United States v. Recendiz, Gerardo ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-1754, 06-2380 & 06-2821
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ERARDO R ECENDIZ, A RMANDO N AVAR, and
M ARCO T HOMAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1136—Charles R. Norgle, Judge.
A RGUED O CTOBER 20, 2008—D ECIDED M ARCH 3, 2009
Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. On October 3, 2005, a jury con-
victed Armando Navar and Marco Thomas of a number of
federal crimes related to their participation in a Chicago
cocaine distribution network. The district court sentenced
Navar and Thomas to 324 and 360 months in prison,
respectively. On appeal, Navar challenges his conviction,
2 Nos. 06-1754, 06-2380 & 06-2821
arguing that the district court made several evidentiary
and procedural errors and that his counsel was ineffective.
Thomas joins only Navar’s assertion that trial counsel
improperly shifted the burden of proof during his opening
statement, in violation of his Fifth Amendment right to due
process. We find no error below and affirm both convic-
tions.
Co-defendant Gerardo Recendiz pleaded guilty to
multiple charges related to his participation in the same
drug distribution network and was sentenced to 135
months in prison. Recendiz’s attorney filed an Anders brief
requesting permission to withdraw from representing
Recendiz. We grant the motion to withdraw and dismiss
Recendiz’s appeal.
I. B ACKGROUND
Armando Navar and Marco Thomas were members of a
drug trafficking organization that smuggled substantial
quantities of cocaine from Mexico into the United States
and distributed it on the streets of Chicago. The organiza-
tion’s leader was Saul Saucedo, who resides in Mexico and
oversees his organization from afar.
A. The Cast of Characters
Armando Navar is originally from Mexico, and he is
married to Saul Saucedo’s sister, Lorena. Before coming to
the United States, Navar worked as a physician and was
known as “the Doctor” within the Saucedo organization.
Nos. 06-1754, 06-2380 & 06-2821 3
During the relevant time period, Navar worked for
Saucedo as a high-level operative in Chicago. In this
capacity, Navar aided in the delivery of multi-kilogram
quantities of cocaine from Mexico, where they were stored
in stash houses around the city. Navar assisted in distrib-
uting large amounts of the cocaine to brokers for the
organization, who sold it to wholesale dealers, who in turn
distributed the drugs to their street-level, paying custom-
ers. Couriers delivered the proceeds back to higher-
ranking members of the organization, who allocated the
profits and eventually smuggled the remainder back to
Saucedo in Mexico. The drug operation was vast, involved
hundreds of kilograms of cocaine, and generated millions
of dollars.
One broker for the Saucedo organization was a man
named Jesus Herrera. Navar first met Herrera in 1997,
when Herrera began dating Navar’s sister-in-law—Saul
Saucedo’s younger sister—Cynthia. Navar disapproved of
the relationship and distrusted Herrera because he was
from a disfavored town in Mexico and was older than
Cynthia. Navar confronted Herrera on one occasion
and barred Cynthia from seeing him, largely out of
respect for her father, who had entrusted her to Navar’s
care. Following his intervention, Navar did not com-
municate or interact with Herrera for some time.
Years later, Herrera began purchasing cocaine from the
Saucedo organization. Herrera initially dealt with an
operative named Gabe, but Navar assumed this business
following Gabe’s arrest. From late 2002 until mid-Septem-
ber 2003, Navar sold cocaine to Herrera approximately two
4 Nos. 06-1754, 06-2380 & 06-2821
to three times per month, in average quantities of ten to
fifteen kilograms. Herrera owned a furniture store on the
west side of Chicago, but he attempted to keep his drug
business separate and leased a nearby warehouse to
conceal cocaine.
Concerned for his reputation, business, and safety,
Herrera enlisted Ahmed “Eddie” Tmiri as his primary
assistant in carrying out the drug transactions. Tmiri had
worked for Herrera in the furniture store for six years
before joining the drug operation. Typically, after Herrera
arranged a sale, Tmiri picked up the money and delivered
the cocaine to the buyer, allowing Herrera to distance
himself from the criminal activity. Because of Tmiri’s
assistance, Herrera split with him the profits earned from
each transaction.
Herrera sold cocaine to many different dealers, one of
whom was Navar’s co-defendant Marco Thomas. Herrera
sold cocaine to Thomas from the spring of 2003 until their
last transaction on September 3, 2003. The transactions
occurred approximately two or three times per month,
each in an amount of approximately ten to fifteen kilo-
grams of cocaine.
B. The Drug Busts
Near the beginning of 2003, the Drug Enforcement
Administration began investigating the Saucedo organiza-
tion after the DEA’s Colorado Springs office intercepted
phone conversations of a known money carrier, who
revealed that he was making a trip to Chicago to pick up
Nos. 06-1754, 06-2380 & 06-2821 5
anywhere from $1 million to $2 million. The DEA’s Chi-
cago office took over the investigation in mid-2003.
During the course of the investigation, the DEA obtained
permission to wiretap multiple telephone numbers associ-
ated with members of the Saucedo organization. Among
these telephone numbers was a prepaid cellular phone
used by Jesus Herrera. Herrera testified that he communi-
cated with Navar and Thomas primarily via prepaid
phones referred to as “throwaways,” which allowed users
to avoid providing identifying information associated with
a regular cellular phone account and, at least theoretically,
to avoid wiretaps.
Herrera’s efforts to evade a wiretap were unsuccessful.
Between August 1 and September 15, 2003, the DEA
recorded approximately 530 telephone calls on Herrera’s
number. Of these, the government introduced as evidence
at trial sixty-five conversations related to drug transac-
tions: thirty-nine calls between Herrera and Navar, and
twenty-six calls between Herrera and Thomas. The con-
versations revealed the details of various drug deals,
most often communicated using code language. Herrera
explained that they avoided the word cocaine but dis-
cussed quantities, the price per kilogram, their typical
terms or “standing orders,” and meeting places for deliver-
ing the drugs.
Based upon these conversations and additional surveil-
lance, the DEA learned of an upcoming drug transaction
involving Navar and Thomas. On September 2, 2003,
Navar informed Herrera that cocaine was available, and
Herrera reserved ten kilograms. Herrera called Thomas to
6 Nos. 06-1754, 06-2380 & 06-2821
inform him of the cocaine and coordinate an exchange for
the next day. On September 3, Herrera confirmed the
transaction with both Thomas and Navar. Just before
noon, Thomas called Herrera’s courier, Tmiri, and the two
arranged a meeting at a restaurant to exchange the money.
