                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4376
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

LARRY HARGROVE,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 01 CR 101—Wayne R. Andersen, Judge.
                         ____________
 ARGUED FEBRUARY 5, 2007—DECIDED NOVEMBER 27, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
  SYKES, Circuit Judge. A jury convicted former Chicago
Police Sergeant Larry Hargrove of racketeering con-
spiracy and other crimes stemming from his participa-
tion in a robbery, extortion, and narcotics ring that
targeted suspected drug dealers using the guise of legiti-
mate police investigations. Hargrove asks us to vacate
his convictions on the ground that two key categories of
evidence should have been excluded: (1) tape-recorded
statements made by Eddie Hicks, one of Hargrove’s
coconspirators, to an undercover government informant;
and (2) eyewitness identifications made from a photo
array Hargrove contends was unduly suggestive. We re-
ject his arguments and affirm.
2                                               No. 05-4376

  The recorded statements of Hargrove’s coconspirator,
Hicks, were admissible under Rule 801(d)(2)(E) of the
Federal Rules of Evidence and were not testimonial
hearsay subject to analysis under the Confrontation Clause
as interpreted in Crawford v. Washington, 541 U.S. 36
(2004), and Davis v. Washington, 126 S. Ct. 2266 (2006).
Moreover, because Hargrove had not withdrawn from the
conspiracy at the time the Hicks conversations were
recorded, the statements were made “during the course” of
the conspiracy as required by Rule 801(d)(2)(E). Regarding
the challenge to the eyewitness identifications, Hargrove
failed to move to suppress this evidence before trial as
required by Rule 12(b)(3)(C) of the Federal Rules of
Criminal Procedure, and has not established good cause for
relief from this waiver as Rule 12(e) requires. In any event,
the photo array was not unduly suggestive.


                     I. Background
  While a sergeant with the Chicago Police Department
(“CPD”), Larry Hargrove was part of a four-man crew that
robbed suspected drug dealers. In uniform and driving
unmarked cruisers, the group staged phony home raids
and automobile stops and then threatened the targeted
drug dealers and others on the scene with arrest, keeping
any drugs, cash, or weapons they discovered. From 1992
to 1999, these robberies, thefts, and extortions netted the
coconspirators tens of thousands of dollars in cash, multi-
kilogram quantities of cocaine, hundreds of pounds of
marijuana, and several firearms. The other members of
the group were Eddie Hicks, a CPD narcotics sergeant
with access to the names and addresses of suspected drug
dealers, and two civilians named Lawrence Knitter and
Matthew Moran.
  At trial (there were two, the first ending in a mistrial)
the government introduced video- and audio-taped conver-
No. 05-4376                                                 3

sations between Hicks and Arthur Veal, a drug dealer
who hired Hicks in late 1996 or early 1997 to recover a
large quantity of marijuana that had been stolen from him.
Veal began cooperating with the government in late 2000.
In the taped conversations, which took place between
December 2000 and January 2001, Hicks discussed vari-
ous robbery plans with Veal. During some of these dis-
cussions, Hicks referred to Hargrove’s role in prior robber-
ies. During one conversation, Hicks mentioned that
Hargrove continued to receive a cut of the proceeds, even
though he had retired from the CPD in March 2000 and
moved to Las Vegas, because he had been “there when
times were tough.” Over Hargrove’s objection on Confron-
tation Clause grounds, the district court admitted
Hicks’s recorded statements as statements of a cocon-
spirator under Rule 801(d)(2)(E) of the Federal Rules of
Evidence.
  The government also introduced evidence that three
eyewitnesses to one of the robberies positively identified
Hargrove from a photo array. The three witnesses
were police officers in Alsip, Illinois, who responded to a
911 dispatch to an Alsip apartment building and found
four CPD officers conducting a raid—or so it appeared. The
four men were Hicks, Hargrove, Knitter, and Moran.
Hicks told the Alsip officers a cover story about the “raid,”
and after an Alsip police dispatcher confirmed that Hicks
was a Chicago police sergeant, the Alsip officers left the
scene. The Internal Affairs Division of the CPD learned of
the Alsip incident, however, and began its own investiga-
tion.
  As part of this investigation, a CPD Internal Affairs
officer showed the Alsip officers photo arrays of CPD
officers in an effort to identify the officers who were at the
Alsip apartment. The Alsip officers had reported that
three of the men in the apartment were black and the
fourth was white. One of the photo arrays contained the
4                                               No. 05-4376

photos of eleven black CPD officers, including Hargrove;
three of the Alsip police officers picked Hargrove’s photo
out of this array. Hargrove was the only CPD officer
depicted in the photo array with a beard and glasses; the
other ten had varying degrees of facial hair. None of the
Alsip officers, however, had told Internal Affairs investiga-
tors that any of the four men in the Alsip apartment had
a beard or wore glasses. Hargrove did not move to sup-
press the identifications before trial as required by Rule
12(b)(3) of the Federal Rules of Criminal Procedure.
  A jury ultimately found Hargrove guilty of four offenses:
(1) racketeering conspiracy; (2) conspiracy to distribute
and possess with intent to distribute cocaine and mari-
juana; (3) conspiracy to commit robbery and extortion;
and (4) possession of a firearm in relation to a crime
of violence. The district court sentenced Hargrove to
216 months’ imprisonment.


