United States v. Gonzalez, No. 12-2403 (2d Cir. 2014)

Annotate this Case
Justia Opinion Summary

Defendant appealed from his conviction on four counts of intentional murder while engaged in a trafficking crime involving five or more kilograms of cocaine. Defendant challenged his convictions on several grounds. The court held that defendant's pre-arraignment inculpatory statements were admissible under the six-hour safe harbor provided by 18 U.S.C. 3501(c), and concluded that defendant's remaining arguments were without merit. Accordingly, the court affirmed the judgment of the district court.

Download PDF
12-2403-cr United States v. Gonzalez 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: November 26, 2013 Decided: August 21, 2014) Docket No. 12-2403-cr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA, Appellee, v. FREDDIE GONZALEZ, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: KATZMANN, Chief Judge, WINTER, and CALABRESI, Circuit Judges. Appeal from a judgment of conviction entered in the United 29 States District Court for the Southern District of New York 30 (Shira A. Scheindlin, Judge), following a jury trial. 31 was convicted on four counts of intentional murder while engaged 32 in a narcotics-related trafficking crime involving at least five 33 kilograms of cocaine. 34 admitted, we affirm. 35 36 37 38 Appellant Holding that his confessions were properly TINA SCHNEIDER, Esq., Portland, ME, for Defendant-Appellant. 1 1 2 3 4 5 6 7 8 9 10 11 12 MICHAEL D. MAIMIN, Assistant United States Attorney (Laurie A. Korenbaum, Jessica R. Lonergan, Brent S. Wible, Assistant United States Attorneys, on the brief) for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. WINTER, Circuit Judge: Freddie Gonzalez appeals from his conviction, after a two- 13 week jury trial before Judge Scheindlin, on four counts of 14 intentional murder while engaged in a trafficking crime involving 15 five or more kilograms of cocaine, in violation of 21 U.S.C. § 16 848(e) and 18 U.S.C. § 2. 17 sentences of life imprisonment on each count. 18 He was sentenced to concurrent Appellant challenges his conviction on several grounds. 19 Through counsel, he argues that: 20 in violation of his Fifth and Sixth Amendment rights; (ii) Judge 21 Scheindlin should not have excluded a potentially exculpatory 22 statement by the child of one of the murder victims; and (iii) 23 his trial counsel s failure to locate a potential defense witness 24 constituted ineffective assistance of counsel. 25 pro se brief, raises additional claims of allegedly improper 26 witness identification procedures and destruction of physical 27 evidence. 28 statements were admissible under the six-hour safe harbor (i) his confession was obtained Appellant, in a We hold that appellant s pre-arraignment inculpatory 2 1 provided by 18 U.S.C. § 3501(c). 2 no merit. We therefore affirm. 3 4 His additional arguments have BACKGROUND a) The Four Murders 5 Because appellant was convicted by a jury, we view the 6 evidence and reasonable inferences drawn therefrom in the light 7 most favorable to the government. 8 609 F.3d 101, 103 (2d Cir. 2010) (citing Jackson v. Virginia, 443 9 U.S. 307, 319 (1979)). 10 See United States v. Heras, The evidence against appellant included signed confessions 11 he made to government agents while serving a term of imprisonment 12 for an unrelated offense. 13 these statements in more detail infra. 14 also included the testimony of Alejandro Rodriguez, a cooperating 15 witness from appellant s former gang, and police reports and 16 physical evidence from the murder investigations. We will discuss the circumstances of The government s case 17 The murders took place over the course of five months in 18 early 1990 and were part of a drug war between rival gangs in the 19 Bronx, New York. 20 Dominican Republic, was a member of a gang that sold cocaine out 21 of an apartment complex. 22 robbing other dealers. 23 dealer and his wife. 24 robberies. Appellant, a native and citizen of the The gang obtained its supply in part by Two of the murders were of a rival drug The other murders took place during 3 1 The rival dealer, named Carmelo Vichan Gonzalez, no 2 relation to appellant (hereinafter Carmelo ), had run a 3 distribution ring out of the same apartment complex, but 4 appellant had taken over that location for his own drug 5 business. 6 believing that it was a kill-or-be-killed situation, appellant 7 sent two of his associates on an unsuccessful mission to kill 8 Carmelo in February 1990. 9 members of his gang went to Carmelo s home, broke in, went up to Carmelo was trying to reestablish his business, and, On August 11, 1990, appellant and 10 Carmelo s room, and shot him and his wife to death while they 11 were asleep in bed. 12 room with Carmelo s brother Vincent. 13 they interviewed both Vincent and the child. 