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United States v. Gonzalez

United States Court of Appeals, Seventh Circuit

July 10, 2017

United States of America, Plaintiff-Appellee,
v.
Conrad Gonzalez, Defendant-Appellant.

          Argued February 6, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:13-cr-50074-l - Frederick J. Kapala, Judge.

          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- 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. 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 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 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 just-everything about ...

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