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 together. 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 grocery 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. Johnson’s only appellate argument is that the judge should not 

have allowed Williams and the agent who conducted the array to testify about this identification.

Johnson observes that this court has suggested that police 

show photographs sequentially rather than as part of an array. 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 sequential 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 reliability, 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 unnecessary. [But e]ven when the police use such a procedure ...

suppression of the resulting identification is not the inevitable 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 identifications 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 presentation of photographs is superior to photo spreads. David G. 

Dobolyi & Chad S. Dodson, Eyewitness Confidence in Simultaneous and Sequential Lineups: A Criterion Shift Account for Sequential Mistaken Identification Overconfidence, 19 J. Experimental 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 methods exclusively. See State v. Henderson, 208 N.J. 208, 256–58 

(2011). The Supreme Court’s approach, which Perry summarizes, precludes a federal court of appeals from requiring 

them.

We therefore ask whether the district judge erred in concluding that the photo array was not unnecessarily suggestive—a subject that a court of appeals resolves independently, “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 Johnson long enough to provide a solid basis for memory independent of the array, and whether any shortcoming in the 

procedure the police used could be brought to the jury’s attention 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 photographed against the same background. Johnson’s lawyer observes 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. Biggers, 409 U.S. 188 (1972); and Stovall v. Denno, 388 U.S. 293 

(1967).

We have said enough to decide the appeal. Before closing, however, we add that Beau B. Brindley, who represented Johnson in this court, made it unduly hard for us to access 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 appellant 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 Brindley’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 argument, we discovered that it was not in the record. That hampered 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 contain 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 retained 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 final. (Our order of July 30, 2013, provides: “No further extensions, at the request of Schindler or any other lawyer representing Mason Johnson, will be allowed under any circum-
8 No. 13-1350

stances.”) Brindley told us at argument that Schindler neglected 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 order 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 district 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 remanded 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 explanation 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 Brindley to show cause why he should not be suspended or disbarred. 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, payable to the clerk of court within two weeks.