14 and autopsies of Carmelo and his wife revealed that they had been 15 shot by four different weapons; rare blue-tipped, 9mm bullets 16 were recovered from each of them. 17 Carmelo s young son was asleep in the next When the police arrived, Ballistics analysis On September 25, 1990, appellant went with three associates 18 to rob a suspected Bronx-based drug dealer named Clement 19 Bedword. 20 appellant shot him and pulled him into the vehicle. 21 Bedword to a wooded area in Yonkers, threw him out of the van, 22 and shot him again. 23 took drugs, guns, and money. 24 Bedword s body and, upon entering his apartment, found a scale When Bedword resisted getting into appellant s minivan, The men took The men then returned to his apartment and The police found shell casings near 4 1 and a bulletproof vest but no drugs or money; the apartment 2 appeared to have been burglarized. 3 the woods matched those from the earlier Bronx shooting. 4 Bullet casings recovered from The fourth and final murder was of Carlos Polanco, another 5 drug dealer. 6 several others went to Polanco s home to rob it. 7 entry, and the gang fatally shot him. 8 investigation uncovered several blue-tipped, 9mm bullets in 9 Polanco as well as .45-caliber shells that matched those found at 10 On November 10, 1990, appellant, Rodriguez, and Polanco refused The subsequent the Carmelo murder site. 11 In October 1990, appellant attempted to murder another drug 12 dealer, Henry Perez, during a robbery on Long Island. 13 Rodriguez, and several other men drove to Perez s house. 14 attempted to grab Perez when he arrived, shooting him when he 15 appeared to pull a gun. 16 not to have drugs in it, and the men drove away. 17 b) 18 Appellant, The men The bag Perez was carrying turned out Confessions Years later, on July 24, 2008, appellant was indicted, and 19 an arrest warrant for him was issued, for the murder of 20 Polanco. 21 deportation at McRae Correctional Facility in Georgia on 22 unrelated federal immigration offense, he was visited by federal 23 and state agents. 24 of the United States Attorney s Office, former NYPD detective The next day, while incarcerated and being held for These were: criminal investigator Billy Ralat 5 1 Stefano Braccini, and Yonkers detectives John Geiss and Wilson 2 Gonzalez (no relation to appellant). 3 lodged on July 28, 2008, the next business day. A writ ad prosequendum was 4 Ralat, who is bilingual, led the interview and initially 5 spoke in Spanish, which only he and detective Gonzalez spoke. 6 The door to the interview room was shut, but unlocked, although 7 appellant claims that he did not know this. 8 conversation, which began shortly after 11:00am, Ralat gave 9 appellant a Spanish-language Miranda form. After an initial Appellant indicated 10 that he understood his rights but wrote no next to the inquiry 11 as to whether he was willing to answer questions. 12 signed at 11:24am. 13 appellant that the interview was over, and the agents began to 14 leave. 15 in New York and that he would not be returning to the Dominican 16 Republic. 17 and told them not to leave. 18 The form was According to the agents, Ralat then told One or more agents told appellant that they would see him Appellant then said he wanted to speak to the agents The agents accounts of what happened next are slightly 19 varied. 20 warnings to appellant again. 21 to describe the benefits of cooperation and appellant s option of 22 going to trial but did not question him for another 45-50 23 minutes. Each stated that they decided to read the Miranda Ralat testified that he proceeded Ralat gave appellant a second Miranda form, this one in 6 1 English (which appellant spoke), and appellant answered sí to 2 each question. This form was signed at 12:30pm. 3 Appellant contends that he was questioned regarding the 4 murders both before and after the first Miranda form was signed. 5 Ralat stated, however, that questioning commenced only after the 6 second Miranda form was signed, after which point the 7 conversation switched to English, with detective Geiss, who spoke 8 no Spanish, participating as well. 9 Appellant eventually signed three confessions written in 10 Spanish. 11 was dated 12:50pm at the beginning and 1:15pm at the signature 12 block. 13 wife, notes times of 2:25 and 2:40pm for its beginning and end. 14 The final confession, regarding the murder of Bedword, was noted 15 as beginning at 2:55pm and ending at 3:10pm. 16 ask for an attorney during the interview. 17 c) 18 The first confession, regarding the murder of Polanco, The second, regarding the murders of Carmelo and his Appellant did not Trial Proceedings Appellant moved to suppress the written confessions before 19 trial, claiming that the interrogation had been coercive and that 20 he had invoked his rights to counsel and to remain silent. 21 briefing and oral argument, the district court denied his motion. 