FLAUM, Circuit Judge.
A jury convicted Willie Newman of armed robbery of a bank in violation of 18 U.S.C. § 2113(a) & (d). This was Newman's third violent felony conviction — his "third strike" under 18 U.S.C. § 3559(c)(1) — and the district court therefore imposed the mandatory sentence of life imprisonment. On appeal, Newman challenges the district court's denial of a motion to suppress various witnesses' identifications of him, as well as the court's decision to order restitution, the amount of that restitution, and an upward adjustment of his sentence based upon his physical restraint of a person during commission of a violent felony. We affirm Newman's conviction, sentence of life imprisonment, and the district court's order of restitution.
On April 19, 1996, Willie Newman robbed an Indianapolis branch of Bank One without wearing a mask. Before he entered the bank, Newman attempted to steal a getaway car from Terrance Lloyd, who was waiting to pick up his wife at the bank. Newman stated, "I need your truck; I'm going to rob a bank." Mr. Lloyd resisted, which led Newman to force Lloyd out of his truck and into the bank, allegedly at gunpoint. Once inside the bank, Newman pushed Lloyd aside and announced to all present that he was robbing the bank. Newman ordered Regina Lloyd (Terrance's wife and a bank employee) to place the bank's money in Newman's dark blue duffle bag. After getting the money, Newman grabbed Toni Ashford, the branch manager, allegedly pressed a gun against her through his duffle bag, and told her, "You are going with me." Newman held Ashford as a human shield until he got to the door; once outside, he ordered her to return to the bank.
Upon ordering Ashford back into the bank, Newman fled the scene on foot. Two blocks away from the bank, Newman accosted three employees of the Indianapolis water company. Newman told the men, "I just robbed a bank, I need your truck." He also allegedly announced that he had a gun and asked the
Newman left a trail of witnesses and evidence in his wake that police could easily and quickly follow. He crashed the water company's truck near a construction site close to his home and walked the rest of the way home while discarding some of his clothing along the way. He also dropped $250 of recorded currency from the bank in an alley behind his house. Following Newman's trail, police officers swarmed the area surrounding the crashed and abandoned truck.
One officer observed Newman moving furtively around his backyard and attempting to avoid detection by another nearby officer. When the observing officer ordered Newman to freeze, Newman responded, "You are going to have to catch me!" and then ran into his house. The officers pursued Newman into the house and discovered him holding a fistful of currency that he was removing from a dark blue duffle bag. Before the police could ask any questions or give any directions, Newman exclaimed, "I didn't rob nobody!" Officers found a bundle of fifty twenty-dollar bills bearing the stamp and initials of tellers from the bank, as well as another packet of money on the ground and a few ten- and twenty-dollar bills scattered along a row of fence posts near Newman's home. After officers arrested him, Newman naively asked, "If you don't find the money, will I be okay?"
The Indianapolis Police Department began gathering witnesses to the robbery almost immediately. Once officers apprehended Newman, other officers brought the Lloyds and Toni Ashford from the bank to Newman's residence to make an identification. The witnesses were told only that they were being taken to this location to identify a suspect. The witnesses were brought in separate cars to view Newman in a "show-up identification" procedure
A grand jury indicted Newman for armed robbery (18 U.S.C. § 2113(a) & (d)) and for using a gun in the commission of a violent felony (18 U.S.C. § 924(c)). The district court denied Newman's motion to suppress the show-up identifications, and at trial the Lloyds and Toni Ashford again identified Newman as the perpetrator. In addition, one of the water company employees identified Newman as the man who stole the company's truck,
The jury convicted Newman of bank robbery, but it acquitted him on the gun charge. According to the mandate of 18 U.S.C. § 3559(c)(1), the district court sentenced him to life imprisonment because this was his third serious violent felony conviction. Moreover, based on an audit allegedly prepared by the bank, the district court ordered Newman to make restitution to the bank pursuant to 18 U.S.C. § 3663A in the amount of $11,973. The court, however, concluded that Newman's financial status precluded the imposition of any additional fine.
