Argued: January 25, 2018
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)
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
J. Boente, United States Attorney, Joseph Attias, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
MOTZ and DIAZ, Circuit Judges, and Robert J. CONRAD, Jr.,
United States District Judge for the Western District of
North Carolina, sitting by designation.
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.
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
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
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.
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
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.
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 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.
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
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.
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.
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 in the rap poster just after her
escape. Nonetheless, evidence of ...