United States of America v. Edward W. West, 10-1292

Edward W. West was charged with two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c).

West moved to suppress an in-custody lineup identification on the grounds that the lineup violated his Sixth Amendment right to counsel and that the lineup was unduly suggestive. The district judge granted the motion, finding that the lineup was conducted without counsel for West. The court concluded, however, that the lineup witnesses would be allowed to make in-court identifications. West then entered a conditional plea of guilty and was sentenced to 230 months' imprisonment.

On appeal, West argues that the district court erred when it agreed to allow witnesses to make in-court identifications without first determining whether an in-court identification would have an independent basis and would be free from the taint of the improper lineup.

Neither the magistrate judge nor the district court judge held a hearing on the Wade in-court identification issue.

The district judge ultimately adopted the magistrate judge's recommendation that West’s right to counsel had been violated and that the lineup was not unduly suggestive. In addition, the district judge stated that he would allow an in-court identification, but without making any specific findings required by Wade after a Sixth Amendment violation in a lineup.

ANALYSIS

Finding an Independent Basis for In-Court Identification under Wade

The appellant challenges his convictions on the basis that the district judge made no finding under United States v. Wade, 388 U.S. 218 (1967) as to the admissibility of the planned in-court identifications. The Supreme Court held in Wade that, where a lineup has been suppressed as unlawful, "a per se rule of exclusion of courtroom identification would be unjustified." Wade, 388 U.S. at 240.

To allow a witness to make an in-court identification after an uncounseled lineup identification, however, the government must show by clear and convincing evidence that there is an independent basis for a witness's in-court identification. Id.

 In Wade, the Supreme Court outlined critical factors for a court to consider in deciding whether there exists an independent basis for identification, including "the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." 388 U.S. at 241.

 The issue here, where the lineup was suppressed as unconstitutional, is whether the district court made the requisite Wade finding as to the admissibility of the in-court identifications.

 Although decisions to admit evidence are generally reviewed under an abuse of discretion standard, admissions of identifications are subject to a hybrid standard of review that we have described as de novo review "with due deference to findings of historical fact." United States v. Harris, 281 F.3d 667, 669-70 (7th Cir. 2002). Here, the sole question is the legal one, whether the court made the requisite legal finding, so our review is de novo. Id.

 The government argues that the district court twice made Wade findings as to the admissibility of the in-court identification. We disagree. While the district judge twice made statements acknowledging that he would allow witnesses to make in-court identifications of West, he made no Wade finding.

First, at an evidentiary hearing on an unrelated issue, the district court adopted the magistrate judge's findings and remarked that in-court identification was permissible. In drawing that conclusion, the district court made no finding under Wade nor did it explicitly consider the relevant Wade factors.

 At the request of West’s counsel at the change of plea hearing, the district judge again commented on his decision to allow an in-court identification.

 These are the district judge's only statements about the admissibility of the in-court identification of West. Neither statement recognized that the government bore the burden of proof on the issue, and by clear and convincing evidence.

In sum, the district court never made a finding that the government had shown by clear and convincing evidence that a potential in-court identification would be based on observations of the suspect other than from the in-custody lineup, and at no time were the Wade factors addressed explicitly. There simply were no findings of fact by the district court as to the admissibility of the in-court identification.

 Accordingly, as the Supreme Court did in Wade, we vacate the defendant's convictions and remand to the district court for findings of fact under Wade as to the admissibility of in-court identifications.

 Depending on the outcome of that determination, the district court may reinstate the convictions or order a trial. See Wade, 388 U.S. at 243-43.

For the foregoing reasons, the defendant's convictions are VACATED and REMANDED for proceedings consitent with this opinion.   

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For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

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