United States v. William Valentin

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 21-2639

_______________

UNITED STATES OF AMERICA,

v.

WILLIAM VALENTIN,

Appellant

_______________

On Appeal from the United States District Court

For the District of New Jersey

(D.C. No. 2-18-cr-0403-001)

District Judge: Honorable Madeline C. Arleo

_______________

Argued

November 29, 2023

Before: JORDAN, MONTGOMERY-REEVES, and

McKEE,

Circuit Judges

(Filed: October 7, 2024)

_______________

Anthony J. Pope [ARGUED]

The Pope & Hascup Law Group

60 Park Place – Suite 1101

Newark, NJ 07102

Annette Verdesco [ARGUED]

Caruso Smith & Picinni

60 Route 46 E

Fairfield, NJ 07004

Counsel for Appellant

Mark E. Coyne

John F. Romano

Office of United States Attorney

970 Broad Street Room 700

Newark, NJ 07102

Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

William Valentin, along with four other men, robbed a

jewelry store in New Jersey. During the robbery, Valentin

pointed a loaded gun at a store employee. In the course of

preparing for the crime and then carrying it out, stealing nearly

$900,000 in jewelry, the robbers left behind a mountain of

evidence: video footage, fingerprints, identifiable DNA, cell

phone records, location data, and more. A jury convicted

Valentin of Hobbs Act robbery, conspiracy to commit Hobbs

Act robbery, use of a firearm during a crime of violence, and

2

conspiracy to use a firearm during a crime of violence. The

District Court then sentenced him to a term of imprisonment

within the applicable sentencing guidelines range. On appeal,

Valentin raises a series of challenges to the convictions and

sentence. We will affirm and take the occasion to clarify that

brandishing a firearm during a robbery is itself a crime of

violence under the guidelines.

I. BACKGROUND

A. Facts

In September 2017, Valentin, along with Carlos

Velasquez and two other men, crashed through a security gate

and robbed Elegant Creations, a jewelry store in the Jersey

Gardens Mall in Elizabeth, New Jersey. Valentin, wearing a

Mets cap, pointed a loaded gun with an extended magazine at

a store employee who fled the scene, screaming and “scared”

that she was “gonna die.” (Supp. App. at 73.) After filling

bags with jewelry, watches, and, among other custom items, a

Yankees pendant, the men escaped through another store and

met Jonathan Arce, Valentin’s cousin, who was waiting in a

getaway car.

Velasquez, who became a government witness, testified

at trial that Valentin had planned the details of the robbery and

recruited him to participate with “a few other people[,]” and

that Arce procured the getaway car – a black Audi with tinted

windows. (Supp. App. at 400.) He further testified that, a

week before the robbery, the group conducted a “dry run” and

drove the Audi to the mall parking lot, leaving their phones in

Newark, New Jersey. (Supp. App. at 405.) On the day of the

robbery, the men drove the Audi to a tire shop, where they

3

changed a flat tire and put a stolen license plate on top of the

car’s real plate. During the robbery, the men left their phones

in their cars and used burner phones to call lookouts on the

highway and at the mall to ensure favorable conditions for the

plan.

Following the robbery, Arce wiped the car down to

remove fingerprints, and he and Valentin attempted to use a

heat gun to remove the tint from the windows, which left

behind a glue residue. That evening, Valentin paid Velasquez

$10,000 in cash for his role in the robbery.

The police soon located the abandoned Audi in Newark.

The real license plate was visible, the windows were sticky

because of the attempted tint removal, and Arce’s fingerprints

and DNA were present. They also recovered pieces of the

broken license plate frame. Video footage from the tire shop

showed the men at the shop, wearing the same clothes they

wore during the robbery and adding a license plate to an Audi

with tinted windows.

About a week after the robbery, the police received a

phone call identifying Valentin, Arce, and Velasquez as

suspects. That same day, the Elizabeth Police Department

contacted the Essex County Prosecutor’s Office because,

coincidentally, two Essex County detectives, Robert O’Neil

and Christopher Smith, had interviewed Arce a few weeks

earlier during an unrelated investigation. When shown video

footage from the mall and tire store, both officers identified

Arce, due to their previous interrogation of him, as the man

wearing the Mets hat, although Detective Smith was only 75

percent certain.

4

Two days later, a multijurisdictional team of law

enforcement officials detained Arce as he boarded a plane at

Newark Airport.1 After detaining him, they showed still

photographs of the robbery suspect to Valentin and Arce’s

cousin Ashley Arce, who is a Newark police officer (and whom

we will refer to as “Officer Arce” to distinguish her from her

cousin Jonathan Arce, whom we have been calling “Arce”).

She identified the robbery suspect as Valentin. A week later,

Officer Arce sat for an interview with Elizabeth detectives.

During that interview, she reviewed photographs of Arce and

Valentin that were unrelated to the robbery and reviewed still

images from the tire shop footage. When reviewing the

unrelated photographs, Officer Arce identified a man wearing

a green hat, gray Nike shirt, black pants, and white sneakers as

Arce, and a man wearing a dark hat, black shirt, jeans, and dark

shoes as Valentin. When viewing stills from the tire shop

footage, Officer Arce identified the man wearing the Mets hat

as Valentin. She recognized Valentin from “the ears, and the

nose, and the eyes, … [and] the body.” (Supp. App. at 248.)

When asked how she knew both men, she noted that she had

seen them both “thousands of times”2 because both are her

cousins. (Supp. App. at 192.)

The Elizabeth Police issued complaints against Valentin

and Velasquez before the United States took over prosecution

of the crimes. Federal agents arrested Velasquez soon after,

1

Police expected to find both Arce and Valentin at the

airport flying to the Dominican Republic on a family vacation.

2

Officer Arce later testified that this number was

“between 50 and 100 times[.]” (Supp. App. at 192.)

5

and he entered into a plea agreement with the government,

agreeing to testify against Valentin. In January 2018, Valentin

was arrested. At that time, he had in his possession a bag

containing $15,000 in cash and nine pieces of stolen jewelry –

including the custom Yankees pendant and a piece with an

Elegant Creations’ tag. Valentin’s phone also contained text

messages in which he asked for money for a bracelet and stated

that he may “have to go to jail.” (Supp. App. at 666.)

B. Procedural History

In February 2018, the government filed a superseding

indictment in the District of New Jersey charging Valentin with

four counts: (1) conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a); (2) Hobbs Act robbery, in

violation of 18 U.S.C. §§ 1951(a) and 2; (3) use of a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. §§ 924(c)(1)(A)(ii) and 2; and (4) conspiracy to use a

firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(o). The case went to trial but

resulted in a mistrial.3

A year later, the government retried Valentin. During

the seven-day trial, the jury heard testimony from the jewelry

store employee, from several law enforcement and expert

witnesses, and from Velasquez and Officer Ashley Arce. The

latter two identified Valentin as the man in the Mets hat who

3

The government initially tried Valentin and Arce

together; however, the jury acquitted Arce of all counts and

failed to reach a verdict as to Valentin, so the District Court

declared a mistrial.

