United States v. Lamar E. Sanders , 708 F.3d 976 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3298
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L AMAR E. S ANDERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 08 CR 22—Joseph S. Van Bokkelen, Judge.
A RGUED S EPTEMBER 10, 2012—D ECIDED F EBRUARY 28, 2013
Before E ASTERBROOK, Chief Judge, and C UDAHY and
K ANNE, Circuit Judges.
K ANNE, Circuit Judge. In January 2008, Lamar E.
Sanders and an accomplice abducted Timicka Nobles’s
daughter, R.E. The reason: to induce Nobles to rob her
own mother. Nobles attempted to comply—she left a
bag of cash for Sanders’s accomplice to pick up—but
law enforcement authorities were already apprised of
the plot. They quickly arrested Sanders’s accomplice, and
2 No. 11-3298
Sanders turned himself in shortly thereafter. Fortunately,
no one was injured, and police recovered the money.
After a five-day trial, a jury found Sanders guilty of
kidnapping and extortion. He now appeals his convic-
tion and sentence. First, Sanders argues that the district
court denied him due process by admitting Nobles’s
three identifications of him. Second, Sanders claims
that the district court ran afoul of the Confronta-
tion Clause, or, alternatively, abused its discretion, by
limiting his cross-examination of Nobles. Finally,
Sanders contends that the district court applied the
incorrect mandatory minimum sentence. Finding no
error, we affirm both the conviction and sentence.
I. B ACKGROUND
Portage, Indiana. Saturday, January 5, 2008. 8:00 a.m.:
Timicka Nobles has a busy morning. She has to be at work
in Chicago soon. Plus, along the way, she needs to stop
by her mother’s house to drop off R.E., her ten-year-old
daughter. Putting on shoes in the apartment entryway,
Nobles and R.E. prepare to depart. As Nobles opens the
front door, two men force their way inside. Pushing
R.E. and Nobles back into the apartment, the men begin
their ill-fated kidnapping operation. The first man,
Ralph Scott, holds R.E. hostage in the living room, while
the second man, Lamar Sanders, points a gun at Nobles
and orders her into the bedroom. There, Sanders has
Nobles face the wall as he lays out his demands.
Nobles must drive to her workplace in Chicago—a
currency exchange owned by her mother. She will park
No. 11-3298 3
her car nearby and leave it unlocked. Nobles will then
enter the exchange as if nothing is wrong, as if it were
any other day. Today, however, Nobles must empty
the safe into a black garbage bag. She will take that
bag, place it on the front seat of her car, and walk away.
If she follows these instructions exactly, “things won’t
get messed up.” (Trial Tr. at 390.)
Nobles acquiesces. As Sanders leads her back into the
living room, she finds R.E. alone; Scott had left for
Chicago minutes earlier in Sanders’s Dodge Magnum.
Nobles gives her daughter a quick hug before Sanders
orders R.E. to blindfold herself with her headband. Nota-
bly, it does not entirely cover R.E.’s eyes; she can still
see above and below the band.
Our antagonists did not learn from tales of countless
foiled criminals never to leave a hostage unattended.
As Sanders drove R.E. to Chicago in Scott’s Chevy Trail-
blazer (while remaining in frequent phone contact with
Scott), he did not follow Nobles. Realizing as much,
Nobles stopped at a gas station and went into the at-
tached convenience store. Concerned by Nobles’s
apparent distress, the clerk allowed her to use the
store’s phone. Nobles made a frantic phone call to her
mother and warned her of the plot. Her mother alerted
the security officers at the exchange, who in turn
notified the Chicago Police. Thus, when Nobles arrived
at the exchange, the authorities were prepared.
Nobles did as Sanders ordered. She took the money
from the safe, placed it in a garbage bag, and set the bag
on the front seat of her car. After Nobles walked away,
4 No. 11-3298
Scott, who had parked Sanders’s Magnum near the
scene, approached and removed the money bag. As he
did, two exchange security officers and a Chicago Police
sergeant ran towards him. Fleeing the scene, Scott
ditched the bag in a bush. The officers quickly caught
up, arrested Scott, and recovered the money.
Observing Scott’s downfall from a block away, Sanders
ordered R.E. out of the Trailblazer and sped away.
When R.E. removed her headband, she recognized
where she was and walked to the currency exchange,
where she was reunited with her mother. Just minutes
after Scott’s arrest, Sanders called his mother. He then
called his Arizona-based girlfriend, Carlena Williams.
Sanders told Williams that his phone—the same phone
on which he was making the call—had been stolen. Wil-
liams paid Sanders’s phone bill, so she promptly called
Verizon and had service suspended on his phone (but
she would reinstate the service later that same day).
Back in Chicago, R.E. identified Scott as the man who
had guarded her in the living room. The police also
searched Scott’s pockets, where they found a key fob.
Taking the device in hand, an officer continuously
pressed the unlock button while walking up and down
nearby streets. When the fob activated Sanders’s
Magnum, evidence technicians searched the car. Inside,
they found Sanders’s driver’s license and seven photo-
graphs from a recent birthday party. In five of the
images, Sanders appeared with various combinations
of family and friends.
An officer took these photographs back to the ex-
change and interrupted Nobles’s interview with a detec-
No. 11-3298 5
tive. The officer showed Nobles one or two photos and
asked her if she recognized anyone. Witnesses disagree
about how many and which specific photos Nobles
saw. She viewed at most two photographs. Of those, one
depicted Sanders with two women, while the other de-
picted him with two other men: Scott and Sanders’s
brother. All agree, however, that Nobles identified
Sanders in at least one photograph as the second man
in her apartment that morning. At this time, Nobles
also gave an inaccurate verbal description of Sanders’s
build that was off by about five inches and sixty
pounds. This interview occurred within a couple hours
of the kidnapping. R.E. was not shown the photographs
found in the car.
