In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-‐‑1350
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
MASON M. JOHNSON,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 32-‐‑1 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED JANUARY 28, 2014 — DECIDED FEBRUARY 6, 2014
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Mason
Johnson of robbing three banks, and a judge sentenced him
to 220 months’ imprisonment. The principal testimony
against him came from Joseph Prince, who told the jury that
he and Johnson had planned and executed the robberies to-‐‑
gether. Johnson asked the jury to discount the testimony of
Prince, a confessed criminal. The prosecutor sought to bol-‐‑
2 No. 13-‐‑1350
ster Prince’s testimony with that of Amanda Williams, who
related that Prince asked her to give him a ride one day and
was accompanied by a stranger when she picked him up.
She drove her passengers to several places, last of all a gro-‐‑
cery store. Prince and the stranger entered the store and
robbed the branch bank it contained. Williams had not met
the stranger before and did not know his name, but she
picked a photo of Johnson from an array of six photos. John-‐‑
son’s only appellate argument is that the judge should not
have allowed Williams and the agent who conducted the ar-‐‑
ray to testify about this identification.
Johnson observes that this court has suggested that police
show photographs sequentially rather than as part of an ar-‐‑
ray. See, e.g., United States v. Ford, 683 F.3d 761 (7th Cir.
2012); United States v. Brown, 471 F.3d 802 (7th Cir. 2006).
Some research in psychology, which these opinions cite,
concludes that a sequential display is preferable because it
forces the witness to compare each photograph against
memory, rather than one photograph against another, and it
avoids the risk that a witness will conclude that the suspect’s
picture is bound to be among the six (or some) other number
of photos in an array. Careful officers tell a witness that a
photo spread does not necessarily include any suspect (that
was done here), but witnesses still may suspect that it does
or may proceed that way subconsciously, because none of us
is fully in control of the processes by which the brain makes
identifications.
Some parts of Johnson’s briefs imply that only a sequen-‐‑
tial presentation can lead to admissible evidence, but at oral
argument his lawyer sensibly disclaimed any such proposal.
The Supreme Court has not adopted a rule that only “the
No. 13-‐‑1350 3
best” approach (as the latest social science research identifies
the best current understanding) can be used. Instead, it has
concluded, “[t]he Constitution … protects a defendant
against a conviction based on evidence of questionable relia-‐‑
bility, not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that the
evidence should be discounted as unworthy of credit.” Perry
v. New Hampshire, 132 S. Ct. 716, 723 (2012). The due process
clause of the fifth amendment does forbid the use of “an
identification procedure that is both suggestive and unnec-‐‑
essary. [But e]ven when the police use such a procedure …
suppression of the resulting identification is not the inevita-‐‑
ble consequence.” Id. at 724 (citations omitted). Suppression
ensues only when there is “a very substantial likelihood of
irreparable misidentification,” Simmons v. United States, 390
U.S. 377, 384 (1968) (emphasis added)—irreparable in the
sense that the procedures of trial would not suffice to allow
jurors to separate reliable from mistaken identifications.
Johnson has not attempted to show that all photo spreads
are both unnecessary and suggestive, or that all identifica-‐‑
tions facilitated by a photo spread make it impossible for
counsel to use the tools of the adversary process to explore
an identification’s reliability. Indeed, some recent research
has called into question the view that sequential presenta-‐‑
tion of photographs is superior to photo spreads. David G.
Dobolyi & Chad S. Dodson, Eyewitness Confidence in Simulta-‐‑
neous and Sequential Lineups: A Criterion Shift Account for Se-‐‑
quential Mistaken Identification Overconfidence, 19 J. Experi-‐‑
mental Psychology: Applied 345 (2013), gives some reasons
and cites other studies. The Supreme Court of New Jersey,
which has gone further than any other appellate tribunal in
controlling the methods of obtaining and presenting eyewit-‐‑
4 No. 13-‐‑1350
ness identifications, has declined to require sequential meth-‐‑
ods exclusively. See State v. Henderson, 208 N.J. 208, 256–58
(2011). The Supreme Court’s approach, which Perry summa-‐‑
rizes, precludes a federal court of appeals from requiring
them.
We therefore ask whether the district judge erred in con-‐‑
cluding that the photo array was not unnecessarily sugges-‐‑
tive—a subject that a court of appeals resolves independent-‐‑
ly, “but with due deference to the trial court’s findings of
historical fact.” United States v. Harris, 281 F.3d 667, 670–71
(7th Cir. 2002). After finding the array not suggestive, the
judge stopped the analysis, for she did not need to consider
other questions, such as whether Williams had viewed John-‐‑
son long enough to provide a solid basis for memory inde-‐‑
pendent of the array, and whether any shortcoming in the
procedure the police used could be brought to the jury’s at-‐‑
tention at trial.
The judge found that the array was proper because all six
photos met Williams’s description: a bald black man with a
small amount of facial hair. A glance at the array shows this
to be correct:
No. 13-‐‑1350 5
All six men also were in the same clothing and photo-‐‑
graphed against the same background. Johnson’s lawyer ob-‐‑
serves that the men have different skin coloration, but that is
inevitable in any array or sequence of photos—just as it is
inevitable that the facial hair, ear sizes, and chin shapes will
not be identical. A “lineup of clones is not required.” United
States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998). “[I]t’s
impossible to find photos of persons who are identical to a
suspect … and also undesirable, because then the witness
6 No. 13-‐‑1350
wouldn’t be able to identify the suspect.” Ford, 683 F.3d at
766. Nothing about this array makes the photograph of
Johnson (#3) stand out. The array was not suggestive, and it
is therefore unnecessary to consider the remainder of the
analysis prescribed by Perry and its predecessors, such as
Simmons; Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Big-‐‑
gers, 409 U.S. 188 (1972); and Stovall v. Denno, 388 U.S. 293
(1967).
