U.S. v. Brown

Decision Date19 December 2006
Docket NumberNo. 05-4690.,05-4690.
Citation471 F.3d 802
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Shaun BROWN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Brian R. Havey (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Stanley L. Hill (argued), Hill & Associates, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

EASTERBROOK, Chief Judge.

Arthur Veal ran a trucking business, one function of which was to import large quantities of cocaine. Shaun Brown was among Veal's regular customers. (So a jury could conclude; we recount the evidence in the light most favorable to the verdict.) On November 15, 2000, one of Veal's trucks arrived in Dolton, Illinois, carrying 25 kilograms of cocaine. Veal called Brown, who had arranged to receive 17 kilos of this cargo. After picking up his order, Brown rendezvoused with Reginald Lewis, unaware that he was under surveillance. Brown and Lewis switched cars, drove to meet Tara Dozier, and stashed the drugs in the trunk of her car. Dozier left first and was stopped by police; driving past, Brown and Lewis saw this and sped off. Lewis gave up the chase but Brown got away, alerting Veal by cell phone that "his girl" was in custody. Veal tried to make his own escape but was caught. At trial Veal and Gerald McDaniel, one of Veal's drivers, were the principal witnesses against Brown. Two police officers — Don Rector and Chris Garcia — testified to what they had seen and the cocaine they had seized from Dozier and Veal.

Brown was tried twice. The first jury convicted him of two counts of money laundering but could not reach a unanimous verdict on the single count of possessing 17 kilograms of cocaine with intent to distribute. The second jury convicted him of that count, and the court sentenced him to 235 months' imprisonment on the three convictions. Before each trial Brown asked the court to prevent Rector and Garcia from testifying that they had seen Brown pick up cocaine from Veal, switch to Lewis's car, stand by while Lewis put the cocaine in the trunk of Dozier's car, and escape at high speed after learning that Dozier had been stopped. That identification, Brown maintained, was unreliable because, after Veal and McDaniel identified the escapee as "Shaun Brown," the officers looked at a photograph known to be Brown's and concluded that the photo matched the person the officers had seen. That one-photo viewing, Brown insisted, produced such a substantial possibility of irreparable misidentification that exclusion is required by Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But the district judge thought that the jury could evaluate any effect of the photograph; the risk was not "irreparable."

Manson, Neil, and Stovall dealt with identification by a stranger, such as a victim of rape or robbery, or someone who purchased drugs from a person he had not previously met. Even under the best circumstances, the probability of erroneous identification of a stranger seen briefly is uncomfortably high. See Elizabeth F. Loftus, Eyewitness Testimony (1979); Daniel L. Schacter, The Seven Sins of Memory 88-137 (2001). The Supreme Court thought that showing the victim (or one-time buyer) a single photo of someone asserted to be the offender could elevate that risk unduly: the single photo or one-person showup implies that the police have their man and suggests that the witness give assent. Suggestibility is one of the principal ways in which memory plays tricks and leads to improper identifications. See Schacter at 112-37.

The Justices thought that a lineup of people with similar physical attributes would solve the problem. Research in the three decades since Manson has called that belief into question — not only because the risk of misidentification is high even when lineups are used, but also because there is a better method, the repeated sequential display. In this procedure police show the victim one photo (or suspect) at a time and call for an absolute judgment: is this, or is it not, the perpetrator? Each photo or person is compared against memory, not against someone else — for with a lineup of six, a victim may conclude that the offender must be included. The sequential display is most reliable when repeated (does the victim make the same selection twice?) and when the officer conducting the process does not know which, if any, is a suspect (for a statement such as "that's him!" following a selection, or even an unwitting visual cue, may implant a suggestion that is hard to overcome). See R.C.L. Lindsay & Gary L. Wells, Improving Eyewitness Identification from Lineups: Simultaneous Versus Sequential Lineup Presentations, 70 J. Applied Psychology 556 (1985); Nancy Steblay, Jennifer Dysart, Solomon Fulero & R.C.L. Lindsay, Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 L. & Human Behavior 459 (2001); Jacqueline McMurtrie, The Role of Social Sciences in Preventing Wrongful Convictions, 42 Am.Crim. L.Rev. 1271 (2005); Amy Klobuchar, Nancy K. Mehrkens Steblay & Hilary Lindell Caliguri, Improving Eyewitness Identifications: Hennepin County's Blind...

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