Approximately two hours after Nobles’s first inter-
view with law enforcement, officers drove her and R.E.
to the Chicago Police Department. There, Nobles was
shown a formal photo array. The array placed photos
of Sanders alongside those of five other men with similar
height, weight, and facial features. The other individuals
in the photos were chosen based upon similarities to
Sanders’s actual features, as opposed to the inaccurate
verbal description that Nobles gave during her first
interview. Nobles again identified Sanders. R.E. was
independently shown a different array in another room.
She also identified Sanders. Following these identifica-
tions, the government issued a criminal complaint, and
Sanders turned himself in shortly thereafter.
As the case proceeded to trial, Sanders moved to sup-
press Nobles’s identifications of him. Sanders had three
6 No. 11-3298
theories behind this motion. First, he argued that
showing Nobles the birthday party photographs was so
unnecessarily suggestive as to violate the Due Process
Clause. Second, he asserted that the photo array was
impermissibly suggestive because only he appeared in
both the photos on the scene and in the subsequent
array. Finally, Sanders claimed that any in-court iden-
tification by Nobles could only be the product of these
previous, allegedly tainted, identifications. The district
court denied Sanders’s motion on all three grounds.
Also prior to trial, the government moved to limit cross-
examination of Nobles based on her previous convic-
tions. In 2001, when working at a different currency
exchange in Chicago (one not owned by her mother),
Nobles forged and delivered at least six fraudulent
checks. She was subsequently convicted for these crimes
and was sentenced to both boot camp and three years
in prison. In its motion, the prosecution sought to limit
the admission of details surrounding these convictions.
The government conceded that Sanders should be
allowed to introduce the fact that Nobles was convicted
of theft and forgery, the dates of those crimes, and her
sentence. The government, however, argued that Sanders
should not be allowed to elicit any further details about
the crimes, including the fact that they occurred at a
currency exchange. The district court agreed and im-
posed the requested limitations.
At a five-day jury trial, the government presented a
strong case. Nobles identified Sanders as the second
man in her apartment the morning of the kidnapping.
No. 11-3298 7
So did R.E. The government also presented cell phone
records showing that Sanders’s phone was in frequent
contact with Scott’s phone throughout the morning of
the crime. Expert witnesses traced the cell towers used
during these calls to show that the phones traveled
the approximate path of the kidnappers. Although the
phone records could not directly verify that Sanders
had his phone, other evidence spoke to that question.
The morning of the kidnapping, Sanders called Carlena
Williams and told her that his phone was stolen. Records
showed a corresponding call from Sanders’s phone to
Williams’s phone, made from the vicinity of the
currency exchange, approximately ten minutes after
Scott’s arrest. The records also showed that this call
was made from Sanders’s own phone—the same one
he was claiming was stolen. Just after that call, Williams
had the service on Sanders’s phone suspended, although
she reinstated it later that evening.
Defense counsel criticized Nobles’s identifications
and tried to implicate Nobles herself. Nobles remained
romantically involved with Vincent E., R.E.’s father,
who was also a fellow gang member of Sanders and
Scott. Scott, who signed a plea agreement with the gov-
ernment, testified that Vincent had planned the whole
plot and that Nobles was complicit in the scheme. The
jury, however, did not believe Sanders’s defense. On
January 24, 2011, he was found guilty of one count of
kidnapping under 18 U.S.C. § 1201 and one count
of extortion under 18 U.S.C. § 1951.
The district court sentenced Sanders on September 28.
Two mandatory minimums apply to kidnapping: 18
8 No. 11-3298
U.S.C. § 1201(g) requires twenty years and 18 U.S.C.
§ 3559(f)(2) requires twenty-five years. The district
court concluded that the higher penalty applied and
accordingly sentenced Sanders to concurrent sentences
of twenty-five years on the kidnapping count and
twenty years on the extortion count. The court also sen-
tenced Sanders to five years of supervised release.
Sanders timely appealed on October 7, 2011.
II. A NALYSIS
Sanders makes several arguments. He first contends
that the district court violated the Due Process Clause by
admitting into evidence each of Nobles’s three identifica-
tions of him. Second, he challenges the district court’s
decision to limit cross-examination on Nobles’s prior
convictions. Finally, he claims that the district court
should have applied the lower of the two applicable
mandatory minimum sentences. We address each of
these arguments in turn.
A. Identification Testimony
Our Constitution protects against “conviction based on
evidence of questionable reliability.” Perry v. New Hamp-
shire, 132 S. Ct. 716, 723 (2012). Despite the importance
of this right, the admission of evidence rarely implicates
due process. See id. Rather, courts typically rely on
other means to ensure reliable evidence—state and
federal rules, as well as different constitutional guaran-
tees, such as the Sixth Amendment rights to counsel and
No. 11-3298 9
confrontation. Id. Yet, “when evidence ‘is so extremely
unfair that its admission violates fundamental concep-
tions of justice,’ ” due process, like the sleeping giant,
awakens. Id. (quoting Dowling v. United States, 493 U.S.
342, 352 (1990)). In those situations, other protections
have proven insufficient, and courts must step in to
prevent injustice.
Unduly suggestive identification procedures represent
one example of those fundamentally unfair situations.
A procedure becomes so flawed as to implicate due
process when it creates a “very substantial likelihood of
irreparable misidentification.” Neil v. Biggers, 409 U.S. 188,
198 (1972) (quoting Simmons v. United States, 390 U.S.
