     12-2403-cr
     United States v. Gonzalez

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2013
 6
 7   (Argued:   November 26, 2013               Decided: August 21, 2014)
 8
 9                            Docket No. 12-2403-cr
10
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12
13   UNITED STATES OF AMERICA,
14
15              Appellee,
16
17                   v.
18
19   FREDDIE GONZALEZ,
20
21              Defendant-Appellant.
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24
25   B e f o r e:   KATZMANN, Chief Judge, WINTER, and CALABRESI,
26                  Circuit Judges.
27
28        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.     Appellant

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.     Holding that his confessions were properly

34   admitted, we affirm.

35
36                                    TINA SCHNEIDER, Esq., Portland, ME,
37                                    for Defendant-Appellant.
38

                                        1
 1                                  MICHAEL D. MAIMIN, Assistant United
 2                                  States Attorney (Laurie A.
 3                                  Korenbaum, Jessica R. Lonergan,
 4                                  Brent S. Wible, Assistant United
 5                                  States Attorneys, on the brief) for
 6                                  Preet Bharara, United States
 7                                  Attorney for the Southern District
 8                                  of New York, New York, NY, for
 9                                  Appellee.
10
11   WINTER, Circuit Judge:

12        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.   He was sentenced to concurrent

17   sentences of life imprisonment on each count.

18        Appellant challenges his conviction on several grounds.

19   Through counsel, he argues that:       (i) his confession was obtained

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.      Appellant, in a

25   pro se brief, raises additional claims of allegedly improper

26   witness identification procedures and destruction of physical

27   evidence.   We hold that appellant’s pre-arraignment inculpatory

28   statements were admissible under the six-hour safe harbor




                                        2
 1   provided by 18 U.S.C. § 3501(c).        His additional arguments have

 2   no merit.    We therefore affirm.

 3                                 BACKGROUND

 4   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.       See United States v. Heras,

 8   609 F.3d 101, 103 (2d Cir. 2010) (citing Jackson v. Virginia, 443

 9   U.S. 307, 319 (1979)).

10         The evidence against appellant included signed confessions

11   he made to government agents while serving a term of imprisonment

12   for an unrelated offense.    We will discuss the circumstances of

13   these statements in more detail infra.        The government’s case

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.

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.   Appellant, a native and citizen of the

20   Dominican Republic, was a member of a gang that sold cocaine out

21   of an apartment complex.    The gang obtained its supply in part by

22   robbing other dealers.     Two of the murders were of a rival drug

23   dealer and his wife.    The other murders took place during

24   robberies.


                                         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.   Carmelo was trying to reestablish his business, and,

 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.   On August 11, 1990, appellant and

 9   members of his gang went to Carmelo’s home, broke in, went up to

10   Carmelo’s room, and shot him and his wife to death while they

11   were asleep in bed.   Carmelo’s young son was asleep in the next

12   room with Carmelo’s brother Vincent.   When the police arrived,

13   they interviewed both Vincent and the child.   Ballistics analysis

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        On September 25, 1990, appellant went with three associates

18   to rob a suspected Bronx-based drug dealer named Clement

19   Bedword.    When Bedword resisted getting into appellant’s minivan,

20   appellant shot him and pulled him into the vehicle.   The men took

21   Bedword to a wooded area in Yonkers, threw him out of the van,

22   and shot him again.   The men then returned to his apartment and

23   took drugs, guns, and money.   The police found shell casings near

24   Bedword’s body and, upon entering his apartment, found a scale


                                       4
 1   and a bulletproof vest but no drugs or money; the apartment

 2   appeared to have been burglarized.    Bullet casings recovered from

 3   the woods matched those from the earlier Bronx shooting.

 4         The fourth and final murder was of Carlos Polanco, another

 5   drug dealer.   On November 10, 1990, appellant, Rodriguez, and

 6   several others went to Polanco’s home to rob it.   Polanco refused

 7   entry, and the gang fatally shot him.   The subsequent

 8   investigation uncovered several blue-tipped, 9mm bullets in

 9   Polanco as well as .45-caliber shells that matched those found at

10   the Carmelo murder site.

11         In October 1990, appellant attempted to murder another drug

12   dealer, Henry Perez, during a robbery on Long Island.    Appellant,

13   Rodriguez, and several other men drove to Perez’s house.   The men

14   attempted to grab Perez when he arrived, shooting him when he

15   appeared to pull a gun.    The bag Perez was carrying turned out

16   not to have drugs in it, and the men drove away.

17   b)   Confessions

18         Years later, on July 24, 2008, appellant was indicted, and

19   an arrest warrant for him was issued, for the murder of

20   Polanco.   The next day, while incarcerated and being held for

21   deportation at McRae Correctional Facility in Georgia on

22   unrelated federal immigration offense, he was visited by federal

23   and state agents.   These were:   criminal investigator Billy Ralat

24   of the United States Attorney’s Office, former NYPD detective


                                       5
 1   Stefano Braccini, and Yonkers detectives John Geiss and Wilson

2    Gonzalez (no relation to appellant).   A writ ad prosequendum was

3    lodged on July 28, 2008, the next business day.

