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No Due Process Clause violation for the admission of an in-court identification without a preliminary hearing

In U.S. v. Whatley, the defendant was charged with four armed bank robberies that took place from 2003 through 2006. He was arrested following an aborted robbery attempt in 2007, to which he pled guilty. At his federal criminal trial on the earlier four bank robberies, the government called 14 different bank employees as witnesses who identified Whatley. The defendant challenged the admission of the in-court identifications by the 14 bank employees claiming a violation of the Due Process Clause. Whatley relied on 11th Circuit precedent which held that the admission of an in-court identification may violate a defendant’s federal right to due process if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (Code v. Montgomery) Whatley argued the in-court identification was unnecessarily suggestive because he was the only African American in the courtroom other than courtroom personnel, he had never been identified in a line-up or photo array before trial, and he was first seen by the witnesses during their testimony.

The panel held that in Perry v. New Hampshire the Supreme Court abrogated the 11th Circuit’s in-court identification precedent. Perry held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not arranged by law enforcement officers. Perry rejected the argument that due process requires judicial prescreening of all identifications obtained under suggestive circumstances. Because the identification was not the result of improper police conduct, there was no due process violation. The 11th Circuit ruled that the defendant’s right to due process was protected byt the right to confront all eyewitnesses who identified him in court, the right to offer impeachment evidence, and the limiting instructions given by the district court given before each in-court identification.

Prior attempted bank robbery was admissible
Whatley argued that the 2007 attempted robbery should not have been admitted under 404(b), arguing that the attempted bank robbery did not bear sufficient similarity to the charge crime to be introduced as evidence of the defendant’s identity. The 11th Circuit found that the combination of the similarities between the charged robbery and the attempt marked the crimes as the “handiwork” of the defendant.

Following the jury deliberations, it was discovered that the jury had viewed documents that had not been admitted during trial but were mistakenly sent back to the jury. That document was a single page from Defendant’s past criminal history that listed a 2002 charge of fleeing a police offer, 2003 charge of theft by receiving stolen property, possession of a firearm by a convicted felon. Though the defendant demonstrated the evidence was prejudicial, the 11th Circuit concluded that district court did not abuse its discretion in finding viewing of the exhibit was harmless error.

Enhancement for abducting bank employees reversed
The defendant appealed a four level enhancement under § 2B3.1 of the sentencing guidelines which provides for the enhancement if a person was abducted to facilitate the commission of the offense or to facilitate escape. In the guidelines, the term “abducted” means that a victim was forced to accompany an offender to a different location. The district court found that the defendant took the hostages and herded them from one part of the bank to another, but he never took any employees outside. (The defendant moved tellers and other bank employees from their respective work stations to the vault area of the bank.) Viewing this issue on a case by case basis, the 11th Circuit held that in these facts moving the victims between individual rooms or offices in a local bank branch would be treated as a single location.

The dissenting opinion found that Whatley’s arguments would fail under Pre-Perry 11th Circuit case law and disagreed with the need to decide the broad “sweep” of Perry. It found that the district court’s pretrial hearing on whether the bank employee witnesses should be allowed to identify the defendant as the perpetrator of the several robberies was sufficient. The dissent pointed out that problem with the majority ruling is that the opinion holds that there are no constitutional problems with in-court identifications that are not tainted by suggestive police procedures, even if the in-court identification is made years after the events. The dissent states that given this holding, it is critical that district courts carefully consider requests to allow relevant expert testimony on the possible shortcomings of eyewitness identification. The dissent recognized that prior 11th circuit court cases appear to hold that the exclusion of this expert testimony can never be an abuse of discretion. It believes those cases were wrongly decided and recommends the Eleventh Circuit reconsider these cases en banc. The dissent also found that the extrinsic evidence viewed by the jury was not harmless error and the government did not overcome the presumption of prejudice.

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