USA v. Conrad Gonzalez

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Ilana Diamond Rovner, Circuit Judge; Ann Claire Williams, Circuit Judge and William M. Conley, District Court Judge. [6852995-1] [6852995] [16-1932]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-1932
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CONRAD GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:13-cr-50074-1 — Frederick J. Kapala, Judge.

ARGUED FEBRUARY 6, 2017 — DECIDED JULY 10, 2017

Before ROVNER and WILLIAMS, Circuit Judges, and CONLEY,
District Judge.*
ROVNER, Circuit Judge. A jury found Conrad Gonzalez
guilty of bank robbery. Gonzalez challenges his conviction on
due process grounds, arguing that the identification proce-

*

Of the Western District of Wisconsin, sitting by designation.

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dures employed by police officers in the investigation of the
robbery were so unnecessarily suggestive that they created a
substantial likelihood of irreparable misidentification. Although we agree that there were significant problems with the
challenged identification procedures, we conclude that any
error in admitting them was harmless.
I.
Shortly after 1:00 p.m., on October 30, 2013, a man walked
into First Federal Savings Bank in Rock Falls, Illinois, approached the counter and handed the teller a note. The note
stated, “This is not a joke: I want all your 100K & 50K. I have
a weapon and will use it.” Tara Miller, the teller, handed over
all of the $50 and $100 bills in her drawer. The robber became
angry, told her “not to be stupid,” and demanded more
money. Miller then handed over all of her $20 bills, including
some bait bills with serial numbers that had been recorded by
the bank. The robber left the bank with $1870. Miller immediately told her manager that the bank had just been robbed,
locked the front doors of the bank, and then triggered the silent
alarm. Another employee of the bank called 911. Fewer than
two minutes had elapsed since the robber had entered the
bank.
Before the police arrived, Miller filled out a “Bandit
Description Form” provided by the bank. On a line requesting
the location of the employee in relation to the robber, she
wrote, “Standing right in front of me,” a distance she later
judged to be approximately two feet. Because the robber stood
so close and because the robbery occurred in the broad
daylight of early afternoon, Miller had a clear view of the man.

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On the Bandit Description Form, she described the robber as
Hispanic, approximately 35 to 40 years old, five feet seven
inches tall and weighing between 130 and 150 pounds. She
reported that the man had a shaved head (she bypassed a box
on the form for “bald” and wrote in “shaved”) and “scraggly”
facial hair. He was wearing a blue baseball-style cap and a grey
sweatshirt. At first, she thought he had a check in his right
hand but that turned out to be an envelope containing the note
demanding money. He held a cell phone in his left hand. After
she handed over the money, he placed it in the plain white
envelope. When she tried to keep the demand note, the robber
quickly grabbed it back. She described the robber as “nervous,
quiet speaking, very gruff and demanding.”
The silent alarm had been pulled at 1:11 p.m. and several
police officers arrived at approximately 1:15 p.m. from the
Rock Falls and neighboring Sterling Police Departments.
Sergeant Herb Hall of Rock Falls had a hunch based on the
initial description of the robber that Conrad Gonzalez might be
involved. He passed on his suspicion to Commander Tammy
Nelson. She then provided black and white printouts of
Gonzalez’s driver’s license and state identification card to
Lieutenant Timothy Morgan, who had been one of the first
officers to arrive on the scene. Morgan and Nelson decided that
the investigation could be expedited by showing the photographs to the bank teller, Tara Miller. Approximately twenty
minutes after Morgan arrived at the bank, he showed the
printouts to Miller. The photographs were of poor quality,
grainy, dark, of low resolution and printed on plain office
paper. They had been taken approximately three years earlier.
Miller knew that Morgan was showing her photographs of a

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potential suspect. She told the officer that she did not recognize
the person in the photographs, although she thought one of the
photographs depicted a man with features similar to those of
the robber.
After the photographs were shown to Miller, Detective
Douglas Wolber arrived at the bank and took charge of the
investigation. He spoke with Miller, heard her description of
the robber, and reviewed the bank’s surveillance tape. He also
suspected that Gonzalez was involved. Wolber knew that
Gonzalez and his girlfriend, Kelly Mewhirter, had been
involved in other bank robberies.
The robbery was reported in the local media and the police
released a still image taken from the bank’s video surveillance
system. On the same day as the robbery, Melissa Summers, a
sandwich artist at a Subway sandwich shop four blocks from
the bank, saw the photo and recognized the sweatshirt that the
robber was wearing.1 Earlier that day, when working at
Subway, she had seen a Chicago Bears sweatshirt in Subway’s
dumpster. She noticed that the sweatshirt was in good condition, and not the sort of thing she expected to find in the trash.
She mentioned it to a co-worker, who called her later that
evening and told her it might belong to the person who robbed