377, 384 (1968)). In such cases, the identification must
be suppressed. Perry, 132 S. Ct. at 724-25. To de-
cide whether a situation has risen to that level, we
follow a two-pronged approach. First, we consider
whether the identification procedure used by law en-
forcement was “both suggestive and unnecessary.” Id.
at 724; accord United States v. Gallo-Moreno, 584 F.3d 751,
757 (7th Cir. 2009). Second, we examine the “totality of
the circumstances” to determine whether other indicia of
reliability “outweigh[ ] . . . the corrupting effect of law
enforcement suggestion.” Perry, 132 S. Ct. at 725(internal quotation marks omitted); accord Gallo-Moreno,
584 F.3d at 757.
As the Supreme Court recently reiterated, courts will
only consider the second prong if a challenged procedure
does not pass muster under the first. See Perry, 132 S. Ct.
at 730. To fail the first prong, however, even a “sugges-
10 No. 11-3298
tive” procedure must also be “unnecessary.” Id. at 724.
In other words, the situation must have involved “im-
proper state conduct”—one in which the circumstances
did not justify law enforcement’s suggestive behavior.
Id. at 728. As these descriptions show, both prongs are
highly situation-dependent, which may seem to blend
the two inquires. Yet, they are distinct. The first prong
focuses on police conduct—its suggestiveness and neces-
sity in the specific situation at hand. In contrast, the
second prong focuses on the identifying witness and
her knowledge of the suspect absent the suggestive
procedure. Perhaps, for example, the witness saw the
suspect for several minutes in broad daylight. See
United States v. Kimbrough, 528 F.2d 1242, 1246-47 (7th
Cir. 1976). Such considerations could lead us to conclude
that an unduly suggestive identification was nonethe-
less reliable, such that its admission would not violate
the Due Process Clause. See id.We will therefore begin by applying this dual-pronged
standard to Nobles’s first two identifications of Sanders.
The first identification occurred shortly after the crime,
when Chicago Police officers showed Nobles the
birthday party photographs removed from Sanders’s
car. The second identification occurred a few hours
later, when Nobles took part in a formal photo array.
After addressing those instances, we can examine
Nobles’s third identification, made during trial. If either
of the first two procedures was unnecessarily sugges-
tive, then the in-court identification must demonstrate
an independent basis of reliability to be admissible. See
United States v. Rogers, 387 F.3d 925, 937-38 (7th Cir. 2004);
No. 11-3298 11
see also Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000).
As we consider each of these three questions, our review
is de novo with “due deference to the trial court’s
findings of historical fact.” United States v. Benabe, 654
F.3d 753, 774 (7th Cir. 2011) (internal quotation marks
omitted).
1. Identification in the Birthday Party Photographs
Under the first prong of our inquiry, we now analyze
whether showing Nobles the photographs found in
Sanders’s car was “both suggestive and unnecessary.”
Perry, 132 S. Ct. at 724.
a. Suggestiveness
According to Sanders, the police conducted a “show up”
when they asked Nobles about the birthday party photo-
graphs. In a show up, the police present only one suspect
to the identifying witness. United States v. Funches, 84
F.3d 249, 254 (7th Cir. 1996). Consequently, show ups are
“inherently suggestive.” United States v. Hawkins, 499
F.3d 703, 707 (7th Cir. 2007). Yet, it remains unclear
whether this identification procedure actually was a
show up, as defined by our case law. We have most
often used that term to describe situations in which law
enforcement have apprehended a suspect and then physi-
cally shown that person to a witness. See, e.g., United
States v. Newman, 144 F.3d 531, 535 (7th Cir. 1998);
Abrams v. Barnett, 121 F.3d 1036, 1040-41 (7th Cir. 1997);
Funches, 84 F.3d at 254. Here, however, the police
12 No. 11-3298
showed Nobles one (or potentially two) photographs of
Sanders. Our cases leave unsettled whether we also
consider it a “show up” when a witness is presented
only with the suspect’s photograph. Compare Cossel,
229 F.3d at 655 (describing a photographic “show-up”),
with Hawkins, 499 F.3d at 708 (describing photographic
identification as “akin to a showup”).
An added wrinkle stems from witnesses’ disagreement
over which photographs Nobles saw. Again, a show up
involves presenting a witness with only one suspect.
Here, however, one of the photos allegedly shown to
Nobles would have given her the opportunity to identify
another male of similar features to Sanders (his brother).
That said, the police showed Nobles at most two photo-
graphs, and those photos presented, at most, one other
possible suspect for identification. For that reason, the
procedure was closer to a show up than other photo-
graphic identification techniques, such as a line up, in
which several suspects are presented. Cf. United States
v. Clark, 989 F.2d 1490, 1495 n.2 (7th Cir. 1993) (showing
a witness two arrested suspects was more analogous to
a show up than a line up). Still, for the sake of con-
sistency, we will not refer to the procedure as a “show up.”
When Sanders argues that this procedure was sugges-
tive, he ignores a key trend in our case law. In recent
years, we have noted proliferating social science data
on the reliability of eyewitness testimony. See United
States v. Ford, 683 F.3d 761, 766 (7th Cir. 2012) (collecting
articles). Accordingly, we have held that scientific
sources should generally accompany an argument that
No. 11-3298 13
a particular procedure was unnecessarily suggestive.