22 In a written opinion, the court held that appellant s rights had 23 not been violated because he had reinitiated contact after the 24 first Miranda form and the confession had been obtained before 7 After 1 expiration of a six-hour safe harbor period for questioning 2 between arrest and presentment. 3 The district court also granted the government s motion in 4 limine to exclude a police report containing the testimony of 5 Carmelo s young son regarding the murder of Carmelo and his wife. 6 The court found that there was no evidence the child had actually 7 seen the shooting and that the police officer had been improperly 8 suggestive in his questioning. 9 jury on all four counts of murder, and the district court Gonzalez was convicted by the 10 sentenced him to concurrent terms of life imprisonment on each 11 count. 12 13 DISCUSSION We first discuss the arguments by counsel: (i) that 14 appellant s confession was erroneously admitted because it was 15 obtained in violation of his Fifth and Sixth Amendment rights; 16 (ii) that the district court s exclusion of the testimony of 17 Carmelo s son was error; and (iii) that his trial counsel s 18 failure to locate an eyewitness to the Bedword murder constituted 19 ineffective assistance of counsel. 20 a) Admission of Gonzalez s Confessions 21 We review a district court s decision on a suppression 22 motion de novo on questions of law and for clear error in factual 23 determinations. United States v. Stewart, 551 F.3d 187, 190-91 24 (2d Cir. 2009). Under clear error review, we uphold findings of 8 1 fact that are plausible in light of the record viewed in its 2 entirety. 3 1996) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74 4 (1985)). 5 (1) 6 Appellant claims first that his confessions were obtained in United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir. Miranda Analysis 7 violation of his Miranda rights, because he indicated on the 8 first Miranda waiver form that he was not willing to answer 9 questions. See generally Miranda v. Arizona, 384 U.S. 436 10 (1966). 11 course subject to a prophylactic rule of exclusion. Dickerson v. 12 United States, 530 U.S. 428, 443-44 (2000). 13 have been invoked, interrogation must stop and the invocation 14 must be scrupulously honored. 15 104 (1975). 16 invocation of Miranda rights if the suspect reinitiates 17 communication. 18 Wood v. Ercole, 644 F.3d 83, 90 (2d Cir. 2011). 19 Statements obtained in violation of Miranda are of Once Miranda rights Michigan v. Mosley, 423 U.S. 96, However, a waiver can occur subsequent to an initial Edwards v. Arizona, 451 U.S. 477, 485 (1981); The government must prove by a preponderance of the evidence 20 that a defendant s waiver of Miranda rights was knowing, 21 voluntary, and intelligent. Colorado v. Connelly, 479 U.S. 157, 22 168 (1986); Miranda, 384 U.S. at 444. 23 is determined by viewing the totality of the circumstances, but 24 for an invocation of Miranda rights to trigger exclusion, the 9 Whether a waiver occurred 1 invocation must be unambiguous. 2 U.S. 370, 381 (2010); see also id. at 384 (waiver may be 3 implicit); Moran v. Burbine, 475 U.S. 412, 421 (1986) (totality 4 of the circumstances must show that waiver was voluntary, 5 knowing, and intelligent); United States v. Plugh, 648 F.3d 118, 6 124-28 (2d Cir. 2011) (comparing invocation and waiver of Miranda 7 rights). Berghuis v. Thompkins, 560 8 The district court credited the officers testimony that 9 appellant was not questioned until after he signed the second 10 form. 11 However, his challenges take statements out of context and 12 emphasize various phrases used by the officers without viewing 13 their testimony as a whole. 14 appellant wanted him to ask more questions and continue to 15 speak. 16 had already questioned him about the Bedword murder. 17 appellant notes detective Gonzalez s testimony that Ralat told 18 the others that appellant did not want to speak to them 19 anymore, before they re-Mirandized and interrogated him. 20 Braccini also stated that appellant said he wanted to continue 21 to speak. 22 appellant was not interrogated prior to waiving his rights on the 23 Miranda form. 24 findings in this regard were clear error. Appellant challenges these findings as clear error. For example, Ralat testified that Appellant suggests that these phrases imply that Ralat Similarly, However, all four detectives explicitly testified that Given that, we cannot say the district court s 10 1 Appellant also relies upon Geiss s notes, which indicate 2 that Ralat questioned him regarding the Bedword murder after 3 signing the first but before signing the second Miranda form. 4 However, Geiss s notes were not contemporaneous. 5 contemporaneous notes stated only rights and the times of 6 appellant s signing of the two Miranda forms: 11:24am and 7 12:35pm. 8 follow the initial conversation. 