DEA agents observed the exchange of a duffel bag and
followed both Thomas and Tmiri when they departed.
Tmiri proceeded to a White Hen Pantry, where he collected
a package from a white minivan carrying two Hispanic
men, and the two vehicles quickly separated and left. The
minivan proceeded to what was later discovered to be a
stash house; agents followed Tmiri’s car to an apart-
ment on the west side of Chicago. At that point, Thomas
reappeared, parked beside Tmiri, and removed a box from
Tmiri’s trunk. Tmiri testified that Thomas took the box
into the apartment building, which belonged to Thomas’s
sister, and then both men drove away.
Following this exchange, law enforcement stopped both
Tmiri and Thomas. In Thomas’s Cadillac Escalade, agents
discovered a loaded semiautomatic handgun, two plastic
bags containing cocaine, and approximately $23,500 in
cash. Investigators later learned that Thomas had repeat-
edly deposited proceeds into four different bank accounts
in amounts just below $10,000, to avoid bank disclosure
rules. An IRS Special Agent testified at trial that agents
also discovered $498,500 cash in Thomas’s safe deposit
box, $87,000 in three separate hiding places in Thomas’s
home, a .357 Magnum, a .9mm handgun, a money-
counting machine, and documents that appeared to be
drug ledgers.
Nos. 06-1754, 06-2380 & 06-2821 7
The DEA continued to monitor phone calls between
Navar and Herrera. The next day, September 4, Herrera
informed Navar that they “had a problem with the dogs,”
which he explained at trial meant the police. Herrera
suggested that they move their drugs to another location.
Law enforcement followed the trail, and on September 15,
agents stopped a white van leaving the new location with
21 kilograms of cocaine. A search of the stash house
revealed over 500 kilograms of cocaine hidden in the
floorboards and the attic, as well as weapons, equipment
for pressing and packaging cocaine, and a drug ledger.
The DEA arrested Herrera, who provided information
about “the Doctor” that led to Navar’s identification and
arrest. Herrera also identified Navar’s voice on a number
of the recorded calls between him and Navar.
On April 1, 2004, a grand jury indicted eleven individuals
who were involved in the conspiracy to distribute drugs
for the Saucedo organization. The indictment charged
Armando Navar with conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846, distribution of more than five
kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1),
and three counts of using a communication facility during
a felony in violation of 21 U.S.C. § 843(b). The indictment
charged Thomas with the same conspiracy to distribute
cocaine in violation of 21 U.S.C. § 846 and a number of
other related counts.
On September 20, 2005, a jury trial began in the United
States District Court for the Northern District of Illinois.
Prior to trial, Herrera and Tmiri accepted plea agreements
and agreed to testify against Navar and Thomas. The
8 Nos. 06-1754, 06-2380 & 06-2821
government also called law enforcement agents involved
in the investigation. On October 3, 2005, a jury found both
defendants guilty of each count of the indictment. On May
9, 2006, the district court sentenced Navar to 324 months’
confinement; on June 16, 2006, Thomas received 360
months. Both filed timely notices of appeal, and we
consolidated their appeals.
II. A NALYSIS OF THE C ONSOLIDATED A PPEALS
OF N AVAR AND T HOMAS
In his brief, Navar presents no fewer than ten issues for
our review. Among them are a variety of alleged eviden-
tiary and constitutional errors, as well as an ineffective
assistance of counsel claim based upon his trial attorney’s
failure to address some of these alleged errors. We will
address the bulk of Navar’s arguments. Thomas joins only
Navar’s first argument regarding counsel’s remarks during
his opening statement. Because Navar bases his ineffective
assistance of counsel claim on three issues similar to those
he challenges substantively, we will address the merits of
his individual arguments first, then turn to the ineffective
assistance claim.
A. Defense Counsel’s Comments During His Opening
Statement
Navar’s first argument, which Thomas joins, is that
Navar’s counsel made certain comments during his
opening statement that improperly shifted the burden of
proof, thereby violating the defendants’ Fifth Amendment
right to due process. The following exchanges regarding
Nos. 06-1754, 06-2380 & 06-2821 9
the burden of proof occurred in front of the jury at trial.
During her opening statement, the prosecutor correctly
informed the jury that the government must prove the
charges beyond a reasonable doubt, which she explained
“is the standard of proof in . . . every criminal case in the
city of Chicago.” Following the government’s statement,
Navar’s counsel gave his opening statement, in which he
made the following remarks to the jury regarding the
burden of proof:
Members of the jury, Mr. Hyman and I, Larry and
I, intend to prove to you—that’s right, we who
have no burden, it’s true. As you heard my adver-
sary say, Ms. Noller and his Honor will tell you
again, instruct you later . . . that the government
has the burden of proof beyond a reasonable doubt
in every criminal case. But in this case, members of
the jury, I will respectfully tell you now that we
appreciate those advantages, but we don’t want
those advantages. He is presumed innocent, that’s
true, but we don’t want any advantage at all
because we will confidently prove to you . . . by the
end of this case that Armando Navar is an innocent
person and being set up and being framed by a
person who has an absolute visceral hate for
Armando Navar.
....
I’m going to prove to you that Armando Navar
meddled in a relationship between Herrera and
Armando Navar’s sister-in-law, because he at some
point, many times, told his sister-in-law that
Herrera wasn’t good enough for her. . . .
10 Nos. 06-1754, 06-2380 & 06-2821
....
I will competently prove—we will competently
prove to you that Armando Navar is not a drug
dealer, that the indictment is a false accusation . . .
.
These are the comments that Navar challenges in this
appeal. Following Navar’s opening statement, Thomas’s
counsel correctly stated that Thomas must be guilty
beyond a reasonable doubt and also noted that “[t]he
government welcomes their burden of proof; it’s your job
to hold them to their burden of proof.”
During closing argument at the end of the trial, both the
prosecutor and Thomas’s counsel again stated the correct
burden of proof. Navar’s counsel, perhaps reassessing the
strength of his case, abandoned the bravado displayed in
his opening statement and referred to the correct burden of
proof no less than nine different times during his closing
argument. Finally, the district court gave the jury a de-
tailed charge explaining that the defendants are presumed
innocent and must be proven guilty beyond a reasonable
doubt.
Navar now asserts that trial counsel’s comments during
his opening statement were improper. Navar argues that
even though “the defense did not make a motion for a
mistrial because the defense made the improper argu-
ment . . . , the court itself should have stopped the proce-
dure and had a mistrial declared.” (Petr.’s Br. 19.) We find
Navar’s argument unconvincing. Not surprisingly, Navar’s
counsel did not stop his opening statement to lodge an
objection to his own comments; Thomas also did not object.
