United States v. Recendiz, Gerardo

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-1754, 06-2380 & 06-2821

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

G ERARDO R ECENDIZ, A RMANDO N AVAR, and

M ARCO T HOMAS,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 1136—Charles R. Norgle, Judge.

A RGUED O CTOBER 20, 2008—D ECIDED M ARCH 3, 2009

Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.

K ANNE, Circuit Judge. On October 3, 2005, a jury con-

victed Armando Navar and Marco Thomas of a number of

federal crimes related to their participation in a Chicago

cocaine distribution network. The district court sentenced

Navar and Thomas to 324 and 360 months in prison,

respectively. On appeal, Navar challenges his conviction,

2 Nos. 06-1754, 06-2380 & 06-2821

arguing that the district court made several evidentiary

and procedural errors and that his counsel was ineffective.

Thomas joins only Navar’s assertion that trial counsel

improperly shifted the burden of proof during his opening

statement, in violation of his Fifth Amendment right to due

process. We find no error below and affirm both convic-

tions.

Co-defendant Gerardo Recendiz pleaded guilty to

multiple charges related to his participation in the same

drug distribution network and was sentenced to 135

months in prison. Recendiz’s attorney filed an Anders brief

requesting permission to withdraw from representing

Recendiz. We grant the motion to withdraw and dismiss

Recendiz’s appeal.

I. B ACKGROUND

Armando Navar and Marco Thomas were members of a

drug trafficking organization that smuggled substantial

quantities of cocaine from Mexico into the United States

and distributed it on the streets of Chicago. The organiza-

tion’s leader was Saul Saucedo, who resides in Mexico and

oversees his organization from afar.

A. The Cast of Characters

Armando Navar is originally from Mexico, and he is

married to Saul Saucedo’s sister, Lorena. Before coming to

the United States, Navar worked as a physician and was

known as “the Doctor” within the Saucedo organization.

Nos. 06-1754, 06-2380 & 06-2821 3

During the relevant time period, Navar worked for

Saucedo as a high-level operative in Chicago. In this

capacity, Navar aided in the delivery of multi-kilogram

quantities of cocaine from Mexico, where they were stored

in stash houses around the city. Navar assisted in distrib-

uting large amounts of the cocaine to brokers for the

organization, who sold it to wholesale dealers, who in turn

distributed the drugs to their street-level, paying custom-

ers. Couriers delivered the proceeds back to higher-

ranking members of the organization, who allocated the

profits and eventually smuggled the remainder back to

Saucedo in Mexico. The drug operation was vast, involved

hundreds of kilograms of cocaine, and generated millions

of dollars.

One broker for the Saucedo organization was a man

named Jesus Herrera. Navar first met Herrera in 1997,

when Herrera began dating Navar’s sister-in-law—Saul

Saucedo’s younger sister—Cynthia. Navar disapproved of

the relationship and distrusted Herrera because he was

from a disfavored town in Mexico and was older than

Cynthia. Navar confronted Herrera on one occasion

and barred Cynthia from seeing him, largely out of

respect for her father, who had entrusted her to Navar’s

care. Following his intervention, Navar did not com-

municate or interact with Herrera for some time.

Years later, Herrera began purchasing cocaine from the

Saucedo organization. Herrera initially dealt with an

operative named Gabe, but Navar assumed this business

following Gabe’s arrest. From late 2002 until mid-Septem-

ber 2003, Navar sold cocaine to Herrera approximately two

4 Nos. 06-1754, 06-2380 & 06-2821

to three times per month, in average quantities of ten to

fifteen kilograms. Herrera owned a furniture store on the

west side of Chicago, but he attempted to keep his drug

business separate and leased a nearby warehouse to

conceal cocaine.

Concerned for his reputation, business, and safety,

Herrera enlisted Ahmed “Eddie” Tmiri as his primary

assistant in carrying out the drug transactions. Tmiri had

worked for Herrera in the furniture store for six years

before joining the drug operation. Typically, after Herrera

arranged a sale, Tmiri picked up the money and delivered

the cocaine to the buyer, allowing Herrera to distance

himself from the criminal activity. Because of Tmiri’s

assistance, Herrera split with him the profits earned from

each transaction.

Herrera sold cocaine to many different dealers, one of

whom was Navar’s co-defendant Marco Thomas. Herrera

sold cocaine to Thomas from the spring of 2003 until their

last transaction on September 3, 2003. The transactions

occurred approximately two or three times per month,

each in an amount of approximately ten to fifteen kilo-

grams of cocaine.

