                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-1995

Gov't of VI v Sanes
Precedential or Non-Precedential:

Docket 94-7612




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Gov't of VI v Sanes" (1995). 1995 Decisions. Paper 167.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/167


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 94-7612
                            ________

               GOVERNMENT OF THE VIRGIN ISLANDS,

                               V.

                         SOTERO SANES,
                                         Appellant
                           __________

                ON APPEAL FROM THE JUDGMENT OF THE
              DISTRICT COURT OF THE VIRGIN ISLANDS,
                      DIVISION OF ST. CROIX

                (D.C.V.I. Criminal No. 93-00201)
              District Judge: Hon. Thomas K. Moore


                     Argued April 18, 1995

        Before: BECKER, NYGAARD and ROTH, Circuit Judges

                  (Opinion Filed June 15, 1995)

JEFFREY MOORHEAD, ESQUIRE (Argued)
Suite 2A, 1168 King Street
Christiansted, St. Croix
Virgin Islands 00820
PATRICIA SCHRADER-COOKE, ESQUIRE
Office of Federal Public Defender
P.O. Box 3450
Christiansted, St. Croix
Virgin Islands 00822
Attorneys for Appellant

W. RONALD JENNINGS, ESQUIRE
United States Attorney
AZEKAH E. JENNINGS, ESQUIRE (Argued)
Assistant U.S. Attorney
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
Virgin Islands 00820
Attorneys for Appellee
   _____________

OPINION OF THE COURT
   _____________
NYGAARD, Circuit Judge,

           Sotero Sanes appeals from a final judgment and


commitment order of the district court.     On December 29, 1993, an

information was filed charging Sanes with burglary in the first

degree, in violation of 14 V.I.C. § 442(1); rape in the first

degree, in violation of 14 V.I.C. § 1701(3); robbery in the first

degree, in violation of 14 V.I.C. § 1862(2); and possession of a

dangerous weapon during the commission of a violent crime, in

violation of 14 V.I.C. § 2251(a)(2)(B).

           Sanes was accused of attacking Carmen Velez on January

13, 1993 and again on July 14, 1993.     Counts I, II, III and IV

stem from the first attack and Counts V, VI and VII from the

second.   Sanes was convicted on all counts.

           Sanes argues that the district court erred by denying

his motion to suppress.   He contends that the voice

identification procedure was impermissibly suggestive.     Further,

he argues that the district court abused its discretion by

limiting his expert witness' testimony about the validity of the

voice identification procedures.     Finally, Sanes contends that

the district court erred by denying his pretrial motion to sever

Counts I, II, III and IV from Counts V, VI and VII, arguing that

the charges arose from separate incidents and their joinder was

highly prejudicial to him.   We will affirm.

                                I.
          Sanes argues that the trial court violated his right to

due process by denying his motion to suppress the voice

identification.   He contends that his voice sample was tainted by

outside factors, technical and otherwise, which could have

influenced the listener, making it more likely that his voice

would be selected.   He cites background voices, longer delivery

time, different transition time between the statements made in

Spanish and those made in English, his monotone and a number of

interruptions, as examples of the factors which he believes, when

taken cumulatively, compromised the reliability of the

identification.

          We find no evidence that the procedures used were

impermissibly suggestive or that there was a substantial

likelihood of misidentification.   Ms. Velez heard the voice of

her attacker on both January 13, 1993 and July 14, 1993.    On each

occasion, she conversed with the intruder for ten minutes.    She

listened to the voice array three times.   She was ready to

identify Sample No. 4 after the second time, but was encouraged

by the police to listen to the tape one more time.   Velez then

positively identified the fourth voice as that of her attacker.

Sample No. 4 was Sanes' voice.

          The district court listened to the voice array and

found that all of the voices contained unique factors.    After

listening to Sanes' expert witness on voice identification

procedures, the district further found that, although Sample No.
4 was different from the other samples, the differences did not

present a sufficiently significant contrast as to cause

misidentification.   Before denying Sanes' motion to suppress, the

district court applied the eyewitness identification test,

enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972)

and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977).

Sanes argues that this test is inapposite.   We disagree.

          In Neil, the Supreme Court developed a five-part test

to test the reliability of an eyewitness identification.       The

Neil factors include the opportunity of the witness to view the

criminal at the time of the crime; the witness' degree of

attention; the accuracy of the witness' prior description of the

criminal; the level of certainty demonstrated by the witness at

the time of the confrontation; and the length of time between the

crime and the confrontation.   93 S.Ct. at 382.   Expanding on

Neil, Manson held that admitting testimony even following a

suggestive identification procedure does not violate due process

if the identification has sufficient indicia of reliability.         97

S.Ct. at 2252-53.    Although voice identification obviously

differs from eyewitness identification (for example, what is at

issue in the first part of the Neil and Manson test is
opportunity to view rather than opportunity to hear), we conclude

that the Neil and Manson eyewitness identification test, adapted

to voice identification, provides a standardized source of
guidance to district courts for assessing the reliability of

voice identification as well.