1

“Sandwich artist” is the term that Subway uses for employees who greet
and serve customers, prepare food, maintain food safety and sanitation
standards, and process light paperwork. Sandwich artists are responsible
for cleaning and maintaining all areas of the restaurant, which is presumably what Summers was doing when she encountered the sweatshirt in the
store’s dumpster. See https://apply.mysubwaycareer.com/us/en/
job-descriptions/sa-job-description/ (last visited June 30, 2017).

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the nearby bank. Summers then looked at a photo of the robber
on the internet. After seeing the same sweatshirt in that photo,
she contacted the police department. An officer retrieved the
sweatshirt from the dumpster and found three $20 bills in the
pocket.
Summers and her co-worker were not the only people who
noticed a connection between the sweatshirt and the bank
robber. The day after the robbery, Pat and Katie Mewhirter
also contacted the police after seeing the still image of the bank
robber in a report on the internet. Katie is the sister of Kelly
Mewhirter and Pat is the mother of Kelly and Katie. Kelly
Mewhirter had been involved with Gonzalez and had a child
with him. Pat had given Gonzalez an identical Bears sweatshirt
for Christmas some time before the robbery. She had given
similar sweatshirts to other members of the family. Pat and
Katie told the police that they thought the robber in the still
image resembled Gonzalez. They also told the police that
Gonzalez had lost a considerable amount of weight since the
driver’s license photo had been taken. Katie directed an officer
to a more recent photograph of Gonzalez on Facebook. At trial,
defense counsel asked Pat Mewhirter how she recognized
Gonzalez in the photo, whether it was because of the individual’s face, build or sweatshirt. She replied, “I’m recognizing
pretty much everything.” R. 120, at 409. When pressed to admit
that the photo did not show the robber’s face well enough to
identify him, Pat Mewhirter replied that, “It just looks like
Conrad.” She explained how she could tell it was Gonzalez:
Just by how he is standing and—Everything about
it. It just is familiar to me. And I can almost see it,
but I can’t see his face. But his feet, his legs. I

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just—everything about the picture reminded me of
Conrad. I’m sorry.

R. 120, at 409.
Armed with the identification from Katie and Pat
Mewhirter, Detective Wolber prepared a photo lineup. He
downloaded from Facebook a more recent photograph of
Gonzalez and five other photographs of men whom he
believed fit Miller’s description of the robber.2 Unfortunately,
Wolber had never been trained in putting together a photo
lineup, and there were some problems with the array that we
will discuss below. Two days after the robbery, Detective
Wolber showed the six-man, color photo array to Miller after
giving her a warning that the robber might not be in the array
and that she was under no obligation to identify anyone. Miller
quickly identified Gonzalez as the bank robber, telling Wolber,
“I knew for sure it was that individual because I could feel the
chills going up and down my spine just from the incident.”
R. 119, at 198. Miller also unequivocally (and repeatedly)
identified Gonzalez at trial as the person who robbed the bank.

2

In its brief, the government describes the Facebook photos in the array as
“all taken from the same source.” But Facebook is a conglomeration of
literally hundreds of millions of sources of photographs. To the extent the
government meant to imply that the “same source” of the photographs
provided some uniformity that lessened the risk of drawing attention to any
one picture, Facebook does not aid the argument. If all photographs are
drawn from a database of drivers’ licenses or passport photos, for example,
there might be an argument that uniformity lessens the risk of highlighting
a particular photo. There is some uniformity here in the sense that the
Facebook photos were cropped to show only the head and neck of each man
but that is the end of the similarity.

