United States v. Arturo Gallo-Moreno ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-1696
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A RTURO G ALLO-M ORENO ,
also known as F ERNANDO C ARRION,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94-CR-458—Charles R. Norgle, Sr., Judge.
A RGUED N OVEMBER 3, 2008—D ECIDED O CTOBER 19, 2009
Before K ANNE, E VANS, and SYKES, Circuit Judges.
S YKES, Circuit Judge. In 1994 Fernando Carrion was
indicted for his involvement in a large-scale drug con-
spiracy in Chicago, and a warrant was issued for his
arrest. Three years later Arturo Gallo-Moreno was
arrested on suspicion of being Carrion. Gallo-Moreno’s
resulting bench trial focused primarily on the issue of
identity—whether Gallo-Moreno was Carrion—and the
2 No. 06-1696
district court found Gallo-Moreno guilty on the drug-
conspiracy and related narcotics charges. On appeal Gallo-
Moreno advances three reasons why we should reverse
his convictions. He argues that the district court improp-
erly admitted evidence regarding an uncharged
attempted drug transaction in Texas in violation of
Rule 404(b) of the Federal Rules of Evidence. He also con-
tends that DEA Agent Rafael Tovar’s testimony iden-
tifying him as Carrion should have been suppressed. On
this point he makes two separate constitutional argu-
ments: He claims Tovar’s out-of-court identification was
unduly suggestive and unreliable in violation of his
Fifth Amendment right to due process and that it inde-
pendently violated his Sixth Amendment right to counsel.
We affirm. Gallo-Moreno’s Rule 404(b) argument fails
because identity was the sole issue at trial and the
evidence regarding the Texas drug transaction was highly
probative on that issue. We also reject Gallo-Moreno’s due-
process challenge to Tovar’s identification testimony
because the identification was sufficiently reliable
under the circumstances of the case.
Gallo-Moreno’s Sixth Amendment challenge to the
identification presents a more difficult question. Carrion’s
voice was captured on tape in several recorded telephone
calls during the DEA’s investigation of the 1994 con-
spiracy. Tovar participated in some of these calls in an
undercover capacity. After Gallo-Moreno was arrested
on suspicion of being Carrion, Tovar listened to the
recordings in anticipation of attempting a voice iden-
tification. The next day he transported Gallo-Moreno from
No. 06-1696 3
jail to the DEA to obtain voice exemplars from him. While
waiting for the exemplar procedure to begin, he engaged
Gallo-Moreno in casual conversation and recognized
his voice as Carrion’s.
This identification occurred postindictment and Gallo-
Moreno’s lawyer was not present. Under United States
v. Wade, 388 U.S. 218 (1967), such an identification is
inadmissible if it was made during a “critical stage” of the
criminal proceedings requiring the presence of counsel
under the Sixth Amendment. Wade’s holding, however,
must be understood in light of the Supreme Court’s later
decision in United States v. Ash, 413 U.S. 300 (1973). Read
together, the two cases suggest the following approach to
the question whether a postindictment identification
occurred at a critical stage of the proceedings requiring
the presence of counsel: First, we ask whether the iden-
tification occurred when the defendant himself was
present in a trial-like confrontation; and, second, we ask
whether any errors or overreaching that may have
infected the identification can be “cured” through the
presence of counsel at trial.
Here, Gallo-Moreno was present in person, without
counsel, when Tovar made the identification; we may
leave to one side, however, whether the confrontation
was sufficiently trial-like to trigger the right to have
counsel present. Under the circumstances of this case,
Gallo-Moreno had sufficient opportunity to expose any
errors in Tovar’s identification through counsel at trial.
Carrion’s participation in the conspiracy was captured
on audiotape, and Tovar’s identification was based solely
4 No. 06-1696
on his study of Carrion’s voice on the tapes. Tovar’s
identification was only as strong as the tapes, which
were admitted into evidence, and any flaws in the identifi-
cation could be adequately exposed through cross-exami-
nation by counsel at trial. Accordingly, the postindict-
ment, uncounseled identification did not occur during
a critical stage of the criminal proceedings under Wade
and Ash, and Gallo-Moreno’s Sixth Amendment right to
counsel was not violated.