6

brandished a gun at the employee. The jury also saw

surveillance footage from the mall and tire shop and heard

testimony about the jewelry that police found on Valentin at

the time of his arrest and also about the incriminating text

messages. Additional evidence was presented, including

traffic tickets, rental car agreements, license plate reader

information, telephone records, seized jewelry, and biometric

data, all of which corroborated Velasquez’s testimony. After

less than a day of deliberations, and despite hearing that no

fingerprints or DNA retrieved from the crime scene or getaway

car matched Valentin’s, the jury found Valentin guilty on all

counts.

The District Court sentenced him as a career offender

and calculated the applicable sentencing guidelines range as

360 months’ to life imprisonment. In light of the

“overwhelming evidence” of guilt, the “very serious” nature of

the offense, Valentin’s “atrocious” criminal record, resulting in

a 54-point criminal history score, and his history of

“unnecessary, unwarranted violence,” the Court determined

that “[t]here [wa]s no basis here for a [downward] variance,”

“not at all, not even close.” (Supp. App. at 1150-58.) Valentin

did not object to the stated basis for the sentence, and the Court

imposed a within-guidelines sentence of 360 months’

imprisonment, 5 years’ supervised release, and $889,844.33 in

restitution. Valentin has timely appealed.4

4

We earlier granted the government’s motion for a

partial remand to address a conflict-of-interest issue with

appellate counsel, which the District Court resolved. The

matter is now properly before us for a decision on the merits.

7

II. DISCUSSION5

Valentin mounts several challenges to his conviction

and sentence. First, he argues that the District Court abused its

discretion when it admitted certain non-eyewitness

identification testimony but excluded other similar testimony,

and when it also admitted evidence of a prior criminal

relationship between him and Velasquez. Second, he contends

that two of the Court’s jury instructions were plainly

erroneous. And third, he attacks the reasonableness of his

sentence, as well as the District Court’s finding that

brandishing a firearm qualifies as a crime of violence under the

sentencing guidelines. We are unpersuaded by those

arguments, and, for the reasons that follow, will affirm the

convictions and sentence in their entirety.

A. Trial Challenges

Valentin says that he “received an unfair trial.”

(Opening Br. at 2.) It appears, however, that he is simply

unhappy with the result. He was caught red-handed following

a robbery and the evidence presented against him at trial was,

as the District Court observed, “really overwhelming.” (Supp.

App. at 1153.)

5

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a).

8

1. Identification Testimony Challenges6

Valentin takes particular issue with the District Court’s

decisions to both admit Officer Arce’s testimony identifying

him as the man in the Mets cap in surveillance footage and then

to exclude the Essex County detectives’ identification of his

cousin Jonathan Arce as that same man. According to

Valentin, the “inconsistent rulings” violated his “Sixth

Amendment right to put on [a] defense.” (Opening Br. at 7, 8.)

But admission or exclusion of such lay opinion testimony will

not typically give rise to a constitutional challenge. Orie v.

Sec’y Pa. Dep’t of Corr., 940 F.3d 845, 854-55 (3d Cir. 2019)

(“The Sixth Amendment’s Compulsory Process Clause does

not give a defendant the right to introduce any testimony []he

likes. Courts may exclude … inadmissible testimony under the

rules of evidence.” (citation omitted) (citing Taylor v. Illinois,

484 U.S. 400, 410 (1988))). Even assuming that the District

Court abused its discretion, though, those errors do not warrant

reversal.

First, Valentin challenges the admission of Officer

Arce’s testimony as improper because she “had not seen

Valentin in over a decade.” (Opening Br. at 20.) The District

Court was unconvinced by that she’s-a-stranger argument. It

admitted the testimony under Federal Rule of Evidence 701

because, as Valentin’s cousin, who had seen him more than

6

We review evidentiary rulings for abuse of discretion.

United States v. Desu, 23 F.4th 224, 233 (3d Cir. 2022). Even

if there is error, “the [District] Court’s ruling will stand if the

error was harmless … .” United States v. Christie, 624 F.3d

558, 567 (3d Cir. 2010) (citation omitted).

9

fifty times in her life, “the witness … had sufficient contact

with the defendant to achieve a level of familiarity that renders

the lay opinion helpful.” United States v. Fulton, 837 F.3d 281,

297 (3d Cir. 2016) (internal quotation marks omitted) (listing

as indications of helpfulness of lay witness identification

testimony, among other things, “whether the witness knew the

defendant over time and in a variety of circumstances, such that

the … testimony offered to the jury a perspective it could not

acquire in its limited exposure to the defendant” (internal

quotation marks omitted)). Officer Arce specifically

recognized Valentin from his “ears, ... nose, ... eyes, … [and] ...

body.” (Supp. App. at 248.) While Arce’s subsequent

identifications of Valentin at the police station were due to

Valentin wearing similar clothing as the robbery suspect in

later photographs, they merely corroborated her earlier

identification based on her personal knowledge of Valentin’s

appearance. Fulton, 837 F.3d at 298. So, if Valentin’s

arguments in this vein were all that were at issue here, we

would be inclined to uphold the District Court’s evidentiary

decision as being within the Court’s discretion. But there is

more.

Like our concurring colleague, we are concerned with

the coercion surrounding Officer Arce’s identifications. The

threats to her job as a police officer – both directly and

indirectly – undermine the reliability of her identifications. Cf.

Fed. R. Evid. 701(a) (limiting lay testimony to “one that is

rationally based on the witness’s perception” (cleaned up)).

Her own testimony supports that conclusion. (Supp. App. 249

(“I thought I was going to lose my job. ... I was just scared that

if I didn’t basically say what I said in the airport [identifying

Valentin] that I was going to be in trouble.”).) And, at trial,

Officer Arce did not definitively identify the man in the

10

photographs as Valentin. (Supp. App. at 264 (Q: “[A]s you sit

here today, are you sure that that was William Valentin in those

photos?” A: “No.”).) Thus, there is sound reason to question

the admission of the identification testimony from Officer

Arce.

We need not, however, decide that issue because, if

there was error, it was harmless, given the other evidence of

Valentin’s guilt. As already described, that evidence was

overwhelming7 and the identification testimony at trial, such as

it was, was lackluster. Cf. United States v. Auernheimer, 748

F.3d 525, 539 (3d Cir. 2014) (“In order for an error to be

harmless, the Government must prove beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained.” (internal quotation marks omitted)).

