United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-2982

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District

* of South Dakota.

Albert Lee Williams, also known as *

Tony Williams, * [UNPUBLISHED]

*

Appellant. *

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Submitted: February 11, 2003

Filed: February 18, 2003

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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Albert Lee Williams was charged with bank fraud in violation of 18 U.S.C.

§ 1344 (2000) for fraudulently using one credit account to pay other credit debts and

to purchase goods and services. During the investigation, an FBI agent presented an

array of photographs for identification to employees from a business defrauded by

Williams. The agent briefly described the purpose of the investigation, but neither

asked foundational or follow-up questions nor offered any comments during the

identification process. Two witnesses identified Williams. Williams moved to

suppress the identification before trial, but the motion was denied. At trial,
*

The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota.

-2-

Williams’s counsel cross-examined each witness about the identification procedure,

bringing to light facts showing each witness had been unsure about the identification

at some point in time. Witnesses at trial also testified about the amount of the loss,

totaling $61,000. The jury found Williams guilty. 

The presentence investigation report indicated the total loss attributable to

Williams’s fraud was $63,335.29. Williams objected, stating the loss proved at trial

was $61,000. At the sentencing hearing, the Government introduced faxed letters

from various businesses stating the amount of the loss to each business. Direct

Merchants offered no documentation at sentencing but representatives did estimate

the loss during trial testimony. Williams objected at the hearing, arguing the exhibits

lacked sufficient detail. The district court*

 calculated the total loss and ordered

restitution in the amount of $94,006.23, the sum of the amounts presented by the

Government. Williams appeals.

First, Williams contests the validity of the photo array identifications. When

challenging a photo array identification, defendants must show the identification

procedure was impermissibly suggestive, then must show under the totality of the

circumstances that the confrontation created a substantial likelihood of irreparable

misidentification. Robinson v. Clarke, 939 F.2d 573, 575 (8th Cir. 1991). Because

Williams has not shown, or even argued, that the identification procedure was

impermissibly suggestive, we need not consider Williams’s contentions about the

factors in the second prong of the analysis. There is no indication that the procedure

was suggestive. Further, any problems with the identifications were drawn out in

cross-examination, giving the jury information with which to determine what weight

to give to the challenged identifications. 
-3-

Next, Williams contends the amount of restitution was unsupported by the

record. We disagree. United States v. Young, 272 F.3d 1052, 1056 (8th Cir. 2001)

(reviewing restitution orders for clear error). The Government bears the burden of

demonstrating the amount of loss, which must be determined by a preponderance of

the evidence. Id. Sworn testimony at trial to supports $61,000 of the loss. United

States v. Baker, 200 F.3d 558, 563 (8th Cir. 2000). Restitution is not limited to losses

proved to a jury. United States v. Ross, 279 F.3d 600, 610 (8th Cir. 2002). The

district court may accept responsible, unsworn information, see United States v. Wise,

976 F.2d 393, 398 (8th Cir. 1992), and may adopt a reasonable estimate rather than

determine a precise loss calculation, see United States v. Holliman, 291 F.3d 498, 502

(8th Cir. 2002), pet. for cert. filed, Sept. 27, 2002. The exhibits introduced at

sentencing are troubling in their lack of detail, however, we cannot say the district

court’s restitution order is clearly mistaken.

Williams also submitted a pro se brief, arguing two issues. Williams contests

the amount of restitution, an issue which was raised by counsel’s brief and has

already been discussed. Williams also contests the finding of an aggravating

circumstance requiring more than minimal planning. After fully considering this

contention, we reject it.

We affirm the district court’s denial of the motion to suppress the photo array

identification, Williams’s conviction, and sentence. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.