Opinion
Case No. 3-:04-CR-132 (1).
February 22, 2006
ENTRY AND ORDER OVERRULING ASMED ESCARENO'S MOTION TO SUPPRESS (Doc. #22.)
Now before the Court is a Motion To Suppress Identification by Defendant Asmed Escareno a.k.a. Francisco Javier Marmolejo, a.k.a. Chueco ("Escareno"). (Doc. #22.) Escareno's Motion To Suppress was filed on November 12, 2004, when Escareno was known to the Government as Francisco Javier Marmolejo or "Chueco." Hearings on the Motion were conducted on January 13, 2005, and April 27, 2005. Escareno then filed a Supplemental Memorandum regarding his Motion To Suppress on June 9, 2005 and the Government filed its Memorandum In Opposition on September 27, 2005.
On November 16, 2005, Escareno filed a Motion To Withdraw his Motion To Sever and his Motion To Suppress. (Doc. #92.) He then filed a Motion To Withdraw his Motion To Withdraw his Motion To Suppress. (Doc. 101.) The Motion To Withdraw the Motion To Withdraw was subsequently granted by the Court. Therefore, Escareno's Motion To Suppress is fully briefed and now ripe for decision. A background of the relevant facts will first be set forth followed by an analysis of Escareno's Motion.
FACTUAL BACKGROUND
The underlying investigation in this case began in November of 2001 after DEA agents received information about a drug trafficking conspiracy involving several individuals operating out of the Springfield, Ohio area. (1/13/05 Suppression Hrg. Tr. [hereinafter Vol. I] 5-9.) The investigation revealed that several individuals from Springfield, Ohio as well as from the states of Arizona, California and Illinois, were involved in this conspiracy. (Vol. I 5-8; 4/27/05 Suppression Hrg. Tr. [hereinafter Vol. II] 4.) Alleged members of the conspiracy were subsequently identified, charged and arrested. (Vol. I 9-12, 15.)As part of the investigation and in an attempt to identify higher ranking members of the conspiracy, DEA Task Force Officers George DelRio, of the Dayton resident office, and David Torres, of the Los Angeles resident office, interviewed several cooperating co-conspirators. (Vol. I 16, 19.) In preparation for the interviews, Agents DelRio and Torres obtained photographs of suspected members of the conspiracy, including that of Escareno, to present to the cooperating individuals for identification.
Mauricio Lopez ("Lopez") and Steven Vittatoe ("Vittatoe") were initially arrested as part of the conspiracy. (Vol. I 5.) They initially named Jose Ortiz ("Ortiz") and Eduardo Rodriguez, Jr. ("Rodriguez") as part of the drug conspiracy involving cocaine. (Vol. I 6.) Lopez and Vittatoe also identified an individual known to them as Chueco by name and by physical description as a supplier of cocaine. (Vol. I 8.)
After Ortiz was named, Agent DelRio contacted Officer Torres from the Los Angeles Police Department because Ortiz was from the Los Angeles area. Based upon information that Ortiz associated with Michael Anthony Perez ("Perez") who was known as Ortiz's source of supply and as the godfather of Ortiz's daughter, Officer Torres searched the records and determined that Perez had been arrested or detained earlier with suspected narcotic proceeds. (Vol. II 6.) At the time, Perez was accompanied by an individual identified as Francisco Marmolejo. (Vol. II 7.) Perez then obtained photographs of Marmolejo, Perez and others from the California Department of Motor Vehicles. (Vol. II 6.)
Torres next showed Marmolejo's photograph to Rodriguez who was in custody in Chicago on unrelated drug charges. (Vol. II 8.) Rodriguez allegedly assisted Perez as a central point from which illegal drugs were sent throughout the United States. (Vol. II 7.)
Rodriguez was shown a single page with four (4) photographs of four individuals. (Vol. II, Ex. X.) All four individuals were thought to be connected to the drug conspiracy being investigated and one eventually was found not to be. (Vol. II 12.) Rodriguez identified the photograph of Francisco Marmolejo obtained from the California Department of Motor Vehicles as Chueco, an individual who had assisted Perez in drug trafficking on several occasions. (Vol. II 14.) The name "Francisco Marmolejo" was not mentioned to Rodriguez by Agent Torres. (Vol. II 40.) Also, Rodriguez was represented by Counsel at the time who was present when he made the identifications. (Vol. II 29.)
