United States v. Gonzalez

12-2403-cr
United States v. Gonzalez
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2013 5
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(Argued: November 26, 2013 Decided: August 21, 2014) 7
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Docket No. 12-2403-cr 9
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UNITED STATES OF AMERICA, 13
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Appellee, 15
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v. 17
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FREDDIE GONZALEZ, 19
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Defendant-Appellant. 21
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B e f o r e: KATZMANN, Chief Judge, WINTER, and CALABRESI, 25
Circuit Judges. 26
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Appeal from a judgment of conviction entered in the United 28
States District Court for the Southern District of New York 29
(Shira A. Scheindlin, Judge), following a jury trial. Appellant 30
was convicted on four counts of intentional murder while engaged 31
in a narcotics-related trafficking crime involving at least five 32
kilograms of cocaine. Holding that his confessions were properly 33
admitted, we affirm. 34
35
TINA SCHNEIDER, Esq., Portland, ME, 36
for Defendant-Appellant. 37
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MICHAEL D. MAIMIN, Assistant United 1
States Attorney (Laurie A. 2
Korenbaum, Jessica R. Lonergan, 3
Brent S. Wible, Assistant United 4
States Attorneys, on the brief) for 5
Preet Bharara, United States 6
Attorney for the Southern District 7
of New York, New York, NY, for 8
Appellee. 9
10
WINTER, Circuit Judge: 11
Freddie Gonzalez appeals from his conviction, after a two- 12
week jury trial before Judge Scheindlin, on four counts of 13
intentional murder while engaged in a trafficking crime involving 14
five or more kilograms of cocaine, in violation of 21 U.S.C. § 15
848(e) and 18 U.S.C. § 2. He was sentenced to concurrent 16
sentences of life imprisonment on each count. 17
Appellant challenges his conviction on several grounds. 18
Through counsel, he argues that: (i) his confession was obtained 19
in violation of his Fifth and Sixth Amendment rights; (ii) Judge 20
Scheindlin should not have excluded a potentially exculpatory 21
statement by the child of one of the murder victims; and (iii) 22
his trial counsel’s failure to locate a potential defense witness 23
constituted ineffective assistance of counsel. Appellant, in a 24
pro se brief, raises additional claims of allegedly improper 25
witness identification procedures and destruction of physical 26
evidence. We hold that appellant’s pre-arraignment inculpatory 27
statements were admissible under the six-hour safe harbor 28
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provided by 18 U.S.C. § 3501(c). His additional arguments have 1
no merit. We therefore affirm. 2
BACKGROUND 3
a) The Four Murders 4
Because appellant was convicted by a jury, we view the 5
evidence and reasonable inferences drawn therefrom in the light 6
most favorable to the government. See United States v. Heras, 7
609 F.3d 101, 103 (2d Cir. 2010) (citing Jackson v. Virginia, 443 8
U.S. 307, 319 (1979)). 9
The evidence against appellant included signed confessions 10
he made to government agents while serving a term of imprisonment 11
for an unrelated offense. We will discuss the circumstances of 12
these statements in more detail infra. The government’s case 13
also included the testimony of Alejandro Rodriguez, a cooperating 14
witness from appellant’s former gang, and police reports and 15
physical evidence from the murder investigations. 16
The murders took place over the course of five months in 17
early 1990 and were part of a drug war between rival gangs in the 18
Bronx, New York. Appellant, a native and citizen of the 19
Dominican Republic, was a member of a gang that sold cocaine out 20
of an apartment complex. The gang obtained its supply in part by 21
robbing other dealers. Two of the murders were of a rival drug 22
dealer and his wife. The other murders took place during 23
robberies. 24
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The rival dealer, named Carmelo “Vichan” Gonzalez, no 1
relation to appellant (hereinafter “Carmelo”), had run a 2
distribution ring out of the same apartment complex, but 3
appellant had taken over that location for his own drug 4
business. Carmelo was trying to reestablish his business, and, 5
believing that it was a kill-or-be-killed situation, appellant 6
sent two of his associates on an unsuccessful mission to kill 7
Carmelo in February 1990. On August 11, 1990, appellant and 8
members of his gang went to Carmelo’s home, broke in, went up to 9
Carmelo’s room, and shot him and his wife to death while they 10
were asleep in bed. Carmelo’s young son was asleep in the next 11
room with Carmelo’s brother Vincent. When the police arrived, 12
they interviewed both Vincent and the child. Ballistics analysis 13