I. Background
In 1994 Jose Antonio Varela, a DEA confidential infor-
mant, and Rafael Tovar, an undercover DEA agent, set up
a large undercover cocaine transaction with Mexican
drug traffickers. The DEA arrested several conspirators in
Chicago after a July 1994 delivery of roughly 350 kilograms
of cocaine. Later the same day a man named “Fernando
Carrion” contacted Tovar. Oblivious to his coconspirators’
arrests, Carrion called himself “the boss of all those
people who are there by you” and sought to reach Varela,
the known cocaine purchaser, for an additional large
sale of cocaine. Over the next month Carrion spoke with
Tovar, Varela (who was using a false name), and another
DEA agent. The conversations between Carrion and
government operatives took place over the phone;
nobody ever saw Carrion. The agents recorded several
of these conversations and generated about 30 minutes’
worth of audiotapes. In December 1994 the government
obtained an indictment charging Carrion and others with
one count of conspiracy to possess cocaine with intent
No. 06-1696 5
to distribute and three counts of possession of cocaine
with intent to distribute. A warrant issued for Carrion’s
arrest.
In 1997 Varela was in Texas trying to purchase cocaine
in an unrelated undercover drug operation. Using the
name “Jose Ballesteros,” Varela met with Arturo Gallo-
Moreno to negotiate the purchase and importation of
3,000 kilograms of cocaine from Mexico to Chicago. Gallo-
Moreno was introduced to Varela as the “real big boss,”
and he told Varela, “I’m the one who gives the or-
ders.” During their meeting, Gallo-Moreno and Varela
recognized each other’s voices. Gallo-Moreno asked Varela
(who was using the alias “Ballesteros”) whether he had
ever heard the name “Jose Antonio Varela” mentioned.
Gallo-Moreno explained, “You know, that guy [Varela] got
a lot of our people busted up there in Chicago, and about
one ton of cocaine. . . . [I]f you know about him, tell me
so that I can have him killed.” Shortly after this meeting,
Varela informed the authorities that Gallo-Moreno was
Carrion.
Based on the 1994 warrant for Carrion, DEA agents
arrested Gallo-Moreno on August 25, 1997, at O’Hare
Airport in Chicago as Gallo-Moreno was arriving to
meet “Ballesteros” to complete their transaction. Gallo-
Moreno was arraigned the following day and pleaded
not guilty to the charges against Carrion. Two years later
the government obtained a superseding indictment
charging Gallo-Moreno with a host of drug-related crimes,
all of which concerned Carrion’s participation in the
1994 conspiracy.
6 No. 06-1696
Because nobody had seen Carrion, the government had
to establish Gallo-Moreno’s identity as Carrion in part
through voice identification. Gallo-Moreno agreed
through counsel to provide a voice exemplar. The proce-
dure was scheduled for October 17, 1997, and Gallo-
Moreno’s counsel was to be present. The day before
this planned meeting, prosecutors had Tovar listen to
the 1994 recordings of Carrion for four to six hours. On
the day the exemplar was to be taken, Tovar and
another agent retrieved Gallo-Moreno from the Metropoli-
tan Correctional Center in Chicago 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. Gallo-Moreno then became silent. For an
unrelated reason, Gallo-Moreno’s lawyer cancelled the
exemplar session that day. Much later, in March 2001,
Gallo-Moreno recorded two tapes of voice exemplars
while in the presence of his counsel and Tovar.
The case went to a bench trial focused mostly on whether
Gallo-Moreno was Carrion. Tovar testified that he had
identified Gallo-Moreno as Carrion from hearing his
voice during their interaction on October 17, 1997, and
based on his review of the 2001 voice exemplars. Valera
offered testimony about his 1997 encounter with Gallo-
Moreno in Texas; he identified Gallo-Moreno as Carrion
No. 06-1696 7
based on the Texas encounter and the 2001 exemplars.