Once Agent DelRio had the photograph of Marmelejo that had been identified as Chueco, he displayed it to Lopez who also identified the individual in the photograph as Chueco and as the Chueco who had participated in the drug trafficking conspiracy. (Vol. I 26, 27.) Agent DelRio had shown only the one photograph with no identifying information to Lopez and asked, "[d]o you know who this person is?" (Vol. I 26.) Lopez responded that it was Chueco. (Id.)
After his arrest, Ortiz cooperated with the Government and named Chueco as a supplier in the drug trafficking conspiracy. (Vol. I 11.) Ortiz later identified a photograph, known at the time to be of Marmolejo, as the Chueco who was involved in the alleged drug trafficking conspiracy. (Vol. I 27-28.) Ortiz identified this photograph from a photo spread that included several individuals believed to be involved and some not. (Vol. I 27.)
Later, Ortiz's spouse, Patricia Ortiz was shown the photograph then believed to be of Marmelejo. (Vol. I 29.) She identified the photograph of Marmelejo as one of two people that had been associated with her husband and drug trafficking. (Vol. I 29.) Federal agents later identified Marmelejo to actually be an individual named Asmed Escareno. (Vol. I 33.)
Escareno, a.k.a. Marmolejo and Chueco, was subsequently indicted on one count of conspiracy to unlawfully distribute and possess with intent to distribute in excess of 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and § 846. (Second Superceding Indictment, Doc. #46.) He was also indicted for traveling in interstate commerce with the intent to promote, manage, establish and carry on unlawful activity in violation of 18 U.S.C. § 1952(a)(3). The analysis next turns to Escareno's Motion To Suppress.
MOTION TO SUPPRESS
Escareno seeks to suppress any evidence and/or testimony concerning the pretrial identification of him because the identification is allegedly unnecessarily suggestive and conducive to irreparable mistaken identification in violation of the Due Process Clause. The Government responds that Escareno's Motion is without merit and should be overruled.
The Law On Pretrial Photographic Identifications
"A conviction that is based upon identification testimony that follows a pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so `impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986), cert. denied, 482 U.S. 918 (1987)), cert. denied, 515 U.S. 1145 (1995). The due process concern is heightened when the misidentification is possible because the witness is called upon to identify a stranger that he or she has seen only briefly, under poor conditions and at a time of extreme emotional stress. Id.The Sixth Circuit has set forth a two-step analysis to assess the validity of a pretrial identification. The first step is to consider whether the procedure was unduly suggestive keeping in mind that the primary wrong to be avoided is a substantial likelihood of irreparable misidentification. Id. at 1070-71. The court should also be mindful that, according to the Supreme Court, "[t]he identification of strangers is proverbially untrustworthy." United States v. Wade, 388 U.S. 218, 228 (1967). Finally, the defendant bears the burden of proof on this first step. Ledbetter, 35 F.3d at 1071.
Unduly Suggestive
When determining whether a photographic array is unduly suggestive, the court considers several factors including the size of the photographic array, the manner of its presentation by the officers and the details of the photographs themselves. United States v. Stamper, 91 Fed.Appx. 445, 459 (6th Cir. 2004). The number of photographs in the array is not itself a substantive factor but a factor that affects the weight given to other alleged irregularities. Id. at 460 (citing United States v. Sanchez, 24 F.3d 1259, 1262-63 (10th Cir. 1994). As to presentation, the risk of misidentification increases where: (1) the police display only the picture of a single individual who generally resembles the person he saw; (2) the police show the witness the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized; or (3) the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Id.
There are several examples where courts have found pretrial photographic identifications to be unduly suggestive and several examples where courts found pretrial photographic identifications not to be unduly suggestive. First, the examples of unduly suggestive photographic identifications.