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Miller’s identifications were not the only evidence against
Gonzalez presented at trial. Gonzalez had significant problems
with his alibi for the day of the robbery. Both Gonzalez and
Kelly Mewhirter were addicted to controlled substances and
alcohol. In fact, just six days after the robbery, Gonzalez
admitted to an Evanston detective that he was addicted to
crack cocaine and that his addiction was “out of control.”
R. 120, at 539. As a result of their addictions, Gonzalez and
Kelly Mewhirter were unable to care for their daughter and
neither had custody. Pat Mewhirter and her husband cared for
their grandchild and Gonzalez had supervised visitation rights.
The Mewhirters lived in Rock Falls and Gonzalez lived in
Evanston, some 120 miles away. Gonzalez was scheduled to
visit his daughter on the day of the robbery, from 1:00 to 3:00
p.m. He had arranged to meet Jessica Wade and his daughter
at a Rock Falls McDonald’s, a frequent meeting place for his
supervised visits. Wade was a case aide worker in the Youth
Services Bureau, a contract agency for the Department of
Children and Family Services. That McDonald’s is just four
blocks from the bank and is next door to the Subway sandwich
shop where Melissa Summers found the Bears sweatshirt that
she recognized from the photo of the robber released by the
police.
Prior to the day of the robbery, Gonzalez had been very
consistent in visiting his daughter, usually arriving before the
case worker at the agreed location. Wade had supervised nine
or ten visits between Gonzalez and his daughter in the previous five months. For a typical visit, Gonzalez would spot
Wade’s car pulling into the parking lot and would exit his car
to greet his daughter. He would then help her out of Wade’s

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car and take her into McDonald’s for the visit. Wade accompanied Gonzalez and his daughter into the restaurant in order to
supervise each visit.
On the day of the robbery, however, the visit was anything
but typical. Wade arrived at the McDonald’s shortly before 1
p.m. with Gonzalez’s daughter. But this time, Gonzalez was
not there to greet them. When Wade did not see Gonzalez’s car
in the parking lot, she called him and left a message to let him
know that she was at the agreed place with his daughter.
Phone records confirmed that call at 12:57 p.m. Wade always
kept detailed records of her supervised visits, noting anything
unusual. She wrote down text messages verbatim and summarized phone calls. Because Gonzalez had never missed a visit,
she recorded all of her communications with him that day. She
noted that, after leaving the voicemail, she received a text from
Gonzalez at 1:05 p.m., saying, “I will have to get back to you by
1:40 to determine if I’ll be able to see now Nat [his daughter].
Thank you.” R. 120, at 488. Wade immediately texted back,
“Does that mean you won’t be here ‘til at least 1:40? Do we
need to reschedule?” R. 120, at 489. At 1:07, Gonzalez texted
back, “I am in the middle of something right now. I don’t have
to get back to. Thank you.” R. 120, at 489. Wade texted back,
“Okay.” She did not hear from him again until 1:40, when he
texted, “I’m in right now taking care of something. I would let
you know. Thank you.” Immediately after that, he texted, “I
will be there by 3:15. Thank you. And I will see you there.”
R. 120, at 490. Wade replied, “Conrad, I am sorry but when I
texted you I said this visit would have to be 1:00 to 3:00, and
you responded that you were fine with that. I have another
appointment at 3:15. I’m sorry, but will have to do visit

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tomorrow or Friday. Let me know.” R. 120, at 490–91. Gonzalez then called Wade (it was now 1:44 p.m.) and said he
thought the visit was from 3:00 to 5:00. He apologized and said
he was having trouble with family. Wade offered a visit on
Thursday or Friday. Gonzalez told Wade he was upset that he
was not having the visit and asked her to tell his daughter he
said “hi.” R. 120, at 491–92. By the time Wade received that call,
she had left McDonald’s and was in the driveway of the
Mewhirters’ home, which was only a few blocks away. At 3:57
p.m.,3 she received one more text from Gonzalez, saying, “They
are paying me on my visit now. They said it was from 1:00 to
5:00 not 3:00 to 5:00.” R. 120, at 495–96. Gonzalez did not
reschedule the visit. Wade did not hear from him again.
Gonzalez testified in his own defense and his account of the
day of the robbery cannot be easily reconciled with Wade’s
carefully documented report. According to Gonzalez, he
arrived in Rock Falls the night before the visit and stayed in a
hotel. Although he regularly stayed in this hotel when visiting
Rock Falls, he could not recall the name of it. He woke up at
about 9:00 a.m., left the hotel at about 10:30, ate some snacks at
a picnic area and went fishing at a canal. From maps presented
at trial, the fishing area appears to be approximately thirteen
blocks from the McDonald’s and approximately nine blocks
from the bank. He testified that he believed the visit was
scheduled from 3:00 to 5:00, not 1:00 to 3:00. When he received

3

In her hand written notes taken that day, Wade placed a question mark
next to the time that this last text arrived, perhaps indicating she was
uncertain of the precise time. Her description of the text appears at the very
end of her notes, after her account of the final phone call from Gonzalez.

