[00:00:00] Speaker 03:
Our third case this morning is 23-2027, United States versus Ruiz.

[00:00:08] Speaker 03:
And Ms.

[00:00:08] Speaker 03:
Skinner, you may proceed.

[00:00:11] Speaker 02:
Good morning.

[00:00:11] Speaker 02:
May it please the court?

[00:00:12] Speaker 02:
Amanda Skinner on behalf of the appellant, Mr. Ruiz.

[00:00:15] Speaker 02:
I'd like to try to reserve about two minutes for rebuttal.

[00:00:19] Speaker 02:
Eyewitness identification is not the gold standard of evidence we once thought it was, and when a bad eyewitness ID comes in against the accused, it's the likelihood of misidentification that violates their right to due process.

[00:00:33] Speaker 02:
I'd like to start with the photo array in this case.

[00:00:37] Speaker 02:
The district court stumbled on the first step of the Kamalehi analysis by finding that, quote, the array leans towards not being impermissibly suggestive and then concluding that Mr. Ruiz's photo does not jump out as strikingly different from the other photos.

[00:00:55] Speaker 02:
This finding is clearly erroneous just on a review of the photographs.

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and you can contrast this array with the arrays that were described in Kamahaly, Wurkoo, and Weissman.

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For example, in

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The Kamalehi case, the court found that each photograph depicted a man of medium complexion, medium build, no visible piercings, and most had little, if any, facial hair.

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No one had any distinctive facial features or other identifying marks.

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And in Wurku, this court found that all of the photos were a photograph of an Ethiopian man, and they were all of similar ages.

[00:01:42] Speaker 00:
Council, if we spot you on an unnecessarily suggestive procedure, could you address how you satisfy the reliability component of the analysis?

[00:01:54] Speaker 02:
Yes, thank you.

[00:01:55] Speaker 02:
The reliability needs to be analyzed in the context of the suggestibility.

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We have six photos here.

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That number in and of itself should have made the district court weigh those irregularities

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heavily, which there's no evidence in the record that the district court really even weighed them at all.

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And so when we get to reliability and look at the vigorous factors, it's also clear that this pre-court identification should have been suppressed.

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In the district court's order, the district court does discuss the factors.

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And I'll just start going through them.

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I understand there may be questions.

[00:02:37] Speaker 02:
The opportunity to view of the government informant to view the individual.

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Three meetings.

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First, less than a minute.

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Second, maybe 10 minutes.

[00:02:49] Speaker 00:
But it's at the time of the crime, right?

[00:02:51] Speaker 00:
View at the time of the crime?

[00:02:52] Speaker 02:
Yes, and I'm talking about the short duration.

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Two of the three meetings were less than a minute.

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So we're talking about 12 minutes in total that this government informant had an opportunity to view the individual.

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Then his degree of attention, and this is critical.

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because I think that the, or we would argue that the bad lineup in this case is a result of a bad list of features or an incomplete list that the government informant was able to give.

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He could not give any description of height, weight, body type,

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skin color, facial hair, other distinguishing characteristics, like someone's nose or ears.

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He essentially described everyone's grandfather in southern New Mexico and said, an older Hispanic male in a cowboy style shirt with mostly gray hair.

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There's just nothing unique there.

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And so I think that goes to his degree of attention, that he literally could not pull out whether this person had any facial hair.

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And then the accuracy of his prior description,

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and the level of certainty demonstrated at the confrontation, he needed a second photo.

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This is not an ID off of a six photo array, a bad six photo array even.

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This is an ID based on a one person show up of a second photo.

[00:04:18] Speaker 02:
When the witness asked to see a lightened photo of photo number five, instead of lightening that photo and providing it to him, the agent picked out a second photograph

[00:04:31] Speaker 02:
Clearly taken on the same day because he's in the same outfit, but the mask has been removed It's a different angle different lighting and that could have demonstrated to the government informant.

[00:04:43] Speaker 02:
This is our guy I have this photo at the ready.

