United States v. Monclaire Saint Louis ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4199
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
MONCLAIRE SAINT LOUIS, a/k/a Montclaire Saint Louis, a/k/a Top, a/k/a Top
M.S.T.,
Defendant – Appellant.
No. 17-4200
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ULRISTE TULIN, a/k/a Blade,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:15-cr-00173-LO-1; 1:15-cr-00173-LO-2)
Argued: January 25, 2018 Decided: May 2, 2018
Before MOTZ and DIAZ, Circuit Judges, and Robert J. CONRAD, Jr., United States
District Judge for the Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Motz and
Judge Conrad joined.
ARGUED: Vernida Rochelle Chaney, CHANEY LAW FIRM PLLC, Fairfax, Virginia,
for Appellant Ulriste Tulin. Nader Hasan, LAW OFFICE OF NADER HASAN, PC,
Fairfax, Virginia, for Appellant Monclaire Saint Louis. Ronald Leonard Walutes, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Dana J. Boente, United States Attorney, Joseph Attias, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
2
DIAZ, Circuit Judge:
Monclaire Saint Louis and Ulriste Tulin are Haitian nationals whose involvement
in the kidnappings of two Americans in Haiti during the summer of 2012 landed them in
federal court in Alexandria. They were convicted at trial and now appeal. Although we
agree with the district court’s observation that “[i]t certainly was not a perfect trial,” J.A.
1080, the issues raised by Saint Louis and Tulin ultimately do not warrant reversal. For
the reasons explained below, we affirm.
I.
A.
In early June 2012, Yvroseline Fergile, a U.S. citizen, was kidnapped in Haiti. A
group of men forced her at gunpoint into her car, beat her severely, and drove her to a house
where they held her for seven days before she escaped. While in captivity, Fergile was
able to speak with and see her kidnappers.
After Fergile escaped, Haitian police showed her a poster of a rap group, “Misyon
Skwad,” that was recovered during their search of the house where she was held. Fergile
identified two individuals in the poster who she claimed were involved in her kidnapping:
(1) defendant Saint Louis, also known as “Top,” who was pictured in the poster next to the
name “Top M.S.T,” and (2) an individual identified as “Kwason” in the poster. Defendant
Tulin was also pictured in the poster (shown with the nickname “Blade”), but Fergile did
not identify him.
3
Later that summer, Ariante Marcelin—also a U.S. citizen—was abducted from her
home at gunpoint by a group of men. One of the men assaulted and raped Marcelin’s niece,
who was at Marcelin’s home when the kidnapping occurred. The men held Marcelin for
four days. She was freed after one of her captors, Samson Jolibois, was arrested and led
police to the house where she was being held. Jolibois implicated Saint Louis in the
kidnapping, and police arrested Saint Louis later that day.
Several weeks later, FBI agent Alfred Watson traveled to Haiti to investigate the
Marcelin kidnapping. After arriving in Haiti, Watson learned of Fergile’s kidnapping and
also began investigating that matter. Watson interviewed Jolibois, who told him that he,
Saint Louis, and Tulin were among Fergile’s kidnappers.
In mid-September 2012—approximately three months after Fergile’s kidnapping—
Watson interviewed Fergile in New York. He showed her three separate six-person photo
arrays and asked if she recognized anyone. The first array contained a photo of Jolibois,
which the FBI took while he was in Haitian custody. Fergile was unable to identify
Jolibois. The second array contained a photo of Saint Louis, also taken by the FBI while
he was in Haitian custody. Fergile identified Saint Louis, and added that she remembered
that during the kidnapping, he had bragged about driving the vehicle.
The third array contained a photo of Tulin, which had been extracted from a scanned
image of the “Misyon Skwad” rap poster that Haitian authorities had previously shown
Fergile. Tulin was not in custody in Haiti when the FBI prepared the array, and the rap
poster photo of Tulin was the only one the FBI had available. Tulin’s photo was dark,
appeared blurry, and showed a jagged, pixelated border from having been cropped and
4
lifted from the rap poster. The other five filler photos showed individuals with hairstyles
similar to Tulin’s, and several were taken against a dark background and had rough,
pixelated borders to make them appear cropped.
