identification procedure was so impermissibly suggestive that there is a substantial likelihood of misidentification.
Having determined that the Defendants have failed to meet their burden, the court need not determine whether the out-of-court, photographic identifications are sufficiently reliable, despite any potential suggestiveness. See Moore, 115 F.3d at 1360. Nevertheless, the court will analyze the reliability of Victims B and C's out-of-court, photographic identifications of the Defendants.
2. Sufficiently Reliable
In determining reliability, and the likelihood of misidentification, it is well established that courts should consider the five factors the Supreme Court set forth in Biggers : (1) the opportunity of the witnesses to view the crime and the actors; (2) the witnesses' degree of attention; (3) the accuracy of the witnesses' prior descriptions of the actors; (4) the witnesses' level of certainty at the time of the identification; and (5) the time elapsed between the crime and the identification. See Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199; Hall, 109 F.3d at 1237-38.
Defendants argue that Victims B and C had little opportunity to view their captors, and that their attention was focused on other, unidentified captors. Defendants also argue that the victims initial descriptions of the Defendants were generic, and unhelpful. The Government argues, and the court agrees, that Victims B and C had sufficient opportunities to view their captors during their captivity, allowing them to form mental impressions for reliable identification.
First, with respect to the witnesses' opportunity to view the crime and the actors, Victims B and C will allegedly testify that the Defendants held them captive for nine and eight days, respectively. During their captivity, Victims B and C had several contacts with the Defendants. Defendants stood guard over Victims B and C; brought them food; took them to the bathroom; forced them to make ransom phone calls; and verbally and physically abused them. Allegedly, the captors only instructed Victims B and C to close their eyes during the relatively brief period of time between their abduction and arrival at the Newland House. Thus, Victims B and C had more than adequate opportunities to see their captors throughout their captivity. See Brathwaite, 432 U.S. at 114 (two to three minutes was sufficient opportunity to view the crime and the actors); Biggers, 409 U.S. at 200 ("The victim spent a considerable period of time with her assailant, up to half an hour."); United States v. Alexander, 1997 U.S. App. LEXIS 18016, No. 96-4179, 1997 WL 413513, at *3 (7th Cir. July 16, 1997) (even if the witness' estimate of ten to twelve minutes is greatly overstated, she clearly had sufficient opportunity to view the robber).
Second, with respect to the witnesses' degree of attention, it is reasonable to assume that Victims B and C's undivided attention was focused on their captors. Victims B and C were held captive for over a week; thus, it is highly likely that they had nothing to do but examine their captors and their captors' actions. See Biggers, 409 U.S. at 200 ("She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes."); Poole v. Godinez, 12 F.3d 1101, 1993 WL 473670, at *3 (7th Cir. 1993) ("[victim's] attention was expressly drawn to her assailant"); Walton v. Lane, 852 F.2d 268, 274 (7th Cir. 1988) ("the victim's degree of attentiveness must have been relatively high given that the perpetrator was alone with the victim, and that the victim's attention was focused on the robber").
Third, with respect to the accuracy of the witnesses' prior descriptions of the captors, both Victims B and C's prior descriptions fit the Defendants' physical characteristics. During their separate interviews, Victims B and C described the three captors not present during their escape (Varela, Torres, and Ruiz) as Mexican, males in their early 20's; Varela is 20 years old, Torres is 23 years old; and Ruiz is 19 years old. Defendants argue that this factor weighs in favor of finding that the out-of-court, photographic identifications are unreliable because Victims B and C's description of Varela, Torres, and Ruiz are too general. "Evidence teaches, however, that many persons may lack the ability to articulate a detailed description of a person they have seen and yet can still identify him on sight. Thus, the focus must be on inaccuracies rather than generality." Israel v. Odom, 521 F.2d 1370, 1375 (7th Cir. 1975). Significantly, there is no evidence or argument that Defendants do not fit Victim B and C's initial descriptions. See United States v. Clark, 989 F.2d 1490, 1496 (7th Cir. 1993). As such, the court concludes that Victims B and C's initial descriptions accurately, although generally, depicted the Defendants, and supports that their later out-of-court, photographic identifications are reliable. Id.
With respect to the fourth and fifth factors, the Defendants practically admit that these factors weigh in favor of finding that the out-of-court, photographic identifications are reliable. Victims B and C, and Agents Slattery and Cassiday, will allegedly testify that Victims B and C unequivocally identified Varela, Torres, and Ruiz from the photo-array. Victims B and C identified the Defendants within hours of their escape, and a day after Defendants left the Newland House. See Brathwaite, 432 U.S. at 116 ("The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph."); Hall, 109 F.3d at 1238 ("only four days elapsed between the controlled buy and the identification at the photographic line-up.").
Consequently, even if the out-of-court identification procedure was impermissibly suggestive, the out-of-court, photographic identifications are admissible because they are sufficiently reliable under the totality of the circumstances. See Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199; Moore, 115 F.3d at 1360; Hall, 109 F.3d at 1237-38.
C. In-Court Identifications
Defendants also argue that Victims B and C should not be allowed to identify the Defendants in-court at trial because their out-of-court, photographic identifications would impermissibly taint their in-court identifications. The admissibility of in-court identifications following out-of-court identifications is governed by the same legal standard as the admissibility of out-of-court identifications. See Biggers, 409 U.S. at 198; United States v. Rutledge, 40 F.3d 879, 889 (7th Cir. 1994), rev'd on other grounds, Rutledge v. United States, 515 U.S. 1157, 132 L. Ed. 2d 852, 115 S. Ct. 2608 (1995).
The central question is whether the out-of-court, "photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384; see also Hall, 109 F.3d at 1238; Rutledge, 40 F.3d at 889. The court has found that it was not. As such, the court rejects Defendants' claims. See Hall, 109 F.3d at 1238 ("Having determined the identification to be reliable despite any suggestiveness, we must reject this claim [that the in-court identification was tainted by a suggestive line-up]."); see also Rutledge, 40 F.3d at 889 (since victim's identification was reliable, the district court properly admitted the victim's in-court identification of the defendant); United States v. Duprey, 895 F.2d 303, 308 (7th Cir. 1989) (in-court identification is admissible even though the out-of-court, photographic line-up was unduly suggestive because there existed sufficient indicia of reliability).
For the foregoing reasons, the court denies Defendants' Motion to Suppress Post-Arrest Photographic Identifications and Any Tainted Subsequent In-Court Identifications.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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