Similarly, the District Court’s exclusion of the Essex

County detectives’ testimony, assuming error, was harmless

because “it is highly probable that the error did not affect the

result.” United States v. DeMuro, 677 F.3d 550, 557 (3d Cir.

2012) (internal quotation marks omitted). In making that

determination, “we must assess the impact of the error in

context with all of the evidence of [Valentin]’s guilt[,]” which

is “particularly damning.” Fulton, 837 F.3d at 301. And

“[u]nder the ‘highly probable’ standard … there is no need to

disprove every reasonable possibility of prejudice. While the

7

As a reminder, such additional evidence included

multiple surveillance videos, eyewitness testimony from the

employee of the jewelry store, Velazquez’s testimony

regarding the entire conspiracy, phone records, text messages,

traffic tickets, the black Audi, and more.

11

Government bears the burden of showing that the error was

harmless, we can affirm for any reason supported by the

record.” United States v. Cross, 308 F.3d 308, 326 (3d Cir.

2002) (cleaned up). Although the detectives’ testimony would

have told the jury that Arce – not Valentin – was the man in the

Mets hat, that would not have erased from the jury’s memory

the overwhelming corroborating evidence of Valentin’s guilt,

including that he was arrested with $15,000 in cash and nine

pieces of stolen jewelry, among which was a bracelet with an

Elegant Creations’ tag and the custom Yankees pendant.8

The District Court’s evidentiary rulings thus survive

harmless error analysis, even if they were erroneous. Fulton,

837 F.3d at 301 (affirming the district court’s admission of

erroneous identification testimony by detectives due to other

evidence tying defendant to a robbery).

2. Conspiracy Evidence Challenge9

Valentin also argues that the District Court erred in

admitting communications between him and Velazquez

regarding prior criminal pursuits to show a conspiratorial

relationship between the men. Valentin’s argument relies

primarily on the fact that the Court had ruled such evidence

inadmissible in the first trial as “unduly prejudicial[.]”

(Opening Br. at 34.) But “a retrial of a case is exactly what it

says; it is a retrial, not a replay. A district court retains the

8

See supra note 7.

9

We review evidentiary rulings for abuse of discretion.

Desu, 23 F.4th at 233.

12

power to reconsider previously decided issues as they arise in

the context of a new trial.” United States v. Cunningham, 679

F.3d 355, 377 (6th Cir. 2012) (internal quotation marks omitted

and emphasis in original).

Moreover, assuming that the District Court erred,

admitting those communications was harmless. Once more,

the evidence of Valentin’s guilt “was really overwhelming,”

and the testimony about the conspiratorial relationship was

brief and, later, was barely alluded to during the government’s

closing argument. (Supp. App. at 1153.) Because “the

government did not rely on [the communications between

Valentin and Velasquez] in its summation, stressing instead the

mountain of [other] evidence[,]” United States v. Anderskow,

88 F.3d 245, 251 (3d Cir. 1996), there is no realistic probability

that the elimination of the challenged testimony would have

changed the verdict.10

3. Jury Instructions Challenges11

Valentin complains of two jury instructions given by the

District Court. First, he argues that an aiding-and-abetting

10

The Court gave a limiting instruction to the jury to

“consider this evidence only for the purpose of deciding

whether the Defendant William Valentin and Carlos Velazquez

had a relationship such that Carlos Velazquez was invited to

join the conspiracy. Do not consider the evidence for any other

purpose.” (Supp. App. at 909.)

11

Typically, “[w]here the challenge to a jury instruction

is a challenge to the instruction’s statement of the legal

standard, we exercise plenary review. Otherwise, we review

13

instruction, later stricken, tainted the verdict. And second, he

argues that the Court failed to instruct the jury on the definition

of “physical force,” which may have led the jury to convict him

for brandishing a firearm during a crime of violence, despite

inadequate evidence of force. Neither instruction was infirm

but, even if they were, they did not change the outcome.

First, Valentin did not object to the curative instruction

striking the aiding-and-abetting instruction. The Court told the

jury “to disregard” the initial instruction and to “not [] consider

that charge in rendering your verdict and in your

deliberations.” (Supp. App. at 954.) The jury instruction book

was also amended. Thus, it is not clear that Valentin has any

real basis for his present objection. Cf. United States v.

Pungitore, 910 F.2d 1084, 1128 (3d Cir. 1990) (“Inasmuch as

appellants did not object to the curative instruction or request

additional instructions, they apparently were satisfied with the

district court’s response and cannot now complain.”).

Assuming error, however, Valentin bears the burden of

showing that, under the plain error standard, the supposed

misstep affected his “substantial rights,” or that there is “a

reasonable probability that, but for the error, the outcome of

the proceeding would have been different.” Greer v. United

States, 593 U.S. 503, 504 (2021) (quoting Rosales-Mireles v.

challenges to jury instructions for abuse of discretion.” United

States v. Urban, 404 F.3d 754, 779 (3d Cir. 2005) (internal

quotation marks and citation omitted). But here, as Valentin

concedes, “[i]n the absence of a timely objection, we review

only for plain error.” Gov’t of Virgin Islands v. Fonseca, 274

F.3d 760, 765 (3d Cir. 2001).

14

United States, 585 U.S. 129, 134-35 (2018)). He has not done

so.

His allegation that “there is no assurance the verdict

[wa]s free from … taint” (Opening Br. at 3), is insufficient to

meet the plain error standard. “[I]t is not enough for [Valentin]

to establish that it is impossible to tell whether the verdict

returned by the jury rested solely on the misinstruction, for

such a showing would establish only that the error was not

harmless. … [He] must demonstrate that the erroneous []

instruction given by the district court resulted in his

conviction.” United States v. Hastings, 134 F.3d 235, 243-44

(4th Cir. 1998) (citation omitted). Furthermore, “we adhere to

the crucial assumption underlying our constitutional system of

trial by jury that jurors carefully follow instructions.” United

States v. Franz, 772 F.3d 134, 152 (3d Cir. 2014) (quoting

Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)).

Valentin also challenges the District Court’s failure to

instruct the jury on the definition of “physical force” in a

special interrogatory relating to Count Three, brandishing a

firearm during a crime of violence, namely, Hobbs Act

robbery.12 He again failed to object to that instruction, and

cannot now show that the instruction was error or that it

resulted in his conviction. To begin with, the Court’s

instruction was taken nearly verbatim from our model jury

instructions. Compare (Supp. App. at 921-25, 928-29), with

12

The special interrogatory asked whether “the

defendant’s conduct involve[d] a substantial risk that physical

force would be used against the person or property of another?”

(App. at 4.)