United States v. Acox, 595 F.3d 729, 730 (7th Cir. 2010)
(“Lawyers’ assertions that the effects of a photo spread
are ‘clear’ or ‘obvious’ are no substitute for evidence”);
see also United States v. Williams, 522 F.3d 809, 812 (7th
Cir. 2008). Sanders has not properly presented us with
such data here. Although his counsel submitted several
sources after oral argument, in accordance with Federal
Rule of Appellate Procedure 28(j), this attempt is too
little, too late. These sources raise complicated points
that Sanders should have addressed in his briefs. A Rule
28(j) letter is not the appropriate forum to make new,
complex arguments. Spiegla v. Hull, 481 F.3d 961, 965
(7th Cir. 2007).1
Yet, we have not made social science data a strict re-
quirement for us to determine whether a procedure
was unnecessarily suggestive; “[o]ften the right disposi-
tion will be evident with or without the aid of social
1
Even if we considered Sanders’s new sources, some of them do
not even support his position. One book chapter, for example,
compares the reliability of physical show ups with photo-
graphic ones (the book uses the term “show-up” to include
single-photograph identification techniques). Jennifer E. Dysart
& R.C.L. Lindsay, Show-up Identifications: Suggestive Technique
or Reliable Method?, in 2 The Handbook of Eyewitness Psychology:
Memory for People 137, 142-43 (R.C.L. Lindsay et al. eds., 2007).
In so doing, the authors explain that, “[w]hen the identifica-
tion procedure is conducted with the use of photographs,
there is no significant difference in correct identification
rates between show-ups and line-ups.” Id. at 143.
14 No. 11-3298
science.” Williams, 522 F.3d at 812. Such is the case here.
As stated earlier, the procedure employed by law en-
forcement, with the paucity of suspects presented to
Nobles, was similar to a show up. We have previously
found show ups “inherently suggestive.” Hawkins, 499
F.3d at 707. Therefore, it seems likely that this procedure
was also suggestive. But since we do not have data to
help us resolve that question, we think it best to set it
aside for now. Rather, we can simply assume, for
current purposes, that it was suggestive, because the
disposition is nevertheless clear: Sanders’s claim falters
because he cannot prove that the procedure, even if
suggestive, was also unnecessary.
b. Necessity
As discussed, a procedure that is suggestive—even
when inherently so—may still be necessary. Perry, 132
S. Ct. at 724; accord United States v. Recendiz, 557 F.3d
511, 525 (7th Cir. 2009). As in all aspects of life, context
matters. Thus, the circumstances surrounding an inves-
tigation can justify even a show up. Hawkins, 499 F.3d
at 707-08.
Citing United States v. Funches, Sanders argues that
show ups are only acceptable to “allow identification
before the suspect has altered his appearance” or to
“permit the quick release of innocent persons” if
witnesses cannot identify the apprehended individual.
84 F.3d at 254. Sanders then argues that the situa-
tion here does not present one of those exceptions, thus
No. 11-3298 15
rendering evidence derived from the procedure imper-
missible. Funches, however, merely listed “example[s]”
of acceptable reasons for a show up; it did not claim
to be exhaustive. Id. Moreover, Funches involved a
physical show up, not a single-photograph identifica-
tion procedure. Id. at 251-52. Photographic identification
techniques, while perhaps similar in some ways to
physical show ups, are also different in important ways.
When police conduct a physical show up, they already
have the suspect in custody. Therefore, there is not the
same exigency to catch a criminal on the loose, which,
depending on the situation, could justify the suggestive
procedure.
For that reason, Simmons v. United States, rather than
physical show up cases, presents the key precedent. 390
U.S. 377. In that case, Simmons committed an armed
robbery of a bank with an accomplice. Id. at 379-80. The
next morning, police obtained a few photographs that
depicted Simmons with the man they suspected of
being his accomplice. Id. at 380. Later that day, officers
showed the photographs to five bank employees. Id.Every witness identified Simmons as one of the robbers.
Id. After being convicted, Simmons argued that the photo-
graphic identification procedure violated the Due
Process Clause. Id. at 381-82. The Supreme Court, how-
ever, disagreed, writing:
[a] serious felony had been committed. The perpe-
trators were still at large. The inconclusive clues
which law enforcement officials possessed led
to . . . Simmons. It was essential for the FBI agents
16 No. 11-3298
swiftly to determine whether they were on the
right track, so that they could properly deploy
their forces . . . and, if necessary, alert officials
in other cities.
Id. at 384-85. These circumstances, the Court held, justi-
fied the identification procedure used. Id. at 386.
This case presents clear parallels to Simmons. Here, a
serious felony had also been committed: someone had
kidnapped R.E. to induce Nobles to rob her own
mother’s currency exchange. The police also had clues
pointing to a suspect: Sanders. Although law enforce-
ment officers had arrested Scott, they knew a second
man was involved, and their best clues were the
photos found in the car Scott drove. Finally, with an
armed felon still on the loose, the police needed to
act quickly. Showing Nobles the photos was the best
way to proceed. In fact, the situation in this case pre-
sented even greater necessity than in Simmons. Here,
police showed Nobles the photographs within a couple
hours of the crime. In Simmons, on the other hand, the
Supreme Court upheld a procedure in which the police
did not show the photos to witnesses until the next
day. With the crime much closer at hand here, the
rationale for upholding the procedure as necessary is
even more pressing.
Sanders’s attempts to distinguish Simmons do not
persuade. First, he argues that Simmons only challenged
the witnesses’ in-court identifications. Sanders does not
explain why that distinction matters, but, in any event,
his assertion is incorrect; Simmons also challenged the
No. 11-3298 17
pretrial identifications that resulted from the proce-
dures described above, just as Sanders does here.
Simmons, 390 U.S. at 381-82. Second, Sanders contends
that the witnesses in Simmons were shown mostly
group photographs, thereby making the identifications
more reliable than the one here. But that argument does
not negate any of our necessity analysis, and finding a
suggestive procedure unnecessary is a prerequisite to
considering other indicia of reliability. See Perry, 132
S. Ct. at 730. Thus, because Sanders has not effectively
distinguished Simmons, we need not turn to such con-
siderations under the second prong.
Our own cases involving unnecessarily suggestive
photographic identifications are not to the contrary.