                     II. Discussion
  Hargrove claims the district court committed constitu-
tional error in admitting both the Hicks-Veal recordings
and the identifications by the Alsip police officers. He
contends the admission of the Hicks-Veal tapes violated
his Confrontation Clause right, or alternatively, were not
statements of a coconspirator because by retiring and
moving to Las Vegas he withdrew from the conspiracy.
The identifications, he argues, were the product of an
unduly suggestive photo array in violation of his right
to due process.


A. The Hicks-Veal Recordings
 Hargrove claims the Hicks-Veal recordings are inad-
missible under Crawford, which held that the Confronta-
No. 05-4376                                               5

tion Clause bars the “admission of testimonial statements
of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” 541 U.S. at 53-54.
Hargrove’s reliance on Crawford is misplaced; we have
previously held that Crawford did not affect the admissi-
bility of coconspirator statements. United States v.
Tolliver, 454 F.3d 660, 665 (2006); United States v.
Jenkins, 419 F.3d 614, 618 (7th Cir. 2005). This conclusion
is shared by our sister circuits. E.g., United States v.
Bridgeforth, 441 F.3d 864, 869 n.1 (9th Cir. 2006); United
States v. Martinez, 430 F.3d 317, 329 (6th Cir. 2005);
United States v. Delgado, 401 F.3d 290, 299 (5th Cir.
2005); United States v. Hendricks, 395 F.3d 173, 183-84
(3d Cir. 2005); United States v. Saget, 377 F.3d 223, 224-25
(2d Cir. 2004).
  Crawford addressed the Confrontation Clause limita-
tions on the admission of testimonial hearsay, but the
coconspirator statements made by Hicks are neither
hearsay nor “testimonial” as the Supreme Court has
defined that term in Davis. Crawford, 541 U.S. at 59;
Davis, 126 S. Ct. at 2275. Accordingly, they need not
satisfy the Confrontation Clause requirements identified in
Crawford in order to be admissible. See FED. R. EVID.
801(d) (classifying coconspirator statements as nonhearsay
“[a]dmissions by a party opponent”); Davis, 126 S. Ct. at
2275 (noting that “statements made unwittingly to a
Government informant” are nontestimonial) (citation
omitted).
  Under Rule 801(d)(2)(E) the statements of coconspira-
tors made “during the course and in furtherance of the
conspiracy” are considered admissions by a party opponent
and are not hearsay. The use of this sort of evidence
does not implicate the Confrontation Clause. Bourjaily v.
United States, 483 U.S. 171, 182 (1987); United States v.
6                                               No. 05-4376

Singleton, 125 F.3d 1097, 1107-08 (7th Cir. 1997). Despite
Hargrove’s suggestion to the contrary, Crawford and
Davis did not undermine Bourjaily. See United States v.
Carson, 455 F.3d 336, 365 n.25 (D.C. Cir. 2006); Saget, 377
F.3d at 229. In both Crawford and Davis, the Supreme
Court specifically cited Bourjaily—which as here in-
volved a coconspirator’s statements made to a govern-
ment informant—to illustrate a category of nontestimonial
statements that falls outside the requirements of the
Confrontation Clause. See Davis, 126 S. Ct. at 2275;
Crawford, 541 U.S. at 58.
  Hargrove argues in the alternative that Hicks’s re-
corded statements were inadmissible because Hargrove
had already withdrawn from the conspiracy when Hicks
made them; that is, he claims Hicks’s statements were
not made “during the course” of a conspiracy between
Hicks and Hargrove. FED. R. EVID. 801(d)(2)(E). Hargrove
forfeited this objection by failing to raise it below, so our
review is for plain error. United States v. Jaimes-Jaimes,
406 F.3d 845, 847 (7th Cir. 2005). There was no error.
Before trial the government submitted an extensive
proffer in support of the admissibility of the Hicks-Veal
recordings. This and other evidence adduced at trial easily
supported the conclusion that Hicks and Hargrove were
part of a conspiracy to rob and extort drug dealers in the
Chicago area from the early 1990s until February 2001.
That Hargrove retired in March 2000 and moved to Las
Vegas does not by itself mean he withdrew from the
conspiracy. Inactivity alone does not constitute with-
drawal; to withdraw from a conspiracy, the defendant
must “terminate completely his active involvement in the
conspiracy, as well as take affirmative steps to defeat or
disavow the conspiracy’s purpose.” United States v. Wilson,
134 F.3d 855, 863 (7th Cir. 1998); United States v. Wil-
liams, 81 F.3d 1434, 1442 (7th Cir. 1996).
No. 05-4376                                                       7

