                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4690
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

SHAUN BROWN,
                                         Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
         No. 00 CR 939—Robert W. Gettleman, Judge.
                         ____________
 ARGUED NOVEMBER 7, 2006—DECIDED DECEMBER 19, 2006
                    ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
   EASTERBROOK, Chief Judge. Arthur Veal ran a trucking
business, one function of which was to import large
quantities of cocaine. Shaun Brown was among Veal’s
regular customers. (So a jury could conclude; we recount
the evidence in the light most favorable to the verdict.) On
November 15, 2000, one of Veal’s trucks arrived in Dolton,
Illinois, carrying 25 kilograms of cocaine. Veal called
Brown, who had arranged to receive 17 kilos of this cargo.
After picking up his order, Brown rendezvoused with
Reginald Lewis, unaware that he was under surveillance.
Brown and Lewis switched cars, drove to meet Tara
Dozier, and stashed the drugs in the trunk of her car.
2                                              No. 05-4690

Dozier left first and was stopped by police; driving past,
Brown and Lewis saw this and sped off. Lewis gave up the
chase but Brown got away, alerting Veal by cell phone that
“his girl” was in custody. Veal tried to make his own
escape but was caught. At trial Veal and Gerald McDaniel,
one of Veal’s drivers, were the principal witnesses against
Brown. Two police officers—Don Rector and Chris
Garcia—testified to what they had seen and the cocaine
they had seized from Dozier and Veal.
   Brown was tried twice. The first jury convicted him of
two counts of money laundering but could not reach a
unanimous verdict on the single count of possessing 17
kilograms of cocaine with intent to distribute. The sec-
ond jury convicted him of that count, and the court sen-
tenced him to 235 months’ imprisonment on the three
convictions. Before each trial Brown asked the court to
prevent Rector and Garcia from testifying that they had
seen Brown pick up cocaine from Veal, switch to Lewis’s
car, stand by while Lewis put the cocaine in the trunk of
Dozier’s car, and escape at high speed after learning that
Dozier had been stopped. That identification, Brown
maintained, was unreliable because, after Veal and
McDaniel identified the escapee as “Shaun Brown,” the
officers looked at a photograph known to be Brown’s and
concluded that the photo matched the person the officers
had seen. That one-photo viewing, Brown insisted, pro-
duced such a substantial possibility of irreparable misiden-
tification that exclusion is required by 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). But
the district judge thought that the jury could evaluate
any effect of the photograph; the risk was not “irrepara-
ble.”
  Manson, Neil, and Stovall dealt with identification by
a stranger, such as a victim of rape or robbery, or some-
one who purchased drugs from a person he had not
No. 05-4690                                               3

previously met. Even under the best circumstances, the
probability of erroneous identification of a stranger seen
briefly is uncomfortably high. See Elizabeth F. Loftus,
Eyewitness Testimony (1979); Daniel L. Schacter, The
Seven Sins of Memory 88-137 (2001). The Supreme Court
thought that showing the victim (or one-time buyer) a
single photo of someone asserted to be the offender could
elevate that risk unduly: the single photo or one-person
showup implies that the police have their man and sug-
gests that the witness give assent. Suggestibility is one
of the principal ways in which memory plays tricks and
leads to improper identifications. See Schacter at 112-37.
   The Justices thought that a lineup of people with sim-
ilar physical attributes would solve the problem. Research
in the three decades since Manson has called that belief
into question—not only because the risk of misidenti-
fication is high even when lineups are used, but also
because there is a better method, the repeated sequential
display. In this procedure police show the victim one
photo (or suspect) at a time and call for an absolute
judgment: is this, or is it not, the perpetrator? Each photo
or person is compared against memory, not against
someone else—for with a lineup of six, a victim may
conclude that the offender must be included. The sequen-
tial display is most reliable when repeated (does the victim
make the same selection twice?) and when the officer
conducting the process does not know which, if any, is a
suspect (for a statement such as “that’s him!” following
a selection, or even an unwitting visual cue, may implant
a suggestion that is hard to overcome). See R.C.L. Lindsay
& Gary L. Wells, Improving Eyewitness Identification
from Lineups: Simultaneous Versus Sequential Lineup
Presentations, 70 J. Applied Psychology 556 (1985); Nancy
Steblay, Jennifer Dysart, Solomon Fulero & R.C.L.
Lindsay, Eyewitness Accuracy Rates in Sequential and
Simultaneous Lineup Presentations: A Meta-Analytic
4                                              No. 05-4690

