Dеfendant Leon Stamper, Jr. (“defendant”) was convicted of: 1) car-jacking in violation of 18 U.S.C. § 2119; 2) obstructing interstate commerce by robbery in violation of 18 U.S.C. § 1951(a); 3) brandish
I. Background
On the morning of July 22, 2000, defendant Stamper arrived at the Okolona Auto Mart, a used car dealership in Louisville, Kentucky. Falsely identifying himself as “Rob Love,” defendant asked Jeff Cochran (“Cochran”), a 65 year-old salesman, about test-driving a 1996 red Pontiac Trans Am. Defendant informed Cochran that, in the black fanny pack around his waist, he had $5,000 in cash for a down payment on the car. Cochran accompanied defendant on his test drive of the Trans Am. Upon stopping the vehicle at a convenience store in Bullitt County, Kentucky, defendant removed a small caliber pistol from his fanny pack and pointed it at Cochran. Defendant told Cochran something like, “Old man, sit over there and don’t say a word.”
Continuing to hold Cochran at gunpoint, defendant left the convenience store and drove down a country road, where he forced defendant to exit the car to “take a walk.” Cochran pleaded for his life, told defendant that he had suffered two previous heart attacks, and begged defendant to take the vehicle and leave. Defendant grabbed Cochran by the arm and dragged him up a hill into a wooded area. While walking through the woods, Cochran surreptitiously dropped his wallet on the ground. After stopping well into the wooded area, defendant removed work gloves, black electrical tape, and handcuffs from his fanny pack. Defendant handcuffed Cochran’s hands behind his back, gagged him, and bound his mouth and legs with the electrical tape. When defendant could not find Cochran’s wallet in his back pockets, defendant kicked him in the back. Leaving Cochran in the woods, defendant fled in the Trans Am.
Approximately an hour later, Cochran unbound his legs and sought help from a nearby house. After un-taping defendant’s mouth and removing the gag from it, occupants of that house contacted the police. Dеputy Scott McGaha (“Deputy McGaha”), with the Bullitt County Sheriffs Department, responded to the call. Upon removing Cochran’s handcuffs, Deputy McGaha observed wounds on Cochran’s wrists. Documenting Cochran’s injuries, Deputy McGaha photographed Cochran’s face, arms, back, and legs. While E.M.S. examined him, Cochran declined medical treatment at that time. Later that evening, Cochran became dizzy and went to a local hospital.
Driving the stolen Trans Am, defendant joined Rachel Bonapfel (“Bonapfel”), his longtime partner, and their two children some time after the car-jacking. Defendant, Bonapfel, and the children traveled across the country in the Trans Am, staying in inexpensive motels, where they paid in cash. At these motels, Bonapfel always registered in her name because defendant had warrants for his arrest on unrelated charges. While traveling, Bonapfel, using a disposable camera, took pictures of defendant driving the vehicle in various parts of the country.
On September 16, 2000, defendant, Bonapfel, and their children were staying in room number 55 at the Sunset Motel in
Without knocking, Officer Parsons opened the door with the pass key, breaking the chain lock that prevented him from fully opening the door. Identifying themselves as law enforcement, Officer Parsons and Deputies Wolfe and Thomas entered the motel room with their weapons drawn. Defendant, Bonapfel, and them two children had been sleeping. The officers took defendant into custody. Officer Parsons asked defendant about the Trans Am. Defendant admitted that the vehicle did not belong to him, but claimed that he had found it in Missouri with the keys inside of it. Officer Parsons then asked defendant whether he had any weapons in the room; responding in the affirmative, defendant directed Officer Parsons to a black fanny pack on the table next to the bed in which defendant had been sleeping. Officers seized a .25 caliber Raven Arms handgun from that fanny pack. The officers had not obtained a warrant to enter defendant’s motel room.
