Case 3:16-cr BR Document 976 Filed 08/02/16 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

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1 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 1 of 7 Tiffany A. Harris OSB Attorney at Law 811 SW Naito Pkwy, Suite 500 Portland, Oregon t f tiff@harrisdefense.com Standby Counsel for Shawna Cox UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Plaintiff, v. SHAWNA COX. 3:16-CR BR-7 MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS EYEWITNESS IDENTIFICATION Defendant. STATEMENT OF FACTS Witness JO 1 is a former employee of the United States Fish and Wildlife Service who worked at the Malheur National Wildlife Refuge until his retirement in JO lives on a ranch in the Burns area. When he learned of the protest activity taking place at the refuge, he decided to drive there to take a look at the facility. When he arrived at the refuge, JO provided his entire background -- including his employment history-- to the person stationed out front and entered the refuge without difficulty. JO reportedly told the FBI that he visited the refuge on January 8, The sign-in sheet recovered from the refuge shows JO signing in on January 7, JO was interviewed on January 9, Witnesses are referred to by initials in light of the Court s order granting the parties joint motion to file witness lists under seal. 1

2 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 2 of 7 The FBI s report continues: Once he got into the building, there were five women cooking in the kitchen and all of them were wearing holstered handguns. [JO] said he could tell they were not used to wearing them because they were walking around in an uncomfortable manner. [JO] reviewed photographs and identified two of the women in the kitchen as MH and Shawna Cox. He did not see any children. The photographs have been placed in a 1A envelope. 2 No other witness claims to have seen Ms. Cox in possession of a firearm. None of the videos or photographs taken during the 41-day protest at the refuge depict Ms. Cox holstering or carrying a gun (one photo depicts a younger, brunette woman standing in the refuge kitchen with a sidearm on her hip). On May 27, 2016, defense counsel served the Government with a discovery request, on behalf of all co-defendants, explaining in part: In some instances, we have not been able to determine which photographs were used to elicit these out of court identifications. Further, the narrative 302 reports do not explain whether investigating agents followed any particular standards or protocols in conducting these types of interviews. I write, on behalf of all defense counsel, to request production of all photos used to elicit identifications of our clients, along with protocols governing these identifications. On June 13, 2016, counsel for the Government responded via , agreeing to produce the photographs reviewed by witness JO and adding, You have also requested a written protocol used for the interviews. I am not aware of any documents that are responsive to this request. As additional discovery has since made clear, the photographs examined by witness JO are not photographs at all. They are a loose collection of tiny headshot images, photocopied, in black and white, onto two 8.5 x 11 pages. 3 Each headshot measures one and a quarter inch tall and approximately one inch wide (each headshot is smaller than a passport photo, which is 2.0 x 2.0 inches and smaller than an Oregon driver s license photo, which is 1.25 x 1.25 inches). There are a total of 30 black and white headshots on page one (six vertical rows, five horizontal). 2 A copy of the FBI report of JO s January 9, 2016 interview is attached as Exhibit 1 (filed under seal) 3 A copy of the photo packet shown to and marked by witness JO is attached as Exhibit 2 (filed under seal) 2

3 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 3 of 7 The subject of each headshot is identified by name and date of birth, printed below each image. Ammon Bundy, Ryan Bundy, Ryan Payne, and Lavoy Finicum all appear by name and photo on page one. Ms. Cox s photo appears on page two. Some headshots appear to have been reproduced from a driver s license or other official photograph; others appear to have been reproduced from casual or amateur photographs displayed on social media. The result is a variation in the size of the faces and shading and clarity of the images. The two-page packet of images depicts men and a total of nine women of various ages. There is no pretense that it is a photo array or a means of testing a witness memory of a previous encounter with a particular suspect. There is no indication from the FBI report of JO s interview that the packet was created after obtaining a physical description (of armed women in the refuge kitchen). Indeed, there is no indication that anyone, at any time, asked JO for a physical description of the women he claims to have seen on January 8. Instead, it appears that JO was simply invited to peruse a two-page packet of named suspects, at his first mention of armed women, to determine whether any women depicted in the packet looked like the ones he had seen. The FBI report states that JO identified MH and Shawna Cox from the two-page packet. The packet, itself, reveals that photos of Shawna Cox and another woman-- DP-- were circled in black ink. MH is a dark haired woman born in Both Ms. Cox and DP are blond and born in the 1950s. The Government has clarified through conferral that JO first saw DP s photo, circled it, then changed his mind when he saw Ms. Cox s photo, and decided she was-- or looked the most like-- one of the women in the refuge kitchen. ARGUMENT Suggestive photographic procedures implicate the Due Process Clause and threaten the fairness of a criminal trial. Neil v. Biggers, 409 U.S. 188, 198 (1972). As early as 1968, the Supreme Court warned that the improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. Simmons v. United States, 390 U.S. 377, 383 3