Thus, we review for plain error. See Fed. R. Crim. P. 52(b);
Nos. 06-1754, 06-2380 & 06-2821 11
United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th Cir.
2002). In determining whether plain error exists, we ask
(1) whether there was any error at all; (2) if so, whether
that error was plain, i.e., clear or obvious; and (3) if the
error was plain, whether it affected defendant’s substantial
rights, i.e., whether it affected the outcome of the case.
United States v. Olano, 507 U.S. 725, 732-34 (1993).
Placed in the full context of the trial, which included the
above statements, Navar’s argument borders on frivolity.
First, we agree with the government that the appropriate
avenue to address these types of alleged misstatements by
one’s own counsel is via a Sixth Amendment claim for
ineffective assistance. Navar brought such a claim and
included his counsel’s comments as one basis for it, which
we address below. Thomas, of course, cannot bring an
ineffective assistance claim based upon the conduct of
another co-defendant’s attorney. Thus, we consider the
merits of defendants’ claims and find that they fail.
In support of his argument, Navar analogizes his coun-
sel’s remarks only to cases involving inappropriate com-
ments by a prosecutor, and he invites us, without legal
support, to apply the same standard of conduct to defense
counsel. (Petr.’s Br. 21 (citing United States v. Vargas, 583
F.2d 380 (7th Cir. 1978); United States v. Segna, 555 F.2d 226
(9th Cir. 1977)).) However, overturning a conviction due
to a prosecutor’s improper comments is no easy feat. See
United States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003)
(noting that to constitute prosecutorial misconduct,
comments must be both improper and deprive defendant
of a fair trial); Sandoval-Gomez, 295 F.3d at 763 (listing
12 Nos. 06-1754, 06-2380 & 06-2821
numerous factors a court considers to determine whether
defendant was denied a fair trial); see also United States v.
Amerson, 185 F.3d 676, 685 (7th Cir. 1999) (noting that a
prosecutor’s improper comments, even at closing argu-
ment, “rarely rise to the level of reversible error” (quota-
tions omitted)). Navar’s attempt to obtain a new trial
because his counsel’s comments purportedly deprived him
of a fair trial is decidedly more difficult.
Navar’s first obstacle to success is to convince us that the
standards that apply to a prosecutor’s comments should
apply with equal force to defense counsel’s. We do not
agree with the comparison. In a criminal case, the prosecu-
tor is in the unique position of representing the govern-
ment, as opposed to advocating on behalf of a client. As
the Supreme Court observed: “The United States Attorney
is the representative not of an ordinary party to a contro-
versy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall
be done.” Berger v. United States, 295 U.S. 78, 88 (1935).
Therefore, a prosecutor’s statements—and their impact—
are evaluated in a different light than those made by
defense counsel, for a jury must have confidence in the
prosecutor’s faithful observation of the “duty to refrain
from improper methods calculated to produce a wrongful
conviction.” Id.
But even more damaging to Navar’s claim is that even if
defense counsel could make such a strong statement
regarding the burden of proof so as to violate his own
Nos. 06-1754, 06-2380 & 06-2821 13
client’s constitutional rights, Navar’s counsel made no such
statement here. His comments were merely confident
assertions regarding the strength of his case and did not
shift the burden of proof or confuse the jury. He also
referred to the correct burden multiple times, thereby
ameliorating any possible self-inflicted prejudice. See
Sandoval-Gomez, 295 F.3d at 763 (stating that one factor in
determining whether a defendant was denied a fair trial
due to a prosecutor’s remarks is the defense’s opportunity
to counter any prejudice). Thomas’s counsel and the
prosecutor both stated the proper burden of proof, and the
court gave the jury the correct instruction, which we
assume it understood and followed. See Briggs v. Marshall,
93 F.3d 355, 360 (7th Cir. 1996); Bae v. Peters, 950 F.2d 469,
481 (7th Cir. 1991); see also Boyde v. California, 494 U.S. 370,
384 (1990) (“[A]rguments of counsel generally carry less
weight with a jury than do instructions from the court. The
former are usually billed in advance to the jury as matters
of argument, not evidence . . . ; the latter, we have often
recognized, are viewed as definitive and binding state-
ments of the law.” (citation omitted)).
Consequently, Navar’s argument fails; he does not
present any error, much less a plain one affecting substan-
tial rights. See Olano, 507 U.S. at 733-34. Even if the state-
ments were improper under the standard applicable
to a prosecutor’s misstatements, they did not deprive
Navar of the right to a fair trial, i.e., they did not “ ‘so
infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.’ ” Kappos v. Hanks, 54
F.3d 365, 367 (7th Cir. 1995) (quoting Darden v. Wainwright,
14 Nos. 06-1754, 06-2380 & 06-2821
477 U.S. 168, 181 (1986)). Thomas merely adopted Navar’s
argument, and his claim fails for the same reasons.
B. Identification Testimony
Next, Navar challenges certain identification testimony
provided by two witnesses during the trial. A witness’s
identification violates a defendant’s right to due process
when the identification procedure is “ ‘so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.’” United States v. Williams,
522 F.3d 809, 810 (7th Cir. 2008) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). To determine whether a
particular procedure violated a defendant’s constitutional
rights, we undertake a well-settled, two-pronged analysis:
(1) whether the process was unduly suggestive, and (2) if
so, whether the identification was nevertheless suf-
ficiently reliable. United States v. Griffin, 493 F.3d 856, 865
(7th Cir. 2007); Rodriguez v. Peters, 63 F.3d 546, 556 (7th
Cir. 1995); United States ex rel. Kosik v. Napoli, 814 F.2d
1151, 1155 (7th Cir. 1987).
In conducting this analysis, we must remember that our
purpose is only to determine whether the district court
properly permitted the jury to hear the identification
testimony. We will not assess the accuracy of the actual
identification, for that is the exclusive province of the jury.
Kosik, 814 F.2d at 1156. Our role, rather, is to determine
whether the identification was so unreliable that the
defendant’s constitutional right to a fair trial should have
precluded its admission. Id.
Nos. 06-1754, 06-2380 & 06-2821 15
We generally review a district court’s decision not to
suppress identification testimony de novo, with due defer-
ence to its findings of fact. United States v. Hawkins, 499
F.3d 703, 707 (7th Cir. 2007). However, because Navar’s
counsel did not object to either identification, we review
for plain error. Sandoval-Gomez, 295 F.3d at 762; see also
supra pt. II.A. Navar first argues that the trial court erred
by permitting a witness to leave the witness stand to
identify Navar as the individual known as “the Doctor.”