While detained in the Geary County jail, defendant attempted to escape. Due to outstanding warrants, however, the Kansas officials transferred defendant to the custody of the FBI in Kentucky without prosecuting him on this charge. Sergeant Beth Gilmer-Jones (“Sergeant GilmerJones”) of the Geary County Sheriffs Department forwarded the disposable camera, which she had seized from the stolen Trans Am during a routine inventory, to the FBI in Kentucky. Sergeant GilmerJones prepared a photographic line-up based upon defendant’s arrest photograph, and also forwarded this line-up to the FBI. FBI Agent Steven Wight (“Agent Wight”) separately presented the photographic line-up to Cochran and Steven Spitznagel (“Spitznagel”), a salesperson who was present when the Trans Am was taken for the test drive. From this photographic line-up, both Cochran and Spitznagel identified defendant as the perpetrator of the car-jacking. In addition to testifying to these out-of-court identifications of defendant, Cochran and Spitznagel also identified defendant as the perpetrator in open court at trial.
II. Motion for a New Trial
After Bonapfel had testified at trial, defendant learned-via the government’s dis
Defendant moved for a mistrial and, subsequently, filed a motion for a new trial on the ground that the government’s failure to disclose Bonapfel’s statement that she had seen defendant leave a motel and return with the Trans Am (“the ‘motel room’ statement”) before defendant had cross-examined her violated the Brady doctrine. In its response to defendant’s motion, the government argued that defendant failed to show “a reasonable probability of a different outcome of the trial had the material been available” before the time thаt the government had disclosed it and, thus, that defendant failed to show that this delayed disclosure was material or prejudiced him. Agreeing with the government, the district court denied defendant’s motion for a new trial.
On appeal, defendant contends that the government’s failure to disclose Bonapfel’s “motel room” statement to defendant before his cross-examination of her deprived him of his right to effective cross-examination and, thus, a fair trial.
We review the district court’s denial of a motion for a new trial for an abuse of discretion. United States v. Braggs,
Evidence that is favorable to the defendant is material only if there is a reasonable probability that, had the prosecution disclosed it to the defense, the result of the trial would have been different. Kyles,
Generally, the Brady doctrine does not apply to a delayed disclosure of evidence that is favorable to the defendant, but only to a total failure to disclose such evidence. United States v. Bencs,
We agree with the district court that defendant hаs failed to demonstrate a reasonable probability that, had the government disclosed Bonapfel’s “motel room” statement before Bonapfel’s cross-examination, the outcome of the trial would have been different. First, while the government emphasized Bonapfel’s eyewitness testimony because of her relationship with the defendant and, thus, her ability to identify him easily, the record belies defendant’s contention that only Bonafpel’s testimony convicted defendant. Cochran, the victim, testified about the details of the car-jacking and identified defendant as the perpetrator, and Spitznagel identified defendant as having taken the Trans Am for a test-drive with Cochran on the day of the car-jacking.
Third, as the district court correctly found, even though defendant was unable to cross-examine Bonapfel about the “motel room” statement, defendant, nevertheless, was able to use that statement effectively at trial. This statement was admitted into evidence via defendant’s direct examination of Wight. Moreover, defendant’s closing argument-while not evidence-underscored the inconsistency between Bonapfel’s “motel room” statement and her trial testimony. In particular, defendant argued that Bonapfel, who, for personal reasons, was falsely incriminating defendant for the car-jacking, had changed her story about having been at a motel on the day of the car-jacking only upon realizing that the police would seek the motel registration as evidence.