B. The Drug Busts

Near the beginning of 2003, the Drug Enforcement

Administration began investigating the Saucedo organiza-

tion after the DEA’s Colorado Springs office intercepted

phone conversations of a known money carrier, who

revealed that he was making a trip to Chicago to pick up

Nos. 06-1754, 06-2380 & 06-2821 5

anywhere from $1 million to $2 million. The DEA’s Chi-

cago office took over the investigation in mid-2003.

During the course of the investigation, the DEA obtained

permission to wiretap multiple telephone numbers associ-

ated with members of the Saucedo organization. Among

these telephone numbers was a prepaid cellular phone

used by Jesus Herrera. Herrera testified that he communi-

cated with Navar and Thomas primarily via prepaid

phones referred to as “throwaways,” which allowed users

to avoid providing identifying information associated with

a regular cellular phone account and, at least theoretically,

to avoid wiretaps.

Herrera’s efforts to evade a wiretap were unsuccessful.

Between August 1 and September 15, 2003, the DEA

recorded approximately 530 telephone calls on Herrera’s

number. Of these, the government introduced as evidence

at trial sixty-five conversations related to drug transac-

tions: thirty-nine calls between Herrera and Navar, and

twenty-six calls between Herrera and Thomas. The con-

versations revealed the details of various drug deals,

most often communicated using code language. Herrera

explained that they avoided the word cocaine but dis-

cussed quantities, the price per kilogram, their typical

terms or “standing orders,” and meeting places for deliver-

ing the drugs.

Based upon these conversations and additional surveil-

lance, the DEA learned of an upcoming drug transaction

involving Navar and Thomas. On September 2, 2003,

Navar informed Herrera that cocaine was available, and

Herrera reserved ten kilograms. Herrera called Thomas to

6 Nos. 06-1754, 06-2380 & 06-2821

inform him of the cocaine and coordinate an exchange for

the next day. On September 3, Herrera confirmed the

transaction with both Thomas and Navar. Just before

noon, Thomas called Herrera’s courier, Tmiri, and the two

arranged a meeting at a restaurant to exchange the money.

DEA agents observed the exchange of a duffel bag and

followed both Thomas and Tmiri when they departed.

Tmiri proceeded to a White Hen Pantry, where he collected

a package from a white minivan carrying two Hispanic

men, and the two vehicles quickly separated and left. The

minivan proceeded to what was later discovered to be a

stash house; agents followed Tmiri’s car to an apart-

ment on the west side of Chicago. At that point, Thomas

reappeared, parked beside Tmiri, and removed a box from

Tmiri’s trunk. Tmiri testified that Thomas took the box

into the apartment building, which belonged to Thomas’s

sister, and then both men drove away.

Following this exchange, law enforcement stopped both

Tmiri and Thomas. In Thomas’s Cadillac Escalade, agents

discovered a loaded semiautomatic handgun, two plastic

bags containing cocaine, and approximately $23,500 in

cash. Investigators later learned that Thomas had repeat-

edly deposited proceeds into four different bank accounts

in amounts just below $10,000, to avoid bank disclosure

rules. An IRS Special Agent testified at trial that agents

also discovered $498,500 cash in Thomas’s safe deposit

box, $87,000 in three separate hiding places in Thomas’s

home, a .357 Magnum, a .9mm handgun, a money-

counting machine, and documents that appeared to be

drug ledgers.

Nos. 06-1754, 06-2380 & 06-2821 7

The DEA continued to monitor phone calls between

Navar and Herrera. The next day, September 4, Herrera

informed Navar that they “had a problem with the dogs,”

which he explained at trial meant the police. Herrera

suggested that they move their drugs to another location.

Law enforcement followed the trail, and on September 15,

agents stopped a white van leaving the new location with

21 kilograms of cocaine. A search of the stash house

revealed over 500 kilograms of cocaine hidden in the

floorboards and the attic, as well as weapons, equipment

for pressing and packaging cocaine, and a drug ledger.

The DEA arrested Herrera, who provided information

about “the Doctor” that led to Navar’s identification and

arrest. Herrera also identified Navar’s voice on a number

of the recorded calls between him and Navar.

On April 1, 2004, a grand jury indicted eleven individuals

who were involved in the conspiracy to distribute drugs

for the Saucedo organization. The indictment charged

Armando Navar with conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846, distribution of more than five

kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1),

and three counts of using a communication facility during

a felony in violation of 21 U.S.C. § 843(b). The indictment

charged Thomas with the same conspiracy to distribute

cocaine in violation of 21 U.S.C. § 846 and a number of

other related counts.

