In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1292
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DWARD W. W EST,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-157—Charles N. Clevert, Jr., Chief Judge.
A RGUED O CTOBER 21, 2010—D ECIDED D ECEMBER 30, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Edward W. West was
charged with two counts of armed bank robbery in vio-
lation of 18 U.S.C. §§ 2113(a) and (d), and two counts
of using a firearm during a crime of violence in viola-
tion of 18 U.S.C. § 924(c). West moved to suppress an in-
custody lineup identification on the grounds that the
lineup violated his Sixth Amendment right to counsel
2 No. 10-1292
and that the lineup was unduly suggestive. The district
judge granted the motion, finding that the lineup was
conducted without counsel for West. The court con-
cluded, however, that the lineup witnesses would be
allowed to make in-court identifications. West then
entered a conditional plea of guilty and was sentenced
to 230 months’ imprisonment.
On appeal, West argues that the district court erred
when it agreed to allow witnesses to make in-court iden-
tifications without first determining whether an in-
court identification would have an independent basis
and would be free from the taint of the improper
lineup. West also argues that the district court improperly
based his 230-month sentence on his socioeconomic
status. We conclude that the district court erred by
not making the findings as to the admissibility of wit-
nesses’ in-court identifications required by United States
v. Wade, 388 U.S. 218, 240 (1967). We thus vacate West’s
convictions and remand for a hearing on this is-
sue. We find no error in the district court’s statements
at sentencing.
Factual Background
On May 24, 2008, Edward West was arrested on suspi-
cion that he had robbed two Wisconsin banks, a U.S.
Bank branch in Milwaukee on May 12, 2008 and a Land-
mark Credit Union branch in Wauwatosa on May 23,
2008. While West was in custody, on May 27, 2008, the
Milwaukee police administered an in-custody lineup
for the two witnesses to the U.S. Bank robbery. The same
No. 10-1292 3
day, the Wauwatosa police administered the same
lineup for three witnesses to the Landmark Credit Union
robbery. West was not represented by counsel in either
lineup. Three witnesses identified West as the bank
robber. A federal grand jury then returned a four-
count indictment against West.
West moved to suppress the pre-indictment lineup
identifications, claiming that they violated his Sixth
Amendment right to counsel and that the lineups were
unduly suggestive. Following an evidentiary hearing,
the magistrate judge issued a report recommending
that the lineups and all evidence obtained as a direct
result of the lineups be suppressed because they had
been conducted in violation of West’s Sixth Amend-
ment right to counsel, as interpreted in Wade. The magis-
trate judge also concluded that the lineups as con-
ducted were not unduly suggestive. Both parties ob-
jected to the magistrate judge’s report and recommenda-
tion. The government raised the in-court identification
issue for the first time, arguing under Wade that there
was an independent basis for each witness’s in-court
identification of West, so that the witnesses should be
allowed to testify if the case proceeded to trial. West
responded that the lineups were unduly suggestive,
that any in-court identification by the three witnesses
would be tainted by the unconstitutional lineup proce-
dure, and that the government was responsible under
Wade for showing by clear and convincing evidence
that there was an independent basis for an in-court iden-
tification. Neither the magistrate judge nor the district
court judge held a hearing on the Wade in-court iden-
tification issue.
4 No. 10-1292
The district judge ultimately adopted the magistrate
judge’s recommendation that West’s right to counsel
had been violated and that the lineup was not unduly
suggestive. In addition, the district judge stated that
he would allow an in-court identification, but without
making any specific findings required by Wade after a
Sixth Amendment violation in a lineup. West then
entered a conditional plea of guilty that reserved his
right to appeal the in-court identification ruling, and the
district court sentenced West to 230 months in prison,
below the advisory guideline range.
Analysis
I. Finding an Independent Basis for In-Court Identifica-
tion under Wade
The appellant challenges his convictions on the basis
that the district judge made no finding under Wade as to
the admissibility of the planned in-court identifications.
The Supreme Court held in Wade that, where a lineup
has been suppressed as unlawful, “a per se rule of exclu-
sion of courtroom identification would be unjustified.”
Wade, 388 U.S. at 240. To allow a witness to make an in-
court identification after an uncounseled lineup iden-
tification, however, the government must show by
clear and convincing evidence that there is an inde-
pendent basis for a witness’s in-court identification. Id.
at 240-41; accord, Gilbert v. California, 388 U.S. 263, 272
(1967); United States v. Anderson, 714 F.2d 684, 686-87
(1983); United States ex rel. Harris v. State of Illinois, 457
F.2d 191, 194 (7th Cir. 1972).
