United States v. Everett

          FINAL REPORT AND RECOMMENDATION

          JOHN K LARKINS III United States Magistrate Judge.

         Pending before the Court are Defendant William Anthony Everett's Motion to Suppress Eyewitness Identifications [Doc. 116], Motion to Dismiss 924(c) Counts [Doc. 117], and Motion to Dismiss Enhanced Penalty in Count 4 [Doc. 125.] For the reasons discussed below, it is RECOMMENDED that these motions be DENIED.

         I. Procedural History

         On January 17, 2017, a federal grand jury seated in the Northern District of Georgia returned a five-count indictment against Everett and co-defendant Marcus LaMont Ward, charging Everett with two counts of armed bank robbery, two corresponding charges of brandishing a firearm during the robberies, and one count of possession of a firearm by a convicted felon.^[1] [Doc. 1.] Everett filed several pretrial motions to suppress [Docs. 41, 42, 43], which this Court ruled on [Docs. 90, 101.].

         On July 10, 2018, the government obtained a seventeen-count superseding indictment against Everett and Ward. [Doc. 103.] Everett is now charged with one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count One), two counts of armed bank robbery, 18 U.S.C. § 2113(a) and (d) (Counts Two and Five), seven counts of Hobbs Act Robbery, 18 U.S.C. § 1951(a) (Counts Seven, Eight, Ten, Twelve, Fourteen, Sixteen, and Seventeen), six counts of brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c) (Counts Three, Six, Nine, Eleven, Thirteen, and Fifteen), and one count of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (Count Four). [Id.]

         Everett has filed three pretrial motions. First, he moves to suppress two out-of-court eyewitness identifications by a cashier and store manager of a Dollar General store that Everett allegedly robbed at gunpoint. Second, he moves to dismiss the § 924(c) charges. Third, he moves to dismiss the felon-in-possession charge to the extent that it would trigger the ACCA sentencing enhancement in § 924(e).

         On March 29, 2019, the Court held an evidentiary hearing on the motion to suppress the eyewitness identifications. [Docs. 143 to 145 (exhibits); 151 (transcript).] Sergeant Phillip Stroud, Officer Keith Todman, and Detective Joseph Morgan, all of the Kennesaw Police Department, testified at the hearing. Following the hearing, the government moved to supplement the record to include additional disciplinary records related to Officer Todman, which the Court granted. [Docs. 149, 157.] Everett has filed a post-hearing brief in support of his motion [Doc. 161], the government has filed a response [Doc. 164], and Everett has filed a reply [Doc. 166].

         The Court first addresses the motion to suppress, and then turns to the motions to dismiss.

         II. Motion to Suppress Identification [Doc. 116]

         A. Background

         The identification at issue in Everett's motion to suppress occurred two months after the August 14, 2016 robbery of a Dollar General store in Kennesaw, Georgia. Two witnesses separately identified Everett as the robber in photo lineup procedures. In discussing the facts of the robbery, the Court relies primarily on Government's Exhibit 1, which consists of surveillance video from inside the Dollar General store during the time of the robbery. Where possible, the Court cites the exact timestamps from the surveillance video. The Court also relies on the testimony at the evidentiary hearing, cited as “Tr.”, and the government's other exhibits admitted at the hearing, cited as “Gov't Ex.” After setting out the facts of the robbery, the Court discusses the general procedures applicable to the photo lineups here and then describe the identification procedures that the Kennesaw Police Department actually used with the two witnesses.

         1. The Dollar General Robbery

         The robbery occurred at the L-shaped checkout counter positioned near the entrance to the Kennesaw Dollar General. (Tr. 4.) On the short side of the “L, ” which abutted a wall, there was one cash register. The short side of the “L” was close to the door. The long side of the “L” ran parallel to the wall, partially enclosing the checkout area. The other end of the checkout area was open to the store. At the time of the robbery, only one cashier was working at the checkout counter, at the cash register close to the door. The store manager went outside through the door to gather shopping carts at 8:51:50 p.m. (Gov't Ex. 5 [Doc. 144-1 at 6-7].)

         The robber-an African-American man wearing a hat or other head covering, sunglasses, a white shirt with dark trim, and dark pants-entered the store at 8:56:10 p.m. He walked past the checkout area at 8:56:17 and walked briefly through the store. At 8:58:28, he walked through the open end of the checkout area. The cashier was facing the door while restocking plastic bags and could not see the robber's approach. The robber walked up behind the cashier and placed a gun against her back. He told her to give him the money in the cash register and to think about her life. (Tr. 4.) Briefly, the cashier turned her head to look at the robber, although it is not clear that she had a good opportunity to view him at that time. The cashier was unable to open the register because of “nerves” and because there were customers in line. (Gov't Ex. 4 [Doc. 144-3 at 6-7].) About fifteen seconds after the robber first approached the cashier, two customers came up to the checkout counter, apparently not realizing that there was a robbery in progress. The robber appeared to place his gun in his waistband or pocket and paced behind the cashier and to her side while the cashier rang up one of the customer's purchases.

         At 9:00:50 p.m., the store manager re-entered the store and the robber started to walk out of the checkout area. The manager encountered the robber heading toward her as she walked past the checkout area, and at 9:01:06, the robber accompanied her into the checkout area. The cashier looked toward the robber several times as he encountered the manager and followed the manager toward the register. Briefly, the robber briefly displayed the gun before he again appeared to place it in his waistband or pocket. In the checkout area, the store manager and the cashier stood facing the robber for several seconds, and at about 9:01:15, the manager began trying to open the register. The cashier stood to the side of the register. While the manager was trying to open the register, the customer who was checking out left to get money or her wallet from her car. (Tr. 5.) The cashier got the register open at 9:01:45, and both the manager and cashier stood to the side with their hands raised as the robber stuffed money from the register into a shopping bag for about 20 seconds. The cashier and the manager both had an opportunity to view the robber at that time.^[2] The robber began walking out of the checkout area at 9:02:07 and left the store at 9:02:18. The victims then secured the store and alerted authorities to the robbery. (Tr. 4.)

         Sergeant Phillip Stroud of the Kennesaw Police Department arrived at the Dollar General store within minutes of the robbery. (Tr. 3-4.) Both the cashier and manager gave written witness statements to Sergeant Stroud that evening. (Tr. 12; Gov't Exs. 4, 5.) The cashier described the robber as a black male with dark skin who was about 6'2” with a slim build and was wearing sunglasses and a blue and white shirt. (Tr. 15-16; Gov't Ex. 4.) The manager described the suspect as a black male in his late 50s who was six feet tall and was wearing a white polo shirt with blue stripes, blue jeans, sunglasses, and a hat or bandanna on his head. (Gov't Ex. 5; Tr. 16.) The store manager watched the surveillance video with Sergeant Stroud, possibly before she completed her witness statement. (Tr. 13-14.)

         2. Applicable Lineup Procedures

         Police departments in Georgia are required by state statute to have written policies for identification procedures, including live lineups, photo lineups, and show-ups. O.C.G.A. § 17-20-2(a). The written policies must provide, inter alia:

(2) With respect to a photo lineup, having an individual:

(A) Who does not know the identity of the suspect conduct the ...