We have said enough to decide the appeal. Before clos-‐‑
ing, however, we add that Beau B. Brindley, who represent-‐‑
ed Johnson in this court, made it unduly hard for us to ac-‐‑
cess the materials necessary for disposition. The first step in
analyzing an appeal is understanding the basis of the district
court’s decision. A court of appeals can’t decide whether a
district judge made clearly erroneous findings or committed
a legal error without knowing what the judge did and why.
That’s why Circuit Rule 30(a) requires counsel for the appel-‐‑
lant to include, in an appendix to the brief, “any opinion,
memorandum of decision, findings of fact and conclusions
of law, or oral statement of reasons delivered by the trial
court or administrative agency upon the rendering of that
judgment, decree, or order.” Circuit Rule 30(b)(1) adds that
the appendix also must include “any other opinions, orders,
or oral rulings in the case that address the issues sought to
be raised.”
Johnson filed a pretrial motion asking the district court to
exclude evidence that Williams had selected Johnson from
the array. The judge denied this motion in an unreasoned
minute order entered on July 3, 2012. Anyone reading Brind-‐‑
ley’s brief would think that the court had no reasons—that
the decision was wholly arbitrary. But the brief for the Unit-‐‑
No. 13-‐‑1350 7
ed States told us that there were findings and reasons, and it
includes a short quotation from the hearing held on July 3.
Unfortunately, the United States did not supply the full
transcript—and when we looked for it to prepare for argu-‐‑
ment, we discovered that it was not in the record. That ham-‐‑
pered our ability to evaluate the arguments for both sides.
(Shortly after argument it was added to the record; we have
retrieved and read it.)
That the judge gave reasons, which Brindley omitted,
shows that he violated not only Rule 30(b)(1) but also Circuit
Rule 30(d): “The appendix to each appellant’s brief shall con-‐‑
tain a statement that all of the materials required by parts (a)
and (b) of this rule are included. If there are no materials
within the scope of parts (a) and (b) of this rule, counsel shall
so certify.” Johnson’s brief contains this representation: “I,
Beau B. Brindley, counsel for the Defendant-‐‑appellant Mr.
Mason Johnson, state that the appendices submitted with
this brief on appeal incorporate the material required under
Circuit Rule 30(a) and (b).” This representation is false.
We asked Brindley at oral argument how the omission
and falsehood had occurred. He replied that he had been re-‐‑
tained as Johnson’s lawyer late in the process. The appeal
began in February 2013, and by July 26, 2013, when Ralph J.
Schindler, Jr., Johnson’s first appellate lawyer, asked the
court to allow Brindley to take over the appeal, the time to
file the opening brief had been extended three times. We
granted a fourth extension, allowing six weeks for Brindley
to prepare adequately, but added that the new date was fi-‐‑
nal. (Our order of July 30, 2013, provides: “No further exten-‐‑
sions, at the request of Schindler or any other lawyer repre-‐‑
senting Mason Johnson, will be allowed under any circum-‐‑
8 No. 13-‐‑1350
stances.”) Brindley told us at argument that Schindler ne-‐‑
glected to order the transcript of the July 3, 2012, hearing
and that, by the time he discovered this hole in the record, it
was too late to get the hearing transcribed and still meet the
deadline. On September 9 he asked for an extension of time
so that he could obtain the missing transcript; given the or-‐‑
der of July 30, the court turned him down. Brindley then
elected not to order the transcript.
Brindley’s deferred arrival as Johnson’s appellate lawyer,
coupled with his predecessor’s neglect, may explain why he
did not have the transcript in time to file a brief (though he
ought to have discovered the problem in July rather than
September), but it does not explain why he failed to order the
transcript. He could have done so and furnished it to the
court as soon as it was ready—which would have been in
time for the United States’ brief and Johnson’s reply brief.
And it assuredly does not explain why Brindley chose to file
a false certificate, a step that Brindley’s narrative reveals as
deliberate deceit. He knew that the appendix omitted the dis-‐‑
trict judge’s findings and explanation, yet he told the court
that all required materials had been included. For a lawyer
who last year was held in contempt for lying to a federal
judge, see United States v. Britton, 731 F.3d 745 (7th Cir. 2013),
that was a mighty strange decision. (The district judge in
Britton used the summary-‐‑contempt process under Fed. R.
Crim. P. 42(b), which we determined was a mistake. We re-‐‑
manded for a more complete process.)
Brindley should have ordered the transcript, noted in the
Rule 30(d) statement that it was being prepared and would
be furnished as soon as possible, and provided it before the
panel of judges started their preparation (which happens a
No. 13-‐‑1350 9
few weeks before argument). He did none of these things,
choosing deceit over assistance to the court. Could Brindley
have thought that neither the prosecutor nor any one of the
three judges would notice that the district judge’s explana-‐‑
tion for her decision was missing? Yet he not only failed to
order the transcript but also ignored it once the prosecutor
had it prepared and relied on it in the brief for the United
States. Brindley’s reply brief, like his opening brief, proceeds
as if the district judge neither had nor gave any reason for
her decision.
Brindley may not have set out to develop a reputation as
a lawyer whose word cannot be trusted, but he has acquired
it. This opinion serves as a public rebuke and as a warning
that any further deceit will lead to an order requiring Brind-‐‑
ley to show cause why he should not be suspended or dis-‐‑
barred. We also direct Brindley to pay $2,000 as a sanction
for his intentional violation of Circuit Rule 30(d). See, e.g.,
United States v. Rogers, 270 F.3d 1076, 1084–85 (7th Cir. 2001)
($1,000 fine for a negligent violation).
The judgment is affirmed; Brindley is fined $2,000, paya-‐‑
ble to the clerk of court within two weeks.