III. Motions to Suppress Evidence
A. Fourth Amendment
Defendant filed numerous pre-trial motions to suppress evidence on Fourth Amendment grounds. Defendant appeals the district court’s denial of several of those motions. We review the district court’s legal conclusions concerning a suppression motion de novo. United States v. Smith,
The Fourth Amendment’s “exclusionary rule prohibits the introduction into evidence of tangible materials seized during an unlawful search and of testimony concerning knowledge acquired during an unlawful search.” Murray v. United States,
1. Defendant’s Arrest Photograph and Identifications of Defendant
Defendant filed a motion to suppress his arrest photograph and any identifications of defendant as the perpetrator based upon that photograph on the ground that such evidence was the fruit of defendant’s unlawful arrest in his motel room. The district court denied this motion. Although it had previously held that the
However, we need not determine whether defendant’s arrest in his motel room violated the Fourth Amendment. Even assuming, arguendo, the unlawfulness of defendant’s arrest, the exclusionary rule does not require the suppression of defendant’s arrest photograph and any identifications of defendant based upon that photograph. See United States Postal Serv. v. Nat’l Ass’n of Letter Carriers, AFL-CIO,
[T]he rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects ... protection where the police have probable cause to arrest the suspect for committing a crime.... Nothing in the reasoning of that case suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that ... [the defendant] was immune from prosecution because his person was the fruit of an illеgal arrest.... Nor is there any claim that the warrantless arrest required the police to release ... [the defendant] or that ... [the defendant] could not be immediately rearrested if momentarily released.... For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested ... [the defendant] on his doorstep, illegally entered his home to search for evidence, and later interrogated ... [the defendant] at the station house.
Id. at 17-18. Thus, the Court held that, where a violation of the Payton rule exists,
While Hams is somewhat factually distinguishable from the present case, its legal analysis is directly on-point. Following Harris, because the officers had probable cause to arrest defendant,
2. Disposable Camera’s Photographs
Defendant moved to suppress the incriminating photographs that the government developed from the disposable camera seized from the stolen Trans Am on the ground that they are fruits of the unlawful search of his motel room. The district court denied this motion. In particular, it found that defendant lacked a protected privacy interest in that disposable camera. Additionally, the district court found that Bonapfel owned the camera and had consented to the development of the photographs. Defendant appeals the district court’s denial of this suppression motion.
The Supreme Court has “abandoned a separate inquiry into a defendant’s ‘standing’ to contest an allegedly illegal search in favor of an inquiry that foeuse[s] directly on the substance of the defendant’s claim that he or she possessed a ‘legitimate expectation of privacy1 in the area searched.” Rawlings v. Kentucky,
Defendant claims that, even if the government were in lawful possession of the Trans Am and the disposable camera, it nevertheless was required to obtain a warrant to develop that camera’s film under Walter v. United States,
3. Bonapfel’s Testimony
Defendant moved to suppress any statement or testimony by Bonapfel on the ground that they are the fruit of either an unlawful arrest of defendant in his motel room, in which Bonapfel was present, or an unlawful search of that motel room. The district court denied this motion. Specifically, the court held that, because the registration for room 55 listed Bonapfel’s name and home address, the officers’ discovery of Bonapfel’s identity — whether before or after the illegal search — came from a source independent of any illegality. Defendant appeals the district court’s denial of this suppression motion.
However, we agree with the district court that the exclusionary rule does not require the suppression of any of Bonapfel’s statements or testimony.
As the record demonstrates, the registration card for room 55 lists Bonapfel’s name and home address. Deputy Thomas read this registration card, which he obtained from the motel manager. Defendant claims that Deputy Thomas learned of Bonapfel’s name and address from the registration card only after he had entered defendant’s motel room. The district court held that the independent source doctrine applies regardless of when Deputy Thomas learned of Bonapfel’s name and address from the registration card and, thus, made no factual finding as to whether Deputy Thomas acquired this knowledge before or after he had entered defendant’s motel room. This proposition, however, over-simplifies the doctrine. The independent source doctrine applies where the government proves that it, in fact, has acquired “knowledge or possession of evidence” from a source “wholly independent of any constitutional violation.” United States v. Dice,
The inevitable discovery rule applies where the government establishes “that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams,
The record sufficiently demonstrates that Deputy Thomas would have discovered Bonapfel’s name and address from the room registration card, even if he had not
Defendant argues that the government was also required to prove that, absent any illegality, it obtained or would have obtained Bonapfel’s cooperation with law enforcement and her testimony at trial. Bonapfel testified that she was testifying, not of her own free will, but because she was under a subpoena. As discussed above, the government would have obtained Bonapfel’s nаme and home address from the motel registration card regardless of any illegality. Because this knowledge was all that the government needed to execute a subpoena to compel Bonapfel’s testimony, the government would have obtained this testimony regardless of any illegality. Since we find that the record sufficiently demonstrates that the government would have obtained Bonapfel’s testimony regardless of any illegal search or seizure, per the inevitable discovery rule, we affirm the district court’s denial of defendant’s motion to suppress such testimony.