15

3d Cir. Model Jury Instructions 6.18.924B, 6.18.1951–1951-7

(only minor stylistic differences). “We have a hard time

concluding that the use of our own model jury instruction can

constitute error[.]” United States v. Petersen, 622 F.3d 196,

208 (3d Cir. 2010) (noting that, as in this case, the defendant

“d[id] not even contend that the model instruction is wrong”).

Furthermore, the jury’s answer to the interrogatory at

issue, which is related to what is known as the “residual clause”

of 18 U.S.C. § 924(c)(3)(B) is superfluous to Valentin’s

conviction because Hobbs Act robbery is a crime of violence

under another provision of the statute, known as the “elements

clause,” § 924(c)(3)(A).13 United States v. Stoney, 62 F.4th

108, 112-13 (3d Cir. 2023) (“[J]oin[ing] the unanimous Circuit

authority in holding that a completed Hobbs Act robbery

qualifies as a crime of violence under § 924(c)(3)(A)[.]”). The

jury confirmed in an additional special interrogatory that it

13

According to 18 U.S.C. § 924(c)(3),

a crime of violence is “an offense that is a

felony” and “(A) has as an element the use,

attempted use, or threatened use of physical

force against the person or property of another,

or (B) that by its nature, involves a substantial

risk that physical force against the person or

property of another may be used in the course of

committing the offense.”

United States v. Davis, 588 U.S. 445, 449 (2019). The

Supreme Court in United States v. Davis, which postdated the

trial at issue here, struck down subsection (B), the residual

clause, as unconstitutionally vague and violative of the Due

Process Clause. Subsection (A), the elements clause, remains.

16

found that “the defendant brandish[ed] the firearm during a

crime of violence, that is, the Hobbs Act robbery charged in

Count Two.” (App. at 4.) Thus, since brandishing a firearm is

a “threatened use of physical force against … another” under

§ 924(c)(3)(A), the first interrogatory was irrelevant. Cf.

United States v. Griffin, 946 F.3d 759, 761 (5th Cir. 2020)

(“[R]eliance on the residual clause [i]s harmless if

[defendant’s] … conviction[] also satisfie[s] the other, still-

valid definitions … under the elements clause.”).

Accordingly, neither instruction was in error, and even if

they were, they did not affect the validity of the verdict.

B. Sentencing Challenges

Finally, Valentin argues that his sentence is both

procedurally and substantively unreasonable. Specifically, he

contends that the Court incorrectly held that brandishing a

firearm during a crime of violence is itself a crime of violence

under the guidelines, making him a career offender. He also

argues that the District Court should have departed downward

from his career offender range, should have granted a

downward variance due to mitigating circumstances, and erred

by imposing a substantively unreasonable sentence. All of

those arguments fail.

1. Career Offender Challenge14

Valentin argues that the District Court plainly erred in

finding that his conviction under 18 U.S.C. § 924(c) for

14

We review the District Court’s interpretation of the

sentencing guidelines de novo, United States v. Adair, 38 F.4th

17

brandishing a weapon during a crime of violence was itself a

separate crime of violence. As Valentin sees it, calling the

§ 924(c) conviction a crime of violence has resulted in him

being misclassified as a career offender.15 Section 4B1.1 of the

guidelines provides that a defendant is a career offender if: (1)

he was at least eighteen years old at the time of the instant

offense; (2) the instant offense is a felony that is either a crime

of violence or a controlled substance offense; and (3) the

defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense. U.S.S.G.

§ 4B1.1(a). The District Court applied that section to Valentin

after deciding that his brandishing of a gun during the Elegant

Creations robbery was a crime of violence.

The guidelines define a “crime of violence” as “any

offense under federal or state law, punishable by imprisonment

for a term exceeding one year, … that has as an element the

use, attempted use, or threatened use of physical force against

341, 347 (3d Cir. 2022), but we accept its findings of fact

“unless they are clearly erroneous and, … [we] give due

deference to the [D]istrict [C]ourt’s application of the

guidelines to the facts.” 18 U.S.C. § 3742(e); United States v.

Richards, 674 F.3d 215, 218, 219 n.2 (3d Cir. 2012).

15

Valentin never raised this argument before the

District Court, despite challenging his career offender

classification on other grounds, including that his Hobbs Act

conviction in the instant offense was not a violent felony under

U.S.S.G. § 4B1.2. He must now demonstrate reversible plain

error on these grounds. United States v. Dahl, 833 F.3d 345,

349 (3d Cir. 2016).

18

the person of another[.]” U.S.S.G. § 4B1.2(a)(1). Despite that

clear definition, Valentin argues that we should instead be

guided by the commentary to section 4B1.2.16 He fails,

however, to show that the guideline is ambiguous, as our

decision in United States v. Nasir says is required before

turning to commentary. 17 F.4th 459, 469-71 (3d Cir. 2021)

(en banc). That is fatal to his argument. We therefore have no

basis to disagree with the District Court’s classification of

Valentin as a career offender.

Even if he had done more to carry his burden on this

point, the end would be the same. To determine whether a

conviction qualifies as a crime of violence, we apply the

“categorical approach” to “compar[e] the guidelines’

definition of ‘crime of violence’ to the elements of the statute

under which the defendant was … convicted.” United States

v. Abdullah, 905 F.3d 739, 744 (3d Cir. 2018). The jury

convicted Valentin under 18 U.S.C. § 924(c)(1)(A)(ii) of

brandishing a firearm during a crime of violence, which

16

The commentary says, “A violation of 18 U.S.C.

§ 924(c) … is a ‘crime of violence’ … if the offense of

conviction established that the underlying offense was a ‘crime

of violence.’” U.S.S.G. § 4B1.2 cmt. n.1. Valentin argues that

the underlying crime of Hobbs Act robbery is not a crime of

violence under the guidelines, and he has support for that.

United States v. Scott, 14 F.4th 190, 193-98 (3d Cir. 2021)

(holding that the underlying offense here – Hobbs Act robbery

– is not a crime of violence under the sentencing guidelines).

But Scott does not control the question before us: whether the

brandishing of a gun is a crime of violence under the

sentencing guidelines.

19

necessitated a finding that Valentin “brandished” a firearm17

and that he did so during a crime of violence – here, Hobbs Act

robbery.18 Cf. Alleyne v. United States, 570 U.S. 99, 115

(2013) (“[B]ecause the fact of brandishing aggravates the

legally prescribed range of allowable sentences, it constitutes

an element of a separate, aggravated offense that must be found

by the jury[.]”). A finding of brandishing requires the jury to

have found that the defendant “display[ed] all or part of the

firearm, or otherwise ma[d]e the presence of the firearm known

to another person, in order to intimidate that person, regardless

of whether the firearm is directly visible to that person.” 18

U.S.C. § 924(c)(4) (emphasis added).

