United States v. Anthony Whitewater
879 F.3d 289
| 8th Cir. | 2018Background
- Early morning May 2, 2016: occupants of a Chrysler Pacifica fired multiple rounds at a Chevrolet Tahoe driven by Omaha Nation members Jason Miller and Vincent Wolfe; Miller recognized the shooter by a neck tattoo and a black floppy hat with green marijuana leaves.
- Pacifica was stopped; driver Marcus Blackhawk (Whitewater's brother) admitted Whitewater had been with him; Blackhawk’s girlfriend testified Whitewater came to get Blackhawk around 3:00 a.m.
- FBI agent interviewed Miller and Wolfe; both gave similar descriptions (Native American male, dark hair, squinty eyes, throat/neck tattoo, black floppy hat with marijuana-leaf design).
- FBI compiled a six-photo lineup from a database matching the description; both witnesses separately identified Whitewater in the lineup and again at trial.
- Whitewater was convicted by a federal jury of assault with a dangerous weapon in Indian country, using a firearm during a crime of violence, and being a felon in possession of a firearm; sentenced to 240 months.
- On appeal Whitewater challenged admission of the photo-lineup and in-court identification as impermissibly suggestive; the district court and the Eighth Circuit rejected the challenge.
Issues
| Issue | Whitewater's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the photo lineup was impermissibly suggestive under due process | Lineup was suggestive because Whitewater was the only confirmed Native American, the only local/reservation resident, and the only party attendee shown | The photos all shared similar physical traits (male, dark/olive skin, short black hair, neck tattoos); ethnicity or residency differences alone do not make a lineup suggestive | Not impermissibly suggestive; admissible |
| Whether court had to screen eyewitness ID reliability before jury | The identifications were unreliable and should have been excluded | Absent improper police conduct, reliability is for the jury; courts need not pre-screen reliability | No pre-screening required; jury may assess reliability |
Key Cases Cited
- Neil v. Biggers, 409 U.S. 188 (establishes due-process framework for eyewitness identification)
- United States v. Donelson, 450 F.3d 768 (Eighth Circuit standard: first show suggestiveness, then examine totality for irreparable misidentification)
- Schawitsch v. Burt, 491 F.3d 798 (lineup not impermissibly suggestive when no isolating differences in appearance)
- United States v. Wilson, 787 F.2d 375 (lineup not automatically suggestive solely because defendant is only person of a particular ethnicity)
- Perry v. New Hampshire, 565 U.S. 228 (absent improper law-enforcement conduct, reliability of eyewitness ID is for jury, not pretrial exclusion)