Asking a witness if the defendant was the individual seen in the bank while the defendant was in handcuffs in police custody is unduly suggestive. United States v. Thomas, 116 Fed.Appx. 727, 730 (6th Cir. 2004), cert. denied, 543 U.S. 1116 (2005). A police officer telling a witness viewing photographs that an individual in one of the photographs was a suspect in another case is also unduly suggestive. Ledbetter v. Edwards, 35 F.3d 1062, 1071 (6th Cir. 1994). Showing defendants singly to persons for the purpose of identification and not as part of a lineup is unduly suggestive. Stovall v. Denno, 388 U.S. 293, 302 (1967). Finally, including one color photograph of a defendant among a group of black-and-white photographs is unduly suggestive. United States v. Irorere, 69 Fed.Appx. 231, 236 (6th Cir. 2003).
Now, the examples of pretrial photographic identifications that are not unduly suggestive. Being asked by an officer to "try, try again" when presented with a photographic display is not by itself unduly suggestive. Farrell v. United States, 2006 WL 13119 at *3 (6th Cir. Jan. 3, 2006). Also, a photo array containing six black males with facial hair and closely-cropped haircuts that contained sufficient similarities is not unduly suggestive. United States v. Reamey, 132 Fed. Appx. 613, 616 (6th Cir. 2005) Finally, a photo of a defendant containing mug shot markers was not unduly suggestive where the other pictures did not contain mug shot markers and a photographic array including a picture a defendant without mug shot markers was not unduly suggestive when all other pictures in the array did have mug shot markers. Id. at 617.
Reliability of the Identification
If the procedure was unduly suggestive, the second step is to evaluate the totality of the circumstances to determine whether the identification was nevertheless reliable. Id. The court is to consider five factors, called the Bigger factors, when determining whether the identification was reliable. Id. These five factors are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention at the time of observation; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness when confronting the defendant; and (5) the length of time between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
Escareno's Motion
Turning to his Motion, Escareno argues that the photograph identification processes used by Agents DelRio and Torres were unduly suggestive. He first argues that no "line-up" or "show-up" was ever used nor did any witnesses view him in person and specifically identify him as a drug trafficker. However, Escareno has not identified a legal requirement that he must be identified in person. In addition, Escareno does not argue that the photograph of Francisco Marmolejo obtained from the California Department of Motor Vehicles is of another individual nor does he argue that the photograph is in any way an inaccurate depiction of Francisco Marmolejo.
Escareno next argues that his identification was made via a California driver's license purportedly belonging to an individual named "Chueco." However, the testimony given at the hearing indicates that the California driver's license belonged to an individual named Francisco Marmolejo. The photograph of Marmolejo was identified as being that of an individual with a nickname of Chueco by Rodriguez.
Rodriguez was shown a single page with four (4) photographs. All four photographs were of males of similar age and appearing to be of Mexican or South American descent. There were no markings on the page.
From these four photographs, Rodriguez identified the photograph of Francisco Marmolejo from the California Department of Motor Vehicles as that of an individual nicknamed Chueco. This photographic identification was not unduly suggestive nor has Escareno shown that it was.
Escareno's next argument is that, "Agent Torres took no steps to verify with additional information that he had in his possession as to whether or not the identification of the Defendant was Chueco was accurate." However, while this verification was not accomplished by Agent Torres, it was accomplished by Agent DelRio.
Agent DelRio displayed the photograph of Francisco Marmolejo from the California Department of Motor Vehicles to alleged co-conspirators Lopez and Ortiz and to Mrs. Ortiz. All three identified the photograph as being of the individual named Chueco who had allegedly participated in the drug conspiracy.
Lopez was shown only the single photograph with no identifying information and was asked, "[d]o you know who this person is?" Lopez responded that it was Chueco. Although it was only a single photograph, the manner in which the identification was made deems the identification not unduly suggestive and Escareno has not shown that it was.
Ortiz identified the photograph of Francisco Marmolejo from the California Department of Motor Vehicles as the Chueco who was involved in the alleged drug trafficking conspiracy. Ortiz identified this photograph from a photo spread that included several individuals believed to be involved and some not. Therefore, this identification was not unduly suggestive and Escareno has not shown that it was.
Finally, Mrs. Ortiz was shown the photograph of Francisco Marmolejo from the California Department of Motor Vehicles. She identified the photograph of Marmolejo as one of two people that had been associated with her husband and drug trafficking. This identification was not unduly suggestive nor has Escareno shown that it was.
