144 F.3d 531 (7th Cir. 1998), 97-3246, United States v. Newman

Docket Nº:97-3246.
Citation:144 F.3d 531
Opinion Judge:FLAUM, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie A. NEWMAN, Defendant-Appellant.
Attorney:James M. Warden (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee. Linda M. Wagoner, William E. Marsh (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.
Judge Panel:Before CUDAHY, FLAUM, and EVANS, Circuit Judges.[*]
Case Date:May 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 531

144 F.3d 531 (7th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Willie A. NEWMAN, Defendant-Appellant.

No. 97-3246.

United States Court of Appeals, Seventh Circuit.

May 20, 1998

Argued April 1, 1998.

Page 532

Defendant was convicted in the United States District Court for the Southern District of Indiana, David F. Hamilton, J., of armed robbery and was sentenced to life imprisonment for his third violent felony. Defendant appealed. The Court of Appeals, Flaum, Circuit Judge, held that: (1) witnesses' show-up identification of defendant was reliable under totality of circumstances; (2) victim restitution did not qualify as criminal punishment, and, thus, court's imposition of restitution for criminal conduct which occurred prior to enactment of Mandatory Victims Restitution Act (MVRA) did not violate Ex Post Facto Clause; (3) court's calculation of amount of victim restitution under MVRA was not abuse of discretion; and (4) any error arising out of court's sua sponte application of upward sentencing departure in armed robbery prosecution was harmless.


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James M. Warden (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Linda M. Wagoner, William E. Marsh (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before CUDAHY, FLAUM, and EVANS, Circuit Judges.[*]

FLAUM, Circuit Judge.

A jury convicted Willie Newman of armed robbery of a bank in violation of 18 U.S.C. § 2113(a) & (d). This was Newman's third violent felony conviction-his " third strike" under 18 U.S.C. § 3559(c)(1)-and the district court therefore imposed the mandatory sentence of life imprisonment. On appeal, Newman challenges the district court's denial of a motion to suppress various witnesses' identifications of him, as well as the court's decision to order restitution, the amount of that restitution, and an upward adjustment of his sentence based upon his physical restraint of a person during commission of a violent felony. We affirm Newman's conviction, sentence of life imprisonment, and the district court's order of restitution.


On April 19, 1996, Willie Newman robbed an Indianapolis branch of Bank One without wearing a mask. Before he entered the bank, Newman attempted to steal a getaway car from Terrance Lloyd, who was waiting to pick up his wife at the bank. Newman stated, " I need your truck; I'm going to rob a bank." Mr. Lloyd resisted, which led Newman to force Lloyd out of his truck and into the bank, allegedly at gunpoint. Once inside the bank, Newman pushed Lloyd aside and announced to all present that he was robbing the bank. Newman ordered Regina Lloyd (Terrance's wife and a bank employee) to place the bank's money in Newman's dark blue duffle bag. After getting the money, Newman grabbed Toni Ashford, the branch manager, allegedly pressed a gun against her through his duffle bag, and told her, " You are going with me." Newman held Ashford as a human shield until he got to the door; once outside, he ordered her to return to the bank.

Upon ordering Ashford back into the bank, Newman fled the scene on foot. Two blocks away from the bank, Newman accosted three employees of the Indianapolis water company. Newman told the men, " I just robbed a bank, I need your truck." He also allegedly announced that he had a gun and asked the

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men if they wanted to die; two of the employees claimed to have seen a gun in Newman's duffle bag. The employees surrendered the company's truck immediately, and Newman sped away.

Newman left a trail of witnesses and evidence in his wake that police could easily and quickly follow. He crashed the water company's truck near a construction site close to his home and walked the rest of the way home while discarding some of his clothing along the way. He also dropped $250 of recorded currency from the bank in an alley behind his house. Following Newman's trail, police officers swarmed the area surrounding the crashed and abandoned truck.