No. 10-1292 5
In Wade, the Supreme Court outlined critical factors
for a court to consider in deciding whether there exists
an independent basis for identification, including “the
prior opportunity to observe the alleged criminal act, the
existence of any discrepancy between any pre-lineup
description and the defendant’s actual description,
any identification prior to lineup of another person, the
identification by picture of the defendant prior to the
lineup, failure to identify the defendant on a prior occa-
sion, and the lapse of time between the alleged act and
the lineup identification.” 388 U.S. at 241; see also Ander-
son, 714 F.2d at 686 (applying Wade factors). The issue
here, where the lineup was suppressed as unconstitu-
tional, is whether the district court made the requisite
Wade finding as to the admissibility of the in-court iden-
tifications.
Although decisions to admit evidence are generally
reviewed under an abuse of discretion standard, admis-
sions of identifications are subject to a hybrid standard
of review that we have described as de novo review
“with due deference to findings of historical fact.” United
States v. Harris, 281 F.3d 667, 669-70 (7th Cir. 2002). Here,
the sole question is the legal one, whether the court
made the requisite legal finding, so our review is
de novo. Id.
The government argues that the district court twice
made Wade findings as to the admissibility of the in-
court identification. We disagree. While the district judge
twice made statements acknowledging that he would
allow witnesses to make in-court identifications of West,
6 No. 10-1292
he made no Wade finding. First, at an evidentiary hearing
on an unrelated issue, the district court adopted the
magistrate judge’s findings and remarked that in-court
identification was permissible, stating:
I do not believe the government has shown that the
magistrate judge’s ruling is incorrect. I don’t believe
that—well, the lineup should have been conducted
with an attorney there, it certainly was not, but
there was nothing about the lineup, the way it was
conducted, to suggest that an in-court identification
of the defendant would be tainted; hence, it is pos-
sible for an in-court identification to occur.
In drawing that conclusion, the district court made no
finding under Wade nor did it explicitly consider the
relevant Wade factors. West argues that he was confused
by the district court’s statement as to the in-court iden-
tification and thus sought clarity on the issue before
pleading guilty to the bank robberies. At the request
of West’s counsel at the change of plea hearing, the
district judge again commented on his decision to allow
an in-court identification:
This is a case where witnesses were given the oppor-
tunity to identify Mr. West in a lineup. The court
concluded that notwithstanding the problems with
the lineup, the witnesses may testify at trial. This does
not mean that is any foregone conclusion that the
witnesses who testify at trial will be able to identify
Mr. West, and that was one of the points I was trying
to make in my ruling.
Witnesses obviously will come to court and will be
given an opportunity to determine whether or not
No. 10-1292 7
they can indeed identify the defendant. The prior
contact with the defendant has not been—was not
shown to be such that the witnesses should be pre-
cluded from being given the opportunity to view
the defendant and determine if he is indeed the
person they saw and the person they would
implicate as one of the bank robbers. So that was
the essence of the court’s decision.
These are the district judge’s only statements about
the admissibility of the in-court identification of West.
Neither statement recognized that the government bore
the burden of proof on the issue, and by clear and con-
vincing evidence. The district court never made a
finding that the government had shown by clear and
convincing evidence that a potential in-court identifica-
tion would be based on observations of the suspect other
than from the in-custody lineup, and at no time were
the Wade factors addressed explicitly. There simply
were no findings of fact by the district court as to the
admissibility of the in-court identification.
The government requested that both the magistrate
judge and the district judge make a Wade finding, but the
fact remains that neither did so. The government argues
that the district court’s consideration of the Wade
factors is implicit in its statements, but we disagree. The
district judge’s statements seem merely to be agreeing
with the magistrate judge that the lineup was not
unduly suggestive under Neil v. Biggers, 409 U.S. 188
(1972), rather than making a finding that there was an
independent basis for the in-court identification. That
analysis is not sufficient to comply with Wade.
8 No. 10-1292
The government argues that there is sufficient reliable
evidence in the complaint and witness testimony before
the magistrate judge to show that there was an independ-
ent basis for an in-court identification. In essence, the
government asks that this court make the Wade finding
in the first instance. We decline to do so. The govern-
ment argues that under United States v. Anderson, we
should conduct a de novo review and look to the
record, including the testimony before the magistrate
judge, to find that there was an independent basis for
the witnesses’ in-court identifications. In Anderson, we
held that “even if the trial court did not resolve [the
Wade issue with respect to in-court identification], such
a lapse would not amount to reversible error, for it is
open to this court on review to determine whether the
requirements of Wade were satisfied, at least where, as
here, the record on this point is adequate and was
indeed carefully constructed to facilitate passage on this
issue.” Anderson, 714 F.2d at 687, citing United States ex rel.
Harris v. State of Illinois, 457 F.2d 191, 195-96 (7th Cir.