B. Due Process Clause
Defendant filed a motion to suppress evidence of or testimony pertaining to Cochran and Spitznagel’s identifications of defendant as the perpetrator on the ground that the photographic line-up from which they first identified defendant as well as the techniques that law enforcement employed in presenting that line-up were unconstitutionally suggestive. After holding an evidentiary hearing on the matter, the district court denied this motion. In particular, the court found that the photographic-line up and its accompanying procedures were neither impermissibly suggestive nor created a substantial risk of misidentification. Defendant appeals the denial of this motion.
Where a defendant challenges his conviction based upon an eyewitness identification at trial following a pre-trial photographic identification, the Due Process Clause requires that the conviction be set aside “only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States,
[T]he number of photographs in an array is not itself a substantive factor, but instead is a factor that merely affects the weight given to other alleged ... irregularities in an array. The larger the number of pictures used in an array, the less likely it is that a minor difference ... will have a prejudicial effect оn selection ... [because] the differences become diluted and less obvious among the large number of images, each of which are [sic] likely to contain some sort of minor idiosyncratic aberration .... Conversely, when a relatively low number of photographs are [sic] used in an array, minor differences ... can make a picture stand out.... Upon continued inspection, the witness may begin to believe that the “oddball” picture was taken under different circumstances than the others, [and] ... can suggest ... that the similar pictures were taken together to form a pool or control group, and that the one picture that stands out is the suspect.
As to the presentation of a photographic line-up, the Supreme Court recognized in Simmons v. United States,
If the defendant demonstrates that the identification procedure was unduly suggestive, we then determine whether that procedure was nevertheless reliable under the totality of the circumstances. Ledbetter,
Defendant contends that the photographic line-up from which both Cochran and Spitznagel identified defendant as the perpetrator was unduly suggestive. Agent Wight asked the Geary County Sheriffs Department to prepare a photographic line-up of defendant because it had taken defendant’s arrest photograph and would likely have similar arrest photographs since they vary among departments. In selecting comparison photographs for the line-up, Officer Gilmer-Jones first ran a search in her department’s database of arrest photographs for individuals matching defendant in such general characteristics as height, weight, and hair color; from that pool, she selected five individuals with additional attributes similar to defendant’s, such as his general mouth and chin shape, a large forehead, and receding hairline. However, defendant’s arrest photograph had been taken with a newer digital camera while the other arrest photographs in the department’s database had been taken with a prior digital camera, which had broken. Due to the difference in cameras, the colors of defendant’s jumpsuit and that of the background appeared differently than those in the other photographs; Officer Gilmer-Jones changed all of the photographs to black-and-white to neutralize these color differences.
Defendant also contends that the techniques that law enforcement employed in presenting the photographic line-up to Cochran and Spitznagel were unconstitutionally suggestive. Defendant argues that Spitznagel had learned from someone at the dealership that the FBI had a suspect in custody before Agent Wight presented the photographic line-up to him. At the suppression hearing, Spitznagel testified that, before the photographic line-up, he had learned from someone at the dealership that the FBI had arrested someone out west. However, Spitznagel also testified that Agent Wight, in presenting the photographic line-up, had never suggested which photograph he should choose.
Because Agent Wight presented the same photographic line-up
Defendant contends that, after Cochran had identified defendant from the photographic line-up, Agent Wight had informed Cochran that a suspect was in custody and suggested to Cochran, contrary to his normal practice, that Cochran had chosen the correct photograph. Both Agent Wight’s and Cochran’s testimony support this contention. It was certainly improper for Agent Wight to have conveyed this information to Cochran. However, because Cochran acquired this information only after he had identified defendant from the photographic line-up, it could not have rendered this photographic identification unduly suggestive. Defendant does not argue — nor does the record adequately demon-state — that Cochran had this information before he viewed the photographic lineup. In fact, at the suppression hearing, Cochran testified that Agent Wight had never suggested which photograph Cochran should choose from the photographic line-up.