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the 12:57 p.m. voicemail from Wade saying that she was at
McDonald’s, he explained that he sent back a text saying he
would get back to her at 1:40 because he needed time to get his
things together and prepare to see his daughter. He had to
gather his fishing pole, his tackle box and other items. His texts
were somewhat garbled, he explained, because he dictated his
texts into the phone rather than typed them. At 1:07, he meant
to text that he was in the middle of driving. He had decided to
head to the McDonald’s immediately. According to a surveillance camera in the McDonald’s parking lot, Gonzalez’s car
entered the lot at 1:11:40 p.m. He testified that he drove around
the parking lot, did not see Wade’s car, and so parked and
went into the McDonald’s. The surveillance video showed his
car leaving McDonald’s at 1:38 p.m. He told the jury that he
ordered food for himself and his daughter, looked at the play
area, did not see Wade or his daughter and so he sat down and
ate. His 1:40 text was meant to convey that he was at the
restaurant, even though it said nothing of the sort and by his
own admission, he had just left the restaurant at the time he
sent the text. He testified that before he sent the 1:40 text, he
sent a text saying that someone was playing a game with him,
that Wade had told him the visit was from 3:00 to 5:00. This
was apparently the text that Wade recorded as coming in a few
hours later. There is no such text at that time shown on Gonzalez’s phone records, which otherwise account for all of the texts
recorded by Wade. He told the jury that this text, in combination with the 1:40 text saying, “I’m right now taking care of
something. I would let you know,” meant that he was leaving
McDonald’s because he believed that the Mewhirters were
playing a game with his visits. When asked to explain the

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“something” he was “taking care of,” he said he left because he
was uncomfortable with the situation and wanted to discuss it
with his family. He could not explain why he did not text or
call Wade to tell her that he had arrived at McDonald’s, except
to say that he was upset with the Mewhirters. Yet later that
day, he placed $300 on Kelly Mewhirter’s debit card. He
conceded that he set his visits up with Wade and that he did
not believe Wade was involved in any games the Mewhirters
were playing with him. He denied that the sweatshirt recovered from the Subway dumpster (Subway’s parking lot was
adjacent to McDonald’s parking lot) was the same as the
sweatshirt he received from Pat Mewhirter. But the jury was
presented with a photo of Gonzalez holding the sweatshirt on
Christmas day and photos of the sweatshirt recovered from the
dumpster, and they appear identical.
There was still more evidence against Gonzalez. On
October 26, 2013, only four days before the robbery, Gonzalez
was with Kelly Mewhirter, his sometime girlfriend and the
mother of his child. Kelly, who herself had a criminal record
for bank robbery, robbed a restaurant in Sterling, Illinois on
that day. Shortly after the restaurant robbery, she and Gonzalez drove to Evanston. Along the way, they were stopped for
speeding, and Gonzalez was issued a ticket. They also stopped
at a gas station where surveillance cameras captured images of
them. Gonzalez was wearing the same Bears sweatshirt worn
by the bank robber four days later, the same sweatshirt shown
in a photo of Gonzalez on the Christmas day he received it as
a gift. Kelly, an admitted addict, used the money from the
restaurant robbery on alcohol and drugs. After the bank
robbery, police officers came to her home and showed her

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videos from the bank’s surveillance camera. Kelly told the
officers that she recognized the person robbing the bank as
Gonzalez, based on the way the robber moved, and the
sweatshirt and hat that he was wearing. She recognized the hat
as possibly belonging to her boyfriend, Jonathon Wilson.
(Wilson later testified that he could not find his hat after
Gonzalez had stayed at Wilson’s home.) Kelly also reluctantly
admitted that, a few weeks before the bank robbery, Gonzalez
had pointed out the bank to her as a place where “things
would be easy,” and had told her that the road behind the
bank would be easy to drive down. R. 120, at 284–85. That
road, coincidentally, led directly to the McDonald’s where
Gonzalez was scheduled to visit his daughter, and the Subway
sandwich shop where the sweatshirt was later recovered, with
money stuffed in the pockets. Kelly also testified that, on the
day of the robbery, Gonzalez deposited $300 on a debit card
for her, an unusual amount because Gonzalez rarely gave her
more than $20 at a time due to her struggles with alcohol and
controlled substances. The amount was also unusual because
Gonzalez had recently lost his job.
Kelly’s testimony was not without its problems: the jury
was informed that Kelly had received a reduced charge and
reduced sentence in the restaurant robbery in exchange for
cooperating in the bank robbery prosecution against Gonzalez.
And Kelly admitted to memory problems because of her
alcohol and drug use. Nevertheless, on the basis of this and
other evidence, Gonzalez was convicted of one count of bank
robbery. He was sentenced to 234 months’ imprisonment. He
appeals.