Comparison, 25 L. & Human Behavior 459 (2001); Jacque-
line McMurtrie, The Role of Social Sciences in Preventing
Wrongful Convictions, 42 Am. Crim. L. Rev. 1271 (2005);
Amy Klobuchar, Nancy K. Mehrkens Steblay & Hilary
Lindell Caliguri, Improving Eyewitness Identifications:
Hennepin County’s Blind Sequential Lineup Pilot Project,
4 Cardozo Pub. L. Policy & Ethics J. 381 (2006).
  Rector and Garcia did not use either a lineup or any
form of sequential display. But neither did they use a
process that needlessly put a name or likeness into their
minds—for they were not victims trying to separate a
culprit from a crowd. They were trying, instead, to deter-
mine whether they had been lied to. After being arrested,
Veal told the police that the person who had picked up
17 kilograms of cocaine, made his escape, and alerted Veal
to the need to make himself scarce, was Shaun Brown.
Was Veal telling the truth or trying to mitigate his own
punishment while diverting attention from his actual
customer? The quickest way to tell was to look at a
photograph of Shaun Brown before memory of the miss-
ing man’s appearance faded. That’s exactly what they
did. They retrieved a mug shot of Brown, and when it
matched their recollection of the fugitive they concluded
that Veal was telling it straight. The officers ap-
proached the photo not as victims open to persuasion by
officialdom, but as skeptics trying to check up on their new
source.
  Come the trial, the principal witnesses against Brown
were Veal and McDaniel—and the principal risk was not
that their memory was playing tricks, but that they
were lying to try to reduce their own punishments
while shielding a customer. That officers Rector and
Garcia had confirmed Veal’s story while their memory
was fresh helped the jury determine whether Veal and
McDaniel were truthful. If Veal had chosen a name at
random, or fingered some small fry drug dealer who had
No. 05-4690                                                 5

nothing to do with Veal’s enterprise, it is very unlikely
that the photo would have matched what the officers
remembered about the buyer who got away. Thus the
process did not create a pointless risk of misidentifica-
tion; instead it helped curtail the risk of Veal’s deceit. The
district judge did not err in allowing the jury to consider
the officers’ testimony.
  Brown’s remaining arguments are makeweights. He
contends, for example, that a new trial should be held
because one of the exhibits was in the jury’s possession by
mistake during deliberations. True, the judge had not
planned to send this exhibit—a summary of the money-
laundering transactions—to the jury room; it got there
by oversight. But it was in evidence, and counsel for both
sides had discussed it extensively during closing argu-
ment as well as earlier phases of the trial. The oversight
was not prejudicial.
  Nor was it prejudicial when the judge charged the jury,
in the indictment’s language, that the drug crime under
consideration was the possession of cocaine with intent
to distribute “on or about” November 15, 2000. Brown’s
own lawyer requested that the jury charge track the
indictment; this waives any claim of error. Not that there
was an error. This is standard language, designed to
avoid an argument that the defendant should be ac-
quitted because the crime occurred a day before, or after,
the alleged date. Brown knew what transaction was at
issue, and although the jury heard about others none took
place close to the specified date.
  As Brown sees things, the jury should not have learned
about any other purchases he made from Veal’s organiza-
tion. Evidence of other crimes may not be used to show a
criminal propensity. See Fed. R. Evid. 404(b). But the
prosecution did not offer other transactions on the theory,
rejected by United States v. Beasley, 809 F.2d 1273 (7th
6                                              No. 05-4690

Cir. 1987), that one drug crime always may be used to
prove another. Instead this evidence responded to Brown’s
claim of mistaken identity. Brown maintained that he
had nothing to do with Veal, who must have picked his
name out of a hat. That defense was undermined when the
prosecutor supplied evidence that Brown had been pur-
chasing cocaine from Veal for years. That evidence directly
undercut Brown’s defense that Veal was a liar and that
officers Rector and Garcia were mistaken about their
identifications. Rule 404(b) allows other-crime evidence
to be used to show identity; the district court did not err
in allowing this evidence to be used in Brown’s trial.
  Finally is the inevitable argument that the sentence
is unreasonably high. The district court calculated a
range of 235 to 293 months under the Sentencing Guide-
lines. Brown does not contend that this calculation is
erroneous. The actual sentence of 235 months is at the low
point of that range. It is not unreasonably high. See United
States v. Gama-Gonzalez, No. 06-1965 (7th Cir. Dec. 5,
2006); United States v. Bullion, 466 F.3d 574 (7th Cir.
2006). Other large-scale drug dealers are serving much
longer sentences.
                                                 AFFIRMED

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-19-06