Fergile identified Tulin in the array. She recalled that Tulin had told her that he
needed money because he was poor and she was rich. Fergile also told Watson that the
Haitian police had shown her a rap poster and that Tulin’s photo had been in the poster.
B.
Saint Louis and Tulin were each charged with conspiracy and two substantive
counts of hostage-taking under 18 U.S.C. § 1203 and use of a firearm during a crime of
violence under 18 U.S.C. § 924. They were tried together in December 2016. We briefly
recount the events surrounding each of the issues they raise on appeal.
1.
Before trial, Tulin sought to suppress all identification evidence and testimony
related to Fergile’s identification of him in the FBI’s photo array. He argued that the array
was unnecessarily suggestive and violated due process because (1) it recycled Tulin’s
photo from the rap poster that Fergile had already seen in Haiti in a suggestive show-up
procedure, and (2) Tulin’s photo was darker and of a lower quality compared to the others
in the array. The district court denied the motion, concluding that the array was not unduly
suggestive. But the court noted that it would revisit the issue after Fergile testified at trial.
At trial, Fergile failed to identify Tulin in the courtroom. She could recall only that
she had identified two individuals when Watson showed her the three photo arrays over
four years earlier. She also confirmed that she had identified only Saint Louis and Kwason
5
in the rap poster just after her escape. Nonetheless, evidence of Fergile’s later identification
of Tulin came in through Agent Watson’s testimony.
At the close of the government’s case and in a later motion for a new trial, Tulin
again asked the district court to exclude evidence of Fergile’s identification. The court
denied both motions based on its view that the photo arrays were done “professionally”
and “resulted in the identification of Mr. Tulin.” J.A. 1116.
2.
Saint Louis and Tulin moved in limine to exclude evidence relating to the rape of
Marcelin’s niece. Instead of excluding the evidence entirely, the court ruled that it would
only allow testimony that Marcelin’s niece was assaulted, without reference to the sexual
nature of the incident. But when Jolibois testified at trial, he let slip that one of the
kidnappers had raped Marcelin’s niece. J.A. 658. The district court struck the answer,
instructed the jury not to consider it, and denied the defendants’ subsequent motion to
declare a mistrial. Then, on cross-examination, Jolibois mentioned that the perpetrator was
“pulling up his pants.” J.A. 685. The district court struck this answer, too. Before the
jurors retired, the district court instructed them to disregard the stricken testimony and
reminded them that “[t]he defendants are not on trial for any act or any conduct not
specifically charged in the indictment.” J.A. 775.
3.
Marcelin testified for the government, recounting her experience as a kidnapping
victim. She confirmed (corroborating Jolibois’s testimony) that she knew Tulin personally
because she had employed him as a security guard at her home. According to Tulin,
6
Marcelin waved and smiled at him as she stepped down from the witness stand after
testifying. Tulin’s counsel sought to mention Marcelin’s alleged conduct in her closing
argument as evidence favorable to her client, but the district court refused, calling any such
reference “purely speculation” and “prejudicial to the Government.” J.A. 749.
4.
During closing arguments, Tulin’s counsel speculated about the existence of cell
phone records not in evidence that would have shown where Tulin was after the
kidnappings, and questioned why the government failed to present such evidence. In
rebuttal, the government observed that the defense could have presented that evidence, if
it existed and was so important to the trial. The government immediately clarified that it
bore the burden of proving the case beyond a reasonable doubt, not the defense. Counsel
for Saint Louis objected to the government’s remarks.
5.
The jury convicted Saint Louis and Tulin on all counts. Tulin moved for a new trial
based on the weight of the evidence, arguing that, without Fergile’s identification of him,
his conviction could not possibly rest on the thoroughly impeached testimony of the
government’s cooperator, Jolibois.