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II.

On appeal, Gonzalez challenges the district court’s denial
of his motion to suppress evidence and testimony relating to
Tara Miller’s in-court and out-of-court identifications of
Gonzalez as the robber. He also contends that the court plainly
erred when it admitted evidence that he asserts implicated him
in Kelly Mewhirter’s robbery of a restaurant four days before
the bank robbery. He argues that this was propensity evidence
that denied him a fair trial. The government denies (with one
exception, noted below) that the police photo identification
procedures were improper, and argues in the alternative that
any error was harmless. The government also asserts that there
was no plain error in admitting relevant evidence of Kelly
Mewhirter’s robbery of a restaurant.
A.
Our review of the district court’s decision to deny Gonzalez’s motion to suppress Miller’s identifications is de novo, with
due deference to the court’s findings of historical fact. United
States v. Harris, 281 F.3d 667, 669–70 (7th Cir. 2002). See also
Ornelas v. United States, 517 U.S. 690, 695–98 (1996). In determining whether a particular identification procedure violates
a defendant’s due process rights, courts first consider “whether
the police used an impermissibly suggestive procedure in
obtaining the out-of-court identification. If so, the second
inquiry is whether, under all the circumstances, that suggestive
procedure gave rise to a substantial likelihood of irreparable
misidentification.” Manson v. Brathwaite, 432 U.S. 98, 107 (1977).
See also Simmons v. United States, 390 U.S. 377, 384 (1968); United
States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009).

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The government concedes that the photo show-up, that is,
the display of Gonzalez’s driver’s license and state identification card photos to the teller within minutes of the robbery,
was both suggestive and unnecessary. The display was based
on an officer’s hunch, according to candid law enforcement
testimony. Photographs of only one suspect were displayed,
telegraphing to Miller that the police thought this was the
robber. See Simmons, 390 U.S. at 383 (the danger of misidentification increases if police display to the witness only the picture
of a single individual who generally resembles the person he
saw, or if they show him pictures of several individuals where
the photo of a single individual recurs or is in some way
emphasized); Stovall v. Denno, 388 U.S. 293, 302 (1967) (noting
that “the practice of showing suspects singly to persons for the
purpose of identification, and not as part of a lineup, has been
widely condemned”); United States v. Sanders, 708 F.3d 976,
985–86 (7th Cir. 2013) (noting that in-person show-ups are
inherently suggestive but reserving the question of whether a
photographic show-up presents the same problem). Indeed, at
the suppression hearing, the court asked Miller if she assumed
that the officer “was showing [her] pictures of somebody that
somebody believed had robbed the bank,” and she replied, “A
potential, yes.” R. 44, at 126. Because the show-up was based
on a hunch, and because Lieutenant Morgan testified that it
would have taken only twenty minutes to compose a sixperson photo lineup, there was no exigency justifying such a
suggestive procedure. This was not a situation, for example,
where the sole witness was so critically injured that her
survival was in doubt, and she was unable to travel to the
police station for a traditional lineup. See Stovall, 388 U.S. at

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302. But see Sanders, 708 F.3d at 986–87 (noting that exigent
circumstances might justify a photo show-up when an armed
suspect is on the loose, clues point to a particular suspect, and
the show-up occurs within a few hours of the crime).
In any case, Miller did not identify either of the photographs of Gonzalez as depicting the robber. Gonzalez contends, however, that the show-up tainted Miller’s review of the
six-person photo lineup that the officers staged two days later.
Before addressing that claim of taint, we note that the sixperson photo lineup presented its own problems. Recall that
Miller described the robber as a Hispanic man, thirty-five to
forty years of age, with a shaved head and scraggly facial hair.
Two of the lineup photographs are so dark that it is difficult to
discern facial features with any certainty. In both of those
photos, because of the lighting and the angles at which the
pictures were taken, it is difficult to see either man’s head to
determine the state of his hair. Two of the men pictured have
hair that cannot be fairly described as “shaved.” One of those
men is too old for the age range given, and the other is too
young. Although both have facial hair, neither can be described as “scraggly.” Of the remaining two men, Gonzalez’s
photo is the clearest and brightest on the page.4 In our view,
the six-person photo lineup was suggestive in and of itself.
That Miller had seen two photographs of Gonzalez only two

4

The color photocopy of the six-person array attached to the defendant’s
brief is of poor quality, and we base our assessment on the actual page
viewed and initialed by Tara Miller. We do not mean to imply that counsel
purposefully altered the copy; darkening and distortion is a common
problem with photocopies of color pictures.

