United States v. Gardner

1

UNITED STATES OF AMERICA Plaintiff, v. CHRISTOPHER GARDNER Defendant.

No. 19-CR-99

United States District Court, E.D. Wisconsin

May 22, 2023

DECISION AND ORDER

LYNN ADELMAN DISTRICT JUDGE

The government charged defendant Christopher Gardner with wire fraud and transportation of a stolen vehicle in foreign commerce. The government alleges that in 2001 defendant recruited two men, Christopher Burke and William Brown, to steal a rare car from Roy Lieske's garage in Milwaukee. After Lieske died in 2005, defendant allegedly forged a bill of sale and title transfer documents making it appear he was the true owner and could convey clear title; using those documents, he persuaded police to remove the automobile from a stolen property database, which permitted him to ship the car to Switzerland; and, after restoring the vehicle in France, in 2015 defendant arranged for its sale to an unwitting buyer for more than $7,000,000.

Defendant filed a motion to suppress a photo identification of him made by Brown, arguing that agents used an impermissibly suggestive procedure. The magistrate judge handling pre-trial proceedings denied defendant's request for an evidentiary hearing and recommended the motion be denied. Defendant objects. The district court reviews de novo a magistrate judge's recommendation on a motion to suppress. Fed. R Crim. P. 59(b). For the reasons that follow, I adopt the recommendation and deny defendant's motion.

I. IDENTIFICATION STANDARDS

The reliability of evidence, including witness identifications is ordinarily for the jury to evaluate. See Manson v. Brathwaite, 432 U.S. 98, 116 (1977). In some instances, however, evidence is so extremely unfair that its admission offends due process. See United States v. Sanders, 708 F.3d 976, 983 (7th Cir. 2013). “Unduly suggestive identification procedures represent one example of those fundamentally unfair situations. A procedure becomes so flawed as to implicate due process when it creates a ‘very substantial likelihood of irreparable misidentification.'” Id. (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). In such cases, the identification must be suppressed. Id.

To determine whether such a violation has occurred, the court conducts a two-step analysis. Id. First, the defendant must establish that the identification procedure used by law enforcement was both suggestive and unnecessary. Id. at 983-84. If this is established, the court then decides, based on the totality of the circumstances, whether the identification was sufficiently reliable to outweigh the effect of the tainted procedure. Id. at 984.

The first prong focuses on police conduct-its suggestiveness and necessity in the specific situation at hand. Id. The most widely criticized pretrial identification practice is the “show-up,” where police show only one suspect to the witness, either through a photograph or in person. See United States v. Newman, 144 F.3d 531, 535 (7th Cir. 1998); United States v. Funches, 84 F.3d 249, 254 (7th Cir. 1996). Show-ups are inherently suggestive, Sanders, 708 F.3d at 984, but the admission of evidence of a show-up does not, without more, violate due process, United States v. Hawkins, 499 F.3d 703, 707 (7th Cir. 2007). “To determine whether, under the circumstances, the suggestive identification was unnecessarily so, [the court] must determine whether there was a good reason for the failure to resort to a less suggestive alternative.” Id. For instance, a show-up may be appropriate where the police apprehend a person immediately after the crime and in close proximity to the scene, where the identifying witness may not survive until a line-up can be arranged, or where the suspect may quickly alter his appearance. Funches, 84 F.3d at 254.

The second prong focuses on the identifying witness and his knowledge of the suspect absent the suggestive procedure. Sanders, 708 F.3d at 984. Here, the court considers: (1) the opportunity of the witness to observe the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of the identification;^[1] and (5) the length of time between the crime and the identification. Lee v. Foster, 750 F.3d 687, 692 (7th Cir. 2014) (citing Biggers, 409 U.S. at 199-200).

