Eleventh Circuit Court of Appeals - Published Opinions

Thursday, June 06, 2013

Whatley: In court identifications not subject to prescreening

In U.S. v. Whatley, No. 11-14151 (June 3, 2013), the Court affirmed bank robbery convictions and reversed an “abduction” sentence enhancement.

The Court rejected the argument that the admission of in-court identifications of Whatley by bank employees violated Due Process. The Court found that the recent decision in Perry v. New Hampshire, 132 S.Ct. 716 (2012), held that judicial pre-screening of reliability is not required to address identifications made in suggestive circumstance (for example, as Whatley claimed, in-court identifications made years after the incidents), unless the identifications were the result of improper police conduct. Here, the identifications were made in court, where Whatley was able to confront the eyewitnesses and highlight the frailties of their identifications.

The Court rejected the argument that the district court erroneously admitted under FRE 404(b) evidence that Whatley attempted another bank robbery. The Court found that the “similarities between the charged robberies and the uncharged bank robbery ... marked the crimes as the handiwork of Whatley.” They therefore suggested a modus operandi.

The Court also rejected (2-1, Jordan, J., dissenting) the argument that the district court should have granted a new trial because it was discovered that a newspaper article about one of Whatley’s robberies was considered by the jury during deliberations, as the result of a computer glitch in the scanning of trial exhibits. The district court conducted a thorough examination of each juror, and found that the jurors did not consider the article “until the final hours of their deliberations” – a period during which they remained deadlocked. Finally, the government’s evidence on the one count of conviction decided after the jury saw the document was “overwhelming.”

Turning to sentencing, the Court held that a sentence enhancement for “abduction” pursuant to USSG § 2B3.1(b)(4)(A) was erroneously imposed based on Whatley’s herded the bank employees inside the bank. The Court noted that Whatley never took the employees outside the bank. The Court noted that the dictionary definition of “abduction” refers to “the act of leading someone away,” as in a kidnapping.