For example, in United States v. Kimbrough, the police
showed the witness a composite sketch of the suspect
followed by photos of only the defendant. 528 F.2d at
1244. Yet, the authorities had no good reason for failing
to use more images; they could have easily produced
an array using other available photos. Id. at 1244-45.
Similarly, in Israel v. Odom, the police showed a rape
victim only an image of her suspected assailant. 521
F.2d 1370, 1372 (7th Cir. 1975). Before doing so, the police
had left the scene of the crime, gone back to the station,
pulled up a stored image of the suspect, and returned
to the victim’s home. Id. Given that sequence of events,
“[n]o appreciable time would have been lost” by pulling
a few extra files at the station so the victim could
have viewed more potential suspects. Id. at 1375.
Those cases are distinguishable. Here, the police
obtained the photographs on the scene of the crime
18 No. 11-3298
itself, while an out-of-town victim was still present,
and her memory was at its freshest. It would have
taken significantly more time for the police to leave
the scene, go to the station house, locate photos similar
to those found in the car, and return. A dangerous
suspect could have used that extra time to facilitate
his escape. Thus, unlike in Kimbrough and Israel, the
police in this case could not have produced a sig-
nificantly less suggestive procedure without sacrificing
critical time. In this quickly developing situation,
showing Nobles the photographs was the most re-
sponsible way to proceed with the early stages of investi-
gation. Law enforcement’s procedure may have been
suggestive to some degree, but it was also necessary.
Because we find that the procedure was necessary, we
need not address the reliability prong of the analysis.
See Perry, 132 S. Ct. at 730. Rather, we can rely on our
criminal procedure to ensure due process. After we are
convinced that no constitutional violation occurred,
“the jury, not the judge, . . . determines the reliability of
evidence.” Id. at 728.
c. Harmless Error
Although we do not think there was any error in ad-
mitting Nobles’s first identification of Sanders, even if
there was, we could alternatively resolve the issue as
harmless error. Constitutional errors (or, as here, potential
constitutional errors) divide into two categories for de-
termining their amenability to harmless error review.
United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006).
No. 11-3298 19
The first is “structural defects,” which “affect the frame-
work within which the trial proceeds.” Id. (internal brack-
ets omitted). Examples of these grave errors, which
are not subject to harmless error review, include denial
of the right to counsel or denial of self-representation. Id.
at 148-49. In contrast, “trial error[s]” merely affect the
“presentation of the case to the jury” and are thus
subject to harmless error review. Id. at 148. This case
falls into that latter category. See Rogers, 387 F.3d at 939(acknowledging that admission of identification testi-
mony can be harmless).
Therefore, even if admitting Nobles’s identification
proved erroneous, Sanders’s conviction will stand if
the error was “harmless beyond a reasonable doubt.”
Gonzalez-Lopez, 548 U.S. at 148; accord United States v.
Garcia, 528 F.3d 481, 485 (7th Cir. 2008). In making
that determination, we consider factors such as “(1) the
importance of the witness’s testimony in the prosecution’s
case; (2) whether the testimony was cumulative;
(3) whether other evidence corroborated or contra-
dicted the witness’s material testimony; and (4) the
overall strength of the prosecution’s case.” United States
v. Ochoa, 229 F.3d 631, 640 (7th Cir. 2000) (citing Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986)).
These factors lead us to conclude that any potential
error in admitting Nobles’s identification was harmless
beyond a reasonable doubt. First, R.E. independently
identified Sanders in a formal photo array. The Chicago
Police did not show R.E. the birthday party photos
found in the car, so Sanders cannot criticize her array
as tainted. R.E. also had greater opportunity to observe
20 No. 11-3298
Sanders, having spent nearly an hour in the car with
him (albeit with her eyes partially covered). Finally, the
cell phone records foreclose any lingering doubt.
Sanders’s cell phone was in frequent contact with Scott’s
throughout the morning of the kidnapping, and records
show that these phones traveled the approximate path
of the kidnappers at the same time as the crime.
Sanders argues that someone else had his cell
phone—just as someone else had his car and wallet.
That argument cannot withstand the other evidence.
Sanders’s own mother testified that he frequently
swapped cars with others, including Scott. In addition,
just a few minutes after authorities arrested Scott,
Sanders called both his mother and his girlfriend,
Carlena Williams. Sanders told Williams that his phone
had been stolen. Yet, according to the cell phone
records introduced into evidence, that call to Williams
was made on Sanders’s phone—the same one he
claimed was stolen. Williams promptly suspended
service on Sanders’s phone, just a few minutes after
Scott’s arrest. Later that same day, however, Williams
reinstated the service on Sanders’s phone, an act further
undercutting the claim it was stolen. In light of this
overwhelming evidence, any potential error in admitting
Nobles’s initial identification was harmless beyond a
reasonable doubt.
2. Identification in the Photo Array
Sanders next challenges Nobles’s second identification
of him, which occurred during a photo array conducted
a few hours after her initial interview with law enforce-
No. 11-3298 21
ment. The concern with this identification is repetition:
Sanders was the only person whose photographs ap-
peared both in Nobles’s initial interview and in the array.
To start, we note that “there is nothing per se impermis-
sible about placing the same suspect in two different
identification procedures.” United States v. Griffin, 493
F.3d 856, 865 (7th Cir. 2007). Yet, when upholding repeti-
tive procedures in the past, we have often focused on
the mitigating effect of elapsed time between the iden-
tifications. See, e.g., id. at 865-66 (two months between
line up and photo array); United States v. Carter, 410
F.3d 942, 949 (7th Cir. 2005) (three months between
photo arrays); United States v. Harris, 281 F.3d 667, 670-71
(7th Cir. 2002) (six months between photo array and line
up); Stewart v. Duckworth, 93 F.3d 262, 265 (7th Cir. 1996)
(eleven days between photo arrays); United States v.