          Applying Neil, the district court found that Ms. Velez

was alert and had a sufficient opportunity to view or hear her

attacker on both occasions and that she presented an accurate

description of the defendant and his clothing (which she later

identified.)   Moreover, she identified the items taken from

appellant as looking like items the perpetrator had worn, and

there is no evidence indicating that these items, when presented

to Ms. Velez, were suggestively linked to either the appellant or

to Sample No. 4.   Further, Ms. Velez stated that she was certain

that Sample No. 4 was the voice of her attacker.     Finally,

although there was a six-month period between the incidents, only

fifteen days elapsed between the last attack and her positive

voice identification.    We also note that Ms. Velez not only

listened to her attacker for a considerable period of time during

the two incidents but testified that she engagaed him in

conversation in the hope that she could identify his voice, and

hence the opportunity and degree of attention criteria of

Neil/Manson are met.    We also listened to the tape during oral

argument, and conclude that the evidence supports the district

court's findings and conclusions.      We conclude that the district

court properly applied the Neil/Manson factors and properly

denied Sanes' motion to suppress the voice identification.

                                 II.
          Sanes next argues that the district court erred by

prohibiting expert testimony comparing voice identification and

eyewitness identification.   The district court permitted the

testimony of Sanes' expert witness, Dr. Harry Hollien, a

professor of linguistics, on the question whether the voice

exemplar containing the defendant's voice was suggestive.     Dr.

Hollien was also permitted to comment on the distinguishing

characteristics of Sanes' voice sample and their impact, if any,

on Ms. Velez's positive identification.    However, the district

court would not permit Dr. Hollien to explain to the jury why

voice identification was not as accurate as eyewitness

identification under ideal circumstances.

          Under Federal Rule of Evidence 702, "[i]f scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or determine a fact in issue,

a witness qualified as an expert by knowledge, skill, experience,

training or education, may testify thereto in the form of opinion

or otherwise."   Whether to allow scientific or technical expert

testimony, however, is within the discretion of the district

court and is reviewed only for abuse.     United States v. Downing,

753 F.2d 1224, 1232 (3d Cir. 1985).

          Under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

U.S.    , 113 S.Ct. 2786 (1993), when faced with the proffer of

expert scientific testimony under Rule 702, the district court

must preliminarily assess whether the testimony underlying the
reasoning or methodology is scientifically valid and can properly

be applied to the facts at issue.     The district court properly

held a Daubert hearing in which the nature of Dr. Hollien's

testimony was fully considered.   We conclude that the district

court appropriately limited Dr. Hollien's expert testimony to the

pertinent issue of whether the distinguishing factors on Sample

No. 4 unduly influenced Ms. Velez's selection.    We also conclude

that the district court did not abuse its discretion in excluding

from the jury's consideration the testimony that would have

compared eyewitness and voice identification; such testimony was

of limited probative value, and that value would have been

outweighed by waste of time and confusion.     See Downing, 753 F.2d

at 1232.

                               III.

           Finally, Sanes argues that the district court abused

its discretion by denying his pretrial motion to sever Counts I

through IV from Counts V, VI and VII.     He contends that joinder

of the counts involving two separate incidents substantially

impaired his right to a fair trial.     We disagree.   Ms. Velez's

testimony and a common modus operandi provided sufficient reason
to deny Sanes' motion to sever the counts and to conduct a single

trial.
           Federal Rule of Criminal Procedure 14 provides:

           [I]f it appears that a defendant or the
           government is prejudiced by a joinder of
           offenses or of defendants in an indictment or
           information or by such joinder for trial
           together, the court may order an election of
          separate trials of counts, grant a severance
          of defendants or provide whatever other
          relief justice requires. In ruling on a
          motion by a defendant for severance the court
          may order the attorney for the government to
          deliver to the court for inspection in camera
          any statements or confessions made by the
          defendant which the government intends to
          introduce in evidence at the trial.


          Sanes must demonstrate that joinder would result in a

"manifestly unfair trial," beyond a mere showing that he would

have had a better chance of acquittal with separate trials.

United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir.), cert.
denied, 502 U.S. 925, 112 S.Ct. 340 (1991).   Here, Ms. Velez

identified Sanes as the person who attacked her both times.

Moreover, during the second attack Sanes inculpated himself in

the first offense by referring to Ms. Velez' failure to keep

quiet following the first attack.    The modus operandi of the

crimes is similar and it was evident that Ms. Velez would have to

testify about both incidents, which would have required the

government to offer essentially the same proof in both trials.

We conclude that the district court did not abuse its discretion

by denying Sanes' motion to sever the counts that stem from the

first incident from those of the second.

                               IV.

          In sum, we have examined all contentions raised by the

appellant and conclude that the district court's decisions were

proper in all respects.   We will affirm.