[00:04:46] Speaker 02:
It's a separate photo It's not even the first one I showed you because this is this is the person and then the time between the crime and the confrontation 16 months

[00:04:58] Speaker 02:
In Werku, that was a 30-year difference, and this court said that that was fine in light of the circumstances in that case.

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Those individuals saw the accused in that case almost every day for months.

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Four of them had been tortured by the individual in that case, and so this court found that even with a long delay, that was sufficiently reliable.

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In Biggers, there was a delay of about seven months, which the courts still said could be problematic.

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The seven months is a long time.

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But the victim in that case gave an extremely detailed description of her attacker, and she was able to

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give approximate age, height, weight, complexion, skin texture, build, voice, and she said she had no doubt that the defendant was the person who had assaulted her, and she had made no previous identifications at any show-ups lineups or photographic showings that she had gone to, and she had gone to many.

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And in this case,

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we have this delay and an inability of the government informant to come up with any distinguishing characteristics.

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So I think that that goes to the issue of... Is it a clear error standard of review for the reliability prong?

[00:06:24] Speaker 02:
Yes, clearly erroneous applies with respect to the trial court's findings and the trial court found under the totality that this was not unreliable.

[00:06:36] Speaker 00:
Did you make an argument in the district court on the certainty factor under Biggers that it was, you know, you're arguing that Mr. Weaver was not immediately certain since he asked for another, a lighter photo, and the district court found

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was certain.

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Did you challenge that as a clear error review for that?

[00:06:59] Speaker 02:
Yes, I believe that at the suppression hearing, the testimony was given that he needed the second photo.

[00:07:06] Speaker 02:
I believe trial counsel cross-examined on that, but I don't believe that it was specifically argued or addressed in the district court's order.

[00:07:18] Speaker 02:
In terms of the number of photographs, sort of getting back to the first issue, whether it was impermissibly suggestive, that's an important finding, I guess, regardless of this court's ultimate decision on the case, because it's important to know what passes muster for a photo array.

[00:07:37] Speaker 02:
We don't want to fall into a situation where law enforcement is routinely providing unduly suggestive photo arrays, but the district court then has to do the work to determine under the totality of the circumstances, is this reliable?

[00:07:52] Speaker 02:
This photo array, it's a paltry number six.

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This court has said it time and time again, six is not what we're after.

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It's too small and for the district court, while it's not a substantive factor, for the district court then to look at every obvious and glaring irregularity and not give it any weight is where that analysis stumbles.

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These individuals do not appear similar in

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not even taken into account the individuals in the photographs.

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The actual photographs themselves are not all of the same size and lighting.

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And critically, number five, Mr. Ruiz, his is the only photograph that has traditional mugshot lines behind it and the only photograph where he's wearing a mask.

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This identification

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took, or this arrest took place during COVID.

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This identification from the government witness took place during the COVID pandemic.

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And that mask is such an obvious suggestion of recency.

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And when you take it in connection with the second photograph, clearly the same day, the government witness could not help but know that this person has just been arrested.

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No one else is in a mask.

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The district court made a finding that all individuals in the array were, quote, apparently Hispanic.

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You know, even the district court doesn't seem sure sort of, you know, how this grouping is cohesive.

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The point of a photo array is to see if a witness, especially a government informant highly motivated to lie after his second drug-related arrest in two months, can pick a suspect out of a group of similar individuals.

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The agent testified his procedure was to try to put individuals together that looked similar, and he could only give three characteristics that he looked for when putting together a lineup, age,

[00:09:49] Speaker 02:
which I would submit he missed based on a review of the photographs, skin coloring, which I would submit he missed based on a review of the photograph, and facial expression.

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Arguably, the majority of the individuals in the photos have what could be similar facial expressions.

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Beyond that, there's no unifying characteristic

[00:10:11] Speaker 02:
in these photos and I would also note that the agent testified at the suppression hearing that someone else put the photographs together for him.

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An analyst pulled these items and in many of the cases that we cite in our brief, there's testimony in the record that the actual agent who did the show up or the lineup was the one who was also putting together the array for the witness.