One officer observed Newman moving furtively around his backyard and attempting to avoid detection by another nearby officer. When the observing officer ordered Newman to freeze, Newman responded, " You are going to have to catch me!" and then ran into his house. The officers pursued Newman into the house and discovered him holding a fistful of currency that he was removing from a dark blue duffle bag. Before the police could ask any questions or give any directions, Newman exclaimed, " I didn't rob nobody!" Officers found a bundle of fifty twenty-dollar bills bearing the stamp and initials of tellers from the bank, as well as another packet of money on the ground and a few ten-and twenty-dollar bills scattered along a row of fence posts near Newman's home. After officers arrested him, Newman naively asked, " If you don't find the money, will I be okay?"

The Indianapolis Police Department began gathering witnesses to the robbery almost immediately. Once officers apprehended Newman, other officers brought the Lloyds and Toni Ashford from the bank to Newman's residence to make an identification. The witnesses were told only that they were being taken to this location to identify a suspect. The witnesses were brought in separate cars to view Newman in a " show-up identification" procedure 1 in which Newman stood handcuffed in front of his house next to a police officer; the house was surrounded by yellow crime scene tape when the witnesses arrived. Each witness positively identified Newman as the bank robber. These identifications took place a little over one hour after the robbery.

A grand jury indicted Newman for armed robbery (18 U.S.C. § 2113(a) & (d)) and for using a gun in the commission of a violent felony (18 U.S.C. § 924(c)). The district court denied Newman's motion to suppress the show-up identifications, and at trial the Lloyds and Toni Ashford again identified Newman as the perpetrator. In addition, one of the water company employees identified Newman as the man who stole the company's truck,2 and a carpenter at the construction site near the crashed truck identified Newman as the man who abandoned the truck and walked away while discarding his clothing. Many of these witnesses at trial also identified the duffle bag and the clothing worn by Newman during the robbery.

The jury convicted Newman of bank robbery, but it acquitted him on the gun charge. According to the mandate of 18 U.S.C. § 3559(c)(1), the district court sentenced him to life imprisonment because this was his third serious violent felony conviction. Moreover, based on an audit allegedly prepared by the bank, the district court ordered Newman to make restitution to the bank pursuant to 18 U.S.C. § 3663A in the amount of $11,973. The court, however, concluded that Newman's financial status precluded the imposition of any additional fine.


Newman raises four issues on appeal. He first argues that the district court erroneously denied his motion to suppress the show-up identifications of the Lloyds and Toni Ashford; these highly suggestive pre-trial identifications, he contends, predisposed the witnesses to identify him incorrectly at trial in violation of his due process rights. In addition,

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he contests both the district court's calculation of its restitution order and the decision to order restitution in the first place. Finally, Newman challenges the district court's decision to apply USSG § 2B3.1(b)(4)(B) in calculating his sentence based on his use of physical restraint during the commission of a crime. We reject all of these claims.

A. Show-up Identification

Newman argues that the trial court should have suppressed the out-of-court identifications made by Ashford and the Lloyds. The witnesses were brought in separate cars to Newman's home, which was cordoned off by yellow crime scene tape; upon the witnesses' arrival, a police officer brought Newman in handcuffs to a spot approximately eight to ten yards from each car. The circumstances surrounding these show-up identifications, he contends, were unduly suggestive and created a serious likelihood that the witnesses subsequently made unreliable identifications at trial.3 Newman claims that these irreparably-tainted identifications violated his due process rights. The district court rejected Newman's due process claim and found that the identification procedures employed in this case were neither unduly suggestive nor likely to have caused a risk of an unreliable identification.

We review the district court's due process determination de novo. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).4 Newman must satisfy two conditions to prevail on his due process claim. See United States v. Funches, 84 F.3d 249, 253 (7th Cir.1996). He must first show that the challenged show-up identification procedure was unreasonably suggestive. We have noted many times that a show-up identification, in which witnesses confront only one suspect, is inherently suggestive and should be employed only if compelled by extraordinary circumstances. See, e.g., id. at 254 (advising that " show-ups be employed with restraint to avoid the suggestiveness inherent in such confrontations" and discussing circumstances that might justify a show-up); United States ex rel. Kirby v. Sturges, 510 F.2d 397, 403 (7th Cir.) (Stevens, J.) (" Without question, almost any one-to-one confrontation between a victim of crime and a person whom the police present to him as a suspect must convey the message that the police have reason to believe him guilty." ), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975); see also Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct....

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