Newman raises four issues on appeal. He first argues that the district court erroneously denied his motion to suppress the show-up identifications of the Lloyds and Toni Ashford; these highly suggestive pre-trial identifications, he contends, predisposed the witnesses to identify him incorrectly at trial in violation of his due process rights. In addition,
A. Show-up Identification
Newman argues that the trial court should have suppressed the out-of-court identifications made by Ashford and the Lloyds. The witnesses were brought in separate cars to Newman's home, which was cordoned off by yellow crime scene tape; upon the witnesses' arrival, a police officer brought Newman in handcuffs to a spot approximately eight to ten yards from each car. The circumstances surrounding these show-up identifications, he contends, were unduly suggestive and created a serious likelihood that the witnesses subsequently made unreliable identifications at trial.
We review the district court's due process determination de novo. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).
Even assuming that he satisfied this first condition, however, Newman must also establish that the identification is unreliable under the totality of the circumstances.
We believe that the witnesses' identifications in this case satisfy all of these indicia of reliability. All three witnesses observed Newman for the full ten to fifteen minute period during which he robbed the bank. See, e.g., United States v. Duprey, 895 F.2d 303, 308 (7th Cir.1989) (finding no due process violation because, among other reasons, a witness identified the defendant after observing him for five minutes in a motel lobby), cert. denied, 495 U.S. 906, 110 S.Ct. 1927, 109 L.Ed.2d 291 (1990). Regina Lloyd took orders from him at about one arm's length, while Terrance Lloyd and Toni Ashford stood only a few feet away from Newman when he was not holding them next to his body as hostages. Furthermore, both the robbery and identifications occurred in the daylight of mid- to late-afternoon. Newman allegedly brandished a gun to get the attention of the witnesses, who testified that his volatile behavior and, in the cases of Mr. Lloyd and Ashford, his physical restraint ensured their rapt attention during the duration of the robbery. The witnesses were not merely casual or passing observers of the bank robber. See, e.g., Manson, 432 U.S. at 115 (finding no due process violation because, among other reasons, the witness was more than a casual observer whose attentiveness to the defendant's appearance suggested that the challenged identification was reliable). The witnesses described the robber to police officers as an older black man with a long, thin face; they also listed his height as somewhere between 5'6" and 5'8". Importantly, they described his dark warm-up jacket and pants, dirty white tennis shoes, and dark blue duffle bag. Newman fit these descriptions, although he actually stands 5'9" tall. See, e.g., Johnson v. McCaughtry, 92 F.3d 585, 596 (7th Cir.1996) (finding no due process violation despite witnesses' minor error in description of the defendant's height when other factors strongly suggested the reliability of the challenged identification). All witnesses expressed a high degree of certainty that Newman was the bank robber; indeed, Toni Ashford exclaimed, "There he is!" before the police had managed to bring Newman down from his porch for the show-up identification. Finally, the expedited nature of the identification (occurring within sixty to ninety minutes after the robbery) enhances the reliability of these witnesses' identifications. See, e.g., United States v. Watson, 587 F.2d 365, 367 (7th Cir.1978) (finding no due process violation because, among other reasons, a witness identified a bank robber within two hours of the robbery). Analyzing all of these factors leads us to conclude that the district court properly denied Newman's motion to suppress the show-up identifications.
Newman poses two challenges to the district court's order of restitution. First, he argues that the court's application of the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, to his criminal conduct violated the Constitution's Ex Post Facto Clause. See U.S. CONST. Art. I, § 9, cl. 3. Second, he argues alternatively that if the court properly ordered some measure of restitution, it abused its discretion in calculating
1. Ex Post Facto Claim
Congress amended the Victim and Witness Protection Act (VWPA) in 1996 as part of its continuing effort to guarantee restitution to the victims of criminal conduct. Under the old version of the Act (18 U.S.C.A. § 3663(a) (1994)), district courts were authorized, but not required, to order restitution. Crucial to this discretionary decision was the defendant's financial standing. Before a district court could order any restitution, the old Act required the court to determine how much, if any, restitution a defendant could make in light of "the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." 18 U.S.C. § 3663(a)(1)(B)(i)(II) (1994).
