United States District Court, E.D. Wisconsin
ORDER OVERRULING DEFENDANT'S OBJECTION TO THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO.
62), ADOPTING THE REPORT AND RECOMMENDATION (DKT. NO. 61),
AND DENYING THE MOTION IN LIMINE SEEKING SUPPRESSION OF THE
OUT-OF-COURT IDENTIFICATIONS (DKT. NO. 18)
PAMELA PEPPER United States District Judge.
December 4, 2016 (two weeks before the originally-scheduled
trial date of December 19, 2016), the defendant filed a
motion in limine, asking the court to exclude all
evidence of the out-of-court identifications of the defendant
by Carrie Jewett, Iesha Patrick, Marletha Rankins and Shanika
Thomas. Dkt. No. 18. The motion also asked the court to hold a
hearing on whether these same witnesses ought to be able to
make an in-court identification of the defendant at trial.
Id. at 10.
20, 2017, Magistrate Judge Jones held an evidentiary hearing
on the motion. Dkt. No. 60. On June 22, 2017, he issued a
report, recommending that this court deny the motion to
suppress. Dkt. No. 61. Defendant Stenson has timely objected
to the recommendation. Dkt. No. 62.
Jones' decision details the relevant facts, so this court
will be brief. The grand jury charged the defendant in a
thirty-four count indictment with filing false claims for tax
refunds, devising and participating in a scheme to defraud
the IRS by means of false pretenses and representations, and
identity theft. Dkt. No. 1. The charges stem from allegations
that the defendant prepared false and fraudulent tax returns,
seeking refunds to which she or the person named in the
return was not entitled. In connection with its investigation
of the allegations, the IRS interviewed four individuals
whose names had appeared on the fraudulent returns-Jewett,
Patrick, Rankins and Thomas. All four identified the
defendant as having been the person who prepared their taxes.
The defendant argued in the motion, however, that the
identifications resulted from a suggestive process, and thus
were not reliable. Judge Jones agreed that the process the
interviewing agent used was “arguably
suggestive.” Dkt. No. 61 at 12. But he concluded that
the procedure the agent used “did not create a
substantial likelihood of misidentification.”
Id. The court concurs.
defendant agrees with Judge Jones that the procedure the IRS
agent used was suggestive-she states that “[t]hat
conclusion is beyond dispute.” Dkt. No. 62 at 1. She
argued that the agent “ignored” “[n]early
every rule or best practice that applies to photo
lineups.” Id. To the extent that, out of
context, showing a witness a single photo of a person and
saying, “Is this the person who committed the
crime?” is suggestive, this court agrees.
court reads Judge Jones' report to say, however, that the
context matters. Imagine this context: an individual walks
into a bank and gets into the teller line. When her turn
comes at the counter, she pulls a gun from her bag, points it
at the teller's face, and demands all of the money in the
drawer. In the space of seconds, the terrified teller looks
down, opens the drawer, pulls out all the money while pushing
the duress alarm, and hands the money to the individual-all
the while, looking at his fellow tellers and the bank
customers and the gun three inches from his face. After the
fact, he tells the police that the suspect was a woman,
medium height, very skinny, had either dark blonde or brown
hair and wore glasses. If the investigating officer took a
single photo of a 5'3”, skinny, brown-haired woman
and showed it to the teller, saying, “I know she
isn't wearing the glasses, but is this her?, ” it
is highly likely that the teller would identify that woman as
the woman who robbed him. He saw the defendant for seconds,
under extreme duress and less than ideal circumstances for
making a good identification. In that scenario, showing the
teller a single photo of a person who bears some of the
physical characteristics the teller remembered is
substantially likely to result in misidentification.
contrast, imagine the context in which Agent Ricchio
interviewed Iesha Patrick on May 8, 2015. Dkt. No. 61 at 2.
The interview took place in Ms. Patrick's home, with
people she trusted knew. She told Agent Ricchio that the
woman who prepared her tax return lived on North 35th Street.
She indicated that she'd been to the person's house
for preparation of her return. True, the agent gave Ms.
Patrick a name-she asked if the woman who prepared Ms.
Patrick's taxes was Trulunda Stenson. Ms. Patrick said
that the name sounded familiar (as it turns out, it
wasn't just familiar-Ms. Patrick eventually admitted that
she and the defendant were family friends). Agent Ricchio
then showed the Ms. Patrick a picture of the defendant, a
picture of Lakeisha Adams, and a picture of Candice Adams
(each photo had additional information, including the
individual's name and address). Despite being shown three
photos, Ms. Patrick “replied, without hesitation,
‘Yes, she's the one who prepared my tax return,
'” referring to the photo of the defendant.
