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United States v. Stenson

United States District Court, E.D. Wisconsin

June 23, 2017



          HON. PAMELA PEPPER United States District Judge.

         On 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.[1] 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.

         On June 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.

         Judge 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.

         The 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.

         The 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.

         In 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.

         So-unlike 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.

         So the 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 setting.

         The 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.

         As an 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 own interest.

         More to 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.

         The 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.

         The 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 ...

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