The MVRA, however, discarded this discretionary balancing system. Congress directed courts to apply the MVRA "in cases in which the defendant is convicted on or after the date of enactment of this Act (April 24, 1996)". 18 U.S.C. § 2248 (statutory notes). As the new Act's name suggests, courts no longer have discretion in awarding restitution to the victims of a defendant's criminal activity (except in very limited circumstances not relevant here, see 18 U.S.C. § 3663A(c)(3)). The language of the new Act speaks in terms of the restitution that courts "shall order" rather than that which they "may order," which was the language used in the previous version of the VWPA. See, e.g., 18 U.S.C. § 3663A(a)(1) & (b). Under the MVRA, a defendant's financial status is relevant only to fixing a payment schedule for the mandated restitution payments. See 18 U.S.C. § 3664(f)(1)(A) ("In each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant."); see also 18 U.S.C. § 3664(f)(2) & (3) (discussing different modes of incremental payment schedules that courts may order).
There is little doubt that the new statute operated to Newman's detriment in this case, but the issue is whether that disadvantage rises to the level of an ex post facto violation. The Supreme Court first addressed the scope of the protections of the Ex Post Facto Clause in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). Justice Samuel Chase's opinion noted that the Clause, inter alia, prohibited the enactment of a "law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Id. at 390. Such a law implicates the central concern of the Clause: "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was
We give de novo review to the district court's decision to apply the MVRA to Newman's charged conduct. See, e.g., United States v. Wright, 48 F.3d 254, 255 (7th Cir. 1995). First, there is no doubt that the district court applied the new provisions retroactively to criminal conduct that occurred before the MVRA's effective date. See Lynce, 117 S.Ct. at 896 ("To fall within the ex post facto prohibition, a law must be retrospective — that is `it must apply to events occurring before its enactment' ....") (quoting Weaver, 450 U.S. at 29); California Dep't of Corrections v. Morales, 514 U.S. 499, 505, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (noting that the Ex Post Facto Clause "forbids the application of any new punitive measure to a crime already consummated") (citation omitted). Newman's robbery occurred on April 19, 1996, at which time the MVRA had not yet come into effect. Congress stated that the MVRA should apply to defendants convicted on or after April 24, 1996. This feature of the new Act ensured that some defendants, like Newman (who was convicted on April 28, 1997), would be sentenced according to the MVRA even though the statute was not effective at the time of their criminal conduct.
Even if a law operates retroactively, it does not violate the Ex Post Facto Clause unless it disadvantages the defendant by "altering the definition of criminal conduct or increasing the punishment for that crime." Lynce, 117 S.Ct. at 896 (quoting Weaver, 450 U.S. at 29). Newman's ex post facto claim falters on this ground because we do not believe that restitution qualifies as a criminal punishment. Restitution has traditionally been viewed as an equitable device for restoring victims to the position they had occupied prior to a wrongdoer's actions. See RESTATEMENT OF RESTITUTION (introductory note) (1937) (tracing the history of restitution throughout the common law). It is separate and distinct from any punishment visited upon the wrongdoer and operates to ensure that a wrongdoer does not procure any benefit through his conduct at others' expense. See 1 GEORGE E. PALMER, THE LAW OF RESTITUTION § 1.1, at 5 (1978) (noting that prevention of unjust enrichment is the central idea of restitution); United States v. Gifford, 90 F.3d 160, 163 (6th Cir.1996) (recognizing that the "primary purpose of restitution is to compensate the innocent victim of a crime"). The criminal law may impose punishments on behalf of all of society, but the equitable payments of restitution in this context inure only to the specific victims of a defendant's criminal conduct and do not possess a similarly punitive character. See generally United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2149, 135 L.Ed.2d 549 (1996) (stating in the context of the Double Jeopardy Clause that the fact that sanctions are "tied to criminal activity ... is insufficient to render the [sanctions] punitive").