Tulin also moved for a new trial based on the issues he and Saint Louis had raised
earlier, including the introduction of identification evidence, the court’s limitation on
Tulin’s counsel’s closing argument, the introduction of prejudicial sexual assault
testimony, and the government’s burden-shifting arguments during closing. Saint Louis
7
moved for a new trial based only on the introduction of the sexual assault testimony. The
district court denied both motions.
6.
Saint Louis and Tulin were each sentenced to 240 months in prison. At the
sentencing hearing, Tulin objected to a two-level guidelines enhancement he received for
causing serious bodily injury, arguing that Fergile’s injuries were not of a serious nature.
The district court overruled the objection, finding ample factual support for the
enhancement.
II.
On appeal, Tulin argues that (1) the district court erred in refusing to suppress
evidence of Fergile’s out-of-court identification of him; (2) the introduction of prejudicial
sexual assault testimony requires a new trial; (3) the district court’s ruling preventing
counsel from commenting on a witness’s demeanor violated Tulin’s rights under the
Confrontation Clause; (4) the prosecutor’s burden-shifting comment during closing denied
him a fair trial; (5) the district court erred in determining that the weight of the evidence
did not warrant a new trial; and (6) the two-level sentencing enhancement for inflicting
serious bodily injury was improper. Saint Louis joins Tulin as to the second issue only.
We consider each argument in turn.
A.
Tulin contends that the district court erred in denying his motion to suppress
Fergile’s out-of-court identification of him, which was admitted via Agent Watson’s
8
testimony. He argues that his right to due process was violated because the FBI’s photo
array was impermissibly suggestive, which in turn resulted in an unreliable identification. 1
We review de novo the district court’s legal conclusion as to whether the identification
violated the Due Process Clause. United States v. Saunders, 501 F.3d 384, 389 (4th Cir.
2007).
Due process principles prohibit the admission at trial of an out-of-court
identification obtained through procedures so impermissibly suggestive as to give rise to a
very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198 (1972)
(citing Simmons v. United States, 390 U.S. 377, 384 (1968)). Put differently, “due process
concerns arise only when law enforcement officers use an identification procedure that is
both suggestive and unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 238–39 (2012).
Yet even where unnecessarily suggestive procedures are used, due process does not require
exclusion of the evidence if the “identification was sufficiently reliable to preclude the
substantial likelihood of misidentification.” United States v. Johnson, 114 F.3d 435, 442
(4th Cir. 1997). Thus, our analysis proceeds in two steps: (1) “the defendant must show
that the photo identification procedure was impermissibly suggestive,” and (2) “if the
1
Tulin also argues that Watson’s testimony about Fergile’s identification should
have been excluded as hearsay. That is not correct. Fed. R. Evid. 801(d)(1)(C) provides
that an out-of-court statement that “identifies a person as someone the declarant perceived
earlier” is “not hearsay” as long as “[t]he declarant testifies and is subject to cross-
examination about [the] statement.” Because Fergile testified and was available for cross,
Watson’s testimony was not hearsay.
9
defendant meets this burden, a court considers whether the identification was nevertheless
reliable in the context of all of the circumstances.” Saunders, 501 F.3d at 389–90.
Tulin argues first that his photo suggestively stood out in the array because it was
darker and blurrier than the others. Although Tulin is right that his photo was dark and
blurry, it didn’t look “strikingly different” from the five filler photos in a way that would
implicate due process concerns. Cf. id. at 390 (finding suggestiveness where defendant’s
photo “stood out sharply from the others in the array”). Rather, the FBI did an acceptable
job creating a photo array that contained similar-looking photos. The headshot of Tulin
that was lifted from the rap poster was cropped so that it showed only his head and neck
against a dark background, removing any indication of the context of the rap poster that
might have been gleaned from including Tulin’s clothing or the text from the original
image. Further, Tulin’s neutral expression in the photo is similar to those of the individuals
pictured alongside him in the array. The filler photos show men of similar age, build, and
complexion, with similar hairstyles. Several of the photos were also cropped and set
against dark backgrounds. And, as the district court noted, at least one other photo had the
“same kind of glossy look to it as Mr. Tulin’s.” J.A. 312.