Id. at 3. Ms. Patrick went even further-she
identified Lakeisha Adams as having been present when the
defendant prepared her tax return, and stated that Candice
Adams, whom she knew to be the defendant's sister, was
not present. Id.
the bank teller, Ms. Patrick had a pre-existing relationship
with the defendant. Unlike the teller, Ms. Patrick's
opportunity to observe the defendant was not limited to a few
fleeting seconds, under circumstances of extreme duress. Ms.
Patrick knew Ms. Stenson (and Lakeisha and Candice
Adams) personal-knew their relationships to each other, where
the defendant lived. Given Ms. Patrick's prior knowledge
of the defendant, and the circumstances under which she
interacted with the defendant, there was little likelihood
that being shown only one photo (and in this case, Ms.
Patrick was shown three) would create a substantial
likelihood of misidentification. In fact, this circumstance,
where the witness knows the person the agents are
investigating, the witness is in a better position than the
bank teller to correct a misidentification. Here, for
example, Ms. Patrick clarified that while Lakeisha Adams was
present during the tax return preparation at the
defendant's house, Candice Adams was not. Ms. Patrick
knew that Candice Adams (whom she identified as the
defendant's sister) was not the person who had prepared
her returns, and she knew that Lakeisha Adams was not
involved in the preparation of the returns. This was not a
situation in which the agent's methods told Ms. Patrick
who she should identify.
context matters, and the context in which Agent Ricchio
showed the defendant's picture to each of the four
witnesses was similar to Ms. Patrick's-each witness had
seen the defendant before, each had some knowledge of her
before the identification interview, and each had had an
opportunity to observe her in a relatively stress-free
defendant argues that Judge Jones' recommendation ignores
the fact that each of the witnesses has credibility problems.
Id. at 2. She argues, for example, that Marlene
Rankins first told the agents a “whopper of a
story” about how the defendant had stolen her identity
and how she and the defendant had known each other since
childhood, then recanted and said that she didn't know
the defendant as well as she'd first indicated. The
defendant expresses puzzlement that Judge Jones would have
accepted as true Rankins' second version of events,
rather than the first. Id.
initial matter, the court does not share the defendant's
bewilderment regarding which story Judge Jones found more
credible. Ms. Rankins' first story-that she'd known
the defendant for years, that the defendant had stolen her
wallet in a bar, that she didn't recall filing a tax
return in 2011-was self-serving and self-protective. The
second version, in which Ms. Rankin admitted that she had
made up the story about the stolen wallet, had made up how
long she'd known the defendant, and had admitted that the
defendant had prepared her 2011 return-was inculpatory. Dkt.
No. 61 at 6-7. There is a reason that Fed.R.Evid. 804(b)(3)
provides an exception to the hearsay rule for an unavailable
witness' statement when the statement was “so
contrary to the declarant's proprietary . . . interest .
. or had so great a tendency to . . . expose the declarant to
civil or criminal liability.” It is because the rules
assume that a person would not give a statement inculpating
herself unless it were true. Between Ms. Rankins' story
that her wallet was stolen and she had no idea how a tax
return got filed for her, and her story that she had lied and
that the defendant had prepared a return for her, Judge Jones
found more credible Ms. Rankin's statements against her
the point, the defendant's argument about the
witness' credibility are of a different nature from the
argument she made in her motion. The motion to exclude the
identifications argues that the witnesses may have identified
the wrong person because the agent's process was
suggestive. The objection's argument that the witnesses
are liars amounts to an argument that the witnesses
identified the wrong person because they are liars, not
because the identification process misled them into picking
the wrong person.
defendant will have the opportunity to cross-examine each of
these witnesses at trial. The court anticipates that her
counsel will point out all of the credibility problems (and
any that may arise during trial testimony). The defendant is
free to argue, if she chooses to do so, that these witnesses
lied when they told Agent Ricchio that the defendant had
prepared their taxes. But the court will not suppress the
out-of-court identifications on that basis.
defendant also argues that Judge Jones erred in concluding
that each of the four witnesses had had a good opportunity to
view the defendant. Dkt. No. 62 at 3. She refers the court to
the Seventh Circuit's decision in United States v.
Traeger, 289 F.3d 461, 474 (7th Cir. 2002), which
recounted the five factors the Supreme Court has laid out for
courts to use in evaluating whether a witness had the ability
to make an accurate identification: the witness'
opportunity to view the defendant at the time of the crime,
the witness' degree of attention, the accuracy of any
prior description the witness may have given of the
defendant, the witness' level of ...