Appeal from the United States District Court for the Eastern District of Wisconsin. No. 57 CR 41 -- Robert W. Warren, Judge.
Manion and Kanne, Circuit Judges, and Fairchild, Senior Circuit Judge.
A jury found Jeffrey Earl Johnson guilty of committing unarmed bank robbery, 18 U.S.C. §§ 2, 2113(a), after two tellers identified him in court as the robber. The district court had rejected his earlier attempts to suppress that identification testimony. Johnson appeals on the grounds that the identifications should have been suppressed. We Affirm.
The Marquette Savings & Loan is a small bank in Milwaukee, Wisconsin. The bank has a broad front window; tellers can easily observe activity outside the building. On the morning of October 6, 1986, tellers Linda Carmody and Vicky Komans noticed three black men-whom they later identified in court as defendant Johnson and his co-defendants Archie Gill and Phillip Nolan-park in a parking lot in front of the bank. Instead of parking between the lines, they parked in an unusual backward position with the car facing out of instead of into the lot.
The men then entered the bank through a back door rarely used by customers. They walked up to Carmody's teller station and asked her whether an "Ivory Daniels" worked there. When Carmody responded that there was no employee there by that name, one of the men asked her to make change for a $20 bill. She refused. The men approached Komans's station. Archie Gill stepped forward and placed a $20 bill on the counter. Alter the men repeatedly asked for change, Komans opened her cash drawer to accommodate the request. Defendant Johnson quickly reached around the teller station and grabbed approximately $360 from the drawer. While a video surveillance camera recorded the men's entry into the bank and their interchanges with the two tellers, the actual theft was not within the camera's range. All three men fled.
Subsequently, on January 21, 1987, Komans and Carmody viewed a lineup containing co-defendant Nolan. The two tellers tentatively selected Nolan. However, they asked to see his teeth, because they remembered that one robber had a distinctive gap between the front teeth. Nolan, however, refused to cooperate, so the lineup was terminated.
On May 8, 1987, an FBI agent, Daniel Craft, separately visited Komans and Carmody and showed each two separate photographic arrays. The first array consisted of color photographs of seven young black men of similar height. This array contained photographs of both defendant, Johnson and co-defendant Gill. Four of the individuals, including Johnson, had close-cut hair, and five of the seven, including Johnson, had relatively minimal facial hair. No individual had a distinctive hair style or clothing. Komans selected Johnson's photograph, though she indicated that the robber had a lighter complexion than the individual in the photograph.
When Komans inquired about the individual she identified at the lineup, and indicated she could identify him again, the agent presented to her the second array. This array consisted of 26 similarly posed color photographs of young black men. In addition to Nolan, this array once again contained Gill and Johnson. Gill and Johnson were the only two individuals in both arrays. Komans again selected Johnson's photo; Komans indicated that in this photograph-a mug shot taken four years earlier-his complexion matched that which she recalled from the robbery. She continued reviewing the photographs and identified Nolan as the individual with the gap in his teeth.
Carmody also picked defendant Johnson from the first array, though she indicated that she could not be positive. She definitively identified defendant Johnson as well as co-defendant Nolan from the second. Neither witness was able to identify Gill.
II. NATURE OF THE PROCEEDINGS
On May 19, 1987, a grand jury returned a one-count superseding indictment against Gill, Johnson, and Nolan, charging them with violating 18 U.S.C. §§ 2 and 2113(a) by entering a savings and loan association with intent to commit a larceny.
On June 19, 1987, Johnson represented by appointed counsel, filed a motion to suppress "any out-of-court identification made of the defendant because the procedure used was unduly suggestive . . . [and] the identification did not have such indicia of reliability that would indicate, under the totality of the circumstances, that the identification was valid." In particular, Johnson's motion cited the time -- seven months -- which elapsed between the offense and viewing the photographs and further charged that the tellers did not identify him with sufficient certainty. While his motion was poorly worded, we assume for purposes of deciding this appeal that Johnson wanted to suppress any in-court identification as well as any reference to the pretrial identifications. The district court referred the motion to suppress to Magistrate Bittner. The parties stipulated that "the only material issue of fact involves the suggestiveness of the photographic array as constituted and specifically whether the placing of both co-defendants in each array was impermissibly suggestive." The magistrate scheduled a hearing for July 2, 1987, and ordered the United States Marshal to transport Johnson to the hearing.
For unexplained reasons, the Marshal failed to transport Johnson to the hearing. Johnson's counsel, however, agreed with the magistrate three times that if the court decided that the array was not suggestive, then an evidentiary hearing would not be necessary. Defense counsel further stated that Johnson's presence would become necessary only if the tellers were called to testify. The magistrate then stated that if he found the arrays suggestive, then he would schedule a second hearing to determine if the tellers' identification was reliable under the totality of the circumstances. The magistrate then asked, "Does that take care of the problem that the defendant isn't here today?" Defense counsel responded, "I would tend to agree, your Honor." The magistrate conducted the evidentiary hearing in which the United States Attorney established foundation by introducing Agent Craft's live testimony.
The magistrate issued his recommendation to the district judge on July 8, 1987. The magistrate isolated Johnson's complaint as being that his photo and that of co-defendant Gill were the only two included in both arrays. The magistrate first confronted whether the photographic identification procedures were unduly ...