On September 20, 2005, a jury trial began in the United

States District Court for the Northern District of Illinois.

Prior to trial, Herrera and Tmiri accepted plea agreements

and agreed to testify against Navar and Thomas. The

8 Nos. 06-1754, 06-2380 & 06-2821

government also called law enforcement agents involved

in the investigation. On October 3, 2005, a jury found both

defendants guilty of each count of the indictment. On May

9, 2006, the district court sentenced Navar to 324 months’

confinement; on June 16, 2006, Thomas received 360

months. Both filed timely notices of appeal, and we

consolidated their appeals.

II. A NALYSIS OF THE C ONSOLIDATED A PPEALS

OF N AVAR AND T HOMAS

In his brief, Navar presents no fewer than ten issues for

our review. Among them are a variety of alleged eviden-

tiary and constitutional errors, as well as an ineffective

assistance of counsel claim based upon his trial attorney’s

failure to address some of these alleged errors. We will

address the bulk of Navar’s arguments. Thomas joins only

Navar’s first argument regarding counsel’s remarks during

his opening statement. Because Navar bases his ineffective

assistance of counsel claim on three issues similar to those

he challenges substantively, we will address the merits of

his individual arguments first, then turn to the ineffective

assistance claim.

A. Defense Counsel’s Comments During His Opening

Statement

Navar’s first argument, which Thomas joins, is that

Navar’s counsel made certain comments during his

opening statement that improperly shifted the burden of

proof, thereby violating the defendants’ Fifth Amendment

right to due process. The following exchanges regarding

Nos. 06-1754, 06-2380 & 06-2821 9

the burden of proof occurred in front of the jury at trial.

During her opening statement, the prosecutor correctly

informed the jury that the government must prove the

charges beyond a reasonable doubt, which she explained

“is the standard of proof in . . . every criminal case in the

city of Chicago.” Following the government’s statement,

Navar’s counsel gave his opening statement, in which he

made the following remarks to the jury regarding the

burden of proof:

Members of the jury, Mr. Hyman and I, Larry and

I, intend to prove to you—that’s right, we who

have no burden, it’s true. As you heard my adver-

sary say, Ms. Noller and his Honor will tell you

again, instruct you later . . . that the government

has the burden of proof beyond a reasonable doubt

in every criminal case. But in this case, members of

the jury, I will respectfully tell you now that we

appreciate those advantages, but we don’t want

those advantages. He is presumed innocent, that’s

true, but we don’t want any advantage at all

because we will confidently prove to you . . . by the

end of this case that Armando Navar is an innocent

person and being set up and being framed by a

person who has an absolute visceral hate for

Armando Navar.

....

I’m going to prove to you that Armando Navar

meddled in a relationship between Herrera and

Armando Navar’s sister-in-law, because he at some

point, many times, told his sister-in-law that

Herrera wasn’t good enough for her. . . .

10 Nos. 06-1754, 06-2380 & 06-2821

....

I will competently prove—we will competently

prove to you that Armando Navar is not a drug

dealer, that the indictment is a false accusation . . .

.

These are the comments that Navar challenges in this

appeal. Following Navar’s opening statement, Thomas’s

counsel correctly stated that Thomas must be guilty

beyond a reasonable doubt and also noted that “[t]he

government welcomes their burden of proof; it’s your job

to hold them to their burden of proof.”

During closing argument at the end of the trial, both the

prosecutor and Thomas’s counsel again stated the correct

burden of proof. Navar’s counsel, perhaps reassessing the

strength of his case, abandoned the bravado displayed in

his opening statement and referred to the correct burden of

proof no less than nine different times during his closing

argument. Finally, the district court gave the jury a de-

tailed charge explaining that the defendants are presumed

innocent and must be proven guilty beyond a reasonable

doubt.

Navar now asserts that trial counsel’s comments during

his opening statement were improper. Navar argues that

even though “the defense did not make a motion for a

mistrial because the defense made the improper argu-

ment . . . , the court itself should have stopped the proce-

dure and had a mistrial declared.” (Petr.’s Br. 19.) We find

Navar’s argument unconvincing. Not surprisingly, Navar’s

counsel did not stop his opening statement to lodge an

objection to his own comments; Thomas also did not object.