We have observed the non-punitive character of restitution in previous cases. In United States v. Black, 125 F.3d 454, 467 (7th Cir.1997), the defendant claimed that the district court's order of restitution under the Child Support Recovery Act of 1992 (CSRA)
The Eighth Circuit disagrees with our characterization of restitution under the VWPA. That court has held that restitution under the CSRA is not punishment, see Crawford, 115 F.3d at 1403, but it has attempted to distinguish the restitution authorized by the VWPA. In United States v. Williams, 128 F.3d 1239, 1241-42 (8th Cir. 1997), the court noted that 18 U.S.C. § 228(b) authorizes the punishment of violators of the CSRA while restitution under that act is authorized by a completely separate section of the same statute (18 U.S.C. § 228(c));
Respectfully, we believe that the Eighth Circuit's reasoning is fundamentally flawed. First, the VWPA authorized restitution in legislation separate from any proscriptions against criminal behavior; if the Eighth Circuit can draw support from the CSRA's segregation of criminal punishment and restitution within the boundaries of one enactment, then it would seem even more significant that Congress authorized restitution under the VWPA by a completely separate statute. Second, and more fundamentally, the purportedly "separate" restitution provision of the CSRA — 18 U.S.C. § 228(c) — does nothing more than direct courts to impose restitution in accordance with the provisions of the VWPA (18 U.S.C. § 3663). Thus, there can be no distinction between the restitution authorized by the CSRA and the VWPA because both are awarded pursuant to the same statutory provision; restitution cannot be punishment under only one statute but not the other. If anything, the Eighth Circuit's opinion supports our position by observing that the explicit distinction between punishment and restitution drawn in the CSRA demonstrates that Congress does not
We draw further support from the Supreme Court's recent decisions in Kansas v. Hendricks, ___ U.S. ___, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), and Hudson v. United States, ___ U.S. ___, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). The Hendricks Court, as we noted earlier, rejected the petitioner's claim of an ex post facto violation because the challenged civil commitment statute was not punitive in nature. See 117 S.Ct. at 2081-85; id. at 2085 ("Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims."). In so doing, the Court combined its analysis of the petitioner's ex post facto and double jeopardy claims; according to the Court, the crucial inquiry in each claim was whether the challenged punishment was criminal in nature. See id. at 2085. For this reason, in adjudicating Newman's ex post facto claim, we ascertain the nature of the restitution penalty according to the methodology recently endorsed by the Court in Hudson, 118 S.Ct. at 493, a case involving a double jeopardy claim. Under this framework, courts determine the character of a sanction by first examining "whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Id. (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). If the legislature nominally designates a penalty as civil or if the label is ambiguous, courts look deeper to see "whether the statutory scheme was so punitive either in purpose or effect ... as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Id. (quotations omitted) (alteration in original). The Hudson Court deemed the following factors to be "useful guideposts" in this inquiry:
Id. (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).
We believe that, under the Hudson test, the restitution authorized by the VWPA is not punitive in nature. Neither the VWPA nor the MVRA expressly characterizes restitution as a criminal or civil penalty. Rather, sections 3663A(a)(1) and 3663(a)(1)(A) both simply state that restitution should be made in addition to or in lieu of "any other penalty authorized by law".