The district court did not err in finding that defendant has failed to establish that the photographic line-up from which both Cochran and Spitznagel identified defendant as well as the techniques that Agent Wight employed in presenting that line-up were unconstitutionally suggestive. Because the first step of the requisite analysis ends in the government’s favor, we need not address whether, under the totality of the circumstances, the photographic identifications were nevertheless reliable. See Ledbetter,
IV. Sentencing Issues
Defendant appeals the district court’s applications of sentence enhancements for “obstructing or impeding the administration of justice” and for “serious bodily injury” under United States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 and § 2B3.1(b)(3)(B), respectively.
A. Obstruction of Justice
After finding that defendant had attempted to escape from custody before trial, the district court applied a two-point enhancement to defendant’s base offense level under U.S.S.G. § 3C1.1. See USSG § 3C1.1, comment. (n.4(e)) (listing “attempting to escape from custody before trial” as an example of the conduct to which this еnhancement applies). Defendant challenges the application of this enhancement on the sole ground that the government has failed to demonstrate that defendant had, in fact, attempted to escape. While defendant was detained at the Geary County jail in Kansas following his arrest for the car-jacking, officers discovered that defendant had chipped away at portions of his cell wall and had broken a plexi-glass window so as to gain access to a plumbing closet, which leads to the jail’s main hallway; in that closet, defendant had broken several light bulbs and dismantled the plumbing. Officers subsequently found two nails and a bobby pin under defendant’s control. Based upon this incident, a Kansas Offense Report cited defendant for an attempted escape from custody as well as criminal damage to property. However, because of defendant’s “imminent transfer to Kentucky on [fjederal and [sjtate charges,” Geary County officials did not press charges against defendant.
The district court held that the government had sufficiently demonstrated that defendant had attempted to escape while in pre-trial custody; in doing so, it underscored that the Kansas officials, in issuing defendant a citation, had denominatеd the event an escape attempt in their citation of defendant. However, the district court called it a “very close question” because the reported facts are ambiguous and Kansas authorities had never tried to prosecute defendant on or administratively discipline him for the escape attempt. On appeal, defendant cursorily asserts that “there is little basis for any inference that ... [he] was planning an escape through the pipes.” We disagree. One may reasonably infer that defendant was seeking a way out of his cell, thereby attempting to escape custody, when he forced his way into a plumbing closet behind his cell with the aid of a bobby pin and some nails and dismantled some of the plumbing. Such an inference is certainly more plausible than that defendant accessed the plumbing closet only with the intent to explore the jail’s plumbing system — whether out of sheer boredom or an unusual fascination with pipes — ; to investigate the plumbing system to ensure proper sanitation; or to sabotage the plumbing system in retaliation for his incarceration. The district court did not clearly err in applying a two-point enhancement for attempted obstruction of justice under U.S.S.G. § 3C1.1.
B. Serious Bodily Injury
U.S.S.G. § 2B3.1(b)(3) provides: “[i]f any victim sustained bodily injury, increase the offense level according to the seriousness of the injury.” A victim sustaining only the prerequisite “bodily injury” dictates a two-level enhancement. U.S.S.G. § 2B3.1(b)(3)(A). The term bodily injury denotes “any significant injury,” such as “an injury that is painful and obvious, or is of a type for which medical
At the suppression hearing, defendant argued that Cochran had neither sustained the requisite “bodily injury” nor a “serious bodily injury.” In support, defendant relied upon a medical record from Bullitt County EMS, which stated that Cochran “had a small scratch on [his] arm from a tree or thorn bush”; that he “had a small amount of blood on [his] arm”; and that he “did not want EMS and stated that he was fine.” The government sought a six-point enhancement under U.S.S.G. § 2B3.1(b)(3)(C) on the ground that Cochran had sustained a “permanent or life-threatening bodily injury.” Specifically, the government argued that Cochran has “permanent scars” on his wrists from where defendant had placed tight handcuffs on him, and that, on thе evening of the car-jacking and due the stress of that event, Cochran suffered a heart attack and had gone to the hospital. The district court found that Cochran had sustained a “serious bodily injury” and, thus, applied a four-point enhancement under § 2B3.1(b)(3)(B). In so finding, the court relied upon the permanent scars on Cochran’s wrists as well as his “medical condition, including his trip to the hospital later that evening.”