Thus, we review for plain error. See Fed. R. Crim. P. 52(b);

Nos. 06-1754, 06-2380 & 06-2821 11

United States v. Sandoval-Gomez, 295 F.3d 757, 762 (7th Cir.

2002). In determining whether plain error exists, we ask

(1) whether there was any error at all; (2) if so, whether

that error was plain, i.e., clear or obvious; and (3) if the

error was plain, whether it affected defendant’s substantial

rights, i.e., whether it affected the outcome of the case.

United States v. Olano, 507 U.S. 725, 732-34 (1993).

Placed in the full context of the trial, which included the

above statements, Navar’s argument borders on frivolity.

First, we agree with the government that the appropriate

avenue to address these types of alleged misstatements by

one’s own counsel is via a Sixth Amendment claim for

ineffective assistance. Navar brought such a claim and

included his counsel’s comments as one basis for it, which

we address below. Thomas, of course, cannot bring an

ineffective assistance claim based upon the conduct of

another co-defendant’s attorney. Thus, we consider the

merits of defendants’ claims and find that they fail.

In support of his argument, Navar analogizes his coun-

sel’s remarks only to cases involving inappropriate com-

ments by a prosecutor, and he invites us, without legal

support, to apply the same standard of conduct to defense

counsel. (Petr.’s Br. 21 (citing United States v. Vargas, 583

F.2d 380 (7th Cir. 1978); United States v. Segna, 555 F.2d 226

(9th Cir. 1977)).) However, overturning a conviction due

to a prosecutor’s improper comments is no easy feat. See

United States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003)

(noting that to constitute prosecutorial misconduct,

comments must be both improper and deprive defendant

of a fair trial); Sandoval-Gomez, 295 F.3d at 763 (listing

12 Nos. 06-1754, 06-2380 & 06-2821

numerous factors a court considers to determine whether

defendant was denied a fair trial); see also United States v.

Amerson, 185 F.3d 676, 685 (7th Cir. 1999) (noting that a

prosecutor’s improper comments, even at closing argu-

ment, “rarely rise to the level of reversible error” (quota-

tions omitted)). Navar’s attempt to obtain a new trial

because his counsel’s comments purportedly deprived him

of a fair trial is decidedly more difficult.

Navar’s first obstacle to success is to convince us that the

standards that apply to a prosecutor’s comments should

apply with equal force to defense counsel’s. We do not

agree with the comparison. In a criminal case, the prosecu-

tor is in the unique position of representing the govern-

ment, as opposed to advocating on behalf of a client. As

the Supreme Court observed: “The United States Attorney

is the representative not of an ordinary party to a contro-

versy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at

all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall

be done.” Berger v. United States, 295 U.S. 78, 88 (1935).

Therefore, a prosecutor’s statements—and their impact—

are evaluated in a different light than those made by

defense counsel, for a jury must have confidence in the

prosecutor’s faithful observation of the “duty to refrain

from improper methods calculated to produce a wrongful

conviction.” Id.

But even more damaging to Navar’s claim is that even if

defense counsel could make such a strong statement

regarding the burden of proof so as to violate his own

Nos. 06-1754, 06-2380 & 06-2821 13

client’s constitutional rights, Navar’s counsel made no such

statement here. His comments were merely confident

assertions regarding the strength of his case and did not

shift the burden of proof or confuse the jury. He also

referred to the correct burden multiple times, thereby

ameliorating any possible self-inflicted prejudice. See

Sandoval-Gomez, 295 F.3d at 763 (stating that one factor in

determining whether a defendant was denied a fair trial

due to a prosecutor’s remarks is the defense’s opportunity

to counter any prejudice). Thomas’s counsel and the

prosecutor both stated the proper burden of proof, and the

court gave the jury the correct instruction, which we

assume it understood and followed. See Briggs v. Marshall,

93 F.3d 355, 360 (7th Cir. 1996); Bae v. Peters, 950 F.2d 469,

481 (7th Cir. 1991); see also Boyde v. California, 494 U.S. 370,

384 (1990) (“[A]rguments of counsel generally carry less

weight with a jury than do instructions from the court. The

former are usually billed in advance to the jury as matters

of argument, not evidence . . . ; the latter, we have often

recognized, are viewed as definitive and binding state-

ments of the law.” (citation omitted)).