Cord, 654 F.2d 490, 492-93 (7th Cir. 1981) (two weeks
between photo arrays). Here, however, a mere two
hours passed between showing Nobles the birthday
party photos and conducting the array.
Regardless, we need not decide the more difficult
constitutional question today. Instead, we can resolve
the issue using the same harmless error analysis
discussed above. The same reasoning applies with
equal force to this identification. The government’s evi-
dence was strong, and Sander’s case weak. As a result,
any error in admitting the second identification was
also harmless beyond a reasonable doubt.
22 No. 11-3298
3. In-Court Identification
Third, Sanders challenges Nobles’s in-court identifica-
tion, which he claims lacked an independent basis of
reliability. Since we have already concluded that the
first photo identification was constitutional, we need not
be concerned with potential taint from that procedure.
Therefore, the only remaining concern arises out of any
potential taint from the photo array identification, for
which we have reserved the constitutional question.
Even if the photo array proved unnecessarily
suggestive, the district court would have nonetheless
properly admitted Nobles’s in-court identification if
“clear and convincing evidence [shows] that [it] was
based upon observations . . . other than at the prior,
illegal identification, or, alternatively, . . . that the error
complained of was harmless beyond a reasonable
doubt.” Cossel, 229 F.3d at 655. We believe that any
error here was also harmless, for the same reasons dis-
cussed above.
4. Cumulative Error
As his final due process argument, Sanders claims
that any potential errors described above, taken together,
present an issue of cumulative error. Such would be
the case if the errors “could possibly have influenced the
jury to reach an improper result.” United States v. Rogers,
89 F.3d 1326, 1338 (7th Cir. 1996).
That is not the case here. For the reasons already dis-
cussed, Nobles’s identifications were largely cumulative,
given R.E.’s testimony. Furthermore, defense counsel
No. 11-3298 23
had ample opportunity to discredit Nobles’s identifica-
tions through cross-examination and hammered home
that point during closing argument. The district court
also instructed the jury about weighing the reliability
of identifications and considering the circumstances
under which they were made. Most importantly,
Nobles’s identifications—separately or in tandem—were
simply a drop in the bucket compared to the over-
whelming evidence against Sanders. Even if admitting
all three identifications was erroneous, the impact was
harmless beyond a reasonable doubt. We thus find no
due process violation.
B. Limitation on Cross-Examination
Next, we address two separate challenges to a limita-
tion imposed by the district court on Sanders’s cross-
examination of Nobles. In 2001, Nobles was convicted
of theft and forgery for making and delivering at least
six forged checks in connection with her employment.
At the time, Nobles worked for a different currency
exchange in Chicago. Nobles was sentenced to both
boot camp and three years in prison. Prior to Sanders’s
trial, the district court granted the government’s motion
to limit testimony regarding these convictions. The court
ruled that Nobles’s convictions could come into evidence,
along with the type of crime, date, and sentence; but,
the defense could not probe any details of the offenses,
including the fact that they involved a currency exchange.
Sanders, however, had hoped to use Nobles’s past to
implicate her. Nobles remained romantically involved
24 No. 11-3298
with Vincent E., R.E.’s father. Scott testified that Vincent
had planned the whole plot and that Nobles was
complicit. This information, Sanders argues, would have
made Nobles a prime suspect to the police; then, their
suspicions would have grown when they learned that
Nobles had previously committed crimes at a currency
exchange. Thus, Sanders claims that Nobles needed to
divert police attention away from herself—which she
did by falsely implicating him during the identification
procedures. Sanders also argues that this theory makes
it less likely he committed the crime. When the district
court disallowed details of Nobles’s past convictions,
the court allegedly thwarted this defense theory. For
that reason, Sanders now claims that the limitation
violated his right to confront witnesses against him.
Alternatively, he argues that the district court abused
its discretion in denying admission of the evidence.
1. Confrontation Clause
The Confrontation Clause assures the ability of the
accused in criminal prosecutions “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. Sanders
contends that the district court violated this right by
limiting his cross-examination of Nobles. When consider-
ing a district court’s restraint on cross-examination, our
standard of review depends upon whether the limit
“directly implicate[d] the core values of the Confrontation
Clause.” Recendiz, 557 F.3d at 530 (internal quotation
marks omitted). If it did, we review de novo; “otherwise,
we review for abuse of discretion.” Id.No. 11-3298 25
“[E]xposing witness bias” lies within the protected
“core” of the Confrontation Clause, United States v.
Manske, 186 F.3d 770, 778 (7th Cir. 1999), which may
lead one to believe our review here is de novo. Yet, “the
Confrontation Clause guarantees an opportunity for ef-
fective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish.” Delaware v. Fensterer, 474 U.S. 15,
20 (1985). Thus, a limitation on cross-examination impli-
cates the core of the Confrontation Clause when “the
defense is completely forbidden from exposing the wit-
ness’s bias.” Manske, 186 F.3d at 778. But after the defen-
dant reveals a witness’s motive to lie, “how much op-
portunity defense counsel gets to hammer that point
down to the jury” becomes “peripheral” for Sixth Amend-
ment purposes. Id.; accord United States v. Scott, 145
F.3d 878, 888 (7th Cir. 1998) (citing Van Arsdall, 475 U.S. at
682). In other words, merely having the chance to
present a motive to lie is sufficient to satisfy the core
values of the confrontation right. See, e.g., Recendiz, 557
F.3d at 530; Manske, 186 F.3d at 778.
