Submitted: November 14, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
early morning hours of May 2, 2016, a passenger in a Chrysler
Pacifica fired multiple rounds at a Chevrolet Tahoe traveling
from the Winnebago Indian Reservation to the Omaha Indian
Reservation. A federal jury convicted Anthony Whitewater as
the shooter. The sole issue on appeal is whether the district
courterred in allowing evidence at trial from
the photo lineup used to identify Whitewater. Whitewater
claims the photo lineup was impermissibly suggestive. We find
it was not and affirm the district court.
1:30 a.m. on the morning of the shooting, Jason Miller and
Vincent Wolfe, members of the Omaha Nation Tribe, attended a
party on the Winnebago Indian Reservation. Whitewater, a
member of the Winnebago Tribe, was also at the party, but
left after he got into a fight with another guest. Shortly
thereafter, Miller and Wolfe also left the party in
Miller's Chevrolet Tahoe. As Miller drove home around
3:30 a.m., a blue Chrysler Pacifica pulled alongside the
Tahoe on the driver's side. A man was hanging out of the
Pacifica's passenger window, shouting and holding a
handgun. Miller recognized him as the man who was ejected
from the party based on his neck tattoo and floppy hat
depicting marijuana leaves. The passenger fired two shots
into the air. As the Tahoe sped away, the Pacifica gave
chase-its passenger firing several rounds into the back of
Omaha Nation law enforcement officer spotted the speeding
vehicles and pulled over the Pacifica, after briefly losing
visual contact. The Pacifica's driver was Marcus
Blackhawk: Whitewater's older brother. There was no
passenger, but Blackhawk admitted that his "bro"
had been with him. Blackhawk's girlfriend, Santita
Medina, later testified that Whitewater had come to her home
earlier that morning around 3:00 a.m. to get Blackhawk. The
two men then left in Medina's blue Chrysler Pacifica.
the next two days, FBI Special Agent Stephen Friend
separately interviewed Miller and Wolfe, who both provided
almost identical descriptions of the shooter: a Native
American male with dark hair, squinty eyes, and a throat
tattoo, who was wearing a black floppy hat with green
marijuana leaves on it. An FBI employee pulled images from a
database that matched Miller and Wolfe's description. In
June 2016, Special Agent Friend met with Miller and Wolfe
separately to conduct a six-photo lineup, in which both
Miller and Wolfe identified Whitewater as the shooter.
was charged with assault with a dangerous weapon in Indian
Country under 18 U.S.C. §§ 113(a)(3) and 1153, use
of a firearm during a crime of violence under 18 U.S.C.
§§ 924(c)(1)(A)(iii) and 1153, and being a felon in
possession of a firearm under 18 U.S.C. §§
922(g)(1) and 924(a)(2). The district court denied
Whitewater's motion in limine to exclude evidence of the
photo lineup and in-court eyewitness identification, finding
the lineup was not impermissibly suggestive. At trial, Miller
and Wolfe testified that they identified Whitewater from a
photo lineup, and both identified Whitewater in court. The
jury found Whitewater guilty on all charges, and the court
sentenced him to 240 months imprisonment. Whitewater appeals
his convictions, claiming the district court improperly
allowed evidence from the photo lineup at trial.
Process Clause protects against the admission of evidence
derived from improper identification procedures. Neil v.
Biggers, 409 U.S. 188, 196 (1972). We review the
admissibility of identification evidence de novo. United
States v. Donelson, 450 F.3d 768, 772 (8th Cir. 2006).
To determine whether such evidence is admissible, "we
[first] determine whether the defendant has shown that the
identification procedures were impermissibly
suggestive." Id. (internal quotation marks
omitted). "If that showing is made, we examine the
totality of the circumstances to determine whether the
suggestive procedures created a very substantial likelihood
of irreparable misidentification." Id. at 773
(internal quotation marks omitted). Because we find the photo
lineup was not impermissibly suggestive, we do not reach the
there are no differences in appearance tending to isolate the
accused's photograph, " the lineup is not
impermissibly suggestive. Schawitsch v. Burt, 491
F.3d 798, 802 (8th Cir. 2007). To create the photo lineup at
issue here, the FBI pulled five images from an online
database matching the description Miller and Wolfe provided.
The district court concluded that the photo lineup was not
impermissibly suggestive because "[t]he individuals are
all males appearing to range from about 20 years of age to as
much as 50 years of age. They all are dark-skinned,
olive-skinned individuals with very short black hair. And
they all have neck tattoos."
challenges this conclusion by pointing out that he was the
only confirmed Native American, the only confirmed resident
of the Winnebago or Omaha Reservations, and the only party
attendee included in the lineup. No doubt a photo lineup
"displaying persons of markedly different race or
ethnicity may be unduly suggestive." United States
v. Wilson, 787 F.2d 375, 385 (8th Cir. 1986). However, a
photo lineup is not suggestive "solely because the
display did not depict persons of the same race or ethnic
group." Id. (upholding photo lineup where
defendant was the only Hispanic man included). On appeal,
Whitewater alleges only that the ethnicity of the other five
men in the photo lineup was unknown. But even if Whitewater
were in fact the only Native American, all of the men
featured in the lineup shared similar physical
characteristics such that Whitewater's ethnicity did not
isolate him.Furthermore, Whitewater ...