9 therefore, are insufficient to compel a ruling that the district 10 court s factual determination of what took place was clear error. 11 His Moreover, Geiss does not speak Spanish and could not Appellant s arguments, Appellant s claim that the second form was invalid turns on 12 how contact was reinitiated. 13 appellant s answer of no on the first Miranda form constituted 14 an unambiguous invocation of his Miranda rights. 15 F.3d at 125 ( [A] refusal to waive rights, however unequivocal, 16 is not necessarily equivalent to an unambiguous decision to 17 invoke them. ). 18 invocation was unambiguous, it was overridden by appellant s 19 subsequent decision to reinitiate the conversation by asking the 20 agents not to leave, indicating that he wanted to speak with 21 them. 22 We need not determine whether Cf. Plugh, 648 Even assuming arguendo that the initial See Edwards, 451 U.S. at 484-85. Appellant, not the agents, reinitiated the contact before 23 questioning began. 24 agents merely told appellant that he had already been indicted Prior to his reinitiation of the contact, the 11 1 and would thus be taken to New York. 2 interrogatory statement that was reasonably likely to elicit an 3 incriminating response. 4 301 (1980). 5 statement of what was going to happen next. This was not an Rhode Island v. Innis, 446 U.S. 291, It was not even a question, but simply an accurate 6 Moreover, appellant s confession did not immediately follow, 7 but instead came only after an extended explanation of his rights 8 and options. 9 agents engaged in a coercive conversation as, for example, in There is nothing in the record to suggest that the 10 Mosley, where the officers refus[ed] to discontinue the 11 interrogation upon request or [] persist[ed] in repeated efforts 12 to wear down his resistance and make him change his mind. 13 Mosley, 423 U.S. at 105-06. 14 testimony credited by the district court, Ralat stopped the 15 interview once appellant wrote no on the first form. 16 began again only at appellant s insistence and after going once 17 more over appellant s options and giving him the second waiver 18 form. On the contrary, according to Ralat 19 (2) 20 Gonzalez also contends that his confession was obtained in Speedy Presentment Analysis 21 violation of the duty to speedily present a defendant before a 22 magistrate judge, see Fed. R. Crim. P. 5(a)(1)(A), and should 23 have been suppressed pursuant to 18 U.S.C. § 3501. 24 5(a)(1)(A) requires law enforcement to present arrestees without 12 Rule 1 unnecessary delay, and we will exclude confessions obtained 2 following an unnecessary or unreasonable delay in presentment, 3 see Corley v. United States, 556 U.S. 303, 322 (2009). 4 there is a safe harbor provided in 18 U.S.C. § 3501(c) that bars 5 suppression based on an unreasonable delay if the confession was 6 made within six hours immediately following his arrest or other 7 detention. 8 period, the court must decide whether delaying that long was 9 unreasonable or unnecessary under the McNabb-Mallory cases, and However, If the confession was made outside that six-hour 10 if it was, the confession is to be suppressed. 11 at 322 (citing the rule of Mallory v. United States, 354 U.S. 449 12 (1957) and McNabb v. United States, 318 U.S. 332 (1943)). Corley, 556 U.S. 13 Whether or not his confession falls within the section 14 3501(c) safe harbor therefore depends on when appellant was 15 arrested for the purposes of section 3501. 16 incriminating statement was finished at 3:10pm, or approximately 17 four hours after the agents first met with Gonzalez at 11:00am 18 that morning. 19 arrested during the interview. 20 him constructively arrested at the moment when the government had 21 the authority to effectuate the arrest, i.e., when the arrest 22 warrant was issued on July 24. 23 24 Appellant s final Appellant acknowledges that he was not formally He instead urges us to consider Section 3501 applies only after there is some obligation to bring the person before [] a [federal] judicial officer in the 13 1 first place, generally pursuant to an arrest[] for a federal 2 offense. 3 (1994) (citing Fed. R. Crim. P. 5(a)). 4 opportunity to determine precisely when this obligation is 5 triggered in a context other than a formal arrest, but caselaw 6 indicates that the indictment alone does not trigger it. 7 e.g., United States v. Nguyen, 313 F. Supp. 2d 579, 592-93 (E.D. 8 Va. 2004) (section 3501 and McNabb-Mallory are exclusively 9 concerned with delays between a defendant s arrest or detention 10 and his arraignment . . . . [not] delays between a defendant s 11 indictment and his arraignment. . . . 12 did not give rise to an obligation to bring him in front of a 13 judicial officer. ) United States v. Alvarez-Sanchez, 511 U.S. 350, 358 Few courts have had See, [Defendant s] indictment 14 Appellant attempts to distinguish these precedents, 15 particularly Alvarez-Sanchez, because, unlike the defendant in 16 those cases, he was in federal, not state, custody. 