United States v. Ford

• Decision Date: 06 June 2012
• Docket Number: No. 11–2034.,11–2034.
• Citation: 683 F.3d 761
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John A. FORD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

683 F.3d 761

UNITED STATES of America, Plaintiff–Appellee,

v.John A. FORD, Defendant–Appellant.

No. 11–2034.

United States Court of Appeals, Seventh Circuit.

Argued April 25, 2012.

Decided June 6, 2012.

Carol A. Bell, Attorney, Office of the United States Attorney, Chicago, IL, Brian T. Burgess (argued), Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, for Plaintiff–Appellee.

Sarah O'Rourke Schrup (argued), Owen McGovern (argued), Kathleen Riordan (argued), Attorneys, Northwestern University School of Law, Chicago, IL, for Defendant–Appellant.

Before POSNER, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge, concurs in the result.

POSNER, Circuit Judge.

A jury convicted the defendant of armed bank robbery, 18 U.S.C. § 2113(a), and the judge sentenced him to the statutory maximum of 240 months, id., in part because of his previous convictions for that crime. The appeal presents two issues; we begin with the lesser one, which involves the exclusion of a witness for the defense on the ground that he was an alibi witness and the defense had not given the prosecution the notice required before trial by Fed.R.Crim.P. 12.1(a). The defendant argues that the witness he wanted to call was not an alibi witness and so the rule doesn't apply.

The robbery occurred in Palatine, Illinois. The defendant was a personal trainer in Chicago, and had an appointment for a training session with one of his clients that began two hours after the robbery. The distance from the bank to the gym where the defendant did his personal training is only 28 miles, a distance easily covered by car in a good deal less time than two hours; and the defendant does not claim that extreme weather conditions, or an accident or other untoward event, might have prevented his arriving at the gym within two hours after leaving Palatine—in which event he could not have been the robber. So the client could not have given the defendant an alibi in the usual sense. This should make one wonder why the defendant wanted to call him. He argues that the client would have testified that the defendant was “calm, friendly and professional” at all their training sessions (the client did not recall the particular session that had taken place the evening of the robbery, which occurred almost two years before he was approached by the defendant's lawyer), and that he would not have been calm, etc., had he committed an armed bank robbery only two hours earlier. Actually such testimony would have had no probative value even if the client had remembered the defendant's deportment at the session after the robbery. No one had been hurt in the robbery, which had lasted all of five minutes, and why would one expect the robber, having committed what he thought a successful crime that had enriched him, albeit modestly (his take was only $1146), to be visibly agitated two hours later, far from the scene of the crime and not pursued by police (he was not arrested until two years later)? And he was an experienced bank robber—the presentencing investigation report states that he admitted having committed 11 bank robberies between 1981 and 1985.

In any event it was alibi evidence that the defendant wanted to offer by calling his client as a witness, albeit alibi evidence of an unusual sort. The usual alibi evidence, if believed, proves that it was physically impossible for the defendant to have committed the crime that he's been accused of; suppose the training session had been held in Los Angeles rather than Chicago and there was a record of his having attended it. But the alibi in this case would have been that it was psychologically impossible for him to have committed the crime, because had he done so he would have been visibly agitated two hours later yet the alibi witness would have testified that he was never visibly agitated at their training sessions. This would be the obverse of evidence that the robber had been “nervous” and “jumpy” an hour after the robbery, as in United States v. Turner, 474 F.3d 1265, 1278 (11th Cir.2007). It would have been weak evidence of innocence, as we said—“the fact that [the defendant] was not nervous and that he did not act violently is easily explained, becauseit would not have been in his interest to act in those ways,” United States v. Boulanger, 444 F.3d 76, 89 n. 17 (1st Cir.2006)—but still evidence.

Notice to the prosecution of proposed alibi evidence is required because an alibi defense is at once compelling if accepted and easy to concoct, so the prosecution is justified in wanting an opportunity to investigate it in advance of trial. Williams v. Florida, 399 U.S. 78, 81, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); United States v. Pearson, 159 F.3d 480, 483 (10th Cir.1998). That is true of alibi evidence premised on psychological impossibility as well as the more common type. And so the district judge was right to exclude the evidence because of the defendant's failure to have complied with Rule 12.1(a).