Delving deeper, the Supreme Court's multi-factor Hudson test demonstrates that restitution is a civil remedy that is not "so punitive either in purpose or effect" as to acquire a criminal character. Hudson, 118 S.Ct. at 493 (quoting Ward, 448 U.S. at 249). Payment of restitution is not an affirmative disability or restraint that operates in a manner analogous to imprisonment. See Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367,
Other Hudson factors support the conclusion that restitution is not a punitive sanction. We have noted that, historically, restitution has been considered an equitable, remedial measure designed to prevent the unjust enrichment of wrongdoers at the expense of innocent third-parties. See supra at 538-539; see also Hudson, 118 S.Ct. at 495-96 (noting that money penalties have not been viewed historically as punishment); S.A. Healy Co. v. Occupational Safety & Health Review Comm'n, 138 F.3d 686, 688 (7th Cir.1998) ("[M]oney penalties have not been viewed historically as criminal punishment."). Moreover, the VWPA makes restitution available as a sanction for criminal violations
In addition, restitution payments do not directly promote the traditional aims of punishment: retribution and deterrence. Of course, it is always possible to justify a sanction — even a criminal prohibition — as serving purposes other than these two factors. Our analysis in this area, therefore, must identify the primary purposes of the challenged sanction. See Hudson, 118 S.Ct. at 496 ("To hold that the mere presence of a deterrent purpose renders such sanctions `criminal' for double jeopardy purposes would severely undermine the Government's ability to engage in effective regulation of institutions such as banks."). For instance, in LaCrosse v. Commodity Futures Trading Commission, 137 F.3d 925, 931-32 (7th Cir.1998), we noted that an occupational bar might have some deterrent and retributive effects, but that it was primarily designed "to ensure the integrity of the markets regulated by the [Commodity Futures Trading] Commission." The inherent and primary purpose of restitution is to compensate the victim of crime rather than to affect the criminal in some way; the MVRA, as we have noted, barely concerns itself with the effect of restitution upon a defendant in its attempt to ensure that victims of a defendant's criminal activity are made whole. See Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994) ("[R]estitution ordered under the VWPA is compensatory rather than punitive. Awards are designed to compensate victims for their losses, rather than to serve retributive or deterrent purposes."), cert. denied, 515 U.S. 1123, 115 S.Ct. 2280, 132 L.Ed.2d 283 (1995). It is difficult to say that the primary purpose of the MVRA or VWPA is to punish criminals.
At the very least, under the final two Hudson factors, restitution serves an "alternative purpose" aside from retribution and
For all of these reasons, we hold that the restitution authorized by the VWPA (and mandatorily imposed under the MVRA) is not a criminal punishment for the purposes of the Ex Post Facto Clause. Newman therefore cannot satisfy the second requisite element of his ex post facto claim: that the district court applied the MVRA in a manner that retroactively increased his punishment for the instant criminal offense.
2. Calculation of the Restitution Order
In addition to challenging the district court's application of the MVRA, Newman argues alternatively that the court abused its discretion in calculating the amount of restitution at $11,973. The bank conducted its own internal audit and reported to the Government that Newman made off with $13,598. Only $1,625 of this amount was recovered around and inside Newman's house; the remaining $11,973 was never found. Newman admits that the trial court need only determine the amount of loss by a preponderance of the evidence, see United States v. Menza, 137 F.3d 533, 537 (7th Cir. 1998), but he argues that the bank's audit was wholly unsupported, unreliable, and compromised by a conflict of interest. He points out that the bank fired one of its employees for theft and implies that the bank may have inflated its loss calculation from his robbery in an effort to recoup some of these other stolen funds.
We review the district court's calculation of the amount of a restitution order for an abuse of discretion. See, e.g., United States v. Martin, 128 F.3d 1188, 1192 (7th Cir. 1997).
Judge Hamilton assessed the reliability of the Government's representation and, in light of Newman's failure to impugn the claimed loss in any way,
C. Upward Departure
Newman's final argument is without merit. He contests the district court's sua sponte application of an upward departure under USSG § 2B3.1(b)(4)(B), which authorizes a two-level increase "if any person was physically restrained to facilitate commission of the offense or to facilitate escape." The court reasoned that Newman's use of Toni Ashford as a human shield facilitated his escape from the crime scene. Newman argues that the restraint of Ashford did nothing to facilitate his crime or escape.
We need not reach the merits of this argument, however, because any error we might find would be harmless. See FED.R.CRIM.P. 52(a); Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) ("[O]nce the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed."). The district court sentenced Newman to life imprisonment pursuant to 18 U.S.C. § 3559(c)(1), which requires a mandatory life sentence upon a third "serious violent felony" conviction. Section 3559(c)(1) rendered irrelevant
For the foregoing reasons, we affirm Newman's conviction, his sentence of life imprisonment, and the district court's order of restitution.
18 U.S.C. § 228(b) & (c).