Here, the district court did not foreclose Sanders’s
ability to establish Nobles’s bias. Scott testified that
Vincent had planned the kidnapping and that Nobles
was complicit in the scheme. Then, through cross-exa-
mining Nobles, Sanders established that she remained
romantically involved with Vincent during and after
the kidnapping. Defense counsel also asked Nobles
about a time when Vincent told her that if “anyone con-
fronted [her] or robbed [her], that [she] should just do
exactly what they said.” (Trial Tr. at 425.) Immediately
26 No. 11-3298
after eliciting that testimony, Sanders’s attorney asked
Nobles about her prior crimes. Nobles admitted to
her convictions and sentences for theft and forgery. (Id.
at 426-27.)
Those pieces of testimony collectively establish
Sanders’s defense theory: because Nobles and Vincent
were involved in the plot, and Nobles had a criminal
history, she had a motive to implicate Sanders and
turn attention away from herself. This theory may have
been ever-so-slightly more compelling if the jury knew
Nobles’s prior crimes involved a currency exchange.
But the defense still presented the theory to the
jury—and that is the critical point. After that threshold
has been crossed, it is not important, for Sixth Amend-
ment purposes, how much counsel was able to drive
the point home. The district court’s limitation on cross-
examination thus did not implicate the core values of
the Confrontation Clause.
Consequently, we review the limit for abuse of discre-
tion. See Recendiz, 557 F.3d at 530. In so doing, we
must determine “whether the jury had sufficient infor-
mation to make a discriminating appraisal of the
witness’s motives and biases.” Id. (internal quotation
marks omitted). In light of the previous discussion, we
cannot find that the district court abused its discretion.
Sanders presented the jury with his entire theory of No-
bles’s motive to lie. The fact that the prior convictions
involved crimes at another currency exchange would
not have given the jury any further material information
in appraising her credibility. The jury might not have
No. 11-3298 27
possessed all the information Sanders wanted it to
have, but it certainly had sufficient information to
evaluate Nobles’s testimony.
2. Reverse 404(b) Evidence
Sanders next argues that the district court did not
understand his reasons for introducing details about
Nobles’s prior convictions and thus used the wrong
approach in analyzing their admissibility. As mentioned
earlier, Sanders had two related reasons for cross-exa-
mining Nobles about her prior crimes: introducing her
motive to lie and casting doubt on Sanders’s own guilt.
We have already addressed the attempt to show bias in
the Confrontation Clause analysis above and concluded
that the district court did not abuse its discretion in
prohibiting the testimony with that purpose in mind.
Now, we turn to Sanders’s second reason for offering
the testimony—making his guilt less likely. Sanders
could attempt to do so by arguing that Nobles’s past
offenses and this kidnapping were so alike that, if
Sanders did not commit the previous crimes, then it is
less likely he committed this one.
Given that purpose, Sanders argues that the district
court should have used Federal Rule of Evidence 404(b)
to analyze whether the details of Nobles’s convictions
were admissible. Rule 404(b) provides that, “Evidence of
a [past] crime . . . 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). Yet, such evidence “may be admis-
sible for another purpose.” Fed. R. Evid. 404(b)(2). For
28 No. 11-3298
example, as Sanders hoped to do, a defendant can seek
to introduce evidence of a government witness’s prior
bad acts if that evidence tends to negate the defendant’s
guilt. United States v. Alayeto, 628 F.3d 917, 921 (7th Cir.
2010). Colloquially (at least among lawyers), such
evidence is referred to as “reverse 404(b)” evidence.
United States v. Savage, 505 F.3d 754, 761 (7th Cir. 2007);
United States v. Wilson, 307 F.3d 596, 601 (7th Cir.
2002). When deciding the admissibility of reverse 404(b)
evidence, the district court must determine whether the
information’s probative value is outweighed by other
considerations, such as undue prejudice, confusion of
the issues, or delay. Savage, 505 F.3d at 761; Wilson, 307
F.3d at 601. We review the district court’s findings on
this non-constitutional question for abuse of discretion.
Wilson, 307 F.3d at 599.
Sanders’s argument relies on United States v. Murray,
in which we said, “[c]oncern with the poisonous effect
on the jury of propensity evidence is minimal” when a
defendant attempts to employ reverse 404(b) evidence.
474 F.3d 938, 939 (7th Cir. 2007). Sanders thus claims
that, given the minimal risks associated with admitting
such evidence, the district court abused its discretion
in excluding it. The key follow-up to the quotation cited
by Sanders, however, comes in the next paragraph of
that opinion. The most “serious objection to [reverse
404(b)] evidence is that its probative value is slight”; in
other words, “unless the other crime and the present
crime are sufficiently alike to make it likely that the
same person committed both crimes, so that if the defen-
No. 11-3298 29
dant did not commit the other crime he probably
did not commit this one, the evidence will flunk.” Id.This case demonstrates that precise concern. Nobles’s
prior convictions were not at all similar to the case at
hand; a world of difference separates forging a check
and plotting to kidnap your own daughter at gunpoint
before robbing your mother’s business. Yes, both crimes
involved currency exchanges, but the similarity ends
there. With only a gossamer thread connecting Nobles’s
prior convictions to the current crime, further details of
her past offenses had minuscule probative value. More
importantly, the other considerations referenced earlier
clearly outweighed that value. Like the district judge,
we are skeptical that these details were offered for
any reason beyond attempting to show conformity
with prior unlawful conduct. As such, the district
court did not abuse its discretion in finding the evi-
dence inadmissible.
C. Mandatory Minimum Sentence
Sanders last challenges his sentence. The district court
sentenced Sanders to the twenty-five-year manda-
tory minimum imposed by 18 U.S.C. § 3559(f)(2).
Sanders contends that he should have instead received the
twenty-year minimum imposed by 18 U.S.C. § 1201(g).