[00:10:38] Speaker 02:
If you don't have additional questions, I'd like to reserve.

[00:10:39] Speaker 00:
I have one more.

[00:10:41] Speaker 00:
Yes.

[00:10:41] Speaker 00:
How should we be thinking about your contention that Mr. Weaver was not a disinterested witness because he was cooperating or something along those lines, right?

[00:10:53] Speaker 00:
And that that makes the identification unreliable.

[00:10:58] Speaker 00:
His prior convictions makes the identification reliable.

[00:11:00] Speaker 00:
Should we be thinking about that at all?

[00:11:01] Speaker 02:
Yes, I think that it goes to the second prong, to the reliability, his degree of attention, the level of certainty demonstrated at the confrontation.

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The fact that he had prior convictions.

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Oh, I'm sorry, Mr. Weese's, the government informant?

[00:11:21] Speaker 02:
The informant, yes.

[00:11:23] Speaker 02:
Yes.

[00:11:24] Speaker 02:
He, we would submit that he was not certain of this identification, but when he saw that second photograph, that was a telegraph to him, this is who you need to pick.

[00:11:32] Speaker 02:
He was waiting on the District of New Mexico to potentially give a statement on his behalf for his pending case in another jurisdiction.

[00:11:40] Speaker 02:
He needed to make this ID.

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There is evidence in the record that he testified that he was not a drug dealer prior to the COVID-19 pandemic.

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He fell into this.

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very quickly somehow got to the point where he was trafficking enormous quantities and when he was arrested the first time in September said, I can give you information and gave a very generic, non-specific description of an individual

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but did have one specific feature, some sort of chemical burn on the person's arm.

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That's the only specific information he could give, and the agent chose not to use that in the photo array.

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You can give a photo array of whatever you want.

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Someone's belt buckle could be at issue, someone who could have a smaller arm.

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You can make a photo array of individuals.

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You can even add, courts have found that you can superimpose

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markings on people's skin in the photograph to see if they can be identified.

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And so I think it goes to his credibility, which of course we acknowledge trial counsel had an opportunity to cross-examine on this issue, but it should have weighed more heavily for the district court that you have a two-time arrestee pending sentencing who really couldn't give any specifics about this individual.

[00:13:10] Speaker 01:
May it please the court, my name is Joni Stahl and I'm an AUSA in Las Cruces, New Mexico.

[00:13:16] Speaker 01:
Because there was no clear error in the district court's factual findings in this case about the credibility or the contents of the photo array or its presentation to Weaver, this court should affirm the district court's determination that was properly given to the cooperator, that the cooperator was reliable.

[00:13:36] Speaker 01:
and that it was proper to allow that in-court identification.

[00:13:39] Speaker 00:
Council, how do you address your friend's argument that there seems to be something really wrong with Weaver asking to see a lightened photo and in response getting a different photo, another photo?

[00:13:54] Speaker 00:
Why is that?

[00:13:56] Speaker 00:
OK, how should we be thinking about it?

[00:13:58] Speaker 01:
Well, I think it's important to go back to the record.

[00:14:00] Speaker 01:
So Agent Vargas from HSI was a special agent who testified at the suppression hearing.

[00:14:05] Speaker 01:
He, on direct, testified that Weaver immediately focused on number five and asked to see a lighter picture.

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And then on cross-examination testified that Weaver was, I can't remember the exact word, but that he was hyper-focused on that picture number five.

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before he asked to see the second picture, that he just asked to see a lighter photo.

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And I would also submit that this court can rely on Weaver's testimony at trial, where he indicated that he was confident in the identification that Ruiz number five was the person who had supplied him before he asked for the picture.

[00:14:42] Speaker 00:
Do you contend that that's a preferred practice, to provide an additional photo?

[00:14:51] Speaker 00:
No, Your Honor, absolutely not.

[00:14:53] Speaker 00:
So it probably is not the best way to proceed, right?

[00:14:57] Speaker 00:
Correct.

[00:14:57] Speaker 00:
I agree with the court.