Escareno next argues that Agent Torres "did not attempt to ascertain if the Defendant has a burn mark on his leg or had crooked fingers" as was described by Agent DelRio. However, Escareno identifies no legal requirement that Torres attempt to further identify Marmolejo beyond the photographic identification that was not unduly suggestive.
Finally, Escareno argues that, without verification, it is equally plausible that Rodriguez was identifying a waiter he had met at the El Jacal restaurant. This is based upon Escareno's representation that Agent Torres indicated that the four-photograph array that Agent Torres used with Rodriguez was composed of individuals that frequented a restaurant named El Jacal.
Whether or not Escareno was a waiter at El Jacal is immaterial. The photograph of Escareno a.k.a. Marmolejo obtained from the California Department of Motor Vehicles was identified by Rodriguez to be that of an individual known as Chueco and the photographic display and the manner in which it was presented were not unduly suggestive.
Escareno concludes his motion with the argument that, since the initial photographic identification, presumably by Rodriguez, provided the source of all future identifications, the initial taint cannot be purged and subsequent identifications by the alleged co-conspirators should be suppressed. However, the initial identification by Rodriguez was not unduly suggestive and, therefore, not tainted.
The photograph of Francisco Marmolejo obtained from the California Department of Motor Vehicles was shown to Rodriguez when he was in custody in Chicago on unrelated drug charges. At the time, Rodriguez was represented by Counsel who was present when the identification was made.
Rodriguez was shown a single page with four (4) photographs of four individuals. All four photographs were of males of similar age and appearing to be of Mexican or South American descent and there were no markings on this page. Rodriguez identified the photograph of Francisco Marmolejo obtained from the California Department of Motor Vehicles as Chueco, an individual who had assisted Perez in drug trafficking on several occasions.
Escareno's Motion To Suppress is based upon Rodriguez's identification of the photograph of Francisco Marmolejo from the California Department of Motor Vehicles as that of an individual nicknamed Chueco and Escareno has not shown that the photographic array used and the manner in which it was presented was unduly suggestive. Therefore, Escareno's Motion To Dismiss is OVERRULED. However, even if the photographic array used and the manner in which it was used was unduly suggestive, this identification would not violate Escareno's constitutional right to due process because the totality of the circumstances indicates that the identification was nevertheless reliable.
Reliability of the Identification
Regarding Rodriguez's opportunity to view Chueco, Rodriguez had worked with Chueco on several occasions on transferring and storing narcotics and had vacationed with Chueco in Las Vegas. (Vol. II 14.) Next, little evidence is before the Court regarding Rodriguez's degree of attention at the time of observation except that Rodriguez knew that the name Chueco came from the individual by that name having a crooked finger. (Vol. I 15.) Next, there is no evidence that Rodriguez provided a prior description of Chueco before his identification of the photograph of Marmolejo as Chueco. Next, Rodriguez pointed to the picture of Marmolejo and was "very certain" that it was Chueco. (Vol. II 18.) Finally, there is no evidence regarding the length of time between the crime and Rodriguez's identification of the photograph as Chueco. However, since the alleged crime is a conspiracy, there is presumably no single event but a series of events that formed the basis of Rodriguez's identification of Chueco.
The circumstances are that Rodriguez was in custody for drug offenses, that Rodriguez knew Chueco from their common involvement in drug trafficking and from vacationing together, that Rodriguez identified Chueco with certainty from a photograph display and that the photograph that Rodriguez identified was actually that of Francisco Marmolejo. Therefore, based upon the totality of the circumstances, Rodriguez's identification of Chueco from the photographic display is reliable.
Summary
The photographic display that was presented to Rodriguez and the manner in which it was presented was not unduly suggestive. However, if it would have been, Rodriguez's identification of the photograph of Francisco Marmolejo as Chueco was, nevertheless, reliable. Further, since the photographic identification by Rodriguez was reliable and not unduly suggestive, all future identifications of Chueco a.k.a. Marmolejo need not be purged.The pretrial identifications of Escareno are not unnecessarily suggestive and are not conducive to irreparable mistaken identification. Therefore, Escareno's Motion To Suppress is OVERRULED.
DONE and ORDERED.