United States v. Sanders

• Decision Date: 28 February 2013
• Docket Number: No. 11–3298.,11–3298.
• Citation: 708 F.3d 976
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lamar E. SANDERS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

708 F.3d 976

UNITED STATES of America, Plaintiff–Appellee,

v.Lamar E. SANDERS, Defendant–Appellant.

No. 11–3298.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 10, 2012.

Decided Feb. 28, 2013.

David E. Hollar (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Joshua T. Buchman, Kirk Watkins (argued), Attorneys, McDermott, Will & Emery, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

In January 2008, Lamar E. Sanders and an accomplice abducted Timicka Nobles's daughter, R.E. The reason: to induce Nobles to rob her own mother. Nobles attempted to comply—she left a bag of cash for Sanders's accomplice to pick up—but law enforcement authorities were already apprised of the plot. They quickly arrested Sanders's accomplice, and Sanders turned himself in shortly thereafter. Fortunately, no one was injured, and police recovered the money. After a five-day trial, a jury found Sanders guilty of kidnapping and extortion. He now appeals his conviction and sentence. First, Sanders argues that the district court denied him due process by admitting Nobles's three identifications of him. Second, Sanders claims that the district court ran afoul of the Confrontation Clause, or, alternatively, abused its discretion, by limiting his cross-examination of Nobles. Finally, Sanders contends that the district court applied the incorrect mandatory minimum sentence. Finding no error, we affirm both the conviction and sentence.

I. Background

Portage, Indiana. Saturday, January 5, 2008. 8:00 a.m.: Timicka Nobles has a busy morning. She has to be at work in Chicago soon. Plus, along the way, she needs to stop by her mother's house to drop off R.E., her ten-year-old daughter. Putting on shoes in the apartment entryway, Nobles and R.E. prepare to depart. As Nobles opens the front door, two men force their way inside. Pushing R.E. and Nobles back into the apartment, the men begin their ill-fated kidnapping operation. The first man, Ralph Scott, holds R.E. hostage in the living room, while the second man, Lamar Sanders, points a gun at Nobles and orders her into the bedroom. There, Sanders has Nobles face the wall as he lays out his demands.

Nobles must drive to her workplace in Chicago—a currency exchange owned by her mother. She will park her car nearby and leave it unlocked. Nobles will then enter the exchange as if nothing is wrong, as if it were any other day. Today, however, Nobles must empty the safe into a black garbage bag. She will take that bag, place it on the front seat of her car, and walk away. If she follows these instructions exactly, “things won't get messed up.” (Trial Tr. at 390.)

Nobles acquiesces. As Sanders leads her back into the living room, she finds R.E. alone; Scott had left for Chicago minutes earlier in Sanders's Dodge Magnum. Nobles gives her daughter a quick hug before Sanders orders R.E. to blindfold herself with her headband. Notably, it does not entirely cover R.E.'s eyes; she can still see above and below the band.

Our antagonists did not learn from tales of countless foiled criminals never to leave a hostage unattended. As Sanders drove R.E. to Chicago in Scott's Chevy Trailblazer (while remaining in frequent phone contact with Scott), he did not follow Nobles. Realizing as much, Nobles stopped at a gas station and went into the attached convenience store. Concerned by Nobles's apparent distress, the clerk allowed her to use the store's phone. Nobles made a frantic phone call to her mother and warned her of the plot. Her mother alerted the security officers at the exchange, who in turn notified the Chicago Police. Thus, when Nobles arrived at the exchange, the authorities were prepared.

Nobles did as Sanders ordered. She took the money from the safe, placed it in a garbage bag, and set the bag on the front seat of her car. After Nobles walked away, Scott, who had parked Sanders's Magnum near the scene, approached and removed the money bag. As he did, two exchange security officers and a Chicago Police sergeant ran towards him. Fleeing the scene, Scott ditched the bag in a bush. The officers quickly caught up, arrested Scott, and recovered the money.

Observing Scott's downfall from a block away, Sanders ordered R.E. out of the Trailblazer and sped away. When R.E. removed her headband, she recognized where she was and walked to the currency exchange, where she was reunited with her mother. Just minutes after Scott's arrest, Sanders called his mother. He then called his Arizona-based girlfriend, Carlena Williams. Sanders told Williams that his phone—the same phone on which he was making the call—had been stolen. Williams paid Sanders's phone bill, so she promptly called Verizon and had service suspended on his phone (but she would reinstate the service later that same day).