The government also called an interpreter whom Gallo-
Moreno had previously hired; the interpreter testified
that Gallo-Moreno sounded like Carrion but said she
was not certain. Gallo-Moreno called two of his former
lawyers who testified that Gallo-Moreno’s voice did not
sound like Carrion’s. The district court found Gallo-
Moreno guilty and sentenced him to 300 months in
prison. This appeal followed.
II. Discussion
Gallo-Moreno argues that the evidence related to his
1997 Texas encounter with Varela should have been
excluded under Rule 404(b) of the Federal Rules of Evi-
dence. He also contends that Tovar’s identification of him
as Carrion violated his Fifth Amendment right to
due process and his Sixth Amendment right to counsel
and should have been suppressed.
A. Rule 404(b) and the Evidence of the 1997 Meeting
in Texas
We start with Gallo-Moreno’s evidentiary challenge to
the testimony regarding Varela’s attempted drug transac-
tion with Gallo-Moreno in Texas in 1997. Rule 404(b)
generally excludes “[e]vidence of other crimes, wrongs, or
acts” used “to prove the character of a person in order
to show action in conformity therewith.” FED. R. E VID.
404(b). Such evidence “may, however, be admissible
for other purposes, such as proof of . . . identity.” Id. We
8 No. 06-1696
review the court’s decision to admit evidence under
Rule 404(b) for an abuse of discretion.1 United States v.
Moore, 531 F.3d 496, 499 (7th Cir. 2008). Gallo-Moreno
contends that the Texas evidence simply shows that he
is a drug dealer and is more likely to be Carrion for
reasons related only to propensity, in violation of
Rule 404(b)’s restriction on the use of propensity-
based evidence. The government responds that the evi-
dence is highly probative of Gallo-Moreno’s identity
and thus was properly admitted under Rule 404(b).
We agree with the government. Identity was the sole
issue at trial. The Texas evidence established that Gallo-
Moreno recognized Varela’s voice, knew of a “Jose
Antonio Varela” by name, expressed a desire to kill
Varela, said that Varela got a lot of “our people” busted,
intimated that the seized cocaine was his, and used
similar language as Carrion. This evidence tended to
prove Gallo-Moreno’s identity as Carrion, and none of
1
The government argues that Gallo-Moreno forfeited his Rule
404(b) objection because he objected only on relevance
grounds. Our cases appear to be inconsistent as to whether an
objection on relevance grounds encompasses a Rule 404(b)
argument. Compare United States v. Gibson, 170 F.3d 673, 677 (7th
Cir. 1999) (finding forfeiture under similar circumstances), and
United States v. Laughlin, 772 F.2d 1382, 1392 (7th Cir. 1985)
(same), with United States v. Joseph, 310 F.3d 975, 977 (7th Cir.
2002) (finding Rule 404(b) argument preserved). We need not
resolve this inconsistency because even if we assume Gallo-
Moreno preserved his Rule 404(b) argument, his argument
fails on the merits.
No. 06-1696 9
it requires a forbidden propensity-based inference to
conclude that Gallo-Moreno is Carrion.
Gallo-Moreno responds that the Texas evidence only
shows he had “generic knowledge” of “one of the
largest and most uniquely significant seizures” of cocaine
in the Northern District of Illinois. He also explains his
use of the word “our” (as in “our people”) as referring to
“any number of groups with whom Mr. Gallo-Moreno
associated himself” or to “those involved in drug-traffick-
ing [broadly].” To the contrary, the Texas evidence was
far more specific—and specifically related to proving
his identity—than Gallo-Moreno suggests. His knowl-
edge of Varela and certain specific facts surrounding
the activities of coconspirators in Chicago in 1994 is
highly probative of his identity as Carrion. The same is
true of Varela’s testimony about the similarities between
Gallo-Moreno’s speech and Carrion’s. The district court
did not abuse its discretion in admitting this evidence.