Consequently, Navar’s argument fails; he does not

present any error, much less a plain one affecting substan-

tial rights. See Olano, 507 U.S. at 733-34. Even if the state-

ments were improper under the standard applicable

to a prosecutor’s misstatements, they did not deprive

Navar of the right to a fair trial, i.e., they did not “ ‘so

infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.’ ” Kappos v. Hanks, 54

F.3d 365, 367 (7th Cir. 1995) (quoting Darden v. Wainwright,

14 Nos. 06-1754, 06-2380 & 06-2821

477 U.S. 168, 181 (1986)). Thomas merely adopted Navar’s

argument, and his claim fails for the same reasons.

B. Identification Testimony

Next, Navar challenges certain identification testimony

provided by two witnesses during the trial. A witness’s

identification violates a defendant’s right to due process

when the identification procedure is “ ‘so impermissibly

suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.’” United States v. Williams,

522 F.3d 809, 810 (7th Cir. 2008) (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)). To determine whether a

particular procedure violated a defendant’s constitutional

rights, we undertake a well-settled, two-pronged analysis:

(1) whether the process was unduly suggestive, and (2) if

so, whether the identification was nevertheless suf-

ficiently reliable. United States v. Griffin, 493 F.3d 856, 865

(7th Cir. 2007); Rodriguez v. Peters, 63 F.3d 546, 556 (7th

Cir. 1995); United States ex rel. Kosik v. Napoli, 814 F.2d

1151, 1155 (7th Cir. 1987).

In conducting this analysis, we must remember that our

purpose is only to determine whether the district court

properly permitted the jury to hear the identification

testimony. We will not assess the accuracy of the actual

identification, for that is the exclusive province of the jury.

Kosik, 814 F.2d at 1156. Our role, rather, is to determine

whether the identification was so unreliable that the

defendant’s constitutional right to a fair trial should have

precluded its admission. Id.

Nos. 06-1754, 06-2380 & 06-2821 15

We generally review a district court’s decision not to

suppress identification testimony de novo, with due defer-

ence to its findings of fact. United States v. Hawkins, 499

F.3d 703, 707 (7th Cir. 2007). However, because Navar’s

counsel did not object to either identification, we review

for plain error. Sandoval-Gomez, 295 F.3d at 762; see also

supra pt. II.A. Navar first argues that the trial court erred

by permitting a witness to leave the witness stand to

identify Navar as the individual known as “the Doctor.”

His second challenge is that the trial court should not have

permitted a law enforcement officer to identify Navar’s

voice on a previously recorded conversation between

Navar and Herrera. We consider separately whether each

procedure was proper.

1. Ahmed Tmiri’s In-Court Identification of Navar as “the

Doctor”

During the trial, Ahmed Tmiri testified that he delivered

drugs and collected money for Jesus Herrera. He stated

that Herrera began obtaining drugs from someone known

as “the Doctor,” whose real name was “Navarro.” Toward

the beginning of his testimony, when asked whether he

saw “the Doctor” in the courtroom, Tmiri replied that he

did not. However, he testified that he had seen “the

Doctor” more than twenty times and described his physical

characteristics: “He’s dark skin, he’s got a mustache, black

hair, kind of straight, and I think he’s got a little scar on his

face.” Tmiri was also unable to identify Thomas, despite

the fact that both defendants were seated at the defense

table. Later in his testimony, however, Tmiri explained

16 Nos. 06-1754, 06-2380 & 06-2821

that he had broken his glasses prior to the trial and could

not even make out the facial features of the prosecutor who

was questioning him.

Toward the end of Tmiri’s testimony, the prosecutor

requested permission from the court for Tmiri to leave the

witness stand and move closer to the people in the court-

room to determine whether he recognized anyone.

Navar’s counsel consulted with Thomas’s counsel, but

neither objected to the procedure. With the court’s

consent, Tmiri left the stand and identified both Navar and

Thomas. Navar contends that this procedure violated his

right to due process by improperly suggesting to Tmiri that

he identify Navar.

First, we must determine whether the in-court identifica-

tion procedure was so suggestive that it likely produced an

unreliable identification. In the courtroom, a defendant

does not have a constitutional right to the same type of

identification procedure used in a police line-up, and the

manner of an in-court identification is typically left to the

trial court’s discretion. United States v. Davies, 768 F.2d 893,

903-04 (7th Cir. 1985). Navar’s argument boils down to

two allegedly suggestive circumstances: first, that Navar

was seated at the defense table; and second, that the

prosecutor’s request for Tmiri to move closer to the

audience—after Tmiri had already stated that he could not

identify Navar—suggested that “the Doctor” was in fact in

the courtroom.