Because statutory interpretation presents a question of
law, we review de novo. United States v. Rosenbohm, 564
F.3d 820, 822 (7th Cir. 2009).
Federal criminal law defines kidnapping in 18 U.S.C.
§ 1201(a). The version of the offense relevant here occurs
30 No. 11-3298
when a person “unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds
for ransom . . . any person . . . when . . . the person is
willfully transported in interstate or foreign commerce . . .
or the offender travels in interstate or foreign com-
merce.” 18 U.S.C. § 1201(a). Starting in 2003, Congress
imposed a new heightened penalty for kidnappings
involving minors. See Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act
of 2003, Pub. L. No. 108-21, § 104(b), 117 Stat. 650, 653
(2003) (codified at 18 U.S.C. § 1201(g)). Under the new
provision, if the victim was under the age of eighteen,
and the kidnapper did not belong to an enumerated
list of relatives, the offender had to be sentenced to “not
less than 20 years” in prison. 18 U.S.C. § 1201(g).
Then, in 2006, Congress enacted another law that en-
hanced the mandatory minimums applicable to those
who commit certain “crime[s] of violence” against minors.
Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, § 202, 120 Stat. 587, 612 (2006) (codi-
fied at 18 U.S.C. § 3559(f)). Specifically at issue here, “if
the crime of violence is kidnapping (as defined in [18
U.S.C. § 1201])” the offender shall “be imprisoned for
life or any term of years not less than 25.” 18 U.S.C.
§ 3559(f)(2). This heightened penalty applies “unless a
greater mandatory minimum sentence of imprisonment
is otherwise provided by law and regardless of any
maximum term of imprisonment otherwise provided
for the offense.” 18 U.S.C. § 3559(f).
Sanders argues using a well-known canon of statu-
tory interpretation: courts interpret statutes to avoid
No. 11-3298 31
rendering portions of them “superfluous” or “pointless.”
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113 (2001).
Sanders claims that reading the two mandatory
minimums as applying to the exact same crime renders
the lower minimum meaningless. In other words, if the
offenses covered by the two provisions completely
overlap, courts would only apply the higher minimum,
thereby eliminating the lower penalty through a
disfavored repeal by implication. See Granholm v. Heald,
544 U.S. 460, 483 (2005). For that reason, Sanders seeks
to find a version of kidnapping that does not qualify for
the higher penalty. Given the language of “crime of
violence” in § 3559(f), Sanders argues that Congress
intended the enhanced mandatory minimum only to
apply when the kidnapping involved “actual violence.”
We disagree. The phrase “crime of violence” is a term
of art defined in 18 U.S.C. § 16. Under the statutory
definition, such crimes do not require “actual violence.”
Rather, a “crime of violence” only must have “as an
element the use, attempted use, or threatened use of
physical force . . . or . . . by its nature, involve[ ] a substan-
tial risk that physical force against the person . . . may be
used in the course of committing the offense.” Id.Although Congress did not specifically cite this defini-
tion in § 3559(f) (as it did for § 1201), another “longstand-
ing” canon of statutory interpretation is “construing
statutes in pari materia.” Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 445 (1987); see also Wachovia Bank, N.A. v.
Schmidt, 546 U.S. 303, 315-16 (2006) (“under the in
pari materia canon of statutory construction, statutes
addressing the same subject matter generally should be
32 No. 11-3298
read as if they were one law”) (internal quotation
marks omitted). We have no reason to think that
Congress intended the term “crime of violence” to mean
anything other than how it is defined at the beginning
of the very same chapter of the United States Code.
Indeed, we believe Congress intended the higher
penalty to apply. The twenty-five year minimum was
passed later in time. The chapter of the act that included
the new minimum was titled “Federal Criminal Law
Enhancements Needed to Protect Children from Sexual
Attacks and Other Violent Crimes.” Pub. L. No. 109-248
ch. 2, 120 Stat. 587, 588 (2006) (emphasis added). Congress
knew it was increasing the penalty from what was previ-
ously established. In addition, the statute says courts
should impose these higher sentences “unless a greater
mandatory minimum sentence” applies and “regardless
of any maximum term of imprisonment otherwise pro-
vided.” 18 U.S.C. § 3559(f) (emphasis added). In
other words, Congress wanted courts to use the
higher provisions unless something even greater applied
and notwithstanding conflicting maximum terms. Thus,
as the name of the act demonstrates, Congress was
focused on criminals receiving higher sentences, not
lower ones.
Sanders argues that this reading renders § 1201(g)
a nullity, but “the rule against redundancy does not
necessarily have the strength to turn a tide of good
cause to come out the other way.” Gutierrez v. Ada, 528
U.S. 250, 258 (2000). That is the case here, to the extent
that we deprive § 1201(g) of force. In any event, we
No. 11-3298 33
do not believe we have rendered § 1201(g) meaningless.
Applying the higher minimum complies with both
statutes, since § 1201(g) requires merely that the
offender be sentenced to “not less than 20 years.” 18 U.S.C.
§ 1201(g) (emphasis added). A twenty-five-year sentence
is “not less” than twenty years. Thus, we do not need
to deviate from the standard definition of “crime of
violence,” as Sanders urges us to do, to give meaning
to the statute. The fact that two statutes mandate
“different penalties for essentially the same conduct is
no justification for taking liberties with unequivocal
statutory language.” United States v. Batchelder, 442
U.S. 114, 121-22 (1979). As such, the district court
correctly interpreted the twenty-five-year sentence of
§ 3559(f)(2) as the applicable minimum.
III. C ONCLUSION
For the foregoing reasons, we find all of Sanders’s
arguments unavailing. We therefore A FFIRM both his
conviction and sentence.
2-28-13