and autopsies of Carmelo and his wife revealed that they had been 14
shot by four different weapons; rare blue-tipped, 9mm bullets 15
were recovered from each of them. 16
On September 25, 1990, appellant went with three associates 17
to rob a suspected Bronx-based drug dealer named Clement 18
Bedword. When Bedword resisted getting into appellant’s minivan, 19
appellant shot him and pulled him into the vehicle. The men took 20
Bedword to a wooded area in Yonkers, threw him out of the van, 21
and shot him again. The men then returned to his apartment and 22
took drugs, guns, and money. The police found shell casings near 23
Bedword’s body and, upon entering his apartment, found a scale 24
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and a bulletproof vest but no drugs or money; the apartment 1
appeared to have been burglarized. Bullet casings recovered from 2
the woods matched those from the earlier Bronx shooting. 3
The fourth and final murder was of Carlos Polanco, another 4
drug dealer. On November 10, 1990, appellant, Rodriguez, and 5
several others went to Polanco’s home to rob it. Polanco refused 6
entry, and the gang fatally shot him. The subsequent 7
investigation uncovered several blue-tipped, 9mm bullets in 8
Polanco as well as .45-caliber shells that matched those found at 9
the Carmelo murder site. 10
In October 1990, appellant attempted to murder another drug 11
dealer, Henry Perez, during a robbery on Long Island. Appellant, 12
Rodriguez, and several other men drove to Perez’s house. The men 13
attempted to grab Perez when he arrived, shooting him when he 14
appeared to pull a gun. The bag Perez was carrying turned out 15
not to have drugs in it, and the men drove away. 16
b) Confessions 17
Years later, on July 24, 2008, appellant was indicted, and 18
an arrest warrant for him was issued, for the murder of 19
Polanco. The next day, while incarcerated and being held for 20
deportation at McRae Correctional Facility in Georgia on 21
unrelated federal immigration offense, he was visited by federal 22
and state agents. These were: criminal investigator Billy Ralat 23
of the United States Attorney’s Office, former NYPD detective 24
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Stefano Braccini, and Yonkers detectives John Geiss and Wilson 1
Gonzalez (no relation to appellant). A writ ad prosequendum was 2
lodged on July 28, 2008, the next business day. 3
Ralat, who is bilingual, led the interview and initially 4
spoke in Spanish, which only he and detective Gonzalez spoke. 5
The door to the interview room was shut, but unlocked, although 6
appellant claims that he did not know this. After an initial 7
conversation, which began shortly after 11:00am, Ralat gave 8
appellant a Spanish-language Miranda form. Appellant indicated 9
that he understood his rights but wrote “no” next to the inquiry 10
as to whether he was willing to answer questions. The form was 11
signed at 11:24am. According to the agents, Ralat then told 12
appellant that the interview was over, and the agents began to 13
leave. One or more agents told appellant that they would see him 14
in New York and that he would not be returning to the Dominican 15
Republic. Appellant then said he wanted to speak to the agents 16
and told them not to leave. 17
The agents’ accounts of what happened next are slightly 18
varied. Each stated that they decided to read the Miranda 19
warnings to appellant again. Ralat testified that he proceeded 20
to describe the benefits of cooperation and appellant’s option of 21
going to trial but did not question him for another 45-50 22
minutes. Ralat gave appellant a second Miranda form, this one in 23
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English (which appellant spoke), and appellant answered “sí” to 1
each question. This form was signed at 12:30pm. 2
Appellant contends that he was questioned regarding the 3
murders both before and after the first Miranda form was signed. 4
Ralat stated, however, that questioning commenced only after the 5
second Miranda form was signed, after which point the 6
conversation switched to English, with detective Geiss, who spoke 7
no Spanish, participating as well. 8
Appellant eventually signed three confessions written in 9
Spanish. The first confession, regarding the murder of Polanco, 10
was dated 12:50pm at the beginning and 1:15pm at the signature 11
block. The second, regarding the murders of Carmelo and his 12
wife, notes times of 2:25 and 2:40pm for its beginning and end. 13
The final confession, regarding the murder of Bedword, was noted 14
as beginning at 2:55pm and ending at 3:10pm. Appellant did not 15
ask for an attorney during the interview. 16
c) Trial Proceedings 17
Appellant moved to suppress the written confessions before 18
trial, claiming that the interrogation had been coercive and that 19
he had invoked his rights to counsel and to remain silent. After 20
briefing and oral argument, the district court denied his motion. 21
In a written opinion, the court held that appellant’s rights had 22
not been violated because he had reinitiated contact after the 23