As to the first, we have indicated on multiple occasions

that a defendant’s mere presence at the defense table is not

enough to establish a violation of due process. United

Nos. 06-1754, 06-2380 & 06-2821 17

States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984); accord

Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996);

Rodriguez, 63 F.3d at 556; United States ex rel. Haywood v.

O’Leary, 827 F.2d 52, 59 (7th Cir. 1987). Nothing here

requires us to deviate from that general rule. Similarly,

simply increasing a witness’s proximity to the individuals

in the courtroom, without more, does not suggest to a

witness whom he should identify. As we have stated, “[t]o

satisfy the first prong of our analysis, the defendant must

show both that the identification procedure was suggestive

and that such suggestiveness was unnecessary.” Hawkins,

499 F.3d at 707. Because Tmiri testified that he could not

see, permitting him to move forward was a necessary step

for him to make any identification. Even the sequence of

the questioning itself was necessary, for no one in the

courtroom was aware that Tmiri could not see without his

glasses until after he was initially unable to identify Navar

and Thomas. Nothing about the sequence of the questions

suggested to Tmiri whom he should identify or that Navar

was in fact present.

Even if we determined that the procedure at trial was

unduly suggestive, it was sufficiently reliable to prevent

“ ‘a very substantial likelihood of irreparable misidenti-

fication.’ ” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting

Simmons, 390 U.S. at 384). The Supreme Court has said that

“reliability is the linchpin in determining the admissibility

of identification testimony.” Manson v. Brathwaite, 432 U.S.

98, 114 (1977). In assessing whether an identification was

reliable, a court should consider the following factors:

(1) the opportunity of the witness to view the criminal at

the time of the crime (or prior to the identification), (2) the

18 Nos. 06-1754, 06-2380 & 06-2821

witness’s degree of attention during such an opportunity,

(3) the accuracy of the witness’s prior description of the

criminal, if he made one, (4) the level of certainty demon-

strated at the time of the identification, and (5) the time

between the crime and the identification. See id. at 114

(citing Biggers, 409 U.S. at 199-200).

After evaluating the totality of the circumstances and

applying the Biggers factors, the circumstances in this case

support the reliability of Tmiri’s identification. Tmiri

testified that he knew Navar and had seen him over twenty

times, providing him ample opportunity to view Navar

prior to trial. Tmiri did not testify regarding his degree of

attention during the times he saw Navar, nor did he

provide a description of Navar prior to trial, but Tmiri did

provide a detailed description of Navar prior to his visual

identification of him. Navar does not contest the accuracy

of this description, nor does he suggest that the description

itself was the result of any suggestive circumstance. Tmiri

exhibited no uncertainty at trial that Navar was in fact “the

Doctor.” Regarding the last factor, the trial occurred

approximately two years after Tmiri last interacted with

Navar,1 but any concern over that length of time is dimin-

ished by the strength of the other factors—particularly

Tmiri’s familiarity with Navar and his specific description

of him.

1

The record is not clear whether this was the last time Tmiri

actually saw Navar. Although it may be possible that Tmiri

saw Navar after that time, we use this time frame for the

purposes of this analysis.

Nos. 06-1754, 06-2380 & 06-2821 19

Furthermore, Tmiri’s testimony and ultimate identifica-

tion occurred in direct view of the jury, which observed

and presumably weighed any arguably suggestive circum-

stances. As we noted, our role is not to judge the accuracy

of the identification, Kosik, 814 F.2d at 1156, and such

testimony should be kept from the jury only if it is so

unreliable that it presents “a very substantial likelihood of

irreparable misidentification,” Simmons, 390 U.S. at 384.

“Misidentification is ‘irreparable’ when the source of the

error is so elusive that it cannot be demonstrated to a jury,

which therefore will give excessive weight to the eyewit-

ness testimony.” Williams, 522 F.3d at 811. We have also

noted that “[t]he deference shown the jury in weighing the

reliability of potentially suggestive out-of-court identifica-

tion would seem even more appropriate for in-court

identifications where the jury is present and able to see

first-hand the circumstances which may influence a

witness.” Bush, 749 F.2d at 1231. In circumstances such as

these, where the in-court identification was not tainted by

a previous out-of-court identification, the jury is in

the unique position of observing the entire identification

procedure, and it may weigh the accuracy of the identifica-

tion accordingly. The jury’s conclusions are not our

concern, so long as the procedure used to identify Navar

was not unduly suggestive and produced a sufficiently

reliable identification. The procedure used here did

not violate Navar’s constitutional rights, and the district

court did not err by permitting Tmiri’s in-court identifica-

tion.

