USA v . Fernandez-Avalos, et a l . 07-CR-252-JD 12/18/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America v. Criminal N o . 07-252-JD Opinion N o .

Eduardo K. Fernandez-Avalos and Maria C . Rosario

O R D E R

Codefendants Eduardo K. Fernandez-Avalos and Maria C .

Rosario (“Rosario”), are charged with conspiracy to structure

financial transactions in violation of

(a)(3).

Before the court is Rosario’s motion in limine to exclude a

witness’s identification of her from a photographic array. With

her motion, Rosario submitted a copy of the photographic array

and an excerpt from the United States Department of Justice’s

handbook of recommended practices. The government objects to the

exclusion. With its objection, the government submitted a

suspicious transaction report completed by the witness, a memo

from the investigating agent regarding the photo identification,

and the Drug Enforcement Agency’s Report of Investigation

completed by the investigating agent. Upon an order from the

court, the government also submitted the original photographic

array. I. Background

The following findings of fact are based upon the above

listed materials. On February 1 7 , 2006, two men and a woman

entered the United States Post Office in Atkinson, New Hampshire,

where the woman and one of the men separately purchased three

money orders in the amounts of $1000, $1000, and $995. The three

individuals left together and drove away in a car with a

Massachusetts license plate. Earlier that day, a nearly

identical occurrence was reported at the post office in Plaistow,

New Hampshire, and several similar transactions occurred at post

offices in Massachusetts on February 16 and 1 7 . Together, the

money orders purchased by the trio over the two days totaled more

than $40,000.

Each of the clerks in New Hampshire who sold the money orders to these individuals filled out a Suspicious Activity

Report, which, among other things, described the individuals. In

her report, the Plaistow clerk described the woman as “a Hispanic

female, approximately 5'1" - 5'2", with brown slightly curly hair

and average build.” United States Objection, Ex. 3 , ¶ 1 3 . The

Atkinson clerk’s report described the woman she saw as “of

Hispanic origin,” “45-50” years old, and “5'4" [/] 135 lbs.”

Ex. 1 . The reports also provided a license plate number for

2 the car.

Postal Inspector John J. Stassi investigated these

activities and discovered that the car described in the reports

was owned by Enterprise Rent-A-Car and had been rented to Rosario

on February 2 , 2006, and returned on February 1 7 , 2006. A copy

of Rosario’s driver’s license photo was obtained from the Florida

Department of Motor Vehicles and included in a photographic

identification line-up containing photos of seven other women.

On July 2 5 , 2006, Postal Inspector John Stassi presented the

photographic line-up to the clerk at the Atkinson Post Office who

sold the money orders to the woman on February 1 7 , 2006. The

clerk identified Rosario as the woman who purchased the money

orders; she initialed and dated Rosario’s photo, and agreed to

testify in court regarding her identification. That same day,

Inspector Stassi presented a photographic lineup to the clerks at the Plaistow Post Office, but neither clerk could identify the

woman who had purchased the money orders. Inspector Stassi

recorded these events in his Report of Investigation prepared on

July 2 7 , 2006.

On December 1 2 , 2007, Rosario and Fernandez were charged in

a federal indictment with conspiracy to structure financial

transactions in violation of

(a)(3). Rosario and

Fernandez were arrested at Fernandez’s home in Miami on December

3 1 8 , 2007.

II. Applicable Legal Standard

Under the Due Process Clause of the United States

Constitution,“out-of-court identification based on a photo array”

will be suppressed only if the identification procedure was

“impermissibly suggestive,” and the suggestiveness “‘g[a]ve rise

to a very substantial likelihood of misidentification.’” United

States v . Holliday,

2 1 , 125 (1st Cir. 2006) (quoting

Neil v . Biggers,

8 8 , 197 (1972)). Identification

evidence will be suppressed “‘only in extraordinary cases.’”

Holliday,

(1st Cir. 2006) (quoting United States

v . Henderson,

2 , 100 (1st Cir. 2003)). “In most cases,

the jury is capable of assessing the appropriate weight to be

given to identification evidence.” United States v . Bouthot,

, 1516 n.11 (1st Cir. 1989).

The admissibility of an out-of-court identification based on

a photo array involves a two-part test. The defendant must first

demonstrate that the procedure is impermissibly suggestive.

United States v . Guzman-Rivera,

8 1 , 682 (1st Cir.

1993). The court will examine “the suggestiveness of the

identification, and . . . whether there was some good reason for

the failure to resort to less suggestive procedures.” Holliday,

(internal quotation marks omitted). The court

may consider the number of individuals included in the array who

bear similarities with the suspect,

, placement of the

photograph within the array, and whether other conduct by the

police emphasized the defendant’s photograph, United States v .

