U.S. v. Staples

• Decision Date: 13 June 2005
• Docket Number: No. 04-1010.,04-1010.
• Citation: 410 F.3d 484
• Parties: UNITED STATES of America, Appellee, v. David STAPLES, also known as Andrew N. Blatt, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.3d 484

UNITED STATES of America, Appellee, v. David STAPLES, also known as Andrew N. Blatt, Appellant.

No. 04-1010.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: June 13, 2005.

COPYRIGHT MATERIAL OMITTED

David Capes, argued, St. Louis, MO (Sara G. Woodward, on the brief), for appellant.

Michael W. Reap, argued, Asst. U.S. Atty., St. Louis, MO, for appellee.

Before MORRIS SHEPPARD ARNOLD, BRIGHT, and FAGG, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

David Staples appeals from his convictions and sentence for bank fraud, see 18 U.S.C. § 1344(1), (2), misuse of a social security number, see 42 U.S.C. § 408(a)(7)(B), and fraud with identification documents, see 18 U.S.C. § 1028(a)(7). With respect to his convictions, he argues that the district court should have suppressed evidence from two pretrial identifications, excluded two in-court identifications, and granted him a new trial because he received ineffective assistance of counsel. As for his sentence, Mr. Staples argues that the district court miscalculated the intended loss under the sentencing guidelines and, in contravention of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), made the predicate factual findings for two sentencing enhancements rather than allowing the jury to make them. We affirm the convictions, but remand the case for resentencing.

I.

Mr. Staples argues that we should reverse his convictions and grant him a new trial because the district court deprived him of his due process rights when it denied his motion to suppress evidence of two pretrial identifications.

A man posing as Dr. Andrew Blatt bought a house with a counterfeit check. The check bounced, and the impostor became a wanted man. A few months after the closing, a television station in St. Louis broadcast a picture of Mr. Staples, as his picture was on the driver's license used by the impostor and photocopied by the employees of the title company at the closing. A state probation officer and a St. Louis police officer independently saw the broadcast, identified the man in the photograph as Mr. Staples, and called the agents working on the case to tell them so.

After receiving this information, the case agents showed the same photo spreads separately to Michelle Clemons and Mary Layne, the two employees of the title company who saw the impostor on the day of the closing. Prior to showing the arrays, the agents did not ask either witness to work with an artist on a composite drawing or to give a full description of the face of the impostor. Nor did the agents show either witness a blank lineup (i.e., a lineup without Mr. Staples's picture in it) before showing the challenged photo spreads. The agents told each witness that the picture of the person who posed as Dr. Blatt might be in the spread and then asked if the impostor's picture was in the array. Ms. Clemons and Ms. Layne each identified the picture of Mr. Staples as the man who posed as Dr. Blatt. At trial, both witnesses again identified Mr. Staples as the fake Dr. Blatt. The jury convicted Mr. Staples on all three counts of the indictment.

We review the district court's interpretation of the protections afforded by the fifth amendment's due process clause de novo, while we review its underlying factual determinations for clear error. See United States v. Rose, 362 F.3d 1059, 1066 (8th Cir.2004); United States v. Smith, 383 F.3d 700, 703-04 (8th Cir.2004). To succeed in challenging the validity of the photo-array identifications on due process grounds, Mr. Staples must show that the identification procedure was impermissibly suggestive and that the suggestive procedure created a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Robinson v. Clarke, 939 F.2d 573, 575 (8th Cir.1991) (per curiam).

Mr. Staples contends that the identical lineups were unduly suggestive because the witnesses were not asked to create composite sketches, to give full descriptions of the impostor's face, or to view blank lineups prior to seeing the challenged photo spreads. Additionally, he argues, the lineups were suggestive because the witnesses may have looked at the photocopy of the driver's license after the closing and before the lineups, and because they likely saw the photograph of Mr. Staples on television. Mr. Staples maintains that the latter two circumstances matter because someone stole his driver's license, cut out the picture, and used it on the fraudulent Dr. Blatt driver's license. So, Mr. Staples insists, if Ms. Clemons and Ms. Layne had looked at the photocopy of the license after the closing or had seen the news story which used the same picture, they would have seen his face and started to believe that he was the man at the closing, though he was not. He concludes that the suggestive lineups tainted his trial.