17 Alvarez-Sanchez, the majority s opinion rested on the duty, 18 obligation, or reason to bring the defendant in front of a judge 19 for a given crime; the federal/state distinction simply 20 highlighted the lack of obligation in the context of that case. 21 See Alvarez-Sanchez, 511 U.S. at 358. 22 when the obligation arose to present appellant for the murders 23 with which he was charged. 24 that point was on unrelated federal immigration charges, and However, in Our inquiry, therefore, is Gonzalez s federal detention until 14 1 neither his indictment nor the issuance of an arrest warrant 2 altered the character of the defendant s detention. 3 section 3501(c) was not immediately triggered by the present 4 indictment and issuance of an arrest warrant. 5 We hold that Nevertheless, we recognize the potential for some abuse in a 6 system allowing unfettered interrogation of defendants who are 7 incarcerated on other charges. 8 potential for collusion between federal and state agents to 9 arrest and detain on one charge in order to interrogate on See id. 359-60 (recognizing 10 another); United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 11 1984) (acknowledging that the court was troubled by the 12 practice of pre-arraignment interviews because indigent 13 defendants often do not have counsel until one is appointed at 14 arraignment). 15 intent to allow some questioning to take place before 16 presentment, it is also clear that this period must be limited. 17 While section 3501(c) evinces a congressional Therefore, we hold that defendants in federal custody on 18 earlier unrelated charges, but for whom an arrest warrant on new 19 charges is issued, are arrested for purposes of section 3501 20 once any questioning on the new charges begins. 21 Gonzalez s first interaction with the government on these charges 22 coincided with the beginning of his questioning, we need not 23 decide on the facts of this appeal what other actions by the 24 government might constitute other detention for purposes of 15 Because 1 Section 3501(c) and the McNabb-Mallory rule. 2 statement obtained within the six-hour safe harbor provided by 3 3501(c) is admissible, provided, of course, other applicable 4 constitutional requirements are met. 5 incriminating statements took place within this window and his 6 Fifth and Sixth Amendment Miranda rights were not otherwise 7 violated, the district court did not err in refusing to suppress 8 appellant s confessions. 9 b) 10 Any incriminating Because appellant s Exclusion of Child Witness Testimony Evidentiary rulings are reviewed for abuse of discretion. 11 United States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011). 12 are not grounds for reversal if they are harmless, i.e., if there 13 is fair assurance that the judgment was not substantially 14 swayed by the error. 15 764-65 (1946). 16 Errors Kotteakos v. United States, 328 U.S. 750, Appellant sought to introduce a police report of statements 17 made by Carmelo s young son to an officer following the murders 18 of Carmelo and his wife. 19 noted the scant contextual information available regarding the 20 officer s questioning of the boy, including what the boy actually 21 witnessed. 22 interviewing officer had been improperly suggestive and that 23 there was no evidence the boy was actually an eyewitness. 24 214-15. App. at 214. In excluding it, the district court The court further found that the Id. at The court therefore concluded, pursuant to the Rule 403 16 1 balancing test, Fed. R. Evid. 403 (a court may exclude relevant 2 evidence if its probative value is substantially outweighed by at 3 least one of the enumerated factors), that the hearsay statements 4 in the police report were highly prejudicial, bore no indicia of 5 reliability or trustworthiness, and were thus of little probative 6 value. 7 for the defense to introduce evidence that the son actually 8 observed relevant events, but appellant failed to do so. 9 The district court explicitly left open an opportunity Appellant argues that the son s statements should have been 10 admissible as either present-sense impressions under Fed. R. 11 Evid. 803(1) or as excited utterances under Rule 803(2). 12 However, while those rules solve any hearsay problem, neither 13 solve the problem of the need to show the declarant s first-hand 14 knowledge of the subject matter. 15 from the belief that contemporaneous statements about observed 16 events leave less time to forget or fabricate and, therefore, 17 tend to be reliable. See United States v. Medico, 557 F.2d 309, 18 315 (2d Cir. 1977). However, there is no evidence that the child 19 actually observed the killings at all. 20 Vincent, Carmelo's brother and the other potential eyewitness, he 21 and the child had been sleeping in a different room when the 22 shooting began. 