B. Fifth Amendment Right to Due Process
Gallo-Moreno argues that Tovar’s identification of him
as Carrion violated his Fifth Amendment right to due
process. He contends that the government “primed”
Tovar to identify him as Carrion by telling Tovar that
Carrion was in custody and that Tovar understood that
he was expected to make a positive identification. Gallo-
Moreno also claims that the identification was based on
unduly suggestive procedures and was unreliable
under the totality of the circumstances, violating his due-
process rights. The district court rejected Gallo-Moreno’s
Fifth Amendment argument, and we review the district
10 No. 06-1696
court’s decision de novo. United States v. Hawkins, 499
F.3d 703, 707 (7th Cir. 2007).
In the context of witness identifications, the Supreme
Court has explained that “[i]t is the likelihood of misiden-
tification which violates a defendant’s right to due pro-
cess.” Neil v. Biggers, 409 U.S. 188, 198 (1972). Manson v.
Brathwaite, 432 U.S. 98 (1977), holds that an iden-
tification based on a suggestive identification procedure
does not automatically establish a constitutional violation.
Id. at 109. Instead, the ultimate question is whether the
identification was nonetheless reliable, which “is the
linchpin in determining the admissibility of identifica-
tion testimony.” Id. at 114. The Court in Brathwaite identi-
fied several factors that inform the determination of an
identification’s reliability:
The factors to be considered [in determining
reliability] . . . include the opportunity of the witness
to view the criminal at the time of the crime, the wit-
ness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty
demonstrated at the confrontation, and the time
between the crime and the confrontation. Against
these factors is to be weighed the corrupting effect of
the suggestive identification itself.
Id. (citing Biggers, 409 U.S. at 199-200).
In reviewing a due-process challenge to an identifica-
tion, we undertake a “well-settled, two-pronged analysis:
(1) whether the [out-of-court identification] process
was unduly suggestive, and (2) if so, whether the identifi-
cation was nevertheless sufficiently reliable.” United
No. 06-1696 11
States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009); accord
Hawkins, 499 F.3d at 707. “Our role . . . is to determine
whether the identification was so unreliable that the
defendant’s constitutional right to a fair trial should
have precluded its admission.” Recendiz, 557 F.3d at 524.
We need not address whether the procedures
underlying Tovar’s identification were unduly suggestive
because “under the totality of the circumstances, the
identification was nonetheless reliable.” Hawkins, 499
F.3d at 707. As the Second Circuit has observed,
“[w]itnesses who listen to a crime that has been memorial-
ized on tape are in a position to offer uniquely reliable
testimony.” Brown v. Harris, 666 F.2d 782, 786 (2d Cir. 1981)
(internal citation and quotation marks omitted). That
observation is fully borne out in this case. 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 wit-
ness. Tovar studied the tapes knowing that the govern-
ment 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, see Brathwaite, 432 U.S. at 115; United States
v. Jones, 454 F.3d 642, 649 (7th Cir. 2006), 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,” Brown, 666 F.2d at 786. Also, Tovar immediately
12 No. 06-1696
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.
We reached a similar conclusion in United States v.
Alvarez, 860 F.2d 801, 809-11 (7th Cir. 1988). There, FBI
agents spent hundreds of hours listening to a defendant’s
voice on tape before identifying the defendant. We held
that under the Biggers factors the identification was
reliable, and therefore we rejected the defendant’s due-
process challenge to the agents’ identifications. Gallo-
Moreno tries to distinguish Alvarez by observing that
the agents in Alvarez spent hundreds of hours reviewing
the tapes while Tovar spent only four to six hours re-
viewing Carrion’s tapes. This is not a meaningful distinc-
tion. Four to six hours of careful study is plenty of time
to become familiar with a voice on a tape; hundreds are
not needed for the identification to pass constitutional
muster.