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days earlier lends weight to a conclusion that the entire process
was unnecessarily suggestive.
A magistrate judge who conducted the suppression hearing
saw the photo array differently, finding that “[a]ll six photographs in the array were similar to the description Ms. Miller
provided on the bank form immediately following the robbery.” R. 49, at 10. Noting that the police are not required to
search for identical twins when composing a photo lineup, the
magistrate judge ultimately concluded that nothing in the
lineup drew any improper attention to the photo of Gonzalez.
The judge also found that the number of photos presented was
adequate, and that the array was presented in a neutral
manner. See United States v. Williams, 522 F.3d 809, 811 (7th Cir.
2008) (noting that police officers reduce the chance of misidentification when they warn witnesses that a lineup may contain
no suspect at all). In short, the magistrate judge concluded the
array was not suggestive, that it was necessary, and that even
if it had been suggestive, Miller’s identification was nonetheless reliable and admissible under the totality of the circumstances.
The district court adopted the findings of the magistrate
judge over the defendant’s objections, concluding that the
photo array was not suggestive. But the court also noted that
it would accept the ultimate conclusion of the magistrate’s
report and recommendation even if the photo array had been
suggestive because Miller’s identification was still reliable
under the totality of the circumstances test. The district court
found (as had the magistrate judge) that the “indicia of
reliability [were] strong enough to outweigh the corrupting
effect of the police-arranged suggestive circumstances,”

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rendering the evidence admissible and leaving it to the jury
ultimately to determine its worth. Perry v. New Hampshire,
565 U.S. 228, 232 (2012).5 In considering whether an identification made in suggestive circumstances is still reliable, courts
consider: the opportunity of the witness to view the offender
at the time of the crime; the witness’ degree of attention; the
accuracy of the prior description of the offender; the level of
certainty exhibited at the confrontation; and the length of time
between the crime and the confrontation. Neil v. Biggers,
409 U.S. 188, 199–200 (1972). See also Perry, 565 U.S. at 243–44
(listing additional factors bearing on the likelihood of misidentification, including the passage of time between exposure to
and identification of the defendant, whether the witness was
under stress when first encountering the suspect, how far the
witness was from the suspect, whether the suspect carried a
weapon, and the race of the suspect and the witness). As we
explain below, we agree that Miller’s identification evidence
was reliable enough to be admitted, and that any error in
admitting those identifications was, in any case, harmless.
In considering the totality of the circumstances test, the
magistrate judge had the benefit of hearing testimony from
Tara Miller regarding her identification of Gonzalez in the
5

When we use the words “corrupting effect of the police-arranged
suggestive circumstances,” we do not mean to imply that the officers
involved purposefully staged a suggestive photo array. Nothing in the
record indicates anything other than a good-faith effort by officers not
trained in arranging a photo array. Perry makes clear that “what triggers
due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be
suggestive.” 565 U.S. at 232 n.1.

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photo array. According to that testimony, Miller stood only
two feet from the robber and could clearly see his face. He did
not wear a mask and the lighting was good. She observed the
robber’s face throughout the robbery, which lasted under two
minutes. She watched his face closely enough to see that he
was angry when he received less money that he expected. She
was observant, noticing that he was carrying an envelope in
one hand and a cell phone in the other. Immediately after the
robbery, she described the robber as a thirty-five to forty year
old Hispanic man, with a shaved head, scraggly facial hair, five
feet seven inches tall, approximately 130 to 150 pounds, and
wearing a grey sweatshirt. Gonzalez is a forty-five year old
Hispanic man, five feet nine inches tall, approximately 180
pounds a few months later, with a shaved head and scraggly
facial hair. Although the sweatshirt appears to be dark blue, it
is a distinctly greyish hue of blue. Her description was remarkably close given the brief length of the incident and the
stressful circumstances. The magistrate found that Miller’s
testimony was credible, clear, confident and compelling, all
findings to which we owe deference. She confidently identified
Gonzalez only two days after the robbery, and within twenty
seconds of first seeing the photo array. The magistrate also
discounted the tainting effect of the photo show-up on Miller’s
viewing of the six-person array, finding that the photos in the
array were in color, of better quality and more recent than the
photos used in the show-up. The color photo portrayed a
slimmer man, consistent with the evidence that Gonzalez had
lost a considerable amount of weight since the driver’s license
and identification card photos had been taken. Moreover,
Miller testified that when she viewed the photo array, she did