We are unpersuaded by Mr. Staples's arguments. We reject the argument that a witness's failure to work on a composite drawing renders a photo array suggestive, because Mr. Staples does not explain why this is so and does not cite any case for this proposition. See Watson v. O'Neill, 365 F.3d 609, 615 (8th Cir.2004). For the same reason, we reject the argument that the agents corrupted the lineups by failing to obtain descriptions of the impostor's face. Next, as we have held previously, a photo array is not unconstitutionally suggestive just because it was not preceded by a blank lineup. United States v. Amrine, 724 F.2d 84, 88, 88 & n. 5 (8th Cir.1983). Finally, we refuse to conclude that the lineups were suggestive because the witnesses might have reviewed the photocopy of the license or seen the television news story: Mr. Staples points us to no evidence showing that either witness looked at the photocopy after the closing or saw the story. Because the lineups were not unduly suggestive, we do not need to address the question of whether they caused the pretrial and in-court identifications to be unreliable. See Robinson, 939 F.2d at 575.

We note that Mr. Staples's brief states that "Ms. Layne ... did not deny looking at the photograph" in the file after the closing and before viewing the photo array. It also says that Ms. Layne did not deny seeing the news story about Mr. Staples. The difficulty with these statements is that during her trial testimony Ms. Layne was never asked whether she looked at the photograph after the closing and before the array or whether she saw the news story. Thus, while the statements may be true, they are also misleading. The argument is entirely disingenuous.

II.

Mr. Staples also argues that his convictions should be reversed because his trial counsel (who withdrew before sentencing) offered ineffective assistance under the sixth amendment by failing to call two witnesses, Ronald Harlan and Mr. Staples's uncle, who would have testified that he was not the man who passed himself off as Dr. Blatt. Mr. Harlan was the seller of the house, and he has pleaded guilty to bank fraud in a related case. According to the defendant, Mr. Harlan met the impostor several times and would have testified that Mr. Staples was not the impostor. Mr. Staples's uncle has also pleaded guilty in a related case. Mr. Staples insists that his uncle would have testified that Mr. Staples's driver's license was stolen from his (the uncle's) car (which bolsters Mr. Staples's story that a third party presented his driver's license picture at the closing) and that Mr. Staples could not have been involved in the fraud.

Before proceeding to the merits of Mr. Staples's claim, we must decide if it is amenable to review on direct appeal. Because ineffective-assistance-of-counsel claims often encompass facts outside of the district court record, they are typically best raised collaterally via motions filed under 28 U.S.C. § 2255. United States v. Ford, 918 F.2d 1343, 1350 (8th Cir.1990). When the claim does not turn on information outside of the district court record, however, disposition on direct appeal is appropriate. See id. We have previously decided on direct appeal ineffective-assistance claims premised on an attorney's failure to call witnesses, e.g., United States v. Hunter, 95 F.3d 14, 17-18 (8th Cir.1996), and we do so again here. Mr. Staples's claim requires us to assess the hypothetical costs and benefits of calling his uncle and Mr. Harlan, and this task does not require off-the-record information (as do, for example, claims about counsel's advice given in confidence).

To prevail on his ineffective-assistance claim, Mr. Staples must show that his trial counsel's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he was prejudiced such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052. When assessing attorney performance, "[c]ourts should avoid `the distorting effects of hindsight' and try to evaluate counsel's conduct by looking at the circumstances as they must have appeared to counsel at the time." Sera, 267 F.3d at 874 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Because of the difficulty of avoiding such bias, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S at 689, 104 S.Ct. 2052.

Mr. Staples's ineffective-assistance-of-counsel claim is untenable. The decision not to call a witness is a "`virtually unchallengeable'" decision of trial strategy, see United States v. Davidson, 122 F.3d 531, 538 (8th Cir.1997), cert. denied, 522 U.S. 1034, 118 S.Ct. 639, 139 L.Ed.2d 617 (1997) & 523 U.S. 1033, 118 S.Ct. 1329, 140 L.Ed.2d 490 (1998) (quoting Bowman v. Gammon, 85 F.3d 1339,...