The district court did not clearly err in finding that Cochran had sustained the prerequisite “bodily injury” so as to trigger the applicability of § 2B3.1(b)(3) to defendant’s sentence. Deputy McGaha testified that Cochran’s handcuffs were tight and that his “wrists were bleeding from where the handcuffs had been.” Deputy McGaha also testified that Cochran had cuts on his upper arm and that these cuts came from both defendant kicking him and scratches from some briars or bushes. The government admitted into evidence photographs capturing these injuries; such photographs also reveal the “painful and obvious” nature of Cochran’s injuries. USSG § 1B1.1, comment. (n.l(b)). Cochran testified that, because he “was all bloody,” EMS had offered to clean up his wounds, but he had declined their offer, stating that he was “all right.” However, Deputy McGaha clarified that EMS had “check[ed]” Cochran on the scene. Thus, Cochran injuries were also “of a type for which medical attention ordinarily would be sought.” USSG § 1B1.1, comment, (n.l(b)) (emphasis added). That EMS was called to the scene and, once there, offered to cleanse Cochran’s wounds evidences this factor and overshadows Cochran’s refusal of such treatment. Thus, the district court did not clearly err in finding that defendant had inflicted a “bodily injury” upon Cochran so as to warrant at least a two-point enhancement to his sentence under § 2B3.1(b)(3)(A).
The district court, however, did clearly err in finding that Cochran had sustained a “serious bodily injury” so as to trigger a four-point enhancement to defendant’s sentence under § 2B3.1(b)(3)(B). The cuts on Cochran’s wrists or upper arm from the tight handcuffs or defendant’s kick, respectively, did not constitute injuries “involving the protracted impairment of a function of a bodily member” — his hands or arms, respectively. USSG § 1B1.1, comment. (n.l(i)). Cochran’s wounds to his wrists and arm also did not
In finding that Cochran sustained a “serious bodily injury,” the district court also relied upon Cochran’s “medical condition” and his related trip to the hospital. The record demonstrates that Cochran suffered from hypertension; that Cochran, on the evening of the car-jacking, went to the hospital after he “started getting dizzy”; and that his blood pressure read 180/120 at the hospital. However, the record is silent as to the duration of Cochran’s trip to the hospital, what medical treatment, if any, Cochran received there, or what specific physical symptoms or impairments-besides dizziness-that Cochran experienced from this blood pressure. Thus, there is no evidence that Cochran’s elevated blood pressure caused him “extreme physical pain,” that it “requir[ed] medical intervention such as surgery, hospitalization, or physical rehabilitation”; or that it involved “the protracted impairment of a function of a bodily member, organ, or mental faculty.” USSG § 1B1.1, comment. (n.l(i)). Because the record does not contain the facts necessary to find that Cochran’s elevated blood pressure constituted a “serious bodily injury,” the district court’s application of a § 2B3.1(b)(3)(B) sentence enhancement оn this ground was also clearly erroneous.
For the preceding reasons, we AFFIRM the judgment of conviction, but REVERSE defendant’s sentence and REMAND for further proceedings consistent with this opinion.