His second challenge is that the trial court should not have
permitted a law enforcement officer to identify Navar’s
voice on a previously recorded conversation between
Navar and Herrera. We consider separately whether each
procedure was proper.
1. Ahmed Tmiri’s In-Court Identification of Navar as “the
Doctor”
During the trial, Ahmed Tmiri testified that he delivered
drugs and collected money for Jesus Herrera. He stated
that Herrera began obtaining drugs from someone known
as “the Doctor,” whose real name was “Navarro.” Toward
the beginning of his testimony, when asked whether he
saw “the Doctor” in the courtroom, Tmiri replied that he
did not. However, he testified that he had seen “the
Doctor” more than twenty times and described his physical
characteristics: “He’s dark skin, he’s got a mustache, black
hair, kind of straight, and I think he’s got a little scar on his
face.” Tmiri was also unable to identify Thomas, despite
the fact that both defendants were seated at the defense
table. Later in his testimony, however, Tmiri explained
16 Nos. 06-1754, 06-2380 & 06-2821
that he had broken his glasses prior to the trial and could
not even make out the facial features of the prosecutor who
was questioning him.
Toward the end of Tmiri’s testimony, the prosecutor
requested permission from the court for Tmiri to leave the
witness stand and move closer to the people in the court-
room to determine whether he recognized anyone.
Navar’s counsel consulted with Thomas’s counsel, but
neither objected to the procedure. With the court’s
consent, Tmiri left the stand and identified both Navar and
Thomas. Navar contends that this procedure violated his
right to due process by improperly suggesting to Tmiri that
he identify Navar.
First, we must determine whether the in-court identifica-
tion procedure was so suggestive that it likely produced an
unreliable identification. In the courtroom, a defendant
does not have a constitutional right to the same type of
identification procedure used in a police line-up, and the
manner of an in-court identification is typically left to the
trial court’s discretion. United States v. Davies, 768 F.2d 893,
903-04 (7th Cir. 1985). Navar’s argument boils down to
two allegedly suggestive circumstances: first, that Navar
was seated at the defense table; and second, that the
prosecutor’s request for Tmiri to move closer to the
audience—after Tmiri had already stated that he could not
identify Navar—suggested that “the Doctor” was in fact in
the courtroom.
As to the first, we have indicated on multiple occasions
that a defendant’s mere presence at the defense table is not
enough to establish a violation of due process. United
Nos. 06-1754, 06-2380 & 06-2821 17
States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984); accord
Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996);
Rodriguez, 63 F.3d at 556; United States ex rel. Haywood v.
O’Leary, 827 F.2d 52, 59 (7th Cir. 1987). Nothing here
requires us to deviate from that general rule. Similarly,
simply increasing a witness’s proximity to the individuals
in the courtroom, without more, does not suggest to a
witness whom he should identify. As we have stated, “[t]o
satisfy the first prong of our analysis, the defendant must
show both that the identification procedure was suggestive
and that such suggestiveness was unnecessary.” Hawkins,
499 F.3d at 707. Because Tmiri testified that he could not
see, permitting him to move forward was a necessary step
for him to make any identification. Even the sequence of
the questioning itself was necessary, for no one in the
courtroom was aware that Tmiri could not see without his
glasses until after he was initially unable to identify Navar
and Thomas. Nothing about the sequence of the questions
suggested to Tmiri whom he should identify or that Navar
was in fact present.
Even if we determined that the procedure at trial was
unduly suggestive, it was sufficiently reliable to prevent
“ ‘a very substantial likelihood of irreparable misidenti-
fication.’ ” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting
Simmons, 390 U.S. at 384). The Supreme Court has said that
“reliability is the linchpin in determining the admissibility
of identification testimony.” Manson v. Brathwaite, 432 U.S.
98, 114 (1977). In assessing whether an identification was
reliable, a court should consider the following factors:
(1) the opportunity of the witness to view the criminal at
the time of the crime (or prior to the identification), (2) the
18 Nos. 06-1754, 06-2380 & 06-2821
witness’s degree of attention during such an opportunity,
(3) the accuracy of the witness’s prior description of the
criminal, if he made one, (4) the level of certainty demon-
strated at the time of the identification, and (5) the time
between the crime and the identification. See id. at 114
(citing Biggers, 409 U.S. at 199-200).
After evaluating the totality of the circumstances and
applying the Biggers factors, the circumstances in this case
support the reliability of Tmiri’s identification. Tmiri
testified that he knew Navar and had seen him over twenty
times, providing him ample opportunity to view Navar
prior to trial. Tmiri did not testify regarding his degree of
attention during the times he saw Navar, nor did he
provide a description of Navar prior to trial, but Tmiri did
provide a detailed description of Navar prior to his visual
identification of him. Navar does not contest the accuracy
of this description, nor does he suggest that the description
itself was the result of any suggestive circumstance. Tmiri
exhibited no uncertainty at trial that Navar was in fact “the
Doctor.” Regarding the last factor, the trial occurred
approximately two years after Tmiri last interacted with
Navar,1 but any concern over that length of time is dimin-
ished by the strength of the other factors—particularly
Tmiri’s familiarity with Navar and his specific description
of him.
1
The record is not clear whether this was the last time Tmiri
actually saw Navar. Although it may be possible that Tmiri
saw Navar after that time, we use this time frame for the
purposes of this analysis.
Nos. 06-1754, 06-2380 & 06-2821 19
Furthermore, Tmiri’s testimony and ultimate identifica-
tion occurred in direct view of the jury, which observed
and presumably weighed any arguably suggestive circum-
stances. As we noted, our role is not to judge the accuracy
of the identification, Kosik, 814 F.2d at 1156, and such
testimony should be kept from the jury only if it is so
unreliable that it presents “a very substantial likelihood of
irreparable misidentification,” Simmons, 390 U.S. at 384.