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.   After an initial

8    conversation, which began shortly after 11:00am, Ralat gave

 9   appellant a Spanish-language Miranda form.    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.   The form was

12   signed at 11:24am.   According to the agents, Ralat then told

13   appellant that the interview was over, and the agents began to

14   leave.    One or more agents told appellant that they would see him

15   in New York and that he would not be returning to the Dominican

16   Republic.   Appellant then said he wanted to speak to the agents

17   and told them not to leave.

18        The agents’ accounts of what happened next are slightly

19   varied.    Each stated that they decided to read the Miranda

20   warnings to appellant again.   Ralat testified that he proceeded

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.    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.   The first confession, regarding the murder of Polanco,

11   was dated 12:50pm at the beginning and 1:15pm at the signature

12   block.   The second, regarding the murders of Carmelo and his

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.   Appellant did not

16   ask for an attorney during the interview.

17   c)   Trial Proceedings

18         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.   After

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
 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.    Gonzalez was convicted by the

 9   jury on all four counts of murder, and the district court

10   sentenced him to concurrent terms of life imprisonment on each

11   count.

12                               DISCUSSION

13        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.”    United States v. Reilly, 76 F.3d 1271, 1276 (2d Cir.

 3   1996) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74

 4   (1985)).

 5        (1)     Miranda Analysis

 6        Appellant claims first that his confessions were obtained in

 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).    Statements obtained in violation of Miranda are of

11   course subject to a prophylactic rule of exclusion. Dickerson v.

12   United States, 530 U.S. 428, 443-44 (2000).    Once Miranda rights

13   have been invoked, interrogation must stop and the invocation

14   must be “scrupulously honored.”   Michigan v. Mosley, 423 U.S. 96,

15   104 (1975).    However, a waiver can occur subsequent to an initial

16   invocation of Miranda rights if the suspect reinitiates

17   communication.    Edwards v. Arizona, 451 U.S. 477, 485 (1981);

18   Wood v. Ercole, 644 F.3d 83, 90 (2d Cir. 2011).

19        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.    Whether a waiver occurred

23   is determined by viewing the totality of the circumstances, but

24   for an invocation of Miranda rights to trigger exclusion, the


                                       9
1    invocation must be “unambiguous.”      Berghuis v. Thompkins, 560

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).

 8           The district court credited the officers’ testimony that

 9   appellant was not questioned until after he signed the second

10   form.    Appellant challenges these findings as clear error.

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.    For example, Ralat testified that

14   appellant wanted him to ask “more questions” and “continue to

15   speak.”    Appellant suggests that these phrases imply that Ralat

16   had already questioned him about the Bedword murder.     Similarly,

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.     However, all four detectives explicitly testified that

22   appellant was not interrogated prior to waiving his rights on the

23   Miranda form.     Given that, we cannot say the district court’s

24   findings in this regard were clear error.


                                       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.      His

 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.    Moreover, Geiss does not speak Spanish and could not

 8   follow the initial conversation.       Appellant’s arguments,

 9   therefore, are insufficient to compel a ruling that the district

10   court’s factual determination of what took place was clear error.

11           Appellant’s claim that the second form was invalid turns on

12   how contact was reinitiated.    We need not determine whether

13   appellant’s answer of “no” on the first Miranda form constituted

14   an unambiguous invocation of his Miranda rights.       Cf. Plugh, 648

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.”).    Even assuming arguendo that the initial

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.    See Edwards, 451 U.S. at 484-85.

22           Appellant, not the agents, reinitiated the contact before

23   questioning began.    Prior to his reinitiation of the contact, the

24   agents merely told appellant that he had already been indicted


                                       11
 1   and would thus be taken to New York.        This was not an

 2   interrogatory statement that was “reasonably likely to elicit an

3    incriminating response.”     Rhode Island v. Innis, 446 U.S. 291,

4    301 (1980).     It was not even a question, but simply an accurate

5    statement of what was going to happen next.

6            Moreover, appellant’s confession did not immediately follow,

7    but instead came only after an extended explanation of his rights

8    and options.     There is nothing in the record to suggest that the

9    agents engaged in a coercive conversation as, for example, in

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.      On the contrary, according to

14   testimony credited by the district court, Ralat stopped the

15   interview once appellant wrote “no” on the first form.        Ralat

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.

19           (2)   Speedy Presentment Analysis

20           Gonzalez also contends that his confession was obtained in

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.       Rule

24   5(a)(1)(A) requires law enforcement to present arrestees “without


                                        12
 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).   However,

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.”   If the confession was made outside that six-hour

8    period, “the court must decide whether delaying that long was

9    unreasonable or unnecessary under the McNabb-Mallory cases, and

10   if it was, the confession is to be suppressed.”   Corley, 556 U.S.

