In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3760

United States of America,

Plaintiff-Appellee,

v.

Randy M. Downs,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 1:99 CR 10024-001--Michael M. Mihm, Judge.


Argued April 11, 2000--Decided October 12, 2000



  Before Manion, Diane P. Wood, and Evans, Circuit
Judges.

  Diane P. Wood, Circuit Judge. This appeal is
before us now principally because of a missing
moustache. No one lost it; it was missing only in
the sense that the defendant, Randy M. Downs, who
had been accused of robbing the Heritage Bank in
Peoria, was the only man in a line-up of five who
lacked a moustache. Finding the key witness’s
identification of Downs reliable notwithstanding
his notable difference from the other line-up
participants, the district court denied Downs’s
motion to suppress. The jury then convicted him
of bank robbery, in violation of 18 U.S.C. sec.
2113(a), and he was sentenced to 51 months in
prison and three years of supervised release. On
appeal, he argues only that the motion to
suppress was wrongly decided (and that this error
was not harmless). While we agree with Downs that
the line-up was unduly suggestive, we conclude
that the witness identification was reliable
nonetheless. We therefore affirm.

I

  On March 31, 1999, a white male wearing
sunglasses and a blue hat resembling those issued
by the LaPrairie Mutual Insurance Company
approached Denise Brown, the walk-up teller at
Heritage Bank. He told Brown to remove all of the
money from the drawer, but then, speaking in a
low voice, he altered his instructions and
indicated that he wanted only bundles and no $1
bills. Brown later said that she paid close
attention to his mouth and lower face, because
she was concerned that the robber might become
agitated if she had difficulty understanding him.
In the 50-some seconds she had to observe him,
she also formed the impression that he was
lightly unshaven, between 5’6" and 5’8" tall,
about 150 pounds, and between 35 and 45 years
old. The other teller on duty, Karen Jones, was
serving drive-up customers and thus caught only
a glimpse of the robber; her description of him
was similar to Brown’s.

  The next day, someone gave Peoria police
officers and FBI agents a tip that a woman named
Kim Salzman could help them. Salzman was
cooperative. She told the officers that the
person in the surveillance video from the bank
strongly resembled her brother, Randy Downs. Her
statement, along with her account that Downs’s
gambling problems had led him to break into her
printing business and steal a compressor in order
to pawn it, increased the suspicions of the
investigators. They decided to assemble a photo
array and show it to both Brown and Jones. They
did so, but neither was able positively to
identify Downs as the robber from the pictures.
Brown suggested that it would be more helpful to
see people wearing hats and sunglasses.

  Later that day, the officers interviewed Downs
himself, first on a gambling boat and then later
in a security office. The next day, they talked
to Richard Downs, his father. The elder Mr. Downs
told the officers that he had given Randy a hat
from LaPrairie Mutual Insurance very similar to
the one that appeared on the video. He also
volunteered that when he had refused to loan
Randy $2,000, Randy had responded "you leave me
little choice." After this, the officers searched
Randy’s apartment, with his consent; they found
nothing there.

  On April 5, the officers held the line-up that
is the focus of this appeal. On that day, they
had finally arrested Downs and brought him to the
police station. One officer telephoned Jones and
asked her to come to the station, and he informed
Jones that they had arrested someone. Another
officer called Brown and asked her to come, but
it is unclear whether or not she was told there
had been an arrest. For the line-up, each person
was given a LaPrairie Mutual hat and a pair of
sunglasses. They entered the room seriatim; each
man stepped in, walked around, and said "No, put
the money in the envelope, hurry." Downs was the
second to walk in. As the exhibits Downs later
introduced make crystal clear, the other four all
sported heavy moustaches; only Downs had no
facial hair at all. Otherwise (but it is a big
"otherwise"), they were similar in body build.

  At the line-up, both Brown and Jones identified
Downs as the robber. Jones was not very confident
in her choice, describing her certainty as a
seven out of ten, if ten meant absolutely sure.
Brown, in contrast, jumped behind one of the
detectives the minute she saw Downs enter the
room, and exclaimed "Oh my God, that’s him." She
was crying and trembling, according to the
testimony of another officer. Brown then viewed
the last three line-up participants, and at the
end reiterated that she was "positive" the robber
was Downs, based on "the lower half of his face"
and his "stocky upper body."