The “in order to intimidate” language of section

924(c)(4) satisfies section 4B1.2(a)(1)’s requirement that the

crime of violence offense “has as an element the use, attempted

use, or threatened use of physical force against the person of

another[.]” U.S.S.G. § 4B1.2(a)(1). In other words,

brandishing a firearm “to intimidate [a] person[,]” 18 U.S.C.

§ 924(c)(4), necessarily involves a “threatened use of physical

17

“[A]ny person who, during and in relation to any

crime of violence … uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such crime of violence

… if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years[.]” 18 U.S.C.

§ 924(c)(1)(A) (emphasis added).

18

We held in United States v. Stoney that “a completed

Hobbs Act robbery qualifies as a crime of violence under

§ 924(c)(3)(A)[.]” 62 F.4th 108, 113 (3d Cir. 2023).

20

force against [a] person[,]” U.S.S.G. § 4B1.2(a)(1); see United

States v. Wilson, 880 F.3d 80, 85 n.4 (3d Cir. 2018) (“The word

‘intimidate’ is defined in the dictionary as ‘to make … fearful’

or ‘to compel or deter by or as if by threats[.]’” (first alteration

in original) (quoting Merriam-Webster Dictionary)); see also

Intimidation, Black’s Law Dictionary (11th ed. 2019) (“The

wrong of intimidation includes … harm [] inflicted by the use

of unlawful threats[.]” (quoting R.F.V. Heuston, Salmond on

the Law of Torts 364 (17th ed. 1977))). Thus, we hold that

brandishing a gun during a crime of violence (here, Hobbs Act

robbery) qualifies as a crime of violence under guidelines

section § 4B1.2(a)(1).

It follows that the District Court did not plainly err in

applying section 4B1.1 to Valentin, classifying him as a career

offender, and sentencing him under the corresponding

guidelines range.

2. Reasonableness Challenges19

When we review the reasonableness of a sentence, we

first determine whether the district court committed any

significant procedural errors. Gall v. United States, 552 U.S.

38, 51 (2007). Such errors include “failing to calculate (or

improperly calculating) the [g]uidelines range, treating the

[g]uidelines as mandatory, failing to consider the §3553(a)

19

We review the procedural and substantive

reasonableness of a sentence for abuse of discretion. United

States v. Woronowicz, 744 F.3d 848, 851 (3d Cir. 2014).

Unpreserved challenges to the reasonableness of the sentence

are reviewed only for plain error. See Dahl, 833 F.3d at 349.

21

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence – including

an explanation for any deviation from the [g]uidelines range.”

Id. We then turn to the substantive reasonableness of the

sentence based on “the totality of the circumstances,” and

“apply a presumption of reasonableness” if the sentence is

within the guidelines range. Id. We will not reverse a sentence

as substantively unreasonable “unless no reasonable

sentencing court would have imposed the same sentence on

that particular defendant for the reasons the district court

provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.

2009) (en banc). The party challenging the sentence has the

burden to show that a sentence is substantively unreasonable.

United States v. Friedman, 658 F.3d 342, 360 (3d Cir. 2011).

Valentin contends that the Court should have departed

downward from the career offender range under U.S.S.G.

§ 4A1.3(b)(1) because his criminal history category was

substantially overstated.20 His argument is a non-starter. We

decline to review a district court’s discretionary decision to

deny a sentencing departure. United States v. Cooper, 437

20

His argument depends on the District Court

erroneously counting convictions that fell outside U.S.S.G.

§ 4A1.1(a)’s fifteen year limit. Valentin concedes the error of

his own argument – that his predicate convictions fell outside

of the relevant time frame of U.S.S.G. § 4A1.2(e) – when he

admits that the offense at issue occurred “inside the 15-year

look back period.” (Opening Br. at 43; see also Supp. App. at

1078 (“[H]ad there not been a delay between the two sentences

… those two cases would have been out of the applicable 15-

year limitation.” (emphasis added)).)

22

F.3d 324, 333 (3d Cir. 2006), abrogated on other grounds by

Rita v. United States, 551 U.S. 338 (2007).

Valentin next says the COVID-19 pandemic and

consequent prison conditions should have resulted in him

receiving a lower sentence. Not so. The District Court

correctly found that a variance based on jail conditions during

the pandemic was unwarranted. The Court explicitly

considered Valentin’s argument as it weighed the § 3553(a)

factors, and “we [do not] find that [the] [D]istrict [C]ourt’s

failure to give mitigating factors the weight [the] defendant

contends they deserve renders the sentence unreasonable.”21

United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007).

Finally, despite his protestations that his “sentence

cannot be described as ‘reasonable[,]’” Valentin received a

within-guidelines sentence. (Opening Br. at 50.) And “[a]s

long as a sentence falls within the broad range of possible

sentences that can be considered reasonable in light of the

§ 3553(a) factors, we must affirm.”22 United States v. Wise,

515 F.3d 207, 218 (3d Cir. 2008). And so, we will.

21

Valentin calls his request for a variance a “departure”

numerous times in his briefing. (See, e.g., Opening Br. at 47,

49.) To the extent that his claim is that the District Court

abused its discretion in denying a downward departure, that

claim is unreviewable, as discussed above. See, e.g., United

States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006).

22

Moreover, Valentin’s lengthy sentence was largely

driven by his correct classification as a career offender under

U.S.S.G. § 4B1.1(a).

23

III. CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s judgment of conviction and sentence.

24

USA v. William Valentin, No. 21-2639

McKEE, Circuit Judge, concurring.

I concur with my colleagues’ opinion except for the

discussion of the identifications that occurred in this case.

I believe the District Court erred in both of its lay

opinion identification rulings. The District Court’s

identification rulings were upside down, and I have no idea

how the court could have ruled as it did. The Essex County

detectives had enough familiarity with Jonathan Arce to

identify him as the person reflected in the security camera

footage that was captured shortly before the robbery. By

contrast, Officer Ashley Arce was not sufficiently familiar with

Valentin to identify him as the person in the footage. Further,

I am concerned that Officer Arce’s identification testimony

was not rationally based on her perception but was instead the

product of suggestion and coercion. Accordingly, I cannot join

the Majority opinion, but I join in the judgment and write

separately to explain these concerns.

I.

The admissibility of a lay opinion identification—such

as a witness’s opinion about the identity of the person in a

picture—is governed by Federal Rule of Evidence 701. Under

that rule, lay opinion identification is admissible so long as it

1

is “rationally based on the witness’s perception” and is “helpful

to . . . determining a fact in issue.”1

A lay witness’s opinion is not helpful if the witness is

no more familiar with the person being identified than the jury.