Our recent decision in United States v. Recendiz, 557
F.3d 511, also supports our holding. There, a DEA agent
was instructed to listen to a six-minute call “in order to
do a voice recognition.” Id. at 527. Applying the Biggers
factors, we likewise rejected the defendant’s due-
process challenge to the identification. We said that the six-
minute call had offered the agent “a clear opportunity
to listen to the [defendant’s] voice.” Id. at 528. We also
noted that the “special agent [knew] his recollection
No. 06-1696 13
would be subject to close scrutiny at trial, [so he] devoted
proper attention to the call, making him nothing like ‘a
casual or passing observer.’ Brathwaite, 432 U.S. at 115.”
Id. The same reasoning applies to the identification at
issue here. Accordingly, we reject Gallo-Moreno’s Fifth
Amendment challenge to the admissibility of Tovar’s
identification.
C. Sixth Amendment Right to Counsel
Gallo-Moreno also contends that the identifica-
tion—made while he and Tovar were engaged in small
talk before the voice-exemplar procedure was to be-
gin—violated his Sixth Amendment right to counsel. He
argues that the government essentially engineered an
aural in-person “showup” identification, which amounted
to a “critical stage” of the criminal proceedings re-
quiring the presence of counsel. The district court
rejected Gallo-Moreno’s Sixth Amendment challenge to
the identification, and we review that determination
de novo. United States v. Spruill, 296 F.3d 580, 585 (7th Cir.
2002).
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have
the Assistance of Counsel for his defence.” U.S. C ONST.
amend. VI. “[O]nce the adversary judicial process
has been initiated, the Sixth Amendment guarantees a
defendant the right to have counsel present at all ‘critical’
stages of the criminal proceedings.” Montejo v. Louisiana,
129 S. Ct. 2079, 2085 (2009) (citing Wade, 388 U.S. at 227-28).
Gallo-Moreno had been indicted and arraigned, and
14 No. 06-1696
thus the “judicial process ha[d] been initiated” for
Sixth Amendment purposes when Tovar made his iden-
tification. Gallo-Moreno was present in person but his
counsel was not. Whether this was a Sixth Amendment
violation turns on whether Tovar’s identification
occurred at a “critical stage” of the criminal proceedings.
Two Supreme Court cases—United States v. Wade, 388
U.S. 218 (1967), and United States v. Ash, 413 U.S. 300(1973)—control this inquiry. Wade held that a
postindictment identification of a defendant at a lineup
is a critical stage of a criminal proceeding and requires
the presence of defense counsel. Ash held that a
postindictment identification of a defendant’s photo-
graph from a photographic array is not a critical stage.
The question we must answer is whether Tovar’s 1997
identification of Gallo-Moreno is more like the lineup
in Wade or more like the photo array in Ash.
We begin with Wade’s conclusion that defense counsel
is required at a postindictment lineup. In reaching this
conclusion, the Court explained that a “critical stage” is
“any stage of the prosecution, formal or informal, in court
or out, where counsel’s absence might derogate from the
accused’s right to a fair trial.” Wade, 388 U.S. at 226. The
Court read its Sixth Amendment precedents to require
that it
scrutinize any pretrial confrontation of the accused to
determine whether the presence of his counsel is
necessary to preserve the defendant’s basic right to a
fair trial as affected by his right meaningfully to
cross-examine the witnesses against him and to have
No. 06-1696 15
effective assistance of counsel at the trial itself. It calls
upon us to analyze whether potential substantial
prejudice to defendant’s rights inheres in the
particular confrontation and the ability of counsel to
help avoid that prejudice.
Id. at 227. Using this approach, the Court held that a
postindictment lineup requires counsel’s presence be-
cause lineups are “peculiarly riddled with innumerable
dangers and variable factors which might seriously, even
crucially, derogate from a fair trial.” Id. at 228. In particu-
lar, the Court observed that “neither witnesses nor
lineup participants are apt to be alert for conditions
prejudicial to the suspect,” id. at 230, and the “presence
of counsel itself can often avert prejudice and assure a
meaningful confrontation at trial,” id. at 236.