[00:14:58] Speaker 00:
And so in this case, you're saying even though probably what should have happened is Agent Vargas should have just lightened the photo, not provided another one.

[00:15:09] Speaker 00:
How are we supposed to be thinking about that and affirming?

[00:15:13] Speaker 01:
Your Honor, even if the court determines that the district court erred and that the

[00:15:17] Speaker 01:
array was itself impermissibly suggestive, the court can still affirm unreliability because there's really no issues as to the reliability of this.

[00:15:30] Speaker 01:
Doesn't the same problem go to the certainty factor in biggers?

[00:15:34] Speaker 01:
I don't think so in this.

[00:15:35] Speaker 01:
Why not?

[00:15:35] Speaker 01:
Because in this case, you have a cooperator who gave a description of the person who provided it with methamphetamine.

[00:15:43] Speaker 01:
on three separate occasions, starting back in September of 2020, again in December of 2020, and then again when he did the photo array.

[00:15:50] Speaker 01:
Before he was shown any pictures, he gave this description of an older Hispanic gentleman, and I would submit that he actually gave a description of a 50ish year old man.

[00:16:00] Speaker 01:
So not just an older gentleman, but specifically in his 50s,

[00:16:03] Speaker 01:
gave a description of his attire, which doesn't show up in the initial photo array.

[00:16:08] Speaker 01:
He gave a description of a skin condition that's very specific to Mr. Ruiz that didn't show up in the photo array.

[00:16:15] Speaker 01:
And contrary to Ms.

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Skinner's argument, I would say that helps the government in this, because if we had shown an array that showed arms and hands, and one of those individuals had this skin condition, that would be certainly suggestive.

[00:16:25] Speaker 01:
So you have all of these other factors.

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And then you also have Mr. Weaver describing the manner of the

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delivery of the drugs in a spare tire that this individual was known to him as the tire man or the yontaman.

[00:16:38] Speaker 01:
And so all of these things go to Mr. Weaver's credibility and the fact that when Mr. Ruiz was arrested, he fit this description.

[00:16:47] Speaker 01:
It wasn't just the older Hispanic gentleman.

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It was an older Hispanic gentleman with all of these other caveats that were present with Mr. Ruiz.

[00:16:59] Speaker 03:
Then the mugshot component of this with the background, that kind of jumps out at us.

[00:17:08] Speaker 03:
The informant probably knew that Ruiz had been arrested before and this kind of leads down that path that, oh, if he's arrested, he must have done something wrong.

[00:17:22] Speaker 01:
I think in this case, Your Honor, the district court properly considered that and noted that the lines in the background are distinctive.

[00:17:29] Speaker 01:
That's probably the most distinctive.

[00:17:31] Speaker 01:
The district court actually identified the darkness of the photograph, the mask, and the lines.

[00:17:36] Speaker 01:
But he kind of focused, the judge kind of focused on these lines in the background.

[00:17:41] Speaker 01:
But the court found that factually all of these pictures looked like mugshots and that the lines didn't immediately make the picture jump out.

[00:17:51] Speaker 01:
But to your honor's point, even if this court disagrees with the district court, the reliability of the witness's identification would still save the overall identification.

[00:18:05] Speaker 00:
So moving on to... Do you concede that the year and a half between Weaver's last interaction with Ruiz weighs against reliability?

[00:18:16] Speaker 00:
I would not in this case, your honor... Didn't you concede that in your briefing?

[00:18:20] Speaker 00:
You did not?

[00:18:21] Speaker 00:
No.

[00:18:22] Speaker 01:
Just based on the fact that there were multiple identifications where Mr. Weaver gave very consistent descriptions of the person who supplied him with methamphetamine.

[00:18:30] Speaker 01:
And those were kind of over this period of time.

[00:18:32] Speaker 01:
So while the photo array was later, the description had been given a number of times and had remained consistent.

[00:18:39] Speaker 01:
And then he was shown the photo array.