4 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 4 of 7 (1968). If a pretrial photographic procedure is found impermissibly suggestive, exclusion of the eyewitness identification is not a per se remedy, to be applied in all cases. Manson v. Brathwaite, 432 U.S. 98, (1977). But when the indicators of [a witness'] ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, then the identification should be suppressed. Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012). The question is whether the improper identification procedure so tainted the resulting identification as to render it unreliable. Id. at 721. In assessing reliability, the court considers five factors: (1) the witness opportunity to view the suspect; (2) the witness degree of attention; (3) the accuracy of the physical description provided by the witness; (4) the passage of time between the observation and the identification; and (5) the witness degree of certainty. Brathwaite, 432 U.S. at As a preliminary matter, the two-page, photocopied packet agents presented to JO is not an array, a photo line-up or any kind of standard police tool used to test a witness memory of a suspect s appearance on a particular occasion. However, it is still an identification procedure subject to the traditional due process analysis. United States v. Gaye, 2015 U.S. Dist. LEXIS (D. Minn. June 11, 2015) (Discussing use of a photo book of suspects and instructing, [w]hen a photograph is shown to an individual during an interview, and the individual recognizes and discusses the person in the photograph, an identification is made. ) 1. The identification procedure employed in this case was unduly suggestive By the time FBI agents interviewed JO on January 9, 2016, protest activities at the Malheur National Wildlife Refuge had grabbed national and international headlines. Indeed, JO told the FBI that it was news coverage of the occupation that had piqued his interest and caused him to drive to the refuge. Alleged members of the charged conspiracy, including Ms. Cox, were appearing in daily televised news conferences beginning on January 4. Ms. Cox had already been mentioned and quoted in the Oregonian, featured in the local news and photographed with Ammon Bundy by Reuters news (the Government reprinted this photo in the criminal complaint 4

5 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 5 of 7 filed against Ms. Cox and seven co-defendants on January 27, 2016). There was no reason for the packet shown to JO to include Ms. Cox s name or the names of any other suspect, given the very real risk that the names would trigger a memory not of events witnessed by JO at the refuge but of news coverage he had seen in the days leading up to his January 9 interview. In United States v. Smith, 156 F3d 1046 (9 th Cir. 1998), the Ninth Circuit criticized a similar decision by an ATF agent to include suspect names in a loose collection of high school year book photos shown to store clerks who had witnessed an armed robbery: We think that leaving the names on the photos was particularly problematic with respect to Mr. Cunico. This is so because the pictures depicted students from a nearby high school that Mr. Cunico had recently attended. 156 F3d at The Court did not search for specific proof that the witness knew or had contact with the named suspects. The eyewitness proximity to and recent graduation from the subject high school presented a credible risk that his memory could be compromised by previous exposure to the names of other suspects, and therefore, the photo identification procedure was unduly suggestive. The same is true here. The decision to include suspect names and dates of birth in the photo packet creates another unique problem in this case. By the time JO would have flipped to page two of the photo packet, he would have already seen the photos, names and dates of birth of highly visible members of the refuge protest (Ammon Bundy, Ryan Bundy, Ryan Payne, etc.). He would have reasonably concluded that the FBI had cataloged this personal information because it believed that all persons appearing in the photo packet (including Ms. Cox) were suspects in an ongoing criminal investigation. This is precisely the sort of inference that modern techniques are designed to correct (for example, witnesses receive standard warnings that a suspect may or may not appear in a photo array or sequential photo line-up). The photo packet used in this case was unusual in announcing such a direct connection between each photographed subject and a highly publicized criminal investigation. Including suspects names and dates of birth in the packet, 5

6 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 6 of 7 amid growing press coverage of the relevant events, rendered the photographic identification procedure unduly suggestive. /// 2. The resulting identification was unreliable The five-factor test announced in Brathwaite, applied to these facts, highlights the unreliability of JO s identification. The report of JO s interview makes no mention of any physical description offered by the witness or gathered by the interviewing agent. Courts have admitted eyewitness identifications, notwithstanding suggestive police procedures, based on the strength and specificity of the physical description provided by the witness. See, e.g., Meadows v. Kuhlmann, 812 F2d 72, 76 (2 nd Cir. 1987) ( The three witnesses gave accurate descriptions of the robber immediately following the crimes and were able immediately to identify appellant's picture when confronted with the photographic arrays. ); United States v. Ellis, 121 F. Supp. 3d 927, 944 (N.D. Cal. 2015) ( The record shows that Officer K. had close, albeit brief, contact with Pennymon and provided details about his appearance. ) Notably, those safeguards are not present here. The witness claims to have seen five women in the refuge kitchen, doing work, prepping and cooking a meal, wearing hip holsters. The report gives no detail (and suggests none was obtained from the witness) regarding JO s ability to view the physical features of each of the five women (and specifically Ms. Cox). The report is silent regarding the witness degree of attention to Ms. Cox. The passage of time between JO s visit to the refuge and his interview with the FBI was relatively brief (approximately 48 hours). However, to the extent that JO is confident in the identifications he made during his FBI interview, that confidence is undermined by his apparent vacillation between the photo images of Shawna Cox and DP, two blond women of similar ages. CONCLUSION The Court should grant the motion to suppress witness JO s out of court identification and anticipated in-court identification of Ms. Cox. The procedures used to obtain these 6

7 Case 3:16-cr BR Document 976 Filed 08/02/16 Page 7 of 7 identifications are unusually suggestive and, by the Government s own admission, do not adhere to standards or protocols designed to prevent misidentifications. The circumstances of JO s outof-court identification do not provide adequate assurances of independent reliability. Dated, August 2, 2016 Respectfully submitted, /S/ Tiffany Harris Tiffany A. Harris Standby Counsel for Defendant Shawna Cox Reviewed and approved by, /S/ Shawna Cox Pro Se Defendant 7