first Miranda form and the confession had been obtained before 24
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expiration of a six-hour safe harbor period for questioning 1
between arrest and presentment. 2
The district court also granted the government’s motion in 3
limine to exclude a police report containing the testimony of 4
Carmelo’s young son regarding the murder of Carmelo and his wife. 5
The court found that there was no evidence the child had actually 6
seen the shooting and that the police officer had been improperly 7
suggestive in his questioning. Gonzalez was convicted by the 8
jury on all four counts of murder, and the district court 9
sentenced him to concurrent terms of life imprisonment on each 10
count. 11
DISCUSSION 12
We first discuss the arguments by counsel: (i) that 13
appellant’s confession was erroneously admitted because it was 14
obtained in violation of his Fifth and Sixth Amendment rights; 15
(ii) that the district court’s exclusion of the testimony of 16
Carmelo’s son was error; and (iii) that his trial counsel’s 17
failure to locate an eyewitness to the Bedword murder constituted 18
ineffective assistance of counsel. 19
a) Admission of Gonzalez’s Confessions 20
We review a district court’s decision on a suppression 21
motion de novo on questions of law and for clear error in factual 22
determinations. United States v. Stewart, 551 F.3d 187, 190-91 23
(2d Cir. 2009). Under clear error review, we uphold findings of 24
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fact that are “plausible in light of the record viewed in its 1
entirety.” United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir. 2
1996) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74 3
(1985)). 4
(1) Miranda Analysis 5
Appellant claims first that his confessions were obtained in 6
violation of his Miranda rights, because he indicated on the 7
first Miranda waiver form that he was not willing to answer 8
questions. See generally Miranda v. Arizona, 384 U.S. 436 9
(1966). Statements obtained in violation of Miranda are of 10
course subject to a prophylactic rule of exclusion. Dickerson v. 11
United States, 530 U.S. 428, 443-44 (2000). Once Miranda rights 12
have been invoked, interrogation must stop and the invocation 13
must be “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 14
104 (1975). However, a waiver can occur subsequent to an initial 15
invocation of Miranda rights if the suspect reinitiates 16
communication. Edwards v. Arizona, 451 U.S. 477, 485 (1981); 17
Wood v. Ercole, 644 F.3d 83, 90 (2d Cir. 2011). 18
The government must prove by a preponderance of the evidence 19
that a defendant’s waiver of Miranda rights was knowing, 20
voluntary, and intelligent. Colorado v. Connelly, 479 U.S. 157, 21
168 (1986); Miranda, 384 U.S. at 444. Whether a waiver occurred 22
is determined by viewing the totality of the circumstances, but 23
for an invocation of Miranda rights to trigger exclusion, the 24
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invocation must be “unambiguous.” Berghuis v. Thompkins, 560 1
U.S. 370, 381 (2010); see also id. at 384 (waiver may be 2
implicit); Moran v. Burbine, 475 U.S. 412, 421 (1986) (totality 3
of the circumstances must show that waiver was voluntary, 4
knowing, and intelligent); United States v. Plugh, 648 F.3d 118, 5
124-28 (2d Cir. 2011) (comparing invocation and waiver of Miranda 6
rights). 7
The district court credited the officers’ testimony that 8
appellant was not questioned until after he signed the second 9
form. Appellant challenges these findings as clear error. 10
However, his challenges take statements out of context and 11
emphasize various phrases used by the officers without viewing 12
their testimony as a whole. For example, Ralat testified that 13
appellant wanted him to ask “more questions” and “continue to 14
speak.” Appellant suggests that these phrases imply that Ralat 15
had already questioned him about the Bedword murder. Similarly, 16
appellant notes detective Gonzalez’s testimony that Ralat told 17
the others that appellant did not want to speak to them 18
“anymore,” before they re-Mirandized and interrogated him. 19
Braccini also stated that appellant said he wanted to “continue” 20
to speak. However, all four detectives explicitly testified that 21
appellant was not interrogated prior to waiving his rights on the 22
Miranda form. Given that, we cannot say the district court’s 23
findings in this regard were clear error. 24
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Appellant also relies upon Geiss’s notes, which indicate 1
that Ralat questioned him regarding the Bedword murder after 2
signing the first but before signing the second Miranda form. 3
However, Geiss’s notes were not contemporaneous. His 4
contemporaneous notes stated only “rights” and the times of 5
appellant’s signing of the two Miranda forms: 11:24am and 6
12:35pm. Moreover, Geiss does not speak Spanish and could not 7
follow the initial conversation. Appellant’s arguments, 8