1972) (Illinois Supreme Court could make a finding of
fact as to admissibility of an in-court identification
where the record “was adequate for such action”).
But this case is different from Anderson, where there
was a pre-trial hearing addressing in-court identification
issues and the record was “carefully constructed to facili-
tate passage” on those issues. While the district court
in Anderson made no explicit Wade finding, we held that
it was reasonable to infer that the judge’s affirmative
remark following the evidentiary hearing for that very
purpose meant that there was an independent basis for
No. 10-1292 9
an in-court identification. In those unusual circum-
stances, our decision in Anderson surely reached the
outer boundaries of the rare practice of federal appel-
late fact-finding. Here, unlike in Anderson, there was no
evidentiary hearing on the in-court identification issue.
We are in no position to make the finding in the first
instance ourselves. Accordingly, as the Supreme Court
did in Wade, we vacate the defendant’s convictions and
remand to the district court for findings of fact under
Wade as to the admissibility of in-court identifications.
Depending on the outcome of that determination, the
district court may reinstate the convictions or order a
trial. See Wade, 388 U.S. at 242-43.
II. Sentencing
Although we vacate the convictions, we also address
West’s sentencing argument at this time, since it is
possible the district court may reinstate his convictions.
West’s advisory guideline sentencing range was cal-
culated at 272 to 319 months. Pursuant to the condi-
tional plea agreement, West was sentenced to 230 months
in prison.
In the course of the sentencing hearing, the defense
argued that West was old enough and in such poor
health that a guideline sentence would amount to a life
sentence. The district judge responded to that argument
by saying that he doubted the defendant could receive
medical care outside of prison as good as the care he
could receive inside the prison: “considering your em-
ployment history and your current circumstances, it is
10 No. 10-1292
certainly questionable whether or not you would get
the same level of care in the community.” The judge
also discussed the health-care legislation then pending
in Congress and concluded that “there’s certainly no
indication that you have independent means that you
can use to obtain good and regular healthcare outside of
a prison setting.”
Based on these comments, West argues that the
district court erred procedurally by unreasonably
relying on an impermissible factor—his socioeconomic
status—to justify his sentence. West argues that the
discussion of his socioeconomic status violated U.S.S.G.
§ 5H1.10 (socioeconomic status is not relevant in deter-
mining a sentence) and 28 U.S.C. § 994(d) (requiring
Sentencing Commission to make guidelines and policy
statements neutral as to socioeconomic status of defen-
dants). We disagree. The district court did not rely on
an impermissible factor in sentencing or err procedurally
in any other way.
In reviewing a sentence, we first look to whether the
district court committed any procedural error, “such as
failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory,
failing to consider the [section] 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines
range.” United States v. Scott, 555 F.3d 605, 608 (7th Cir.
2009), quoting Gall v. United States, 552 U.S. 38, 51 (2007).
If there was no procedural error, we consider whether
No. 10-1292 11
a sentence was substantively reasonable. Id. A below-
guideline sentence is presumed reasonable on appeal by
the defendant. United States v. Pape, 601 F.3d 743, 746
(7th Cir. 2010), citing United States v. Wallace, 531 F.3d
504, 507 (7th Cir 2008).
The district court’s discussion of West’s access to
health care came in the context of a broader discussion
of both the defense arguments for a lower sentence
and other relevant § 3553(a) factors, including the
history and characteristics of the defendant, the nature
of the offense, and the need to protect the community
from future crimes. Section 3553(a)(2) required the court
to address West’s medical needs: “The court, in deter-
mining the particular sentence to be imposed, shall con-
sider—(2) the need for the sentence imposed—(D) to
provide the defendant with needed . . . medical care . . . in
the most effective manner.” The transcript indicates
only that the district court was addressing the effect that
a sentence might have on the defendant’s access to
medical care, which was an issue the defense had
raised. When the defense raises such an issue, the
district court is entitled to consider the counterfactual:
what kind of medical care would be available to the
defendant with a different sentence? To the extent those
circumstances might be affected by wealth, income, or
socioeconomic status, consideration of the defense argu-
ment cannot be turned into a Catch-22 for the district
court, where it would be error not to consider and
address the issue, but also error to consider the factors
affecting access to medical care. We see here only proper
consideration of a relevant but unpersuasive defense
12 No. 10-1292
argument for a lighter sentence. We find no improper
consideration of West’s socioeconomic status. Moreover,
the district court sentenced West well below the guide-
lines range. We find no error.
Conclusion
For the foregoing reasons, the defendant’s convictions
are VACATED and we R EMAND to the district court for a
Wade finding and further proceedings consistent with
this opinion.
12-30-10