In United States v. Fulton,2 for example, two FBI agents

testified that a person captured in surveillance footage was the

defendant and was not an alternative suspect.3 We found both

opinions unhelpful. The first agent’s opinion was unhelpful

because his interactions with the defendant and the alternative

suspect were “very limited” and because he had not

interviewed the alternative suspect until “nearly two months

after” the crime.4 The second agent’s opinion was unhelpful

because his familiarity with the defendant and the alternative

suspect was “even more attenuated”—he met the alternative

suspect for the first time at trial.5 Neither agent had unique

insight into the defendant’s or the alternative suspect’s

appearance at the time the surveillance footage was recorded.6

As a result, neither agent was better equipped than was the jury

1

Fed. R. Evid. 701(a)–(b).

2

837 F.3d 281 (3d Cir. 2016).

3

Id. at 295–97.

4

Id. at 299.

5

Id.

6

Id. (“These minimal relations provided neither [agent] with

familiarity with the defendant’s appearance at the time the

crime was committed, the defendant’s customary manner of

dress, or the defendant in a variety of circumstances.”).

2

to compare the defendant or alternative suspect to the person

captured in the surveillance footage.7

We have never specified when a witness becomes

sufficiently familiar with a person to provide a helpful lay

opinion identification. However, precedents from other courts

of appeals are instructive. The Court of Appeals for the Ninth

Circuit found a probation officer’s identification helpful

because the officer had seen the defendant “four times in a two-

month period, for a total of more than seventy minutes.”8 The

Court of Appeals for the Tenth Circuit found another probation

officer’s identification helpful because the officer had met the

defendant “for between five and ten minutes on multiple

occasions.”9 And the Court of Appeals for the Eleventh Circuit

found a police officer’s identification helpful because the

officer spent an hour with the defendant while the officer was

placing the defendant under arrest.10

While these precedents might endorse too liberal a

standard for familiarity, it is clear that the Essex County

detectives’ familiarity with Jonathan Arce substantially

exceeded that standard. Prior to identifying the individual in

7

Id. (“These agents were no better equipped than the jurors to

compare the . . . appearance [of the person in the surveillance

footage] with that of [the alternative suspect] and [the

defendant].”).

8

United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005).

9

United States v. Contreras, 536 F.3d 1167, 1171 (10th Cir.

2008).

10

United States v. Ware, 69 F.4th 830, 850–51 (11th Cir.

2023).

3

the security footage as Jonathan Arce, the Essex County

detectives had spent two hours interviewing him within the

close confines of an interrogation room. The record does not

disclose much about the circumstances of this interview, but it

is reasonable to assume that the detectives had ample

opportunity to study Arce’s appearance. Both detectives

would have been sitting within feet of Arce, focusing their

attentions on him and with no distractions in their

surroundings. Further, this interview took place just three

weeks before the security footage was recorded. It is therefore

unlikely that Arce’s appearance had significantly changed.

The government argues that the Essex County

detectives’ identifications were unhelpful because the

detectives were not familiar with Valentin and would not,

therefore, have been able to say whether the person in the

security footage looked like Valentin. This argument misses

the point. Certainly, the ultimate question at trial was whether

the man in the footage was Valentin. It follows that any

reliable opinion bearing on that question would have been

helpful to the jury. If two witnesses who were familiar with

Arce believed the person in the footage was Arce, then their

opinions would have made it more likely that the person in the

footage was Arce. By corollary, unless Arce and Valentin were

identical twins, the same opinions would have made it less

likely that the person in the footage was Valentin.

The government also argues that the Essex County

detectives’ opinions were unhelpful because they were

“wrong.”11 But the very reason lay witnesses were asked to

identify the person in the photograph is that the person’s

11

Gov’t Br. 18.

4

identity remained in dispute. The government does not point

to any evidence that would have indisputably removed Arce

from the cohort of individuals who could have been the person

in the security footage. To the contrary, much of the evidence

that implicated Valentin also implicated Arce, leaving Arce as

the most plausible alternative suspect to be the person in the

footage.

On the other hand, I simply do not see how one could

reasonably conclude that Officer Arce had sufficient

familiarity with Valentin to tender a helpful identification of

him.

Prior to identifying Valentin, Officer Arce had not seen

Valentin—either in person or through social media—for more

than a decade. The last time Officer Arce would have seen

Valentin, Officer Arce would have been about sixteen years

old, and Valentin would have been about twenty-eight. Officer

Arce had no idea how Valentin’s appearance had changed in

the more-than-decade since she had last seen him. No one can

dispute the fact that we all change with age, and the ways

Valentin could have changed since Officer Arce last saw him

are innumerable.12 Based on the record before us, there is no

basis to conclude that Officer Arce was familiar with

Valentin’s appearance when the security footage was recorded.

Of course, a witness may be able to help the jury

identify the person in a picture even when the witness is not

familiar with how the person looked when the picture was

taken. For example, we have previously reasoned that an

12

There is a reason that organizers of high school reunions give

attendees name badges.

5

identification opinion could be appropriate from a lay witness

who had previously become “intimately familiar” with the

person being identified “over time and in a variety of

circumstances.”13 The logic underlying this theory of

helpfulness is that repeated interactions in changing settings

enable a witness to distill the defining features of a person’s

appearance, even when those features are subtle.14

However, Officer Arce was not intimately familiar with

Valentin. She testified that she had seen Valentin between 50

and 100 times over the course of her life, but only amidst

family gatherings and possibly during one family vacation. It

is unclear how many other people attended these gatherings or

this vacation, but it is doubtful that the events facilitated close

interactions between Officer Arce and Valentin. Officer Arce

could not recall ever seeing Valentin in anything besides a t-

shirt and jeans. She did not know whether Valentin had any

siblings. Because of the age difference between Officer Arce

and Valentin, Officer Arce had neither “grow[n] up with”

Valentin nor “h[u]ng in the same crowds” as him.15 Officer

Arce had never even seen any of Valentin’s social media pages,

did not know where Valentin lived, and did not even have

13

Fulton, 837 F.3d at 298 (quoting Beck, 418 F.3d at 1015).

14

See id. (citing United States v. Jackman, 48 F.3d 1, 5 (1st

Cir. 1995) (“Human features develop in the mind’s eye over

time. These witnesses had interacted with defendants in a way

the jury could not, and in natural settings that gave them a

greater appreciation of defendants’ normal appearance.”

(quoting United States v. Allen, 787 F.2d 933, 936 (4th Cir.

1986))).

15

Supp. App. 226–227.