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not think back to the previous photo show-up. The magistrate
credited that testimony and concluded that the government
had shown by clear and convincing evidence that Miller’s
identification of Gonzalez in the six-person array was sufficiently reliable to satisfy due process, especially because
defense counsel could highlight the significant, but not
unconstitutional, problems with the identification procedures
at trial.
As we noted above, in our view, the six-person photo array
was suggestive, but that is not the end of the inquiry. The
Supreme Court has held that, when indicators of a witness’s
ability to make an accurate identification are not outweighed
by the corrupting effect of the challenged identification, the
evidence (if otherwise admissible) should be submitted to the
jury. Perry, 132 S. Ct. at 725. Although there were significant
problems with the identification procedures employed by the
untrained officers, there was no error in the court finding that
the evidence was reliable enough to go to the jury with the
usual procedural safeguards of a trial in place. Misidentification is irreparable “when the source of the error is so elusive
that it cannot be demonstrated to a jury[.]” Williams, 522 F.3d
at 811. The normal way of dealing with the perceptual biases
and errors that are endemic to eyewitness identification is “to
expose the problem at trial so that a discount may be applied
to the testimony, rather than to exclude relevant evidence.”
Williams, 522 F.3d at 811. Such was the case here, where
defense counsel had every opportunity to reveal at trial any
weaknesses in Miller’s identifications of Gonzalez.
Perhaps more importantly, any error in admitting Miller’s
out-of-court and in-court identifications of Gonzalez was

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harmless error at worst. Sanders, 708 F.3d at 988. An error in
the admission of identification evidence is harmless if the
remaining evidence would have persuaded any reasonable
jury beyond a reasonable doubt of the defendant’s guilt.
Sanders, 708 F.3d at 988. First, there would be no reason to
exclude from trial the description that Tara Miller provided on
the Bandit Description Form, which she created moments after
the robbery and prior to any corrupting influence of the photo
show-up. See United States v. Ford, 683 F.3d 761, 767 (7th Cir.
2012) (even if a witness is not allowed to testify to an improperly arranged photo lineup identification, the witness may still
testify to a description given to police officers before any taint
occurred). That untainted description was off by only five
years of age, two inches of height and a commensurate amount
of weight. In most respects, it was a remarkably accurate
portrait of the robber and consistent with Gonzalez’s appearance. Apart from Miller’s other, possibly tainted identifications,
the evidence against Gonzalez was very strong. Gonzalez was
present in the area within minutes of the robbery. He was a
cocaine addict with an out-of-control addiction, and he had just
lost his job and his only source of income, and so he had a
strong need for money. He had previously discussed with
Kelly that this particular bank would be “easy.” He owned a
sweatshirt identical to the one worn by the robber and had
worn it within days of the robbery. That sweatshirt was
recovered (with three $20 bills stuffed in the pockets) from a
dumpster four blocks from the crime, next door to a McDonald’s that Gonzalez visited within minutes of the robbery. The
sweatshirt was recognizable to two employees of the Subway
sandwich shop as the one worn by the robber. It was also

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recognized by Pat, who had given the sweatshirt to Gonzalez,
and by Katie and Kelly. The evidence included photos of
Gonzalez holding or wearing the sweatshirt and photos of the
sweatshirt recovered from the dumpster. Gonzalez denied that
they were the same even though they were obviously identical.
Gonzalez was also tied to the hat worn by the robber, with
Kelly testifying that her boyfriend, Wilson, owned a similar
hat, and Wilson testifying that he could not find the hat after
Gonzalez visited Wilson’s home.
Moreover, Pat and Katie Mewhirter came to the police
station unbidden, after seeing the photo of the robber released
by police, to report that the robber resembled Gonzalez and
that they recognized his clothing and other aspects of his
appearance. On viewing the bank video, Kelly also identified
the robber as Gonzalez, and identified the sweatshirt and hat
that he was wearing. These identifications were made by
persons intimately familiar with Gonzalez, who recognized
details of his stance and features of his body.
In response to all of this evidence, Gonzalez told a bizarre
story about his whereabouts during the robbery. Having never
missed a visit with his daughter, he missed his visit that day,
even though he was in the same McDonald’s where Jessica
Wade was waiting in the parking lot with his daughter at
precisely the same time. He claimed to have misunderstood the
time of the visit, even though he sent a text indicating that his
mistake was that the visit ran from 1:00 to 5:00 rather than 1:00
to 3:00 (indicating that he knew the start time even if he did not
know the end time), and even though his visits had always
been two hours long. He claimed to have been fishing nearby
when Wade called. At 1:05, he thought it would take thirty-five