[00:18:46] Speaker 01:
So just kind of honing in on the factors for reliability, the district court noted that Mr. Weaver had met with Mr. Ruiz on three occasions.

[00:18:55] Speaker 01:
Ms.

[00:18:55] Speaker 01:
Skinner knows that we're talking about maybe a total of 12 minutes, but I would note that we're talking about three times in broad daylight under circumstances when they're in very close contact because they're close enough to hand each other these drugs.

[00:19:10] Speaker 01:
We would also argue that the fact that he gave these other descriptive

[00:19:15] Speaker 01:
Factors based on the observation of how the drugs were delivered, the spare tire, the description of Mr. Ruiz's vehicle, all of those things go to his opportunity to observe his degree of attention.

[00:19:28] Speaker 01:
And then I just would highlight for the court kind of the linchpin of the government's case here is the accuracy of that prior description when Mr. Ruiz was finally arrested and he did fit every single one of those characteristics

[00:19:44] Speaker 01:
the skin pigmentation being the most critical.

[00:19:51] Speaker 01:
So I don't really need to get to harmless error unless the court has specific questions for that.

[00:19:58] Speaker 01:
I think that the reliability is the real winner here for the government.

[00:20:04] Speaker 01:
But if the court were to determine that the district court erred in finding the identification reliable in this instance, we would argue that

[00:20:14] Speaker 01:
In light of the abundance of other evidence that kind of cut a grunt against Mr. Ruiz's defense in this case, the government would still be able to establish that the error was harmless based on all the other things that came into trial about Mr. Ruiz's defense, specifically the testimony that

[00:20:40] Speaker 01:
Mr. Ruiz crossed a number of times in a number of vehicles and he was unable to explain those crossings, how his border crossings on at least one occasion matched up with a meeting with Mr. Weaver, how he reacted when he was caught, how he stayed calm, which corroborated Mr. Weaver's testimony, but also kind of cut against this blind mule defense where

[00:21:04] Speaker 01:
the average person told they have drugs in a car and that they don't know about would not react in a calm, kind of relaxed manner.

[00:21:11] Speaker 01:
All of that testimony that came in at trial.

[00:21:16] Speaker 01:
I don't have anything further unless the court has specific questions.

[00:21:19] Speaker 03:
Judge Baldoch?

[00:21:22] Speaker 03:
No.

[00:21:23] Speaker 03:
Thank you, counsel.

[00:21:24] Speaker 03:
Thank you.

[00:21:24] Speaker 03:
We have some rebuttal time.

[00:21:33] Speaker 02:
Thank you.

[00:21:34] Speaker 02:
Just want to touch briefly on harmless error.

[00:21:40] Speaker 02:
You know, regardless of how you act when you're stopped at a checkpoint under these circumstances, it's a problem.

[00:21:46] Speaker 02:
If you're yelling and screaming, you don't protest too much.

[00:21:49] Speaker 02:
If you're calm, it's also suspicious.

[00:21:53] Speaker 02:
This case is unique and distinguishable from Robertson, which the government cites in their

[00:22:00] Speaker 02:
Mr. Ruiz maintains his innocence.

[00:22:02] Speaker 02:
He maintained his innocence throughout the case.

[00:22:05] Speaker 02:
His defense was that of a blind courier.

[00:22:08] Speaker 02:
There's no admission from him.

[00:22:10] Speaker 02:
And importantly, there's no corroborating information in the form of text messages, information on his phone.

[00:22:18] Speaker 02:
There was some discussion at the trial as to why the government didn't

[00:22:21] Speaker 02:
wasn't able to get that information, but there was nothing.

[00:22:25] Speaker 02:
And so because of the defense in this case, this was not harmless error, it went to the absolute heart, and the photo array was a problem because Mr. Weaver could not give enough descriptions, not only to identify who the tire man was, but to allow law enforcement to put together a usable, constitutionally permissible array.

[00:22:50] Speaker 02:
Thank you.

[00:22:51] Speaker 03:
Thank you, Council.

[00:22:52] Speaker 03:
Council are excused and the case is submitted.