6

Valentin’s phone number. Most tellingly, she could not say at

trial, one way or the other, whether the man in the security

footage was Valentin.16

Prior to trial, Officer Arce had identified Valentin in the

security footage during an interview with the Elizabeth Police

Department. But the recording of this interview provides little

evidence that Officer Arce was intimately familiar with

Valentin.

In the video, Officer Arce identified Valentin in

essentially three different pictures taken from the security

footage. When prompted to explain how she knew the person

in the first picture was Valentin, Officer Arce hesitated, then

said: “I kinda know it’s him because . . . I just know. Like, I

can see it in the ears and the nose and the eyes . . . the body.”17

As for the second picture, Officer Arce explained that she

identified Valentin because the man in that picture was

“wearing the same hat, same clothes as the other photo.”18 For

the third picture, Officer Arce explained that she had identified

Valentin “because of the previous photos.”19

Officer Arce’s references to the body parts she could see

in the first picture of the robbery suspect were too vague and

conclusory to provide assurance that her identification was

16

Supp. App. 264 (“Q. [A]s you sit here today, are you sure

that that was William Valentin in those photos? A. No.”).

17

See Dkt. No. 86, Recording of Ashley Arce Interview at

19:10:20–42.

18

Id. at 19:11:37–43.

19

Id. at 19:12:45–55.

7

based on intimate familiarity with Valentin’s basic features,

much less any subtle ones.20 Officer Arce did not explain what

features of Valentin she saw in the man’s ears, nose, eyes and

body that an ordinary jury member would not have noticed.

And it is clear that Officer Arce’s two other identifications

were based not on any of Valentin’s or the man’s features but

entirely on the fact that the robbery suspect was wearing the

same clothing in each picture.

Because Officer Arce had not seen Valentin in so much

as a social media post over the decade preceding the robbery,

could not describe the basis of her pre-trial identification with

any insightful specificity, and went on to recant that

identification at trial, she simply was not sufficiently familiar

with Valentin to help the jury identify him as the person in the

security footage.

II.

There is also reason to doubt that Officer Arce’s

identification was even based on her perception (i.e.

20

Fulton, 837 F.3d at 298 (“At least in theory, a witness who

is intimately familiar with a defendant’s appearance can

perceive similarities and differences that jurors might not

notice.”); see also United States v. Howell, 17 F.4th 673, 684

(6th Cir. 2021) (“When a witness has not identified the

objective bases for their opinion, the proffered opinion

obviously fails completely to meet the requirements of Rule

701 . . . because the opinion does not help the jury but only tells

it in conclusory fashion what it should find.” (brackets omitted)

(quoting United States v. Hampton, 718 F.3d 978, 981 (D.C.

Cir. 2013))).

8

“reliable”). The circumstances surrounding Officer Arce’s

identification were certainly suggestive and very possibly

coercive.

Officer Arce testified that she first identified Valentin

about a week before she gave her recorded interview. At that

time, six to eight federal and local law enforcement officers

had detained Officer Arce and her family in a jetway as they

were boarding a flight for a family vacation. As some of the

agents searched Officer Arce’s carry-on bag, FBI agents

questioned Officer Arce and asked her to identify a man in a

series of pictures. First, they showed Officer Arce a “very clear

picture” of Valentin wearing a dark baseball cap, though not

the same baseball cap that the suspect was wearing in the

security footage.21 The agents then showed Officer Arce

pictures of one of the robbery suspects from the security

footage. Officer Arce testified that she initially told the agents

she could not identify the robbery suspect. Rather than respect

that response, one of the agents responded: “You know what

the fuck your family does. We’ll fuckin’ charge you, you’ll

lose your fuckin’ job.”22

Unsurprisingly, Officer Arce then identified the suspect

as Valentin. When she did, two of the detectives who were

present looked at each other as though “a light bulb went off in

their head[s].”23 Also unsurprisingly, the agents then finally

permitted Officer Arce and her family to board their flight.

21

Supp. App. 260.

22

Supp. App. 228.

23

Supp. App. 219.

9

When Officer Arce returned from vacation, two

Customs and Border Protection agents approached her at the

airport and instructed her to come with them. They brought

Officer Arce to a room in which another six to eight law

enforcement officers were waiting. These law enforcement

officers told Officer Arce that they wanted her to come to the

Elizabeth Police Department for an interview. The law

enforcement officers also told Officer Arce that they had

notified her Internal Affairs captain that they would be

speaking to her, but the agents did not explain why they had

notified Internal Affairs. Officer Arce acquiesced and went to

the Elizabeth Police Department.

There, she gave her recorded statement identifying

Valentin in the security footage. This interview was conducted

by two detectives who had been investigating the robbery and

who knew Valentin was a suspect for the robbery—the same

detectives who had detained Officer Arce in the jetway.

During the interview, immediately before the detectives

showed Officer Arce pictures of the robbery suspect, they

showed her a relatively clear picture of a man wearing black

clothing and a black baseball cap who was staring straight into

the camera. Officer Arce had no difficulty identifying the man

in this picture as Valentin. The detectives briefly whispered to

each other and then informed Officer Arce that they would like

to show her a different set of pictures. The detectives then

showed Officer Arce pictures of the robbery suspect taken

from the security footage in which the robbery suspect was also

wearing black clothing and a black baseball cap. Only after

Officer Arce had completed the identification procedure and

positively identified Valentin did the agents tell her they had

10

called her Internal Affairs captain as a mere formality and that

she would not get into any trouble.

This identification procedure was certainly

24

suggestive. First, it was not conducted blindly because it was

administered by the very detectives who were investigating the

robbery. Blinding is critical to prevent the identification’s

administrator from giving, and the witness from observing,

conscious or unconscious cues about the suspect’s identity.25

This source of suggestion is not merely theoretical in this case.

Officer Arce believed a “light bulb” had gone off for the

detectives when she first identified Valentin in the jetway.26

Similarly, during the recorded interview, when the detectives

whispered to each other and suddenly switched to showing

Officer Arce pictures of the robbery suspect after Officer Arce

had identified Valentin in another photo, Officer Arce may

reasonably have inferred that the detectives believed the

robbery suspect was Valentin.

24

See, e.g., Third Circuit Task Force, 2019 Report on

Eyewitness Identifications, 92 TEMPLE L. REV. 1 (2019)

(hereinafter “Third Circuit Report on Eyewitness

Identifications”).

25

Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 321 (3d

Cir. 2016) (McKee, J. concurring) (noting that “[o]ne of the

most important system variables that law enforcement can

control is the blinding of identification procedures” because it

“prevent[s] the officer [administering the identification

procedure] from giving the witness conscious or unconscious

cues that can affect the witness’ identification”).

26

Supp. App. 218:5–219:3.