Notes
. First, we reject defendant's suggestion that his Brady claim hinges upon a theory of total non-disclosure rather than one of delayed disclosure. Defendant argues that the government has never disclosed a "copy” of Bonapfel’s "motel room” statement; by this, defendant means a copy of the written account of the FBI’s interview of Bonapfel in which she made this statement. In response, the government asserts that it has never given defendant a copy of Bonapfel’s "motel room” statement because the only statement that Bonapfel had "adopted and signed” was her statement to Kansas law enforcement. While this assertion may rebut any argument that Bonapfel's "motel room” statement is a "statement” for purposes of the Jencks Act, 18 U.S.C. § 3500, it does not address the possibility that a written account of the FBI’s interview of Bonapfel in which she made the "motel room” statement exists for purposes of the Brady doctrine. In any event, regardless of whether the government failed to turn over such a document — assuming it were to exist — , it is clear that the government nevertheless disclosed the substance of Bonapfel’s "motel room” statement by virtue of giving defendant a copy of Agent's Wight’s grand jury testimony, which relayed that statement. Second, we disregard defendant’s suggestions on appeal that the government had a duty to disclose Bonapfel’s "motel room” statement before trial so that defendant could investigate and prepare for trial adequately. Materiality for purposes of a Brady violation does not pertain "to the defendant’s ability to prepare for trial.” United States v. Bencs,
. As discussed below, we reject defendant's contention that this evidence rests upon "shaky constitutional ground."
. Defendant also argued that Bonapfel had told the truth when she first informed authorities that defendant had bought the Trans Am from a drug dealer.
. Immediately following defendant's arrest, Kansas law enforcement officials interviewed Bonapfel. In a sworn written statement, Bonapfel stated that defendant had "showed up with a red Trans Am," that she "supposed" defendant had bought it from a drug dealer, and that defendant had told her that it was none of her business how much the car had cost. At trial, Bonapfel testified that defendant had actually told her that he had carjacked the Trans Am, and that she had lied to Kansas authorities at defendant’s directive.
. Defendant claims that he was unable to recall Bonapfel as a witness because he had neither reserved her as a witness for recall nor knew of her location so as to subpoena her. Nevertheless, the district court, in its discretion, could have permitted defendant to recall Bonapfel as a witness and compelled the government, which knew of Bonapfel’s location, to make her available for such recall, had defendant made such a request.
. Defеndant does not dispute that the officers had probable cause to arrest him based upon both the NCIC dispatch that the Trans Am was stolen and had been used in an armed robbery and the vehicle's connection to the room in which defendant was staying. Thus, absent an arrest warrant, the lawfulness of defendant’s arrest in his motel room hinges upon the existence of exigent circumstances. We express no opinion on whether the outstanding warrants for defendant’s arrest on unrelated charges satisfy the Fourth Amendment’s warrant requirement for this arrest of defendant.
. Defendant relies upon Bonapfel's testimony at trial that defendant, as Bonapfel’s financial provider, had bought the camera.
. In so holding, we need not and do not express any opinion upon whether the search of defendant’s motel room or his arrest in that motel room violated the Fourth Amendment; rather, our analysis assumes arguendo the unlawfulness of that search and seizure.
. Defendant principally relies upon United States v. Ceccolini,
. We note that, at trial, Spitznagel testified that, before he had identified defendant from the photographic line-up, he had no idea if the line-up included the perpetrator’s photograph. We further note that Spitznagel also testified that he did not recall whether he had learned that someone had been arrested in Kansas before the photographic line-up.
. The photographs in the line-up were stationary such that Agent Wight was unable to change their order.
. Indeed, Spitznagel testified at trial that, at that time, he still did not know whether he and Cochran had even identified the same person.
. Additionally, we note that Cochran testified at trial that Agent Wight, in presenting the photographic line-up, had never suggested that it contained a suspect.
. Sentencing calculations relied upon the 2001 edition of the United States Sentencing Guidelines.
. Because Cochran, at the time of the carjacking, was taking Coumadin, a blood thinner which makes one bleed more easily, for his hypertension, the unusual blood loss from Cochran's wounds likely exaggerated the appearance of their severity, as defendant has argued. Thus, one cannot infer that the wounds caused Cochran great pain based upon their bloodiness.