  There is no evidence that Hargrove disavowed or took
steps to defeat the conspiracy simply by moving west. To
the contrary, there is evidence of frequent postretire-
ment phone calls between Hargrove and Hicks, and a
mention in one of the Hicks-Veal recordings that Hargrove
was still getting a cut of the take after his move to
Las Vegas. Accordingly, the admission of the Hicks-Veal
recordings as statements of a coconspirator during the
course of the conspiracy was not error.1


B. The Photo Lineup
  Hargrove also claims the photo array from which the
Alsip police officers identified him was unduly sugges-
tive. However, Hargrove never moved to suppress these
identifications and did not otherwise raise this argu-
ment in the district court.2 Motions to suppress evidence
must be made before trial, FED. R. CRIM. P. 12(b)(3)(C), and
failure to do so results in waiver under Rule 12(e). Rule
12(e) permits relief from waiver only for “good cause.”
United States v. Johnson, 415 F.3d 728, 730-31 (7th Cir.


1
  Because the recordings were properly admitted, Hargrove’s
tag-along claim that the government’s closing argument im-
properly referenced inadmissible evidence—that is, the record-
ings—also fails.
2
   In support of his argument that he raised a due-process
objection to the photo array at trial, Hargrove cites his motion for
a new trial and the trial transcript at large. His motion for a
new trial made no such objection (which would, in any event,
have been too late); it merely argued that the out-of-court
identifications were unreliable because the Alsip officers also
picked photos of men not present at the apartment. The five
volumes of trial transcripts (Hargrove provides no more
specific citation) contain no reference to a due-process objec-
tion to the photo array.
8                                              No. 05-4376

2005). See Davis v. United States, 411 U.S. 233, 242 (1973)
(addressing another type of challenge Rule 12 requires be
made before trial) (“We believe that the necessary effect
of the congressional adoption of Rule 12(b)(2) is to pro-
vide that a claim once waived pursuant to that Rule
may not later be resurrected . . . in the criminal
proceeding[ ] . . . in the absence of the showing of ‘cause’
which that Rule requires.”).
  We have explained that where a defendant merely
neglects to make a motion that Rule 12(b)(3) requires
be made before trial (as opposed to intentionally forgoing
the motion), a Rule 12(e) waiver “is more akin to a forfei-
ture than a waiver” and will call for plain-error review
provided the defendant can make the “good cause” showing
required by Rule 12(e). Johnson, 415 F.3d at 730; see also
Davis v. United States, 411 U.S. at 242-44 (discussing
cause and prejudice showing as prerequisites to relief
from a Rule 12 waiver in direct review and habeas con-
texts); United States v. Frady, 456 U.S. 152, 167-68 (1983)
(applying the “cause and prejudice” requirements dis-
cussed in Davis to procedural defaults in the habeas
context).
  Hargrove has given us no explanation for his failure
to seek suppression of this identification evidence before
trial as required by Rule 12(b)(3)(C). He certainly had
advance notice that the government intended to intro-
duce these identifications because the government used
this evidence during the first trial, which ended in a
mistrial. Hargrove has not made the good cause show-
ing required by Rule 12(e) for relief from the waiver; we
need not move on to the question of whether he was
prejudiced to the degree required in plain-error review.
  But even if we did move to the next step, Hargrove
has not convinced us that the district court plainly erred
in admitting the identifications made by the Alsip police
officers. Unduly suggestive identification procedures
No. 05-4376                                                9

violate due process when they create a substantial likeli-
hood of misidentification. Neil v. Biggers, 409 U.S. 188, 198
(1972); United States v. Traeger, 289 F.3d 461, 473-74 (7th
Cir. 2002). Hargrove contends that because he was the
only officer depicted in the photo array with a beard and
glasses, his photo stood out from the others to such a
significant extent that witnesses were predisposed to select
it over the others. We disagree. First, his photo does not
stand in such stark contrast to the others in the array,
which all depict black CPD officers of similar age with
short hair and some degree of facial hair. Second, the
glasses and beard were not suggestive of anything given
that none of the Alsip officers had told investigators that
any of the four men at the apartment were bearded or
wore glasses. See United States v. Moore, 115 F.3d 1348,
1360 (7th Cir. 1997) (rejecting a claim that a photo array
was unduly suggestive because the defendant was the only
person depicted with a “notched eyebrow” because only one
of several eyewitnesses had described the suspect as
having a distinctive eyebrow); United States v. Gibson,
135 F.3d 257, 260 (2d Cir. 1998) (“[B]ecause [the defen-
dant] did not establish that [the eyewitness] told police the
perpetrator wore a goatee, portraying [the defendant] with
a goatee would not be suggestive.”). Accordingly, the photo
array was not unduly suggestive, and it was not error to
admit the Alsip police officers’ identifications of Hargrove.
  The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit


                  USCA-02-C-0072—11-27-07