“Misidentification is ‘irreparable’ when the source of the
error is so elusive that it cannot be demonstrated to a jury,
which therefore will give excessive weight to the eyewit-
ness testimony.” Williams, 522 F.3d at 811. We have also
noted that “[t]he deference shown the jury in weighing the
reliability of potentially suggestive out-of-court identifica-
tion would seem even more appropriate for in-court
identifications where the jury is present and able to see
first-hand the circumstances which may influence a
witness.” Bush, 749 F.2d at 1231. In circumstances such as
these, where the in-court identification was not tainted by
a previous out-of-court identification, the jury is in
the unique position of observing the entire identification
procedure, and it may weigh the accuracy of the identifica-
tion accordingly. The jury’s conclusions are not our
concern, so long as the procedure used to identify Navar
was not unduly suggestive and produced a sufficiently
reliable identification. The procedure used here did
not violate Navar’s constitutional rights, and the district
court did not err by permitting Tmiri’s in-court identifica-
tion.
20 Nos. 06-1754, 06-2380 & 06-2821
2. Special Agent Tulshi’s Voice Identification
Navar also asserts that the trial court erred when it
permitted DEA Special Agent Tulshi to identify Navar’s
voice on a recorded conversation between Navar and
Herrera. Tulshi testified that on the day of Navar’s arrest,
he listened to Call No. 331, which was a six-minute conver-
sation in Spanish between Herrera and a man whose voice
Tulshi did not yet recognize. Later that day, Tulshi, who
speaks Spanish, participated in Navar’s arrest and post-
arrest interviews and conversed with Navar. Tulshi
testified that after hearing Navar speak, he recognized
Navar’s voice as the second speaker on Call No. 331.
Navar now contends that the identification (1) lacked
foundation, particularly because the trial court had no
basis for qualifying Tulshi as an expert witness, and
(2) was unduly suggestive in violation of Navar’s constitu-
tional right to due process.
a. Foundation for Special Agent Tulshi’s Identification
Although Navar’s brief is somewhat unclear, it appears
that he claims that Special Agent Tulshi’s lack of training
in voice identification should render his testimony inad-
missible. Thus, we first review whether Tulshi properly
authenticated his voice identification.
Federal Rule of Evidence 901 governs the authentication
of evidence as a precondition to admissibility, and subsec-
tion (b) provides examples of acceptable methods of
authentication or identification. According to the applica-
ble illustration, a witness properly authenticates a voice,
Nos. 06-1754, 06-2380 & 06-2821 21
“whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstances
connecting it with the alleged speaker.” Fed. R. Evid.
901(b)(5) (emphasis added). The advisory committee
commented on the illustration in Rule 901(b)(5), stating
that because “aural voice identification is not a subject of
expert testimony, the requisite familiarity may be acquired
either before or after the particular speaking which is the
subject of the identification.” Id. advisory committee’s
note (Subdivision (b), Example (5)) (emphasis added).
In light of Rule 901, Navar’s contention that the court
erred in admitting Special Agent Tulshi’s identification
because he was not qualified as an expert is wholly
meritless. Not only do the advisory committee notes to
Rule 901(b) state that voice identification is “not a subject
of expert testimony,” but this court has previously stated
that expert testimony is not required to authenticate a
voice identification. See United States v. Magana, 118 F.3d
1173, 1208 (7th Cir. 1997) (“ ‘As long as the basic require-
ment of familiarity with the voice is met, lay opinion
testimony is an acceptable means for establishing a
speaker’s identity.’ ” (quoting United States v. Vega, 860 F.2d
779, 788 (7th Cir. 1988))); United States v. Degaglia, 913 F.2d
372, 375-76 (7th Cir. 1990).
Further, Special Agent Tulshi properly established the
requisite “minimal familiarity” with Navar’s voice to
permit him to identify it on Call No. 331. See United States
v. Mansoori, 304 F.3d 635, 665 (7th Cir. 2002) (holding that
a witness who heard defendants’ voices once during a
22 Nos. 06-1754, 06-2380 & 06-2821
court proceeding satisfied the “minimal familiarity”
requirement); United States v. Saulter, 60 F.3d 270, 276 (7th
Cir. 1995); Degaglia, 913 F.2d at 376. Tulshi testified that he
listened to a recorded phone conversation between Herrera
and another speaker on the same day that he arrested
Navar. Later that day, he spoke with Navar during his
arrest and post-arrest interview, each of which connected
Navar’s voice to his identity. Tulshi then testified at trial
that based on hearing Navar’s voice in person, he recog-
nized it as the same voice he heard on Call No. 331.
Tulshi’s testimony falls squarely within the requirements
of Rule 901(b)(5), and the trial court properly found that
Tulshi authenticated his identification.
b. Suggestiveness of Special Agent Tulshi’s Voice Identifica-
tion Procedure
Navar also contends that Special Agent Tulshi’s testi-
mony violated his Fifth Amendment right to due process
because the voice identification was unduly suggestive. In
addition to the testimony recounted above, Tulshi testified
that he was asked to listen to Call No. 331 “in order to do
a voice recognition.” The crux of Navar’s argument is that
the government’s request, which came on the same day
that Tulshi knew the authorities were going to arrest
Navar, impermissibly suggested that the voice on the call
was Navar’s.
A witness’s voice identification is subject to the same due
process analysis as other forms of identification. See United
States v. Alvarez, 860 F.2d 801, 810 (7th Cir. 1988). As we
Nos. 06-1754, 06-2380 & 06-2821 23
previously noted, supra pt. II.B.1., in determining the
admissibility of identification testimony, “reliability is the
linchpin,” Brathwaite, 432 U.S. at 114, and an identification
procedure is unduly suggestive if it “give[s] rise to ‘a very
substantial likelihood of irreparable misidentification,’ ”
Degaglia, 913 F.2d at 376 (quoting United States v. Carrasco,
887 F.2d 794, 806 (7th Cir. 1989)). To assess the reliability
of a voice identification, we apply the same factors articu-
lated in Biggers, and we must weigh them against the
“corruptive effect of the suggestive identification.”
Alvarez, 860 F.2d at 810 (quotations omitted).
We disagree with Navar that the procedure used to
identify his voice on Call No. 331 was so suggestive that it
violated his constitutional rights. Navar presents nothing
beyond the sequence of events to indicate that the process
suggested to Tulshi that Navar was a participant on Call
No. 331.