Tulin also contends that the FBI’s use of his photo from the rap poster that was
shown to Fergile a few months earlier by Haitian police impermissibly suggested to Fergile
that she should select Tulin’s photo from the array. But an array is not unduly suggestive
merely because it includes a photo of the suspect that the witness has already seen. See
United States v. Maguire, 918 F.2d 254, 263 (1st Cir. 1990) (“A suspect’s inclusion in two
photospreads, even with the same photo, is not constitutionally impermissible.”).
10
In United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992), for example, the
Second Circuit found no suggestiveness in the use of a suspect’s photo in multiple arrays.
In that case, a witness was shown an array of mugshots including the suspect and five
others, but the witness was unable to select the suspect from the spread. 983 F.2d at 378.
When presented with a second photo array, which also included the suspect’s photograph,
the witness selected the suspect’s picture after studying the array for half an hour. Id. The
court there concluded that “the fact that a suspect’s picture was placed in a second array
after a witness has failed to select anyone from the first array [does not] automatically make
the second array unduly suggestive.” Id. at 379. 2
We think the same can be said of the use of Tulin’s photo from the rap poster in the
FBI’s photo array. But even assuming that the array was impermissibly suggestive,
Fergile’s identification of Tulin in the photo array was nonetheless reliable.
We evaluate reliability considering the totality of the circumstances, including
factors such as: (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
2
In Concepcion, the defendant challenged a witness’s in-court identification of him,
claiming it was tainted by suggestive pretrial procedures. 983 F.2d at 377. Normally, a
court’s analysis of the admissibility of an identification ends when it finds no
suggestiveness, see Fowler v. Joyner, 753 F.3d 446, 458 (4th Cir. 2014), but in Concepcion
the witness was also unable to identify the defendant at a hearing held during trial outside
the presence of the jury. 983 F.2d at 378. Based on this intervening circumstance, the
Second Circuit found the witness’s pretrial identifications insufficiently reliable to permit
the witness to identify the defendant at trial. Id. at 379. In contrast, our task here is limited
to passing on the admissibility of Fergile’s out-of-court identification of Tulin based on the
September 2012 photo array.
11
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.”
Biggers, 409 U.S. at 199–200. We weigh these factors against “the corrupting effect of the
suggestive identification itself,” Manson v. Brathwaite, 432 U.S. 98, 114 (1977), keeping
in mind that “the exclusion of such evidence is the exception to the rule that favors the
admissibility of eyewitness identification for the jury’s consideration.” Fowler v. Joyner,
753 F.3d 446, 453 (4th Cir. 2014).
Here, the first and second factors—the witness’s opportunity to view the criminal
and her degree of attention at the time of the crime—strongly support a finding of
reliability. Fergile was able to see her captors and speak with them during the seven days
she was held. She was also able to recall specific details about her captivity, showing a
high degree of attention during that time. Meanwhile, the third factor—the accuracy of
any prior description of the criminal—doesn’t assist our analysis here because Watson
didn’t ask Fergile to describe Tulin before he showed her the photo array.
With respect to the fourth factor (the witness’s level of certainty at the
confrontation), Fergile showed a high level of certainty when she picked Tulin’s photo
from the array. Watson’s interview report noted that she “positively identified” Tulin and
that she went on to offer additional information about him, including his role in the
kidnapping and statements he made to her during her captivity. J.A. 88. Although we are
mindful that a “lack of confidence is certainly a reliable warning sign, while the presence
of confidence is probably closer to a neutral factor,” United States v. Jones, 689 F.3d 12,
12
18 (1st Cir. 2012), we find that this factor tilts slightly in favor of reliability under these
circumstances.
