United States v. Albert Lee Williams

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2982
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Albert Lee Williams, also known as *
Tony Williams, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 11, 2003
Filed: February 18, 2003
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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Albert Lee Williams was charged with bank fraud in violation of 18 U.S.C.
§ 1344 (2000) for fraudulently using one credit account to pay other credit debts and
to purchase goods and services. During the investigation, an FBI agent presented an
array of photographs for identification to employees from a business defrauded by
Williams. The agent briefly described the purpose of the investigation, but neither
asked foundational or follow-up questions nor offered any comments during the
identification process. Two witnesses identified Williams. Williams moved to
suppress the identification before trial, but the motion was denied. At trial,
Williams’s counsel cross-examined each witness about the identification procedure,
bringing to light facts showing each witness had been unsure about the identification
at some point in time. Witnesses at trial also testified about the amount of the loss,
totaling $61,000. The jury found Williams guilty.
The presentence investigation report indicated the total loss attributable to
Williams’s fraud was $63,335.29. Williams objected, stating the loss proved at trial
was $61,000. At the sentencing hearing, the Government introduced faxed letters
from various businesses stating the amount of the loss to each business. Direct
Merchants offered no documentation at sentencing but representatives did estimate
the loss during trial testimony. Williams objected at the hearing, arguing the exhibits
lacked sufficient detail. The district court* calculated the total loss and ordered
restitution in the amount of $94,006.23, the sum of the amounts presented by the
Government. Williams appeals.
First, Williams contests the validity of the photo array identifications. When
challenging a photo array identification, defendants must show the identification
procedure was impermissibly suggestive, then must show under the totality of the
circumstances that the confrontation created a substantial likelihood of irreparable
misidentification. Robinson v. Clarke, 939 F.2d 573, 575 (8th Cir. 1991). Because
Williams has not shown, or even argued, that the identification procedure was
impermissibly suggestive, we need not consider Williams’s contentions about the
factors in the second prong of the analysis. There is no indication that the procedure
was suggestive. Further, any problems with the identifications were drawn out in
cross-examination, giving the jury information with which to determine what weight
to give to the challenged identifications.
*
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
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Next, Williams contends the amount of restitution was unsupported by the
record. We disagree. United States v. Young, 272 F.3d 1052, 1056 (8th Cir. 2001)
(reviewing restitution orders for clear error). The Government bears the burden of
demonstrating the amount of loss, which must be determined by a preponderance of
the evidence. Id. Sworn testimony at trial to supports $61,000 of the loss. United
States v. Baker, 200 F.3d 558, 563 (8th Cir. 2000). Restitution is not limited to losses
proved to a jury. United States v. Ross, 279 F.3d 600, 610 (8th Cir. 2002). The
district court may accept responsible, unsworn information, see United States v. Wise,
976 F.2d 393, 398 (8th Cir. 1992), and may adopt a reasonable estimate rather than
determine a precise loss calculation, see United States v. Holliman, 291 F.3d 498, 502
(8th Cir. 2002), pet. for cert. filed, Sept. 27, 2002. The exhibits introduced at
sentencing are troubling in their lack of detail, however, we cannot say the district
court’s restitution order is clearly mistaken.
Williams also submitted a pro se brief, arguing two issues. Williams contests
the amount of restitution, an issue which was raised by counsel’s brief and has
already been discussed. Williams also contests the finding of an aggravating
circumstance requiring more than minimal planning. After fully considering this
contention, we reject it.
We affirm the district court’s denial of the motion to suppress the photo array
identification, Williams’s conviction, and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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