United States v. Anthony Whitewater

United States Court of Appeals
For the Eighth Circuit
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No. 17-1258
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Whitewater
lllllllllllllllllllll Defendant - Appellant
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No. 17-1259
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Whitewater
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 14, 2017
Filed: January 3, 2018
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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SHEPHERD, Circuit Judge.
In the early morning hours of May 2, 2016, a passenger in a Chrysler Pacifica
fired multiple rounds at a Chevrolet Tahoe traveling from the Winnebago Indian
Reservation to the Omaha Indian Reservation. A federal jury convicted Anthony
Whitewater as the shooter. The sole issue on appeal is whether the district court1
erred in allowing evidence at trial from the photo lineup used to identify Whitewater.
Whitewater claims the photo lineup was impermissibly suggestive. We find it was
not and affirm the district court.
I.
Around 1:30 a.m. on the morning of the shooting, Jason Miller and Vincent
Wolfe, members of the Omaha Nation Tribe, attended a party on the Winnebago
Indian Reservation. Whitewater, a member of the Winnebago Tribe, was also at the
party, but left after he got into a fight with another guest. Shortly thereafter, Miller
and Wolfe also left the party in Miller’s Chevrolet Tahoe. As Miller drove home
around 3:30 a.m., a blue Chrysler Pacifica pulled alongside the Tahoe on the driver’s
side. A man was hanging out of the Pacifica’s passenger window, shouting and
holding a handgun. Miller recognized him as the man who was ejected from the party
based on his neck tattoo and floppy hat depicting marijuana leaves. The passenger
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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fired two shots into the air. As the Tahoe sped away, the Pacifica gave chase—its
passenger firing several rounds into the back of the Tahoe.
An Omaha Nation law enforcement officer spotted the speeding vehicles and
pulled over the Pacifica, after briefly losing visual contact. The Pacifica’s driver was
Marcus Blackhawk: Whitewater’s older brother. There was no passenger, but
Blackhawk admitted that his “bro” had been with him. Blackhawk’s girlfriend,
Santita Medina, later testified that Whitewater had come to her home earlier that
morning around 3:00 a.m. to get Blackhawk. The two men then left in Medina’s blue
Chrysler Pacifica.
Over the next two days, FBI Special Agent Stephen Friend separately
interviewed Miller and Wolfe, who both provided almost identical descriptions of the
shooter: a Native American male with dark hair, squinty eyes, and a throat tattoo, who
was wearing a black floppy hat with green marijuana leaves on it. An FBI employee
pulled images from a database that matched Miller and Wolfe’s description. In June
2016, Special Agent Friend met with Miller and Wolfe separately to conduct a six-
photo lineup, in which both Miller and Wolfe identified Whitewater as the shooter.
Whitewater was charged with assault with a dangerous weapon in Indian
Country under 18 U.S.C. §§ 113(a)(3) and 1153, use of a firearm during a crime of
violence under 18 U.S.C. §§ 924(c)(1)(A)(iii) and 1153, and being a felon in
possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court denied Whitewater’s motion in limine to exclude evidence of the photo lineup
and in-court eyewitness identification, finding the lineup was not impermissibly
suggestive. At trial, Miller and Wolfe testified that they identified Whitewater from
a photo lineup, and both identified Whitewater in court. The jury found Whitewater
guilty on all charges, and the court sentenced him to 240 months imprisonment.
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Whitewater appeals his convictions, claiming the district court improperly allowed
evidence from the photo lineup at trial.
II.
The Due Process Clause protects against the admission of evidence derived
from improper identification procedures. Neil v. Biggers, 409 U.S. 188, 196 (1972).
We review the admissibility of identification evidence de novo. United States v.
Donelson, 450 F.3d 768, 772 (8th Cir. 2006). To determine whether such evidence
is admissible, “we [first] determine whether the defendant has shown that the
identification procedures were impermissibly suggestive.” Id. (internal quotation
marks omitted). “If that showing is made, we examine the totality of the
circumstances to determine whether the suggestive procedures created a very
substantial likelihood of irreparable misidentification.” Id. at 773 (internal quotation
marks omitted). Because we find the photo lineup was not impermissibly suggestive,
we do not reach the second inquiry.
“When there are no differences in appearance tending to isolate the accused’s
photograph,” the lineup is not impermissibly suggestive. Schawitsch v. Burt, 491
F.3d 798, 802 (8th Cir. 2007). To create the photo lineup at issue here, the FBI pulled
five images from an online database matching the description Miller and Wolfe
provided. The district court concluded that the photo lineup was not impermissibly
suggestive because “[t]he individuals are all males appearing to range from about 20
years of age to as much as 50 years of age. They all are dark-skinned, olive-skinned
individuals with very short black hair. And they all have neck tattoos.”
Whitewater challenges this conclusion by pointing out that he was the only
confirmed Native American, the only confirmed resident of the Winnebago or Omaha
Reservations, and the only party attendee included in the lineup. No doubt a photo
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lineup “displaying persons of markedly different race or ethnicity may be unduly
suggestive.” United States v. Wilson, 787 F.2d 375, 385 (8th Cir. 1986). However,
a photo lineup is not suggestive “solely because the display did not depict persons of
the same race or ethnic group.” Id. (upholding photo lineup where defendant was the
only Hispanic man included). On appeal, Whitewater alleges only that the ethnicity
of the other five men in the photo lineup was unknown. But even if Whitewater were
in fact the only Native American, all of the men featured in the lineup shared similar
physical characteristics such that Whitewater’s ethnicity did not isolate him.2
Furthermore, Whitewater cites no legal authority for his proposition that including
only one local resident and party attendee made the lineup suggestive. We therefore
agree with the district court that the photo lineup was not impermissibly suggestive.
Whitewater also challenges the reliability of the photo lineup identifications,
but—when no improper law enforcement conduct is involved—due process does not
require “a trial court to screen such evidence for reliability before allowing the jury
to assess its creditworthiness.” Perry v. New Hampshire, 565 U.S. 228, 245-47
(2012) (listing “safeguards built into our adversary system that caution juries against
placing undue weight on eyewitness testimony of questionable reliability,” including
right to confront witnesses and government’s burden to prove defendant guilty
beyond reasonable doubt).
Because the identification procedures were not impermissibly suggestive, the
district court properly allowed the evidence of the photo lineup to go to the jury.
2
Although Whitewater contends that his Native American neck tattoo made him
stand out, he cites no evidence in the record suggesting his neck tattoo was
distinctively Native American while the other men’s were not.
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III.
For these reasons, we affirm.
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