United States v. Conrad Gonzalez, 863 F.3d 576

Bank teller Tara Miller was robbed on Oct. 30, 2013, at close range; she completed a contemporaneous Bandit Description Form and later viewed police images.
Within minutes police showed Miller two poor-quality ID photos of Gonzalez (a single-person photo show-up); two days later detectives presented a six-person color photo array assembled by an untrained officer, and Miller identified Gonzalez.
Additional evidence: Gonzalez wore an identical Bears sweatshirt days earlier; that sweatshirt (with $60 in three $20 bills) was recovered from a nearby dumpster; family members and others identified the sweatshirt and/or Gonzalez from surveillance photos; Kelly Mewhirter (Gonzalez’s sometime partner) identified Gonzalez and testified against him in exchange for a reduced sentence.
Gonzalez’s alibi was weak and inconsistent with contemporaneous texts and surveillance (he was near the McDonald’s four blocks from the bank during the robbery window); no fingerprint/DNA linked him to the scene.
Gonzalez was convicted of bank robbery and sentenced to 234 months; on appeal he challenged (1) admission of Miller’s out-of-court and in-court identifications as the product of unnecessarily suggestive procedures and (2) admission of evidence about Kelly’s restaurant robbery as improper propensity evidence under Rule 404(b).

Issue	Gonzalez's Argument	Government's Argument	Held
Whether photo show-up and photo array were so suggestive as to violate due process and require suppression of Miller’s out-of-court ID	The show-up (single-suspect photos shown minutes after the robbery) and a flawed six-person array were unnecessarily suggestive and tainted Miller’s later ID	Conceded the immediate photo show-up was suggestive but argued the six-person array and Miller’s identification were reliable; any error was harmless	Court held the show-up and array had significant problems and the show-up was unnecessary, but the totality of circumstances made Miller’s ID reliable enough for admission; any error was harmless
Whether evidence about Kelly Mewhirter’s restaurant robbery and related testimony was improper propensity evidence under Rule 404(b)	Evidence implied Gonzalez participated in Kelly’s prior robbery and was used to show propensity	Government argued the evidence was admissible to impeach Kelly’s credibility/bias; it did not directly accuse Gonzalez of the restaurant robbery	Court found no plain error: evidence was relevant to Kelly’s credibility and was not used to show Gonzalez’s propensity; admission was proper

Manson v. Brathwaite, 432 U.S. 98 (1977) (two-step test: suggestiveness and likelihood of misidentification)
Simmons v. United States, 390 U.S. 377 (1968) (single-photo displays raise misidentification risk)
Stovall v. Denno, 388 U.S. 293 (1967) (in-person show-ups widely condemned; exigent circumstances may matter)
Neil v. Biggers, 409 U.S. 188 (1972) (factors for reliability of identification: opportunity, attention, prior description, certainty, time delay)
Perry v. New Hampshire, 565 U.S. 228 (2012) (due process triggered by unnecessarily suggestive police procedures; otherwise reliability is for jury)
United States v. Sanders, 708 F.3d 976 (7th Cir. 2013) (discusses exigency and harmless-error analysis for photo show-ups)
United States v. Williams, 522 F.3d 809 (7th Cir. 2008) (prefer exposing ID weaknesses at trial over wholesale exclusion)
United States v. Olano, 507 U.S. 725 (1993) (plain-error review requirements)