But even if the identification procedure was suggestive,
it was constitutionally reliable. See Biggers, 409 U.S. at 199-
200; supra pt. II.B.1. Applying the first Biggers factor,
Special Agent Tulshi heard Navar’s voice in person on
the day of his arrest, and he also had a clear opportunity
to listen to the voice on Call No. 331—the call lasted six
minutes and was a recording. Cf. Brown v. Harris, 666 F.2d
782, 787 (2d Cir. 1981) (“Witnesses who listen to a crime
that has been ‘memorialized on tape,’ are in a position to
offer uniquely reliable testimony. . . . [T]hey have the
luxury of listening to the tape in an office, where they can
devote their full attention to it.” (citations omitted)). As to
the second factor, Tulshi testified that he listened to
24 Nos. 06-1754, 06-2380 & 06-2821
Call No. 331 with the express purpose of remembering the
then-unidentified voice. Knowing that as a special agent
his recollection would be subject to close scrutiny at trial,
Tulshi devoted proper attention to the call, making him
nothing like “a casual or passing observer.” Brathwaite, 432
U.S. at 115. Third, because Tulshi’s familiarity with Navar’s
voice came from a recording of the telephone call, the
accuracy of the voice is clear. Regarding the fourth factor,
Tulshi expressed no uncertainty that, after hearing Navar’s
voice during his arrest and post-arrest interview, the voice
on Call No. 331 belonged to Navar. And last, the fifth
factor also favors admissibility because Tulshi listened to
Call No. 331 on the same day that he participated in
Navar’s arrest.
Therefore, each of the Biggers factors weighs in favor of
upholding the admission of Tulshi’s testimony. Any
remaining concerns regarding the accuracy of Tulshi’s
recollection of the voice are relevant to the weight of the
testimony, not its admissibility. After reviewing the
circumstances of Special Agent Tulshi’s voice identifica-
tion, we cannot say that there is a “ ‘very substantial
likelihood of irreparable misidentification.’ ” Brathwaite,
432 U.S. at 116 (quoting Simmons, 390 U.S. at 384).
C. Law Enforcement Testimony Regarding Wiretap Procedure
Navar’s next challenge is that the court should not have
permitted a government agent to explain the process by
which he obtained permission to wiretap Jesus Herrera’s
telephone number. At trial, Special Agent Baumgartner
testified that to receive permission to intercept telephone
Nos. 06-1754, 06-2380 & 06-2821 25
calls, he prepared an affidavit that included probable cause
to believe that the particular phone was being used to
conduct drug trafficking crimes. Baumgartner sent the
affidavit to the United States Attorney’s office and the
Department of Justice in Washington D.C., and after they
approved it, he submitted it to the district court. Navar’s
counsel objected to testimony regarding the district court’s
approval of the wiretap, and he asserts on appeal that this
evidence was prejudicial and violated his right to due
process. We review the trial court’s evidentiary decision,
over Navar’s objection, for an abuse of discretion. United
States v. Owens, 424 F.3d 649, 653 (7th Cir. 2005).
Navar is correct that in some circumstances, detailed
testimony regarding the process by which the government
procures a wiretap is improper and may merit a new trial.
See, e.g., United States v. Cunningham, 462 F.3d 708 (7th Cir.
2006). In Cunningham, a government agent testified about
the numerous levels of approval required to obtain a
wiretap on the defendant’s telephone number, including a
“very extensive” probable cause affidavit, review by the
USAO and a “panel of attorneys” at the DOJ, and then
approval by the district court. Id. at 710-11. We held that
this testimony was irrelevant and unfairly prejudicial
because the “government witness was improperly vouch-
ing for how good the evidence was.” Id. at 713. Our
concern in Cunningham was that the testimony permitted
the jury to infer that the defendant was engaged in illegal
activity before the wiretap because law enforcement,
government attorneys, and a district judge each approved
it. See id.; see also United States v. Bustamante, 493 F.3d 879,
888 (7th Cir. 2007).
26 Nos. 06-1754, 06-2380 & 06-2821
Unlike in Cunningham, however, the impermissible
inference from this type of testimony is missing when the
government places a wiretap on a phone belonging to
someone other than the defendant. We addressed this
issue squarely in Bustamante and noted that testimony
regarding a wiretap on a co-conspirator’s telephone
permitted a jury to infer that the co-conspirator was engaged
in illegal activity before the wiretap. 493 F.3d at 888.
Because the defendants in that case never denied that the
co-conspirator was a drug dealer, we held that the testi-
mony did not damage or prejudice the defendants. Id.
We find the facts of this case analogous to those in
Bustamante. Baumgartner testified about the wiretap on
Herrera’s telephone number,2 and Herrera testified that the
telephone number in question belonged to him, a fact
Navar has never challenged. The testimony regarding the
wiretap procedure was relevant to Herrera’s conduct and
the likelihood that he was involved in illegal activity prior
to the wiretap. Herrera was a known drug dealer, a fact
that no party disputed. In fact, Navar’s trial strategy
included painting Herrera as an active participant in the
drug conspiracy who was now testifying against Navar to
receive a lower sentence. Thus, the impermissible infer-
ence that was the concern of Cunningham does not exist
2
Further, Baumgartner’s testimony about the wiretap approval
process was cursory, less detailed, and less problematic than
that which we found improper in Cunningham. See 462 F.3d at
710-11. Although this distinction is not our basis for finding the
testimony permissible, it supports our conclusion that the
district court did not abuse its discretion.
Nos. 06-1754, 06-2380 & 06-2821 27
here, and the district court did not abuse its discretion by
permitting Special Agent Baumgartner’s testimony.3
Despite the propriety of the district court’s decision in this
case, we note that the government stated during oral
argument that after Cunningham, it is no longer the DOJ’s
practice to elicit such wiretap testimony.
D. The District Court’s Limitation on Navar’s Cross-Exami-
nation
Next, Navar alleges that the trial court erred by restrict-
ing his counsel’s cross-examination of Jesus Herrera. After
Herrera acknowledged that he was testifying pursuant to
a plea agreement, Navar’s counsel introduced the plea
agreement into evidence and questioned Herrera exten-
sively about the effect it could have on his sentence.
Herrera conceded that he could obtain a reduced sentence
if he was truthful. Not yet satisfied, Navar’s trial counsel
then attempted to question Herrera about the Sentencing
Guidelines, including who would determine whether his
3
Further, the district court did not permit endless questioning
on this topic. Rather, it considered Navar’s objection and
instructed the prosecutor to restrict the questioning to simply
establishing the fact that government agents may not “willy-
nilly tap phones.” After Baumgartner testified that he presented
his affidavit to a district judge, the district court asked whether
the prosecutor “intend[ed] to belabor this further,” and upon
getting a negative response, stated “[t]here is no impropriety up
to this point, but try to concisely end on this issue with this
witness.”
28 Nos. 06-1754, 06-2380 & 06-2821
testimony was “truthful” and what that term means—the
actual truth, or what the government wanted to hear.