Wade contrasted a postindictment lineup with “mere
preparatory step[s] in the gathering of the prosecution’s
evidence, . . . such as systematized or scientific analyzing
of the accused’s fingerprints, blood sample, clothing, hair,
and the like.” Id. at 227. These preparatory steps are not
critical stages because “[k]nowledge of the techniques
of science and technology is sufficiently available, and the
variables in techniques few enough, that the accused
has the opportunity for a meaningful confrontation of
the Government’s case at trial through the ordinary
processes of cross-examination of the Government’s
expert witnesses and the presentation of the evidence of
his own experts.” Id. at 227-28. In other words, the
absence of counsel during these steps does not present
sufficient risk of “derogat[ing] from [a defendant’s] right
to a fair trial.” Id. at 228.
16 No. 06-1696
A few years after Wade the D.C. Circuit was asked to
decide whether the presence of counsel was required at
a postindictment identification procedure involving the
presentation to a witness of the defendant’s photograph
in a photographic array. The D.C. Circuit concluded
that this identification procedure was a critical stage
of criminal proceedings requiring counsel under Wade.
United States v. Ash, 461 F.2d 92, 100-01 (D.C. Cir. 1972),
rev’d, 413 U.S. 300 (1973). Wade had focused on the possi-
bility of mistaken identification, and the D.C. Circuit
concluded in Ash that photo-array procedures were as
susceptible as lineups to mistaken identification.2
2
More fully, the D.C. Circuit held:
[T]he dangers of mistaken identification from uncounseled
lineup identifications set forth in Wade are applicable in
large measure to photographic as well as corporeal identifi-
cations. These include, notably, the possibilities of sugges-
tive influence or mistake—particularly where witnesses
had little or no opportunity for detailed observation during
the crime; the difficulty of reconstructing suggestivity—
even greater when the defendant is not even present; the
tendency of a witness’s identification, once given under
these circumstances, to be frozen. While these difficulties
may be somewhat mitigated by preserving the photograph
shown, it may also be said that a photograph can preserve
the record of a lineup; yet this does not justify a lineup
without counsel. The same may be said of the opportunity
to examine the participants as to what went on in the
course of the identification, whether at lineup or on photo-
graph. Sometimes this may suffice to bring out all pertinent
(continued...)
No. 06-1696 17
The Supreme Court reversed the D.C. Circuit’s decision
in Ash and held that a postindictment witness identifica-
tion of a defendant’s photograph from a photo array did
not constitute a critical stage of criminal proceedings. The
Court first concluded that the D.C. Circuit’s analysis
had been incomplete. The Court clarified that Wade
did not stand for the proposition that “the dangers of
mistaken identification” are alone “a sufficient basis for
requiring counsel.” Ash, 413 U.S. at 314. Instead, the
Court explained, Wade had considered the dangers of
misidentification only after concluding that a “lineup
constituted a trial-like confrontation, requiring the ‘Assis-
tance of Counsel’ to preserve the adversary process by
compensating for advantages of the prosecuting authori-
ties.” Id.; accord id. (“The similarity to trial [in Wade]
was apparent, and counsel was needed to render ‘Assis-
tance’ in counterbalancing any ‘overreaching’ by the
prosecution.”).
The Supreme Court also observed that “[a]fter . . . Wade
held that a lineup constituted a trial-like confrontation
requiring counsel, a more difficult issue remained in the
(...continued)
facts, even at a lineup, but this would not suffice under
Wade to offset the constitutional infringement wrought
by proceeding without counsel. The presence of counsel
avoids possibilities of suggestiveness in the manner of
presentation that are otherwise ineradicable.
