Federal Evidence Review

Seventh Circuit finds admission of DEA agent’s post–indictment identification of drug conspiracy defendant did not violate the defendant’s Fifth Amendment Due Process rights, despite the suggestiveness that might result from his knowing he was expected to identify the defendant’s voice on the tape, because it was none-the-less reliable “under the totality of circumstances” since it was based on six hours of the agent’s study of taped phone calls of the perpetrator, in United States v. Gallo-Moreno, 584 F.3d 751 (7th Cir. Oct. 19, 2009) (No. 06-1696)

In the 1970s, the Supreme Court decided two important cases concerning due process standards over identification evidence. The circuits, at times, are challenged in applying these standards. In Neil v. Biggers, 409 U.S. 188, 199 (1972), the Court noted that whether an in-court or a pretrial identification violated Fifth Amendment Due Process rights depends on whether the identification was reliable, even if the procedure was suggestive under the totality of the circumstances. Five years later, in Manson v. Brathwaite, 432 U.S. 98, 114 (1977), the Court isolated a variety of factors to be considered in determining if due process requires the exclusion of the identification, “apart from any consideration of reliability” of a pretrial identification that resulted from a suggestive procedure. These factors include the witness’s opportunity to view the perpetrator at the time of the crime, the degree of the witness’s attention to the perpetrator, the accuracy of a prior description of the perpetrator, the level of certainty demonstrated at the pretrial identification and the lapse of time between the crime and the identification.

In a recent case, the Seventh Circuit explored the application of Biggers and Brathwaite to a post-indictment, pretrial identification. As discussed in yesterday's blog post, FRE 404(b) Evidence Establishes Identity Of A Defendant Who “Nobody Had” Seen At The Time Of The Offense, although the defendant was indicted in 1994 under the identity of Carrion for his role in a Chicago drug conspiracy, authorities were unable to arrest him. In part, this was because “nobody had [ever] seen Carrion.” Three years later, under the name of Gallo-Moreno, he was arrested on suspicion of being Carrion. In a bench trial on the earlier drug charges, the primary matter of dispute involved his identity: “whether Gallo-Moreno was Carrion.” Gallo-Moreno, 584 F.3d at 755.

During defendant's trial, investigating agent Tovar testified that he had identified Gallo-Moreno as Carrion after hearing his voice during their interaction on October 17, 1997 when the defendant was arrested and was taken to have a voice exemplar made, and based on the agent’s review of the voice exemplars. As described by the circuit, his voice identification of the defendant was a result of his listening “to the 1994 recordings of Carrion for four to six hours.” On the day the exemplar was to be taken [in 1997], “Tovar … retrieved Gallo-Moreno from the Metropolitan Correctional Center … and transported him to the Chicago DEA office to await the scheduled voice-exemplar procedure. Tovar had been instructed not to speak with Gallo-Moreno about the case. While waiting for Gallo-Moreno's counsel to arrive and the exemplar procedure to begin, Tovar conversed with Gallo-Moreno in Spanish about the weather and a recent earthquake in Mexico. Tovar immediately identified Gallo-Moreno as Carrion and alerted a nearby agent that they had arrested the right man.” The agent indicated that this identification was based on listening to the 1994 tape recordings of the perpetrator. Gallo-Moreno, 584 F.3d at 755.

The trial court convicted the defendant. On appeal, he contended that the introduction of agent Tovar’s pretrial identification violated his Fifth Amendment Due Process rights. The circuit rejected this contention, explaining that “an identification based on a suggestive identification procedure does not automatically establish a constitutional violation.” Rather the court should focus on whether the identification, despite any suggestiveness, “was nontheless reliable.” Gallo-Moreno, 584 F.3d at 757 (citing Manson v. Brathwaite, 432 U.S. 98, 109, 114 (1977)). Employing these principles, the circuit identified a “two-pronged analysis” for the constitutionality of identifications. The two factors were: “(1) whether the [out-of-court identification] process was unduly suggestive, and (2) if so, whether the identification was nevertheless sufficiently reliable.” Gallo-Moreno, 584 F.3d at 757 (citing United States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009) (the two-pronged test determines “whether a particular procedure violated a defendant's constitutional rights,” and the court should not assess the accuracy of actual identification, because that is the role of the jury, but the court’s role is to screen the evidence for whether the identification was so unreliable that it violates the constitution to admit it).

In the circuit’s application of the Brathwaite factors (the witness’s opportunity to view the perpetrator at the time of the crime, the degree of the witness’s attention to the perpetrator, the accuracy of a prior description of the perpetrator, the level of certainty demonstrated at the pretrial identification and the lapse of time between the crime and the identification) was rather straight-forward and uncomplicated:

“Applying the factors set forth in Biggers and Brathwaite, we note first that Tovar spent four to six hours listening and relistening to 30 minutes' worth of tape recordings of Carrion's voice. This exhibits a lengthy opportunity to observe and a high degree of attention on Tovar's part-well above that of the typical crime victim or witness. Tovar studied the tapes knowing that the government expected him to attempt a voice identification and that he would be subjected to cross-examination if he positively identified ‘Carrion.’ Further, Tovar's status as a DEA agent bolsters our conclusion about his degree of attention, as does the fact that Tovar ‘ha[d] the luxury of listening to the tape in an office, where [he] can devote [his] full attention to it.’ Also, Tovar immediately expressed certainty that Gallo-Moreno was Carrion after hearing his voice. Finally, a mere day elapsed between his review of the tapes and the subsequent identification. That Tovar did not describe Carrion's voice prior to his identification does not undermine the strength of the other reliability factors.”

Gallo-Moreno stands as another example that under the procedures of Biggers and Brathwaite, even if the identification evidence admitted at trial was a result of “unnecessarily” suggestive procedures, the Fifth Amendment does not require excluding the identification unless, as examination of Brathwaite factors suggest, it was not reliable.