20 Nos. 06-1754, 06-2380 & 06-2821

2. Special Agent Tulshi’s Voice Identification

Navar also asserts that the trial court erred when it

permitted DEA Special Agent Tulshi to identify Navar’s

voice on a recorded conversation between Navar and

Herrera. Tulshi testified that on the day of Navar’s arrest,

he listened to Call No. 331, which was a six-minute conver-

sation in Spanish between Herrera and a man whose voice

Tulshi did not yet recognize. Later that day, Tulshi, who

speaks Spanish, participated in Navar’s arrest and post-

arrest interviews and conversed with Navar. Tulshi

testified that after hearing Navar speak, he recognized

Navar’s voice as the second speaker on Call No. 331.

Navar now contends that the identification (1) lacked

foundation, particularly because the trial court had no

basis for qualifying Tulshi as an expert witness, and

(2) was unduly suggestive in violation of Navar’s constitu-

tional right to due process.

a. Foundation for Special Agent Tulshi’s Identification

Although Navar’s brief is somewhat unclear, it appears

that he claims that Special Agent Tulshi’s lack of training

in voice identification should render his testimony inad-

missible. Thus, we first review whether Tulshi properly

authenticated his voice identification.

Federal Rule of Evidence 901 governs the authentication

of evidence as a precondition to admissibility, and subsec-

tion (b) provides examples of acceptable methods of

authentication or identification. According to the applica-

ble illustration, a witness properly authenticates a voice,

Nos. 06-1754, 06-2380 & 06-2821 21

“whether heard firsthand or through mechanical or

electronic transmission or recording, by opinion based

upon hearing the voice at any time under circumstances

connecting it with the alleged speaker.” Fed. R. Evid.

901(b)(5) (emphasis added). The advisory committee

commented on the illustration in Rule 901(b)(5), stating

that because “aural voice identification is not a subject of

expert testimony, the requisite familiarity may be acquired

either before or after the particular speaking which is the

subject of the identification.” Id. advisory committee’s

note (Subdivision (b), Example (5)) (emphasis added).

In light of Rule 901, Navar’s contention that the court

erred in admitting Special Agent Tulshi’s identification

because he was not qualified as an expert is wholly

meritless. Not only do the advisory committee notes to

Rule 901(b) state that voice identification is “not a subject

of expert testimony,” but this court has previously stated

that expert testimony is not required to authenticate a

voice identification. See United States v. Magana, 118 F.3d

1173, 1208 (7th Cir. 1997) (“ ‘As long as the basic require-

ment of familiarity with the voice is met, lay opinion

testimony is an acceptable means for establishing a

speaker’s identity.’ ” (quoting United States v. Vega, 860 F.2d

779, 788 (7th Cir. 1988))); United States v. Degaglia, 913 F.2d

372, 375-76 (7th Cir. 1990).

Further, Special Agent Tulshi properly established the

requisite “minimal familiarity” with Navar’s voice to

permit him to identify it on Call No. 331. See United States

v. Mansoori, 304 F.3d 635, 665 (7th Cir. 2002) (holding that

a witness who heard defendants’ voices once during a

22 Nos. 06-1754, 06-2380 & 06-2821

court proceeding satisfied the “minimal familiarity”

requirement); United States v. Saulter, 60 F.3d 270, 276 (7th

Cir. 1995); Degaglia, 913 F.2d at 376. Tulshi testified that he

listened to a recorded phone conversation between Herrera

and another speaker on the same day that he arrested

Navar. Later that day, he spoke with Navar during his

arrest and post-arrest interview, each of which connected

Navar’s voice to his identity. Tulshi then testified at trial

that based on hearing Navar’s voice in person, he recog-

nized it as the same voice he heard on Call No. 331.

Tulshi’s testimony falls squarely within the requirements

of Rule 901(b)(5), and the trial court properly found that

Tulshi authenticated his identification.

b. Suggestiveness of Special Agent Tulshi’s Voice Identifica-

tion Procedure

Navar also contends that Special Agent Tulshi’s testi-

mony violated his Fifth Amendment right to due process

because the voice identification was unduly suggestive. In

addition to the testimony recounted above, Tulshi testified

that he was asked to listen to Call No. 331 “in order to do

a voice recognition.” The crux of Navar’s argument is that

the government’s request, which came on the same day

that Tulshi knew the authorities were going to arrest

Navar, impermissibly suggested that the voice on the call

was Navar’s.