II. FACTS AND BACKGROUND

A. The Identification

I draw the operative facts regarding the identification from defendant's motion and supporting attachments. (R. 28 at 2-3; R. 28-1.) On March 19, 2019, the government interviewed Brown from the U.S. Attorney's Office in New York. Brown indicated that in early 2001 Burke asked him to help steal a rare old car located in Milwaukee. Burke explained that he did work for a guy who lived in Geneva, Switzerland, but who is a U.S. citizen. Burke stated that the “Swiss guy” would pay them to steal the then-disassembled car, which they would load into Burke's truck and transport back to Florida, where Brown and Burke lived. Brown could not remember the “Swiss guy's” name. Burke further explained that the Swiss guy had someone case the place and make an offer to buy the car, but the owner refused; the Swiss guy also made an attempt to buy the car himself but was turned down again. The Swiss guy drew a map of the garage and identified where the car parts were located. Burke told Brown the Swiss guy would pay Brown $5000 cash for his assistance. Brown agreed to help Burke steal the car. (R. 28-1 at 2.)

Brown drove Burke's truck from Florida to Chicago, where he met Burke and the Swiss guy at an airport. (R. 28-1 at 2.) Brown described the Swiss guy as a male, about 5'9" to 5'10" tall with a medium build, grayish hair and balding. The Swiss guy was about 30 years older than Brown and did not have a foreign accent. They all had dinner together at a restaurant near Navy Pier in Chicago, then stayed at a hotel in Chicago or Milwaukee that night. The following night, they stole the car. Burke drove his box truck, with Brown as a passenger, to Lieske's garage in Milwaukee. Burke parked the truck about a block away, and Brown waited in the truck while Burke broke into the garage. After gaining entry, Burke returned to the truck and escorted Brown to the garage. (R. 28-1 at 3.) The two men entered and moved the car parts to the overhead garage door; Burke then backed the truck up to the door, and they loaded the parts into the truck and drove back to Chicago, where they met the Swiss guy. (R. 28-1 at 4.) Burke paid Brown $5000 cash in an envelope; Brown also received a $2000 check from the Swiss guy. (R. 28-1 at 4-5.) Brown and the Swiss guy flew on the same flight from Chicago to Fort Lauderdale, Florida, making small talk in the airport and on the plane. Brown stated that he never saw the car or the Swiss guy after this event. (R. 28-1 at 5.)

On March 26, 2019, the government interviewed Brown again, this time at the U.S. Attorney's Office in Milwaukee. Prior to the interview, an agent drove Brown to Lieske's garage, and Brown recognized it as the building he and Burke entered to steal the car in 2001. Brown also pointed out where Burke parked the truck and further discussed the layout of the garage. (R. 28-1 at 6.)

Brown stated that he did not see the Swiss guy near Lieske's garage on the night of the theft but thought Burke may have said the Swiss guy was going to Leiske's house to act as a lookout. The agent also presented Brown with two photos. Brown identified the first as Burke and the second (which depicted defendant) as the Swiss guy. Brown commented that the photo of the Swiss guy was kind of blurry, and he looked older in the photo than Brown remembered. (R. 28-1 at 7.) The agent also showed Brown photos of the stolen car parts, which Brown recognized. (R. 28-1 at 8.) The agent attached to his report the photos of Burke and defendant shown to Brown. (R. 28-1 at 12-13.)

B. Proceedings Before Magistrate Judge

1. Arguments of the Parties

In the original motion, defendant argued that the show-up identification of the “Swiss guy” by showing Brown a single photograph was unduly and unnecessarily suggestive. There was no need, he asserted, to show Brown a single photo, particularly since Brown never referred to defendant by name during the first interview. (R. 28 at 5.) Defendant further argued that the identification was not reliable, stressing Brown's statement that the photo was blurry and depicted a man who appeared to be older than the Swiss guy. This, defendant claimed, suggested Brown was uncertain and influenced by the manner in which the identification took place. (R. 28 at 5.) Defendant asked for an evidentiary hearing to establish that the show-up identification by Brown should be suppressed. (R. 28 at 3.)

The government responded that the court should deny defendant's request for an evidentiary hearing, as he had not conferred with the government, as required by Local Rule 12, nor had he identified any disputed material facts. The government further argued the court should deny the motion on the merits because the identification procedure was not unduly suggestive and, even if it was, the identification was nevertheless reliable. (R. 31 at 1-2.)

On the first prong of the due process analysis, the government indicated that the FBI agent used a single photo because the only photo of defendant in the agent's possession at the time was a full-length photo, which included defendant's body. The agent could not, the government asserted, have effectively used that photo in an array because it would have appeared much different from the other photos, which are typically “mug-shot” style photos depicting only the person's face and head. Additionally, the background of defenda...