therefore, are insufficient to compel a ruling that the district 9
court’s factual determination of what took place was clear error. 10
Appellant’s claim that the second form was invalid turns on 11
how contact was reinitiated. We need not determine whether 12
appellant’s answer of “no” on the first Miranda form constituted 13
an unambiguous invocation of his Miranda rights. Cf. Plugh, 648 14
F.3d at 125 (“[A] refusal to waive rights, however unequivocal, 15
is not necessarily equivalent to an unambiguous decision to 16
invoke them.”). Even assuming arguendo that the initial 17
invocation was unambiguous, it was overridden by appellant’s 18
subsequent decision to reinitiate the conversation by asking the 19
agents not to leave, indicating that he wanted to speak with 20
them. See Edwards, 451 U.S. at 484-85. 21
Appellant, not the agents, reinitiated the contact before 22
questioning began. Prior to his reinitiation of the contact, the 23
agents merely told appellant that he had already been indicted 24
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and would thus be taken to New York. This was not an 1
interrogatory statement that was “reasonably likely to elicit an 2
incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 3
301 (1980). It was not even a question, but simply an accurate 4
statement of what was going to happen next. 5
Moreover, appellant’s confession did not immediately follow, 6
but instead came only after an extended explanation of his rights 7
and options. There is nothing in the record to suggest that the 8
agents engaged in a coercive conversation as, for example, in 9
Mosley, where the officers “refus[ed] to discontinue the 10
interrogation upon request or [] persist[ed] in repeated efforts 11
to wear down his resistance and make him change his mind.” 12
Mosley, 423 U.S. at 105-06. On the contrary, according to 13
testimony credited by the district court, Ralat stopped the 14
interview once appellant wrote “no” on the first form. Ralat 15
began again only at appellant’s insistence and after going once 16
more over appellant’s options and giving him the second waiver 17
form. 18
(2) Speedy Presentment Analysis 19
Gonzalez also contends that his confession was obtained in 20
violation of the duty to speedily present a defendant before a 21
magistrate judge, see Fed. R. Crim. P. 5(a)(1)(A), and should 22
have been suppressed pursuant to 18 U.S.C. § 3501. Rule 23
5(a)(1)(A) requires law enforcement to present arrestees “without 24
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unnecessary delay,” and we will exclude confessions obtained 1
following an unnecessary or unreasonable delay in presentment, 2
see Corley v. United States, 556 U.S. 303, 322 (2009). However, 3
there is a safe harbor provided in 18 U.S.C. § 3501(c) that bars 4
suppression based on an unreasonable delay if the confession was 5
made “within six hours immediately following his arrest or other 6
detention.” If the confession was made outside that six-hour 7
period, “the court must decide whether delaying that long was 8
unreasonable or unnecessary under the McNabb-Mallory cases, and 9
if it was, the confession is to be suppressed.” Corley, 556 U.S. 10
at 322 (citing the rule of Mallory v. United States, 354 U.S. 449 11
(1957) and McNabb v. United States, 318 U.S. 332 (1943)). 12
Whether or not his confession falls within the section 13
3501(c) safe harbor therefore depends on when appellant was 14
“arrested” for the purposes of section 3501. Appellant’s final 15
incriminating statement was finished at 3:10pm, or approximately 16
four hours after the agents first met with Gonzalez at 11:00am 17
that morning. Appellant acknowledges that he was not formally 18
arrested during the interview. He instead urges us to consider 19
him constructively arrested at the moment when the government had 20
the authority to effectuate the arrest, i.e., when the arrest 21
warrant was issued on July 24. 22
Section 3501 applies only after “there is some obligation to 23
bring the person before [] a [federal] judicial officer in the 24
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first place,” generally pursuant to an “arrest[] for a federal 1
offense.” United States v. Alvarez-Sanchez, 511 U.S. 350, 358 2
(1994) (citing Fed. R. Crim. P. 5(a)). Few courts have had 3
opportunity to determine precisely when this obligation is 4
triggered in a context other than a formal arrest, but caselaw 5
indicates that the indictment alone does not trigger it. See, 6
e.g., United States v. Nguyen, 313 F. Supp. 2d 579, 592-93 (E.D. 7
Va. 2004) (section 3501 and McNabb-Mallory “are exclusively 8
concerned with delays between a defendant’s arrest or detention 9
and his arraignment . . . . [not] delays between a defendant’s 10
indictment and his arraignment. . . . [Defendant’s] indictment 11
did not give rise to an obligation to bring him in front of a 12
judicial officer.”) 13
Appellant attempts to distinguish these precedents, 14
particularly Alvarez-Sanchez, because, unlike the defendant in 15
those cases, he was in federal, not state, custody. However, in 16