Finally, the fifth factor—the length of time between the crime and the
confrontation—does not support reliability here. In Biggers, the Supreme Court found an
identification reliable where seven months had elapsed between the crime and the
confrontation. 409 U.S. at 201. The Court there noted that such a lengthy time period
would be “a seriously negative factor in most cases,” but it credited the witness’s record
for reliability because she had made no identifications at previous show-ups, lineups, or
photographic showings, despite their suggestiveness. Id.
In this case, we have a more complicated scenario. Fergile’s record for reliability
was not the best. She identified Saint Louis and Kwason in the initial show-up in Haiti on
the day of the crime, but not Tulin. Then, three months later, she picked Tulin from a photo
array but failed to identify another of her captors, Jolibois, in a different array. And at trial,
in the most suggestive of circumstances (albeit four years later), she was unable to identify
Tulin in the courtroom.
While the length of time between the crime and pretrial identification here (three
months) is less than in Biggers, it is still longer than many cases in which the passage of
time has been found to support reliability. See United States v. Lewis, No. 16-4680, 2018
WL 1073624, at *6 (4th Cir. Feb. 27, 2018) (four hours); Saunders, 501 F.3d at 392 (two
hours); Brathwaite, 432 U.S. at 116 (two days). We can’t say with certainty that the three-
month time period here supports reliability under the circumstances.
13
Weighing all of these factors together against the corrupting effect of the FBI’s
photo array, we conclude that Fergile’s identification of Tulin was reliable and thus the
district court did not err in admitting the evidence. We also note that even when law
enforcement uses an unnecessarily suggestive procedure, “suppression of the resulting
identification is not the inevitable consequence.” Perry, 565 U.S. at 239. Rather, the
Constitution “protects a defendant against a conviction based on evidence of questionable
reliability, not by prohibiting introduction of the evidence, but by affording the defendant
means to persuade the jury that the evidence should be discounted as unworthy of credit.”
Id. at 237.
Tulin had that opportunity in spades. Fergile was cross-examined about her
identifications, and Tulin’s counsel elicited that Fergile did not identify Tulin in the show-
up of the rap poster in Haiti. Tulin’s counsel also cross-examined Agent Watson
vigorously, asking probing questions about the suggestiveness of the array and the
reliability of Fergile’s positive identification. Furthermore, Fergile’s flaws as a witness
were on full display at trial. The jury heard that she had a poor recollection of the photo
identifications she had made four years earlier and saw her fail to identify Tulin in the
courtroom. The district court also instructed the jury at length about identification
evidence, noting that “[o]ne of the most important issues in this case is the identification
of the defendants,” and that “if you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crime, you must find the defendant not
guilty.” J.A. 782. Certainly, the “safeguards built into our adversary system that caution
14
juries against placing undue weight on eyewitness testimony of questionable reliability,”
Perry, 565 U.S. at 245, were present here.
Where, as in this case, an admittedly imperfect photo identification procedure isn’t
unduly suggestive and the witness’s identification shows key indicia of reliability, we are
“content to rely upon the good sense and judgment of [the jury], for evidence with some
element of untrustworthiness is customary grist for the jury mill.” Brathwaite, 432 U.S. at
116. We therefore affirm the district court’s decision to admit the pretrial identification
evidence.
B.
Both Tulin and Saint Louis contend that the district court erred in denying their
motions for a mistrial (and later, a new trial) based on the introduction of testimony about
a rape committed by someone else during Marcelin’s kidnapping. We review a district
court’s denial of a motion for a mistrial and for a new trial for abuse of discretion. United
States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008); United States v. Arrington, 757 F.2d
1484, 1485 (4th Cir. 1985). An abuse of discretion exists if the defendant can show
prejudice; “no prejudice exists, however, if the jury could make individual guilt
determinations by following the court’s cautionary instructions.” Wallace, 515 F.3d at 330
(internal quotation marks omitted). When cautionary instructions are given, “[w]e presume
that juries follow such instructions.” United States v. Johnson, 587 F.3d 625, 631 (4th Cir.
2009).