Back in Chicago, R.E. identified Scott as the man who had guarded her in the living room. The police also searched Scott's pockets, where they found a key fob. Taking the device in hand, an officer continuously pressed the unlock button while walking up and down nearby streets. When the fob activated Sanders's Magnum, evidence technicians searched the car. Inside, they found Sanders's driver's license and seven photographs from a recent birthday party. In five of the images, Sanders appeared with various combinations of family and friends.

An officer took these photographs back to the exchange and interrupted Nobles's interview with a detective. The officer showed Nobles one or two photos and asked her if she recognized anyone. Witnesses disagree about how many and which specific photos Nobles saw. She viewed at most two photographs. Of those, one depicted Sanders with two women, while the other depicted him with two other men: Scott and Sanders's brother. All agree, however, that Nobles identified Sanders in at least one photograph as the second man in her apartment that morning. At this time, Nobles also gave an inaccurate verbal description of Sanders's build that was off by about five inches and sixty pounds. This interview occurred within a couple hours of the kidnapping. R.E. was not shown the photographs found in the car.

Approximately two hours after Nobles's first interview with law enforcement, officers drove her and R.E. to the Chicago Police Department. There, Nobles was shown a formal photo array. The array placed photos of Sanders alongside those of five other men with similar height, weight, and facial features. The other individuals in the photos were chosen based upon similarities to Sanders's actual features, as opposed to the inaccurate verbal description that Nobles gave during her first interview. Nobles again identified Sanders. R.E. was independently shown a different array in another room. She also identified Sanders. Following these identifications, the government issued a criminal complaint, and Sanders turned himself in shortly thereafter.

As the case proceeded to trial, Sanders moved to suppress Nobles's identifications of him. Sanders had three theories behind this motion. First, he argued that showing Nobles the birthday party photographs was so unnecessarily suggestive as to violate the Due Process Clause. Second, he asserted that the photo array was impermissibly suggestive because only he appeared in both the photos on the scene and in the subsequent array. Finally, Sanders claimed that any in-court identification by Nobles could only be the product of these previous, allegedly tainted, identifications. The district court denied Sanders's motion on all three grounds.

Also prior to trial, the government moved to limit cross-examination of Nobles based on her previous convictions. In 2001, when working at a different currency exchange in Chicago (one not owned by her mother), Nobles forged and delivered at least six fraudulent checks. She was subsequently convicted for these crimes and was sentenced to both boot camp and three years in prison. In its motion, the prosecution sought to limit the admission of details surrounding these convictions. The government conceded that Sanders should be allowed to introduce the fact that Nobles was convicted of theft and forgery, the dates of those crimes, and her sentence. The government, however, argued that Sanders should not be allowed to elicit any further details about the crimes, including the fact that they occurred at a currency exchange. The district court agreed and imposed the requested limitations.

At a five-day jury trial, the government presented a strong case. Nobles identified Sanders as the second man in her apartment the morning of the kidnapping. So did R.E. The government also presented cell phone records showing that Sanders's phone was in frequent contact with Scott's phone throughout the morning of the crime. Expert witnesses traced the cell towers used during these calls to show that the phones traveled the approximate path of the kidnappers. Although the phone records could not directly verify that Sanders had his phone, other evidence spoke to that question. The morning of the kidnapping, Sanders called Carlena Williams and told her that his phone was stolen. Records showed a corresponding call from Sanders's phone to Williams's phone, made from the vicinity of the currency exchange, approximately ten minutes after Scott's arrest. The records also showed that this call was made from Sanders's own phone—the same one he was claiming was stolen. Just after that call, Williams had the service on Sanders's phone suspended, although she reinstated it later that evening.

Defense counsel criticized Nobles's identifications and tried to implicate Nobles herself. Nobles remained romantically involved with Vincent E., R.E.'s father, who was also a fellow gang member of Sanders and Scott. Scott, who signed a plea agreement with the government, testified that Vincent had planned the whole plot and...