we do not need
to be convinced "that the government succeeded in eliminating every
possible theory consistent with the defendant's innocence."
Trinidad-Acosta, 773 F.3d at 311 (quoting United States v. Troy,
583 F.3d 20, 24 (1st Cir. 2009)).
Here, we conclude that the sum of all the evidence
presented by the government and the inferences drawn therefrom was
sufficient for a rational jury to conclude beyond a reasonable
doubt that Seary was the armed robber who murdered Méndez-Calderón
on April 3, 2012. See Santos-Soto, 799 F.3d at 62 (noting that a
sufficiency-of-the-evidence challenge will fail if the defendant's
conviction "rests on sufficient evidence," even if the jury's
finding of guilt is not "inevitable based on the evidence").
C. "Crime of Violence"
Seary argues that Hobbs Act robbery is not categorically
a crime of violence for purposes of 18 U.S.C. § 924(c) and thus
cannot constitute a predicate offense for his possession of a
firearm or murder convictions under sections 924(c)(1)(A)(iii) and
-29-
924(j), respectively. Because, in his view, Hobbs Act robbery
could only constitute a crime of violence under the residual clause
invalidated by the Supreme Court in United States v. Davis, 139
S. Ct. 2319, 2336 (2019), Davis compels the conclusion that his
sections 924(c)(1)(A)(iii) and 924(j) convictions are
unconstitutional.
We have previously rejected Seary's argument. We held
in United States v. García-Ortiz, that "because the offense of
Hobbs Act robbery has as an element the use or threatened use of
physical force capable of causing injury to a person or property,
a conviction for Hobbs Act robbery categorically constitutes a
'crime of violence' under section 924(c)'s force clause." 904
F.3d 102, 109 (1st Cir. 2018). We therefore affirm Seary's
convictions on Counts Two and Three.

Outcome: For the foregoing reasons, we affirm Seary's convictions on all counts.


Affirmed.

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