We move to the second and more substantial issue—a challenge to the photo array shown the bank's manager, whom the robber had confronted after forcing an entry into the bank shortly after the bank had closed for the day. When police arrived after the robbery the manager had told them that although the robber had worn a dust mask that covered his nose and mouth, the manager could tell that the robber was a white man with “a very pale complexion” and “light colored eyebrows and freckles around his eyes.”

The dust mask was found shortly after the robbery 150 feet from the bank. DNA found on the mask was eventually matched with DNA that had been taken from a convicted bank robber named John Ford, the defendant in this case. In March 2009, 16 months after the robbery, a police officer presented the bank manager with an array of six head shots that included one of Ford; we attach a photo of the array at the end of this opinion. The manager picked the man in the middle of the top row as the robber; it was Ford. He was eventually arrested and at a suppression hearing in September 2010 challenged the bank manager's identification on the ground that the photo array had been irreparably suggestive. The district judge refused to suppress the identification, and at the trial, held one month later, the manager testified that he had indeed identified the defendant as the bank robber in the photo array.

The photo array was suggestive. First, instead of showing the six photographs to the bank manager one by one, the police officer placed them on a table in front of him all at once, side by side in two rows, as in the photo at the end of this opinion (except that that's a photo of all six photos, and what the manager was shown was the separate photos—but as he was shown them all at once, what he saw was equivalent to our composite photo).

The officer asked the manager whether he recognized the robber. The objection to this procedure is that the manager would probably think that one of the photos was of the robber, or at least of the person whom the police suspected of being the robber, which might have led the manager to pick the one who most resembled the robber even if the resemblance was not close, especially since so much time had elapsed since he had seen the robber and the robber had been masked when he saw him.

It is true that the police officer told the manager not to assume that a photo of a suspect would be among the photos shown him, a disclaimer that the cases recommend. See United States v. Williams, 522 F.3d 809, 811 (7th Cir.2008); United States v. Saunders, 501 F.3d 384, 391 (4th Cir.2007); United States v. Gibson, 135 F.3d 257, 260 (2d Cir.1998) (per curiam). Several studies suggest that such a disclaimer indeed reduces the risk of misidentification. See, e.g., Gary L. Wells & Deah S. Quinlivan, “Suggestive Eyewitness Identification Procedures and the Supreme Court's Reliability Test in Light of Eyewitness Science: 30 Years Later,” 33 Law & Human Behavior 1, 6–7 (2009); Beth Schuster, “Police Lineups: Making Eyewitness Identification More Reliable,” 258 Nat'l Institute of Justice Journal 2, 3 (2007). But whether it eliminates the risk created by a simultaneous array may be doubted. A witness is likely to think that the array must include a suspect as otherwise there would be no point in showing it to the witness, unless the witness's verbal description was of such an unusual-looking person that only a handful of people in the area in which the crime took place could possibly match it; in that case the police could show him all the look-alikes, confident that one was the criminal and hopeful that he differed enough from the others that the witness would be able to pick him out of the array.

The array would have been less suggestive had the manager been shown the photos one by one (a “sequential” array). United States v. Brown, 471 F.3d 802, 804–05 (7th Cir.2006); see N.C. Gen.Stat. § 15A–284.52(b)(2); Wis. Stat. § 175.50(5)(b); Letter from N.J. Attorney General John J. Farmer, Jr., to All County Prosecutors et al. (Apr. 18, 2001), www. state. nj. us/ lps/ dcj/ agguide/ photoid. pdf (visited May 31, 2012). Witnesses shown a sequential lineup are more likely to compare each person in it only with their memory of the offender, rather than choose whichever person looks the most like what the witness remembers. Schuster, supra, at 4; Gary L. Wells & Elizabeth A. Olson, “Eyewitness Testimony,” 54 Ann. Rev. Psychology 277, 288–89 (2003); Dawn McQuiston–Surrett et al., “Sequential vs. Simultaneous Lineups: A Review of Methods, Data, and Theory,” 12 Psychology, Public Policy & Law 137, 138–39 (2006); Nancy Steblay et al., “Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta–Analytic Comparison,” 25 Law & Human Behavior 459, 468 (2001); but see United States v. Lawrence, 349 F.3d 109, 114–15 (3d Cir.2003).

The accuracy of a sequential array can be improved by...