11

A second source of suggestiveness was the similarity

between the clothing Valentin was wearing in the first picture

Officer Arce was shown and the clothing the robbery suspect

was wearing in the subsequent pictures.27 Because Officer

Arce was shown a clear picture of Valentin wearing black

clothing and a black baseball cap just before she was shown a

picture of the robbery suspect in similar clothing, Officer Arce

was primed to identify the suspect as Valentin based on the

suspect’s clothing alone.

Beyond mere suggestion, however, Officer Arce’s

testimony also leaves me with serious concern that her

identification was based more on coercion than on her

perception. According to Officer Arce, she first identified

Valentin while she was detained amidst highly stressful

circumstances and only after the agents explicitly threatened

that they would cause her to lose her job if she did not make an

identification. She then provided her recorded identification

only after law enforcement officials detained her again and told

her that they had contacted her Internal Affairs captain—

implying that her job was in danger. The detectives who

conducted Officer Arce’s identification ultimately told her that

27

Cf. Third Circuit Report on Eyewitness Identifications,

supra n.24, at 45 (citing Jennifer E. Dysart et al., Show-ups:

The Critical Issue of Clothing Bias, 20 APPLIED

COGNITIVE PSYCHOL. 1009, 1019 (2006) (finding,

following a substantially randomized and controlled trial, that

“if a person who resembles the perpetrator is apprehended near

the scene of the crime, and is wearing distinct clothing similar

to that described by the eyewitness, the likelihood of false

identification is considerable”)).

12

she would not face repercussions for speaking with them, but

they did so only after Officer Arce had identified Valentin.

The timing was certainly not coincidental; and the scare

tactics seem to have worked. Officer Arce testified, “I was

just scared. I thought I was going to lose my job . . . . I was just

scared that if I didn’t basically say what I said in the airport

that I was going to be in trouble.”28 An identification obtained

through coercion surely would not satisfy the requirement of

Rule 701(a). More importantly, courts should discourage this

type of overreach in identification procedures and refuse to

admit any identifications they produce.

III.

To be sure, Officer Arce’s testimony at trial was

somewhat inconsistent with her recorded statement, in which

she stated that she had seen Valentin “thousands” of times and

that she had not been threatened into identifying the suspect as

Valentin.29 We are in no position to decide which version of

the story is true. But the inconsistencies between Officer

Arce’s testimony and recorded statement highlight a more

fundamental problem with the District Court’s ruling: despite

knowing that Officer Arce might recant her recorded

identification, and even though Officer Arce was present and

available, the District Court did not subject Officer Arce to

examination outside the presence of the jury before deciding

whether she was competent to offer a lay opinion

identification.

28

Supp. App. 249:3–9.

29

Supp. App. 192.

13

Had the District Court heard Officer Arce’s reasons for

recanting and been able to assess Officer Arce’s credibility

before it ruled, the District Court may have come to a different

decision. Alternatively, the District Court may have found

Officer Arce’s recantation incredible, and we would defer to

that determination.30 But the District Court made its decision

on the limited information that was available from the video

recording and counsel’s proffers. As a result, I am left with

concerns about Officer Arce’s recantation and doubts about the

reliability of her identification.31

IV.

The dangers of admitting improper identifications

cannot be overstated. False eyewitness identifications are the

leading cause of wrongful convictions.32 While this case

30

Copperweld Steel Co. v. Demag-Mannesmann-Bohler, 578

F.2d 953, 964 (3d Cir. 1978) (“In review of the factual

underpinning for the admission of the evidence, we must

decide only if the findings of fact are clearly erroneous.”).

31

The District Court seems to have shared this concern and

ordered the Government to make Officer Arce available for a

Rule 104 hearing for these very reasons. As the District Court

explained: “[I]f there were someone that says, I identified him

because I was his cousin . . . a month or two after the robbery,

but today [has] no idea [who the suspect is], that would suggest

to me that the person really didn’t have intimate familiarity

with the person [being identified].” Supp. App. 1243.

32

See Third Circuit Report on Eyewitness Identifications,

supra n.24, at 10–11.

14

concerns lay opinion identifications rather than eyewitness

identifications, the same dangers are present here. Given the

extreme prejudice that typically follows a false identification,

I am reluctant to find harmless error when an identification is

improperly admitted.

Nevertheless, in this particular case, I believe the

evidence of Valentin’s guilt was so overwhelming33 that the

33

My colleagues summarize much of the evidence supporting

Valentin’s convictions at note 7 of their opinion. See Maj. Op.

at 11 n.7. I agree that this evidence establishes harmless error

for Valentin’s robbery and conspiracy convictions. As for

Valentin’s conviction under 18 U.S.C. § 924(c)(1)(A)(ii) for

brandishing a firearm during the robbery, I believe it necessary

to put a finer point on the evidence supporting Valentin’s

conviction.

The evidence my colleagues cite establishes Valentin’s

presence at the scene of the crime, general participation in the

crime, and prior agreement to participate in the crime. For the

§ 924(c) charge, however, the critical question was whether

Valentin was the specific individual who brandished the gun.

As the District Court noted, there was no evidence that anyone

else involved in the robbery had a gun, so Valentin could not

have been convicted under this count on an accomplice theory.

Setting aside Officer Arce’s identification, two other sources

of evidence support the jury’s verdict that Valentin was in fact

the individual who brandished the gun: the pictures from the

security footage themselves and the testimony of Valentin’s

accomplice. While the security footage pictures were not so

clear as to render lay opinion identification entirely

15

erroneous exclusion of the detectives’ identifications and

admission of Officer Arce’s identification do not undermine

my confidence in Valentin’s convictions.34 Accordingly, I join

my colleagues in their judgment as well as all aspects of their

opinion except their discussion of the District Court’s lay

opinion identification rulings.

unnecessary, they were clear enough that the jury could

reasonably have concluded through its own direct comparison

that Valentin was the man in the pictures.

Further, the accomplice’s testimony was so thoroughly

corroborated by the evidence my colleagues cite that the

accomplice’s specific testimony that Valentin was the leader

and organizer of the robbery and the individual who brandished

the gun was particularly damning. And while Officer Arce’s

identification should never have been presented to the jury for

the reasons I explain above, its potential prejudice was

mitigated by the fact that Valentin’s counsel effectively used

cross examination to inform the jury of the limitations of

Officer Arce’s ability to make an identification and of the

suggestive and coercive circumstances that surrounded her

identification.

34

United States v. Auernheimer, 748 F.3d 525, 539 (3d Cir.

2014) (“In order for an error to be harmless, the Government

must prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.”)

(internal quotation marks omitted) (quoting Gov’t of V.I. v.

Davis, 561 F.3d 159, 165 (3d Cir. 2009)).

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