Alvarez-Sanchez, the majority’s opinion rested on the “duty, 17
obligation, or reason” to bring the defendant in front of a judge 18
for a given crime; the federal/state distinction simply 19
highlighted the lack of obligation in the context of that case. 20
See Alvarez-Sanchez, 511 U.S. at 358. Our inquiry, therefore, is 21
when the obligation arose to present appellant for the murders 22
with which he was charged. Gonzalez’s federal detention until 23
that point was on unrelated federal immigration charges, and 24
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neither his indictment nor the issuance of an arrest warrant 1
altered the character of the defendant’s detention. We hold that 2
section 3501(c) was not immediately triggered by the present 3
indictment and issuance of an arrest warrant. 4
Nevertheless, we recognize the potential for some abuse in a 5
system allowing unfettered interrogation of defendants who are 6
incarcerated on other charges. See id. 359-60 (recognizing 7
potential for collusion between federal and state agents to 8
arrest and detain on one charge in order to interrogate on 9
another); United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 10
1984) (acknowledging that the court was “troubled by the 11
practice” of pre-arraignment interviews because indigent 12
defendants often do not have counsel until one is appointed at 13
arraignment). While section 3501(c) evinces a congressional 14
intent to allow some questioning to take place before 15
presentment, it is also clear that this period must be limited. 16
Therefore, we hold that defendants in federal custody on 17
earlier unrelated charges, but for whom an arrest warrant on new 18
charges is issued, are “arrested” for purposes of section 3501 19
once any questioning on the new charges begins. Because 20
Gonzalez’s first interaction with the government on these charges 21
coincided with the beginning of his questioning, we need not 22
decide on the facts of this appeal what other actions by the 23
government might constitute ‘other detention’ for purposes of 24
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Section 3501(c) and the McNabb-Mallory rule. Any incriminating 1
statement obtained within the six-hour safe harbor provided by 2
3501(c) is admissible, provided, of course, other applicable 3
constitutional requirements are met. Because appellant’s 4
incriminating statements took place within this window and his 5
Fifth and Sixth Amendment Miranda rights were not otherwise 6
violated, the district court did not err in refusing to suppress 7
appellant’s confessions. 8
b) Exclusion of Child Witness Testimony 9
Evidentiary rulings are reviewed for abuse of discretion. 10
United States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011). Errors 11
are not grounds for reversal if they are harmless, i.e., if there 12
is “fair assurance” that the “judgment was not substantially 13
swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 14
764-65 (1946). 15
Appellant sought to introduce a police report of statements 16
made by Carmelo’s young son to an officer following the murders 17
of Carmelo and his wife. In excluding it, the district court 18
noted the “scant contextual information available” regarding the 19
officer’s questioning of the boy, including what the boy actually 20
witnessed. App. at 214. The court further found that the 21
interviewing officer had been improperly suggestive and that 22
there was no evidence the boy was actually an eyewitness. Id. at 23
214-15. The court therefore concluded, pursuant to the Rule 403 24
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balancing test, Fed. R. Evid. 403 (a court may exclude relevant 1
evidence if its probative value is substantially outweighed by at 2
least one of the enumerated factors), that the hearsay statements 3
in the police report were highly prejudicial, bore no indicia of 4
reliability or trustworthiness, and were thus of little probative 5
value. The district court explicitly left open an opportunity 6
for the defense to introduce evidence that the son actually 7
observed relevant events, but appellant failed to do so. 8
Appellant argues that the son’s statements should have been 9
admissible as either present-sense impressions under Fed. R. 10
Evid. 803(1) or as excited utterances under Rule 803(2). 11
However, while those rules solve any hearsay problem, neither 12
solve the problem of the need to show the declarant’s first-hand 13
knowledge of the subject matter. Both exceptions are derived 14
from the belief that contemporaneous statements about observed 15
events leave less time to forget or fabricate and, therefore, 16
tend to be reliable. See United States v. Medico, 557 F.2d 309, 17
315 (2d Cir. 1977). However, there is no evidence that the child 18
actually observed the killings at all. Indeed, according to 19
Vincent, Carmelo's brother and the other potential eyewitness, he 20
and the child had been sleeping in a different room when the 21
shooting began. 22