United States v. Ash, 461 F.2d 92, 100-01 (D.C. Cir. 1972), rev’d,
413 U.S. 300 (1973).
18 No. 06-1696
case for consideration,” namely, whether the Court’s
holding necessarily meant that other preparatory steps
in acquiring evidence from the defendant—e.g., the taking
of fingerprints or blood samples—also required the
presence of counsel. Id. The Court noted that Wade had
specifically “recognized that there were times when the
subsequent trial would cure a one-sided confrontation
between prosecuting authorities and the uncounseled
defendant. In other words, such stages were not ‘critical.’”
Id. at 315. On this point, the Court held in Ash that the
lack of scientific precision and inability to reconstruct
an event . . . [are] the tests to determine whether
confrontation with counsel at trial can serve as a
substitute for counsel at the pretrial confrontation.
If accurate reconstruction is possible, the risks
inherent in any confrontation still remain, but the
opportunity to cure defects at trial causes the confron-
tation to cease to be “critical.”
Id. at 316.
Applying these principles, the Court concluded that
defense counsel need not be present for a witness’s iden-
tification of the defendant’s photograph from a photo
array. The Court emphasized that the defendant was not
physically present at such an identification procedure
and noted that a routine postindictment interview of a
witness for purposes of making a photo identification
“was not analogous to an adversary trial.” Id. at 317. The
Court also observed that the defense could interview
the government’s witnesses for itself and administer its
own photographic-identification procedure, and thus
No. 06-1696 19
the “adversary mechanism remains as effective for a
photographic display as for other parts of pretrial inter-
views.” Id. at 318. Accordingly, the Court was “not per-
suaded that the risks inherent in the use of photographic
displays are so pernicious that an extraordinary system
of safeguards is required.” Id. at 321.
Reconciling Wade and Ash presents several inter-
pretive problems. For one, Ash endorses Wade’s result,
but it appears to rest that result on a different foundation.
See id. at 324 n.* (Stewart, J., concurring in judgment) (“I do
not read Wade as requiring counsel because a lineup is a
‘trial-type’ situation . . . . Rather, I had thought the rea-
soning of Wade was that the right to counsel is essentially
a protection for the defendant at trial, and that counsel
is necessary at a lineup in order to ensure a meaningful
confrontation and the effective assistance of counsel at
trial.”); see also United States v. Byers, 740 F.2d 1104, 1117
(D.C. Cir. 1984) (en banc) (plurality opinion) (Scalia, J.)
(“As we later learned, however, [our] interpretation of
Wade was mistaken—or in any event superseded [by
Ash].”).
In addition, the basis of the Court’s holding in Ash is
somewhat unclear. Ash did not ground its rationale solely
on the likelihood that a pretrial photo array could be
accurately reconstructed; if that were sufficient, the
Court could have reversed the D.C. Circuit simply by
saying that the preservation of the photographs in an
objective record was the distinguishing factor between
Ash and Wade. If the ability to reconstruct the iden-
tification procedure were all that mattered, then Ash’s
20 No. 06-1696
repeated emphasis on the presence of a “trial-like confron-
tation” would have been extraneous, see Ash, 413 U.S. at
310, 312, 314, 316-18, as would the Court’s statement
that Wade considered the possibility of mistaken iden-
tifications only after concluding that the pretrial con-
frontation was sufficiently trial-like.
Another conundrum in Ash is that although the Court
concluded that “the risks inherent in the use of photo-
graphic displays are [not] so pernicious that an extraordi-
nary system of safeguards is required,” id. at 321, the
Court offered little guidance on how to draw this line.
The Court suggested that pretrial lineups “normally”
cannot be “[d]uplica[ted],” while photographic arrays can
be. Id. at 318 n.10. But lineups can be and often are photo-
graphically recorded and are therefore as amenable to
“reconstruction” at trial as a photo array.
Reconciling Ash and Wade as best we can, we see two
general principles at work. First, for a postindictment
identification procedure to trigger a potential Sixth
Amendment right to counsel, the defendant must be
present in a trial-like confrontation “by the procedural
system, or by his expert adversary, or by both.” Id. at 309;
see also Moore v. Illinois, 434 U.S. 220, 227 n.3 (1977) (ex-
plaining the distinction between Wade and Ash in part
by stating that “[a] photographic showing, unlike a corpo-
real identification, is not a ‘trial-like adversary confronta-
tion’ between an accused and agents of the government”).