Navar now asserts that the court violated his right to
confront Herrera by sustaining the government’s objections
to this line of questioning.
The Sixth Amendment guarantees a defendant an
opportunity for effective cross-examination, but there is no
guarantee of cross-examination “ ‘to whatever extent[] the
defense might wish.’ ” United States v. Jackson, 540 F.3d 578,
591 (7th Cir. 2008) (alteration in original) (quoting Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986)). A judge has broad
discretion to place reasonable limits on cross-examination,
based on concerns of, inter alia, confusion of the issues and
relevance. United States v. Nelson, 39 F.3d 705, 708 (7th Cir.
1994). Where a trial court’s limitation on cross-examina-
tion directly implicates the “core values of the Confronta-
tion Clause,” we review the limitation de novo; otherwise,
we review for abuse of discretion. See United States v.
Smith, 454 F.3d 707, 714 (7th Cir. 2006).
One such core value is the ability to expose a witness’s
motivation for testifying, his bias, or his possible incentives
to lie. See id.; see also Van Arsdall, 475 U.S. at 678-79. How-
ever, once a trial court permits a defendant to expose a
witness’s motivation, “it is of peripheral concern to the
Sixth Amendment how much opportunity defense counsel
gets to hammer that point home to the jury.” Nelson, 39
F.3d at 708. The right to confrontation is not implicated
where “limitations on cross-examination did not deny the
defendants the opportunity to establish that the witnesses
may have had a motive to lie; rather, the limitations denied
Nos. 06-1754, 06-2380 & 06-2821 29
them the opportunity to add extra detail to that motive.” Id.
That is precisely the case here. Because the district court
did not prevent Navar’s counsel from establishing
Herrera’s motivation for testifying, the court’s limitation
did not implicate the Sixth Amendment right to confronta-
tion, and we review for abuse of discretion.
To determine whether the district court abused its
discretion by limiting Navar’s cross-examination, we must
determine whether “the jury had sufficient information to
make a discriminating appraisal of the witness’s motives
and biases.” United States v. De Gudino, 722 F.2d 1351, 1355
(7th Cir. 1983). The jury in this case heard Herrera explain
that he was testifying pursuant to a plea agreement, and
that in exchange for his truthful testimony, the government
would advocate for a lower sentence. The trial court
permitted Navar’s counsel to question Herrera about his
awareness of the Sentencing Guidelines and even allowed
Herrera to testify that he was facing a potential sentence of
235 to 297 months in prison when he entered the plea. Cf.
Nelson, 39 F.3d at 708-09 (upholding district court’s refusal
to allow cross-examination of two government witnesses
regarding the potential penalties they faced without their
plea bargains). Only when Navar’s counsel asked Herrera
to speculate about what constituted “truthful” testimony
or who made such a determination did the district judge
limit the examination. The judge stated that the questions
were confusing to the jury and were improper questions of
law beyond the witness’s knowledge, both of which are
permissible grounds for limiting cross-examination. The
jury had more than enough information to appraise
30 Nos. 06-1754, 06-2380 & 06-2821
Herrera’s motive to lie, and the district court did not abuse
its discretion.
E. Ineffective Assistance of Counsel
Last, Navar asserts that he received ineffective assistance
of counsel, based in large part on the way Navar’s trial
counsel handled the issues that we have already ad-
dressed. Such a claim is a mixed question of law and fact
that we review de novo, with a strong presumption that the
attorney performed effectively. Bednarski v. United States,
481 F.3d 530, 535 (7th Cir. 2007); United States v. Fudge, 325
F.3d 910, 923 (7th Cir. 2003).
The Sixth Amendment affords a criminal defendant the
right to counsel, U.S. Const. amend. VI, and inherent in this
right is that the defendant is entitled to the effective
assistance of counsel, McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970). But “effective” does not mean successful
or without flaw. The important inquiry is “whether coun-
sel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington,
466 U.S. 668, 686 (1984).
To prevail on a claim for ineffective assistance of counsel,
Navar must establish (1) that his attorney’s representation
fell below an objective standard of reasonableness, and (2)
that there is a reasonable probability that, but for the
ineffective assistance, the result of the proceedings would
have been different. See Strickland, 466 U.S. at 687-88;
Fudge, 325 F.3d at 923-24. Under the performance prong,
Nos. 06-1754, 06-2380 & 06-2821 31
we must determine if Navar’s counsel acted “outside the
wide range of professionally competent assistance,”
Strickland, 466 U.S. at 690, and we “maintain a strong
presumption that the defendant received effective assis-
tance,” Hardamon v. United States, 319 F.3d 943, 948 (7th
Cir. 2003). It is not our role to second-guess counsel’s
strategic decisions or “take up the role of the ‘Monday
morning quarterback.’ ” Harris v. Reed, 894 F.2d 871, 877
(7th Cir. 1990). Under the prejudice prong, a “reasonable
probability” that the result would have been different is
one “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Navar faces the added difficulty of pursuing his ineffec-
tive assistance claim on direct appeal. We typically do not
review an ineffective assistance of counsel claim on direct
review, United States v. Best, 426 F.3d 937, 944 (7th Cir.
2005), but if we do, the defendant must rely on the trial
record alone, because he lacks the ability to develop a
factual record regarding the attorney’s trial conduct, see
United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991).
Without record of an attorney’s motives, “every indulgence
will be given to the possibility that a seeming lapse or error
by defense counsel was in fact a tactical move, flawed only
in hindsight.” Id. at 417-18; see also United States v. Johnson-
Wilder, 29 F.3d 1100, 1104 (7th Cir. 1994) (“[T]ypically the
trial record will be silent about the reasons for actions taken
by trial counsel.”). Navar chose to brief and argue his
ineffective assistance claim in this appeal, and we believe
the proper outcome is clear from this record. Thus, we will
address his claim.
32 Nos. 06-1754, 06-2380 & 06-2821
Navar alleges that his counsel provided ineffective
assistance in three ways: (1) by his confident statements
regarding the burden of proof during his opening state-
ment; (2) by failing to request that the district court instruct
the jury concerning Herrera’s and Tmiri’s plea agreements
at the time of their testimony; and (3) by failing to request
a jury instruction for Special Agent Tulshi’s voice identifi-
cation similar to those provided for an eyewitness identifi-
cation. We analyze each of these alleged errors separately
and find that none of them deprived Navar of his Sixth
Amendment rights.