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minutes to gather his fishing tackle and get to the restaurant,
but two minutes later, at 1:07, he claimed to be in his car and
on his way to McDonald’s, which was only a few blocks away.
He had no explanation for not texting Wade on arriving at the
restaurant, even though he claims he did not see her and
expected to find her there. He did not text about his arrival
until after he admittedly left the McDonald’s parking lot.
Immediately after the text purportedly indicating his arrival (a
text which inexplicably read “I’m in right now taking care of
something. I would let you know. Thank you.”), he texted that
he would meet Wade at 3:15, even though he was at the
McDonald’s at 1:11 p.m., the same time that Wade was waiting
for him in the parking lot. And he had arrived at the McDonald’s, which was four blocks from the bank, within minutes of
the teller triggering the silent alarm.
It is true that there was evidence favoring him as well. Kelly
Mewhirter’s credibility was tested by the deal she made with
prosecutors on her own robbery charge, and by her complicated relationship with the father of her child. Pat Mewhirter
had custody of Gonzalez’s daughter and admittedly wanted to
keep custody because she was aware that Gonzalez and her
daughter were addicts. None of the $20 bills found in the
sweatshirt matched the bait money, although this is not too
telling given that the teller handed over additional non-bait $20
bills. There was no fingerprint or DNA evidence pointing to
Gonzalez. But the evidence against Gonzalez easily overwhelmed these minor issues with witness credibility and the
absence of certain physical evidence. The jury saw the video
and then saw Gonzalez in person. Even if there had been a due
process violation in admitting the evidence of Miller’s in-court

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or out-of-court identification, any error was harmless in light
of the overwhelming evidence against Gonzalez.
B.
Gonzalez also objects to evidence that the government
presented regarding Kelly’s robbery of a restaurant four days
before the bank robbery. He asserts that the government
implied that he too was involved in the restaurant robbery and
that this was improper propensity evidence under Federal Rule
of Evidence 404(b). Gonzalez did not object to this evidence at
trial and so we review the admission of the evidence for plain
error only. United States v. Olano, 507 U.S. 725, 731 (1993);
United States v. Hamad, 809 F.3d 898, 904 (7th Cir. 2016). In
order to reverse for plain error, we must find (1) error (2) that
is plain, and (3) that affects the defendant's substantial rights.
Olano, 507 U.S. at 732, 113 S. Ct. 1770; Hamad, 809 F.3d at 904.
Rule 404(b) provides that, “Evidence of a crime, wrong, or
other act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1); United
States v. Gomez, 763 F.3d 845, 852 (7th Cir. 2014). But this type
of evidence may be used for other purposes, “such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2). The restaurant robbery was highly relevant to Kelly’s
credibility because it resulted in a felony conviction. Moreover,
she received a sentencing break for the restaurant robbery in
exchange for cooperating in the bank robbery prosecution
against Gonzalez, which was highly relevant to her credibility
and bias. The government was careful not to implicate Gonza-

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lez in the restaurant robbery, mentioning only that he was with
Kelly after the incident. This too was relevant, non-propensity
evidence because, as he drove Kelly to Evanston after the
robbery, he was seen on video surveillance with her in a gas
station along the way, wearing the Bears sweatshirt seen on the
bank robber a mere four days later. Kelly did not state or imply
in her testimony that Gonzalez participated in the restaurant
robbery with her, and the government carefully worded its
questions to avoid that implication. The government also
avoided tying Kelly’s restaurant robbery to Gonzalez during
closing argument. To the extent that any of this testimony and
argument came close to the line, there was no error in admitting the evidence as it was plainly relevant to Kelly’s credibility
and bias, and was not used to argue that Gonzalez had a
propensity for robbery. Because there is no error in admitting
the evidence of Kelly’s conviction for a restaurant robbery,
there is obviously no plain error.
AFFIRMED.