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)).

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.   Appellant’s final

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.   Appellant acknowledges that he was not formally

19   arrested during the interview.   He instead urges us to consider

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        Section 3501 applies only after “there is some obligation to

24   bring the person before [] a [federal] judicial officer in the


                                      13
 1   first place,” generally pursuant to an “arrest[] for a federal

 2   offense.”   United States v. Alvarez-Sanchez, 511 U.S. 350, 358

 3   (1994) (citing Fed. R. Crim. P. 5(a)).   Few courts have had

 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.   See,

 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. . . .    [Defendant’s] indictment

12   did not give rise to an obligation to bring him in front of a

13   judicial officer.”)

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.   However, in

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.    Our inquiry, therefore, is

22   when the obligation arose to present appellant for the murders

23   with which he was charged.   Gonzalez’s federal detention until

24   that point was on unrelated federal immigration charges, and


                                     14
 1   neither his indictment nor the issuance of an arrest warrant

 2   altered the character of the defendant’s detention.   We hold that

 3   section 3501(c) was not immediately triggered by the present

 4   indictment and issuance of an arrest warrant.

 5        Nevertheless, we recognize the potential for some abuse in a

 6   system allowing unfettered interrogation of defendants who are

 7   incarcerated on other charges.   See id. 359-60 (recognizing

 8   potential for collusion between federal and state agents to

 9   arrest and detain on one charge in order to interrogate on

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).   While section 3501(c) evinces a congressional

15   intent to allow some questioning to take place before

16   presentment, it is also clear that this period must be limited.

17        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.   Because

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
 1   Section 3501(c) and the McNabb-Mallory rule.    Any incriminating

 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.   Because appellant’s

 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)   Exclusion of Child Witness Testimony

10         Evidentiary rulings are reviewed for abuse of discretion.

11   United States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011).      Errors

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.”   Kotteakos v. United States, 328 U.S. 750,

15   764-65 (1946).

16         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.    In excluding it, the district court

19   noted the “scant contextual information available” regarding the

20   officer’s questioning of the boy, including what the boy actually

21   witnessed.   App. at 214.   The court further found that the

22   interviewing officer had been improperly suggestive and that

23   there was no evidence the boy was actually an eyewitness.      Id. at

24   214-15.   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.   The district court explicitly left open an opportunity

 7   for the defense to introduce evidence that the son actually

 8   observed relevant events, but appellant failed to do so.

 9        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.      Both exceptions are derived

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.     Indeed, according to

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        Therefore, we cannot say that the district court abused its

24   discretion in finding the statements inadmissible.     Furthermore,


                                      17
 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)   Ineffective Assistance of Counsel

 6         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:   (i) show that

 9   counsel’s performance was objectively unreasonable and (ii)

10   “affirmatively prove prejudice” from said performance.   Id. at

11   687-88, 693.   Appellant has met neither requirement.

12         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.    Appellant argues that

17   Perry’s testimony exculpates him because there is no evidence

18   that he spoke Patois or ever drove a jeep.   The government had

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.   Defense counsel did not begin searching

22   for Perry until December 2010 and only then asked the government

23   for her contact information.   Appellant now contends that this

24   delay constituted ineffective assistance that amounted to a per


                                     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.   Defense counsel did not simply refuse to

 6   attempt to locate and subpoena Perry; he was unable to do so, as

 7   was the government.    Moreover, even if defense counsel was

 8   unreasonably derelict, Perry’s eyewitness evidence, offered 20

 9   years later and at least partially inaccurate -- Bedword was not

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.   Appellant therefore has not met his burden under

13   either prong of Strickland.

14   d)   Additional Pro Se Arguments

15         Appellant raises additional claims in a pro se brief that

16   largely duplicate the arguments made by counsel.     However, he

17   does raise two additional arguments:    (i) detective Geiss used

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.   Neither argument has merit.




                                        19
1            Appellant did not move to suppress the identification and

 2   thus waived this issue.    See Fed. R. Crim. P. 12(e) (party who

 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).    Moreover, Geiss was not suggestive.   He phoned

 6   Milagros Santiago, the sister of Carmelo’s wife, regarding the

 7   shooting and the apartment complex, where she also lived.    Geiss

 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

10   them.    She did not annotate appellant’s picture because she had

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.    This was not even an

14   identification, much less a suggestive one, and any error was

15   harmless for reasons stated earlier.

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.    Fed. R. Crim. P. 52(b).   The Rhode Island State

19   Police had confiscated guns and ammunition, including the rarer

20   blue-tipped bullets, when they arrested appellant in 1990.    In

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


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1   of a case.   Appellant points to no authority requiring police to

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                               CONCLUSION

6        For the reasons stated, we affirm.
7




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