  On July 1, 1999, the district court heard
testimony on Downs’s motion to suppress both the
line-up and any in-court identification the
government might want to elicit from Brown or
Jones. The court concluded that the line-up was
indeed too suggestive. It then decided that the
Jones testimony would be so unreliable that both
her line-up identification should be suppressed
and she should be prevented from offering an in-
court identification. With respect to Brown, the
oral rulings and written record became somewhat
confused. Orally, the court first indicated that
the circumstances as a whole made Brown’s
identification reliable and thus admissible.
Then, in response to a question from the
prosecutor, the judge said that both women’s
line-up identifications would be suppressed.
Later, however, in a written order the court
ruled that Brown could be questioned about her
line-up identification (and could give an in-
court statement).

  Downs believes that the judge’s ruling was so
unclear that this alone is enough to grant relief
for him, but we disagree. First, he never asked
the court for clarification during the oral phase
of the proceedings, even though it was obvious
that matters were becoming garbled. Second, and
more important, the court itself had the right to
review what had gone on in open court and issue
a final written order that clarified its ruling.
Had Downs wanted to object to the written order,
he could have done so, but he did not.

  With Brown’s testimony secure, the result of
the trial was not surprising. Both Salzman and
Richard Downs repeated for the jury what they had
said to the police. Andy Downs, Randy’s son,
testified that he and his father had discussed a
bank robbery while driving around Peoria. Andy
said that they talked about where to park, how to
hide the car in a car wash until the police
completed their immediate sweep of the area,
which bank to hit, and how they could use a bomb.
The bank they discussed was not Heritage Bank,
and Downs did not use a bomb, but those facts
came out in the testimony. Andy Downs finally
said that he was 90% sure that the person in the
surveillance photos was his father and that he
recognized the sweatshirt worn by the individual
there. Finally, Brown testified and identified
Downs for the jury.

II

  A ruling on a motion to suppress an
identification, like many other matters in a
criminal trial, presents the kind of mixed
question of constitutional law and fact that the
Supreme Court has instructed us to review de
novo, but with due deference to findings of
historical fact made by the district court. See
Ornelas v. United States, 517 U.S. 690 (1996).
Compare United States v. Newman, 144 F.3d 531,
535 (7th Cir. 1998); United States v. Swift, 220
F.3d 502, 504 (7th Cir. 2000); United States v.
Ledford, 218 F.3d 684, 688 (7th Cir. 2000).
  On the merits, we conduct a two-step inquiry
when we assess the admissibility of a line-up
identification. First, we ask whether the line-up
was unduly suggestive. If it was, then we look
more closely to see if the totality of the
circumstances nevertheless shows that the
testimony was reliable. See United States v.
Curry, 187 F.3d 762, 768 (7th Cir. 1999). In this
case, although the government has made a token
effort to argue that the line-up was not unduly
suggestive, we agree entirely with the district
court that it was. Even a glance at the
photographs of the men in the line-up, which
appear as exhibits in the record, is enough to
see why Downs jumps out from the others because
of his lack of facial hair. We therefore turn
immediately to the second question, whether
Brown’s testimony was reliable notwithstanding
the problems with the line-up.

  The reliability inquiry touches on five factors:
(1) the opportunity of the witness to view the
criminal at the time of the crime, (2) the
witness’s degree of attention, (3) the accuracy
of the witness’s prior description, (4) the level
of certainty demonstrated by the witness at the
confrontation, and (5) the length of time between
the crime and the confrontation. Curry, 187 F.3d
at 768. All of these, in one way or another,
support the reliability of Brown’s
identification. She could see the lower half of
the robber’s face, and this was the basis of her
identification. At the time of the crime, she was
very close to the robber, and she stated firmly
that she was paying strict attention to what she
saw. Although 50 seconds may not sound like much,
under conditions of great stress they can pass
quite slowly. The physical descriptions Brown had
given of the robber were reasonably detailed and
close to Brown’s actual appearance. Brown’s
dramatic reaction when Downs walked into the room
showed clearly that she was quite certain that
Downs was the robber. Finally, five days between
the incident and the line-up is not such a long
span of time that memory lapses would be a
problem.

  Last is a point not mentioned in this
particular five-factor test, but it gives us the
opportunity both to note that these tests are
principally useful as a guide to the inquiry at
hand and that they are not intended to be
straitjackets. Given the way this line-up was
conducted, Brown had seen only one man (who had
a moustache) before she saw Downs and
emphatically identified him. She did not know
then that the other three men would also have
moustaches (or indeed that they would either
resemble Downs or stand apart from him in any
other way). This as well as the other evidence
convinces us that Brown knew what she was talking
about; her identification of Downs at the line-up
was sufficiently reliable that the jury was
entitled to learn about it, and there was no
error in allowing her to identify him at trial.
III

  In light of our conclusion that the flaws in
the line-up did not require the suppression of
Brown’s testimony, we need not reach the
government’s alternative argument that any error
in this respect was harmless. The judgment of the
district court is Affirmed.