These well-established principles show that the district court was right to deny
Tulin’s and Saint Louis’s motions for a mistrial. In response to the inadvertent admission
15
of potentially prejudicial remarks from Jolibois, the district court promptly struck the
testimony and instructed the jury to ignore it. We also note that the district court, with the
benefit of contemporaneous observation, was not convinced that the jury heard the first
remark because the prosecutor immediately and loudly interjected with the word
“assaulted” as Jolibois (testifying through an interpreter) said, “raped.” J.A. 658, 664.
What’s more, the government then went out of its way to elicit testimony that Saint Louis
and Tulin were not involved in the “assault” and had condemned the act. 3
More importantly, because we presume juries follow the kinds of curative
instructions given by the district court here, Tulin and Saint Louis cannot show prejudice.
See United States v. Dorsey, 45 F.3d 809, 818 (4th Cir. 1995) (finding no prejudice where
“the district court’s curative instructions properly informed the jury of the types of evidence
that they should and should not consider in reaching its verdict”).
C.
Tulin next asserts that the district court violated his rights under the Confrontation
Clause when it barred his lawyer from commenting on the demeanor of a witness during
closing argument. Specifically, Tulin argues that the court was wrong to prohibit counsel
from highlighting Marcelin’s alleged wave and smile at Tulin as she left the witness stand
3
We recognize that this additional testimony may have been a two-edged sword in
that it further emphasized the improper evidence. Nonetheless, we cannot say that the
district court erred in denying the defendants’ request for a mistrial based in part on this
fact.
16
after her testimony. We review an alleged Confrontation Clause violation de novo. United
States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015).
The Sixth Amendment affords a criminal defendant “the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The right to confrontation
“provides two types of protections for a criminal defendant: the right physically to face
those who testify against him, and the right to conduct cross-examination.” Coy v. Iowa,
487 U.S. 1012, 1017 (1988) (internal quotation marks omitted).
The district court’s decision to limit counsel’s closing argument did not deny Tulin
either of these protections. During trial, Tulin was able to physically face Marcelin and he
was able to cross-examine her about her testimony. We therefore reject Tulin’s
Confrontation Clause argument.
D.
Tulin also complains about the government’s closing argument. During closing, the
government made comments suggesting that Tulin failed to present evidence to the jury.
These comments were made in response to Tulin’s argument speculating about the absence
of phone records in the government’s case. Specifically, the government said, “What
evidence that exists on a physical level is available to both parties. Why didn’t [Tulin’s
counsel] introduce it? She doesn’t bear the burden, I do, but my point is, understand the
context.” J.A. 874. Tulin says the district court erred when it did not take curative
measures after an objection was raised to these remarks, denying him a fair trial.
17
We review a trial court’s rulings on objections to closing arguments for abuse of
discretion. United States v. Green, 599 F.3d 360, 379 (4th Cir. 2010). 4 “In determining
whether a defendant’s due process rights were violated by a prosecutor’s closing argument,
we consider (1) whether the remarks were, in fact, improper, and, (2) if so, whether the
improper remarks so prejudiced the defendant’s substantial rights that the defendant was
denied a fair trial.” United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010).
It is well established that “prosecutors must refrain from making burden-shifting
arguments which suggest that the defendant has an obligation to produce any evidence or
to prove innocence.” United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). Yet
“[w]e have previously held that the government may respond to a defendant’s argument
that the failure to call a witness weakens the government’s case by noting that the defendant
could also have called the witness.” United States v. Walker, 191 F. App’x 205, 208 (4th
Cir. 2006) (unpublished) (citing United States v. Molovinsky, 688 F.2d 243, 247 (4th Cir.
1982)).
In Molovinsky, defense counsel commented to the jury about the government’s
failure to call a witness, and the government responded by arguing that the witness “was at
least as available to the defense as he was to the Government.” 688 F.2d at 247. We found
4
The government says we should review this issue for plain error because only
counsel for Saint Louis, not Tulin, objected at trial. Generally, “when one codefendant
objects and thereby brings the matter to the attention of the court, further objections by
other defendants are unnecessary.” See United States v. Brown, 562 F.2d 1144, 1147 (9th
Cir. 1977). Regardless, we need not resolve this issue because Tulin’s claim fails under
either standard.