Therefore, we cannot say that the district court abused its 23
discretion in finding the statements inadmissible. Furthermore, 24
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any error was certainly harmless, since the shock-tinged 1
observations of a young boy would have been pitted against an 2
overwhelming constellation of forensic evidence and a signed 3
confession that unequivocally implicated appellant. 4
c) Ineffective Assistance of Counsel 5
An appellant raising an ineffective assistance claim must 6
meet the requirements of Strickland v. Washington, 466 U.S. 668 7
(1984), which requires a convicted defendant to: (i) show that 8
counsel’s performance was objectively unreasonable and (ii) 9
“affirmatively prove prejudice” from said performance. Id. at 10
687-88, 693. Appellant has met neither requirement. 11
Appellant’s argument is based on the following events. In 12
the case of the Bedword murder, the police report included a 13
statement by a neighbor of the victim, Melva Perry, that the 14
killers had driven a Jeep, had spoken with a Jamaican Patois 15
accent, and had shot Bedword in the head. Appellant argues that 16
Perry’s testimony exculpates him because there is no evidence 17
that he spoke Patois or ever drove a jeep. The government had 18
given defense counsel a copy of the report in March 2010 with 19
Perry’s date of birth, address, and telephone numbers redacted, 20
as was common practice. Defense counsel did not begin searching 21
for Perry until December 2010 and only then asked the government 22
for her contact information. Appellant now contends that this 23
delay constituted ineffective assistance that amounted to a per 24
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se unreasonable “fail[ure] to present exculpatory evidence.” 1
Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005). 2
Gonzalez fails the first prong of Strickland because, while 3
the delay in searching for the witness was perhaps unwise, it was 4
not unreasonable. Defense counsel did not simply refuse to 5
attempt to locate and subpoena Perry; he was unable to do so, as 6
was the government. Moreover, even if defense counsel was 7
unreasonably derelict, Perry’s eyewitness evidence, offered 20 8
years later and at least partially inaccurate -- Bedword was not 9
shot in the head -- would not have altered the outcome of the 10
case in light of appellant’s confession and corroborating 11
evidence. Appellant therefore has not met his burden under 12
either prong of Strickland. 13
d) Additional Pro Se Arguments 14
Appellant raises additional claims in a pro se brief that 15
largely duplicate the arguments made by counsel. However, he 16
does raise two additional arguments: (i) detective Geiss used 17
impermissibly suggestive identification procedures in mailing 18
photographs of various parties involved in the Carmelo Gonzalez 19
murders; and (ii) appellant was denied a fair trial because the 20
physical evidence of the guns and ammunition used in the murders 21
had been destroyed by the Rhode Island police and was not 22
available for trial. Neither argument has merit. 23
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Appellant did not move to suppress the identification and 1
thus waived this issue. See Fed. R. Crim. P. 12(e) (party who 2
fails to move to suppress evidence before the deadline set by the 3
district court has waived any defenses or claims relating to that 4
suppression). Moreover, Geiss was not suggestive. He phoned 5
Milagros Santiago, the sister of Carmelo’s wife, regarding the 6
shooting and the apartment complex, where she also lived. Geiss 7
then sent Santiago 13 photos of various people who lived in the 8
complex, which she annotated with their name and how she knew 9
them. She did not annotate appellant’s picture because she had 10
already discussed appellant with Geiss on the phone, and even 11
that discussion was appellant’s his role as a drug dealer, not 12
his involvement in the murder. This was not even an 13
identification, much less a suggestive one, and any error was 14
harmless for reasons stated earlier. 15
Appellant’s Fifth Amendment claim regarding the destruction 16
of evidence is reviewed for plain error, because it also was not 17
raised at trial. Fed. R. Crim. P. 52(b). The Rhode Island State 18
Police had confiscated guns and ammunition, including the rarer 19
blue-tipped bullets, when they arrested appellant in 1990. In 20
2008, Geiss contacted Rhode Island’s officials in an attempt to 21
obtain the evidence for appellant’s federal trial, but it had 22
been destroyed years earlier, pursuant to an internal practice of 23
eliminating seized property approximately one year after the end 24
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of a case. Appellant points to no authority requiring police to 1
retain seized property indefinitely and against the backdrop of 2
his confession there is no conceivable prejudice that resulted 3
from the evidence’s absence. 4
CONCLUSION 5
For the reasons stated, we affirm. 6
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