Second, the defendant must not be able to “cure” the
uncounseled confrontation through counsel at trial.
No. 06-1696 21
Both Ash and Wade explained that any flaws in an
uncounseled “trial-like” pretrial confrontation are
curable when accurate reconstruction is possible or when
scientific testing can expose the defects in the govern-
ment’s evidence. And although the Supreme Court
did not offer other examples of curable confrontations,
we do not think the Court meant to provide an exhaus-
tive list. Indeed, in United States v. Infelice, 506 F.2d 1358(7th Cir. 1974), which was issued shortly after Ash was
issued, we concluded that a witness identification based
entirely on an accurately preserved audio recording
did not implicate Sixth Amendment right-to-counsel
concerns. In Infelice, an officer had “overheard” a conspira-
tor’s voice on a tape of the crime and later arrested the
defendant. Id. at 1367. In the process of the arrest, the
officer delivered Miranda warnings, the defendant re-
sponded that he understood his rights, and the officer
immediately recognized the defendant’s voice as the
conspirator’s based on having heard it on the tape. We
held that the identification had not occurred during a
critical stage of the criminal proceedings because
“[t]he conversation on which [the officer] based his iden-
tification was preserved on tape which eliminated the
risk of unintentional suggestion and impediments to
confrontation at trial.” Id. at 1365.
Although the analysis in Infelice was brief, its holding
applies here. When a witness makes an identification
based on hearing a defendant’s recorded voice on tape
and that tape is preserved in the record, the defendant
can adequately challenge the witness’s voice identifica-
tion at trial through effective cross-examination. True,
22 No. 06-1696
there is some possibility of undue influence on the
witness at the time of the pretrial identification, but that
is also the case with photo arrays, and the Court none-
theless held in Ash that a photo-array identification is not
a critical stage of criminal proceedings requiring the
presence of counsel. In any event, the teaching of Wade
and Ash—read together—appears to be that the potential
for abuse in the absence of counsel should be weighed
against the defendant’s ability to contest the witness’s
identification through counsel at trial, and when the
identification is based on a tape recording, the defendant
is sufficiently able to confront the identification witness
at trial.3
Applying these principles to this case, we conclude that
Tovar’s voice identification did not occur at a critical stage
of the criminal proceedings requiring the presence of
counsel. Assuming the identification occurred in a trial-
like confrontation, any flaws or overreaching in the
identification were curable by defense counsel at trial.
We see no meaningful distinction between this case and
Infelice. Tovar’s identification of Gallo-Moreno was
based solely on his study of Carrion’s voice on the tapes;
he did not link Gallo-Moreno to Carrion based on
his recollection of his participation in the 1994 drug
investigation. The tapes were preserved and in evidence,
3
For similar holdings, see United States v. Oriakhi, 57 F.3d 1290,
1299 (4th Cir. 1995); United States v. Thomas, 586 F.2d 123, 134
(9th Cir. 1978); and United States v. Woods, 544 F.2d 242, 263 (6th
Cir. 1976).
No. 06-1696 23
and as such, Gallo-Moreno could adequately challenge
Tovar’s identification at trial. Gallo-Moreno could—
and did—call other witnesses to offer different voice
identifications after hearing the tapes. And he could have
asked the trier of fact to make an independent evaluation,
after listening to the evidentiary tapes and the voice
exemplars, about whether the two voices were the
same. Although counsel was not present at Tovar’s initial
voice identification of Gallo-Moreno as Carrion, any
flaws inherent in that identification could be cured at
trial. Accordingly, the identification did not occur at a
critical stage of criminal proceedings, and there was no
violation of Gallo-Moreno’s Sixth Amendment rights.
A FFIRMED.
10-19-09