1. Counsel’s Comments Regarding the Burden of Proof
As outlined above, supra pt. II.A., Navar’s counsel made
a number of confident statements regarding the govern-
ment’s burden of proof, which Navar now argues so
tarnished the proceedings that his assistance was ineffec-
tive. We have already determined that defense counsel’s
statements did not shift the burden of proof in violation of
Navar’s right to due process. For similar reasons, Navar’s
counsel was not ineffective by making the statements, and
Navar fails to satisfy either prong of the Strickland analysis.
Making the statements in question was a tactical decision
designed to persuade the jury of the strength of Navar’s
case. The district court, the prosecutor, Thomas’s attorney,
and Navar’s counsel himself each stated the proper burden
of proof at various times throughout the trial. Nothing
indicates that Navar’s counsel seriously intended to give
up the benefit of the government’s burden of proof (nor
could he), nor that the jury was confused on the issue.
Nos. 06-1754, 06-2380 & 06-2821 33
While the statements appear overconfident in light of the
evidence implicating Navar, they were not objectively
unreasonable, nor is there a probable likelihood that the
outcome would have differed without the statements.
2. Failure to Request an Instruction Regarding Plea Agree-
ments of Cooperating Witnesses
Both Herrera and Tmiri testified against Navar pursuant
to a plea agreement with the government. At the close of
evidence, the district court instructed the jury using the
Seventh Circuit’s Pattern Instruction 3.13, entitled “Wit-
nesses Requiring Special Caution,” which specifically
warned the jury that Herrera and Tmiri received the
recommendation of a reduced sentence, that they were
involved in the conspiracy for which Navar is on trial, and
that they both pleaded guilty for that offense. Despite the
fact that the district court delivered this limiting instruc-
tion, Navar asserts that his trial counsel should have
requested a similar instruction contemporaneously with
the witnesses’ testimony.
First, defense counsel’s assistance was not objectively
unreasonable. Navar’s counsel may have wished to avoid
emphasizing that Herrera and Tmiri were members of a
large criminal drug conspiracy, where both witnesses were
implicating his client as a higher-ranking member of the
same organization. We can only speculate about his
motivations, but we must presume they were strategic
unless persuaded otherwise, and we are not.
Second, Navar also fails to show prejudice. The district
court properly instructed the jury at the end of trial, which
34 Nos. 06-1754, 06-2380 & 06-2821
we presume, without more, the jury understood and
considered and was effective for its limiting purpose.
Further, Navar’s counsel extensively cross-examined each
witness regarding his plea agreement and the benefits each
received, thereby explaining their bias to the jury. Counsel
was not ineffective under Strickland.
3. Failure to Submit a Voice Identification Instruction
As a third basis for his ineffective assistance claim, Navar
argues that his counsel acted unreasonably by failing to
request a contemporaneous limiting instruction regarding
Special Agent Tulshi’s voice identification. Noting that a
trial court should instruct a jury when a witness makes a
visual identification, Navar claims that a voice identifica-
tion should be similarly treated and cites United States v.
Telfaire, 469 F.2d 552 (D.C. Cir. 1972).
To be entitled to an instruction on a defense theory,
Navar must demonstrate that (1) the proposed instruction
correctly stated the law; (2) the theory advanced by the
instruction was supported by the evidence; (3) the theory
advanced was not part of the charge presented to the jury;
and (4) the failure to include the instruction on the defen-
dant’s theory denied the defendant a fair trial. Magana, 118
F.3d at 1208.
Navar’s argument is short, undeveloped, and incorrect.
We have already upheld the reliability of Tulshi’s voice
identification, and Federal Rule of Evidence 901(b)(5) states
that a witness may identify a voice after hearing it at any
time, under circumstances connecting it with the speaker.
Nos. 06-1754, 06-2380 & 06-2821 35
The admissibility of a visual identification, however, is
based on “[w]hether the witness had an adequate opportu-
nity to observe the offender at the time of the offense.”
Telfaire, 469 F.2d at 558 (emphasis added) (appending a
model special instruction on identification). The two types
of identification are distinct and treated differently. See
Magana, 118 F.3d at 1208-09 (holding that a proposed
instruction would erroneously instruct the jury where it
stated that the reliability of a witness’s voice identification
depends on the ability to hear the defendant’s voice at
the time of the offense). Therefore, even if Navar’s counsel
had proposed the desired instruction, the district court
would have properly rejected it, as it is an incorrect
statement of law. Further, Navar has pointed to nothing
about the desired instruction, if given, that would have
altered the trial’s outcome. Therefore, he has failed to
establish prejudice resulting from his counsel’s decision
not to request the instruction.
III. G ERARDO R ECENDIZ—C OUNSEL’S M OTION FOR
W ITHDRAWAL
Finally, we address an Anders brief submitted by counsel
for a co-defendant, Gerardo Recendiz. Recendiz was
charged with participating in the same conspiracy to
possess with the intent to deliver in excess of five kilo-
grams of cocaine, as well as conspiracy to conduct
financial transactions with the proceeds of unlawful
activity in violation of 18 U.S.C. § 1956(h). Recendiz
pleaded guilty on July 12, 2005, and on March 6, 2006, after
applying two downward adjustments, the trial court
36 Nos. 06-1754, 06-2380 & 06-2821
sentenced him to 135 months in federal prison, the
bottom of the range according to the Sentencing Guide-
lines. He filed a timely notice of appeal on March 14, 2006.
Recendiz’s attorney filed an Anders brief in support of his
June 7, 2007, motion to withdraw as Recendiz’s appointed
appellate counsel. See Anders v. California, 386 U.S. 738
(1967). Recendiz did not file a response. We have re-
viewed counsel’s Anders brief and agree that there are no
non-frivolous issues for appeal. The district court properly
accepted Recendiz’s guilty plea, and Recendiz indicated
that he did not wish to challenge his plea. The district
court also properly calculated and considered the applica-
ble Sentencing Guidelines range, did not clearly err in its
factual findings, and imposed a reasonable sentence at the
bottom of the range after considering the factors articu-
lated in 18 U.S.C. § 3553(a). We therefore grant counsel’s
motion to withdraw and dismiss Recendiz’s appeal.
IV. C ONCLUSION
For the above reasons, we reject each of Navar’s chal-
lenges. Marco Thomas adopted only Navar’s argument
regarding the opening statement, which fails for the same
reasons. We therefore A FFIRM both defendants’ convictions.
We agree with Recendiz’s counsel that no non-frivolous
issues exist for appeal, and we therefore G RANT his motion
to withdraw and D ISMISS Recendiz’s appeal.
3-3-09