United States v. Lamar E. Sanders

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