18
this to be a “justified defensive response” by the government and thus saw no error in the
district court’s view that the response was appropriate in light of the statement made by
defense counsel. Id. So too here.
But even if the remarks were improper, Tulin cannot show prejudice. In
determining prejudice, we consider (1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to
establish the guilt of the accused; (4) whether the comments were deliberately placed
before the jury to divert attention to extraneous matters; (5) whether the prosecutor’s
remarks were invited by improper conduct of defense counsel; and (6) whether curative
instructions were given to the jury. Lighty, 616 F.3d at 361.
Here, the prosecutor’s remarks were isolated and made only to counter the argument
of defense counsel, not to divert the jury’s attention. Furthermore, the comments did
nothing to alter the strength of the proof before the jury, and the prosecutor’s immediate
clarification that “[Tulin’s counsel] doesn’t bear the burden, I do,” mitigated any potential
that the jury would be misled. Accordingly, we reject Tulin’s claim of error.
E.
Next, Tulin appeals the denial of his motion for a new trial under Fed. R. Crim. P.
33 based on the weight of the evidence, which we review for abuse of discretion.
Arrington, 757 F.2d at 1486. A district court should grant a new trial based on the weight
of the evidence “only when the evidence weighs heavily against the verdict.” Id. When
considering the motion, the district court is not required to view the evidence in the light
19
most favorable to the government, and it may evaluate the credibility of witnesses. Id. at
1485.
In denying Tulin’s motion, the district court credited Fergile’s identification of
Tulin and noted that, despite some effective impeachment, Jolibois’s testimony for the
government was “compelling.” J.A. 1116. Jolibois accepted responsibility for his role in
each abduction and identified both Saint Louis and Tulin as part of the group of
perpetrators. He testified that Tulin used a .45 caliber handgun during the first kidnapping,
and that Tulin grabbed Fergile and put her into the car to be taken to Jolibois’s house, where
she was held. Jolibois also recounted how Tulin was responsible for the plan that led to
Marcelin’s kidnapping, because Tulin knew Marcelin personally and was aware that she
was bringing a large sum of money to Haiti from the United States to help build a hospital.
When they could not locate the money in Marcelin’s home, Tulin decided they would
kidnap Marcelin instead and hold her for ransom. In all, Jolibois’s testimony shows the
evidence did not weigh against the jury’s verdict. Under our deferential standard of review,
we affirm the court’s decision to deny Tulin a new trial.
F.
At sentencing, the district court overruled Tulin’s objection to a two-level
enhancement for serious bodily injury (defined as “injury involving extreme physical pain
or the protracted impairment of a function of a bodily member, organ, or mental faculty;
or requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation”). See U.S.S.G. § 2A4.1(b)(2)(B); § 1B1.1 app. n.1(L). Tulin says this was
20
wrong because he believes the injuries sustained by Fergile did not rise to the level of
“serious bodily injury.” We disagree.
We review a sentence imposed by the district court “under a deferential abuse-of-
discretion standard.” United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). In
reviewing guideline determinations, we review questions of law de novo, and questions of
fact for clear error. United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).
Here, the facts surrounding Fergile’s kidnapping certainly support the sentencing
enhancement Tulin received. Both Fergile and Jolibois testified that Fergile was beaten
extensively by her captors, especially around her face. Fergile’s injuries from those
beatings included a broken blood vessel in her eye and bleeding from her arm and nose.
We think the district court correctly found these injuries sufficiently “serious.” J.A.
1120. Tulin argues otherwise because Fergile did not seek out medical intervention and
did not suffer protracted impairment of her eye, but these contentions critically overlook
the very first part of the definition of “serious bodily injury”: that which causes “extreme
physical pain.” We find no error—clear or otherwise—in the district court’s decision to
apply the enhancement.
III.
For the reasons given, the judgment of the district court is
AFFIRMED.
21