23 24 Both exceptions are derived Indeed, according to Therefore, we cannot say that the district court abused its discretion in finding the statements inadmissible. 17 Furthermore, 1 any error was certainly harmless, since the shock-tinged 2 observations of a young boy would have been pitted against an 3 overwhelming constellation of forensic evidence and a signed 4 confession that unequivocally implicated appellant. 5 c) 6 Ineffective Assistance of Counsel An appellant raising an ineffective assistance claim must 7 meet the requirements of Strickland v. Washington, 466 U.S. 668 8 (1984), which requires a convicted defendant to: 9 counsel s performance was objectively unreasonable and (ii) (i) show that 10 affirmatively prove prejudice from said performance. 11 687-88, 693. 12 Id. at Appellant has met neither requirement. Appellant s argument is based on the following events. In 13 the case of the Bedword murder, the police report included a 14 statement by a neighbor of the victim, Melva Perry, that the 15 killers had driven a Jeep, had spoken with a Jamaican Patois 16 accent, and had shot Bedword in the head. 17 Perry s testimony exculpates him because there is no evidence 18 that he spoke Patois or ever drove a jeep. 19 given defense counsel a copy of the report in March 2010 with 20 Perry s date of birth, address, and telephone numbers redacted, 21 as was common practice. 22 for Perry until December 2010 and only then asked the government 23 for her contact information. 24 delay constituted ineffective assistance that amounted to a per Appellant argues that The government had Defense counsel did not begin searching Appellant now contends that this 18 1 se unreasonable fail[ure] to present exculpatory evidence. 2 Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005). 3 Gonzalez fails the first prong of Strickland because, while 4 the delay in searching for the witness was perhaps unwise, it was 5 not unreasonable. 6 attempt to locate and subpoena Perry; he was unable to do so, as 7 was the government. 8 unreasonably derelict, Perry s eyewitness evidence, offered 20 9 years later and at least partially inaccurate -- Bedword was not Defense counsel did not simply refuse to Moreover, even if defense counsel was 10 shot in the head -- would not have altered the outcome of the 11 case in light of appellant s confession and corroborating 12 evidence. 13 either prong of Strickland. 14 d) 15 Appellant therefore has not met his burden under Additional Pro Se Arguments Appellant raises additional claims in a pro se brief that 16 largely duplicate the arguments made by counsel. 17 does raise two additional arguments: 18 impermissibly suggestive identification procedures in mailing 19 photographs of various parties involved in the Carmelo Gonzalez 20 murders; and (ii) appellant was denied a fair trial because the 21 physical evidence of the guns and ammunition used in the murders 22 had been destroyed by the Rhode Island police and was not 23 available for trial. (i) detective Geiss used Neither argument has merit. 19 However, he 1 Appellant did not move to suppress the identification and 2 thus waived this issue. 3 fails to move to suppress evidence before the deadline set by the 4 district court has waived any defenses or claims relating to that 5 suppression). 6 Milagros Santiago, the sister of Carmelo s wife, regarding the 7 shooting and the apartment complex, where she also lived. 8 then sent Santiago 13 photos of various people who lived in the 9 complex, which she annotated with their name and how she knew See Fed. R. Crim. P. 12(e) (party who Moreover, Geiss was not suggestive. He phoned Geiss 10 them. 11 already discussed appellant with Geiss on the phone, and even 12 that discussion was appellant s his role as a drug dealer, not 13 his involvement in the murder. 14 identification, much less a suggestive one, and any error was 15 harmless for reasons stated earlier. She did not annotate appellant s picture because she had This was not even an 16 Appellant s Fifth Amendment claim regarding the destruction 17 of evidence is reviewed for plain error, because it also was not 18 raised at trial. 19 Police had confiscated guns and ammunition, including the rarer 20 blue-tipped bullets, when they arrested appellant in 1990. 21 2008, Geiss contacted Rhode Island s officials in an attempt to 22 obtain the evidence for appellant s federal trial, but it had 23 been destroyed years earlier, pursuant to an internal practice of 24 eliminating seized property approximately one year after the end Fed. R. Crim. P. 52(b). 20 The Rhode Island State In 1 of a case. 2 retain seized property indefinitely and against the backdrop of 3 his confession there is no conceivable prejudice that resulted 4 from the evidence s absence. 5 6 7 Appellant points to no authority requiring police to CONCLUSION For the reasons stated, we affirm. 21