Flores,

(10th Cir. 1998). The First Circuit has recognized that photos of individuals which contain slightly

darker or lighter backgrounds, or photos which depict persons

with skin pigmentations slightly different from the suspect do

not rise to the level of impermissible suggestiveness prohibited

by the Due Process Clause. See United States v . Brennick,

6 , 100 (1st Cir. 2005).

If the photo array is deemed impermissibly suggestive, the

court must then address “whether, under the totality of the

circumstances, the suggestiveness is such that there is a very substantial likelihood of irreparable misidentification.”

Bouthot,

. The court will consider the following

factors: “the opportunity of the witness to view the criminal at

the time of the crime, the witness’ 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.”

5 III. Discussion Rosario argues that the photographic array was impermissibly suggestive because her picture had a white background while the others had a gray background, her picture was clear while the others were blurry, her picture had a brighter tone and color, her skin tone is different from the others, and she is the only one wearing jewelry and make-up, including bright lipstick, while the other women are in jail clothes.1

Based on its review of the photographic array shown to the

witness on July 2 5 , 2006, the court concludes that it was not

impermissibly suggestive. The witness described the woman she

saw as Hispanic, forty-five to fifty years of age, 5'4" tall and

135 pounds. The photo array consisted of eight photographs all

in mug shot format, showing females who could appear to be of

Hispanic descent, between forty and fifty years of age. All of

1 In her argument that the photographic array is impermissibly suggestive, Rosario also asserts that if the identifying witness is not Hispanic, she reserves the right to argue that the cross racial identification is inaccurate. This argument, however, is not part of the impermissibly suggestive analysis, is supported solely by a law review article from 1977, and is not yet an issue, because the race of the witness has not been disclosed. The court, therefore, rejects Rosario’s argument on this point.

6 the women have dark brown hair and are wearing light colored

shirts. Five of the women, including Rosario, have dark

complexions while three have light complexions. The backgrounds

in all the photos are either gray or light gray and two contain

backgrounds as light as Rosario’s. The placement of Rosario’s

photograph is also not suggestive. It is in the bottom left corner of the array and is neither first nor last.

Upon close inspection, the court does not agree that

Rosario’s makeup causes her photograph to stand out. The only

makeup which is noticeable is her lipstick. It is not, however,

the “bright” color Rosario claims in her motion, and three other

women in the array have similar lip coloring. The court also

does not agree that Rosario’s picture is clear while the others

are blurry; they are all similar in clarity. The only noticeable

differences are that Rosario is the only woman wearing earrings and her skin has a slightly more olive tone. However, these

differences are not enough to render the photographic array

impermissibly suggestive, in light of the numerous other

characteristics Rosario’s photograph shares with the other

photographs.

Furthermore, even if the photographic identification

procedure were impermissibly suggestive, the suggestiveness is

not such that there was a very substantial likelihood of

7 misidentification. Rosario argues that the misidentification was

likely because the Atkinson clerk had only a brief period to

observe the woman who purchased the money orders, gave a vague

description in her report, and five and a half months had passed

since the occurrence. She also contends that Inspector Stassi

did not record the clerk’s exact words as to her level of certainty when she made the identification, which Rosario claims

is contrary to the policy of the United States Justice

Department.

The circumstances Rosario cites do not show that

misidentification was likely. The Atkinson clerk waited on the

woman and sold her three money orders; she therefore had ample

time to view the woman in close proximity. The clerk considered

the transaction suspicious, causing her to fill out a report

immediately afterwards, complete with a description of the woman. Further, Inspector Stassi stated in his July 2 7 , 2006, Report of

Investigation that upon identifying Rosario from the photo array,

the clerk stated that she would be willing to testify as to her

identification. While the Justice Department’s handbook

recommends recording the exact language of the witness as to his

or her certainty of the identification, Inspector Stassi was not

required to do s o , and his report indicates her certainty due to

her willingness to testify. See Defendant’s Motion in Limine,

8 Ex. B . Further, there is nothing to indicate that the five and

half month lapse clouded the clerk’s memory. The witness’s

identification of Rosario from the photo array is therefore

admissible.

Conclusion

For the foregoing reasons, the defendant’s motion in limine

to exclude identification evidence (document n o . 62) is denied.

SO ORDERED.

V J oJoseph s e p h A. DiClerico, Jr __ . United States District Judge December 1 8 , 2008

cc: William E . Christie, Esquire Steven M . Gordon, Esquire Mark A . Irish, Esquire Martin K. Leppo, Esquire Paul J. Twomey, Esquire Marcie E . Vaughan, Esquire

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