A witness’s voice identification is subject to the same due

process analysis as other forms of identification. See United

States v. Alvarez, 860 F.2d 801, 810 (7th Cir. 1988). As we

Nos. 06-1754, 06-2380 & 06-2821 23

previously noted, supra pt. II.B.1., in determining the

admissibility of identification testimony, “reliability is the

linchpin,” Brathwaite, 432 U.S. at 114, and an identification

procedure is unduly suggestive if it “give[s] rise to ‘a very

substantial likelihood of irreparable misidentification,’ ”

Degaglia, 913 F.2d at 376 (quoting United States v. Carrasco,

887 F.2d 794, 806 (7th Cir. 1989)). To assess the reliability

of a voice identification, we apply the same factors articu-

lated in Biggers, and we must weigh them against the

“corruptive effect of the suggestive identification.”

Alvarez, 860 F.2d at 810 (quotations omitted).

We disagree with Navar that the procedure used to

identify his voice on Call No. 331 was so suggestive that it

violated his constitutional rights. Navar presents nothing

beyond the sequence of events to indicate that the process

suggested to Tulshi that Navar was a participant on Call

No. 331.

But even if the identification procedure was suggestive,

it was constitutionally reliable. See Biggers, 409 U.S. at 199-

200; supra pt. II.B.1. Applying the first Biggers factor,

Special Agent Tulshi heard Navar’s voice in person on

the day of his arrest, and he also had a clear opportunity

to listen to the voice on Call No. 331—the call lasted six

minutes and was a recording. Cf. Brown v. Harris, 666 F.2d

782, 787 (2d Cir. 1981) (“Witnesses who listen to a crime

that has been ‘memorialized on tape,’ are in a position to

offer uniquely reliable testimony. . . . [T]hey have the

luxury of listening to the tape in an office, where they can

devote their full attention to it.” (citations omitted)). As to

the second factor, Tulshi testified that he listened to

24 Nos. 06-1754, 06-2380 & 06-2821

Call No. 331 with the express purpose of remembering the

then-unidentified voice. Knowing that as a special agent

his recollection would be subject to close scrutiny at trial,

Tulshi devoted proper attention to the call, making him

nothing like “a casual or passing observer.” Brathwaite, 432

U.S. at 115. Third, because Tulshi’s familiarity with Navar’s

voice came from a recording of the telephone call, the

accuracy of the voice is clear. Regarding the fourth factor,

Tulshi expressed no uncertainty that, after hearing Navar’s

voice during his arrest and post-arrest interview, the voice

on Call No. 331 belonged to Navar. And last, the fifth

factor also favors admissibility because Tulshi listened to

Call No. 331 on the same day that he participated in

Navar’s arrest.

Therefore, each of the Biggers factors weighs in favor of

upholding the admission of Tulshi’s testimony. Any

remaining concerns regarding the accuracy of Tulshi’s

recollection of the voice are relevant to the weight of the

testimony, not its admissibility. After reviewing the

circumstances of Special Agent Tulshi’s voice identifica-

tion, we cannot say that there is a “ ‘very substantial

likelihood of irreparable misidentification.’ ” Brathwaite,

432 U.S. at 116 (quoting Simmons, 390 U.S. at 384).

C. Law Enforcement Testimony Regarding Wiretap Procedure

Navar’s next challenge is that the court should not have

permitted a government agent to explain the process by

which he obtained permission to wiretap Jesus Herrera’s

telephone number. At trial, Special Agent Baumgartner

testified that to receive permission to intercept telephone

Nos. 06-1754, 06-2380 & 06-2821 25

calls, he prepared an affidavit that included probable cause

to believe that the particular phone was being used to

conduct drug trafficking crimes. Baumgartner sent the

affidavit to the United States Attorney’s office and the

Department of Justice in Washington D.C., and after they

approved it, he submitted it to the district court. Navar’s

counsel objected to testimony regarding the district court’s

approval of the wiretap, and he asserts on appeal that this

evidence was prejudicial and violated his right to due

process. We review the trial court’s evidentiary decision,

over Navar’s objection, for an abuse of discretion. United

States v. Owens, 424 F.3d 649, 653 (7th Cir. 2005).

Navar is correct that in some circumstances, detailed

testimony regarding the process by which the government

procures a wiretap is improper and may merit a new trial.

See, e.g., United States v. Cunningham, 462 F.3d 708 (7th Cir.

2006). In Cunningham, a government agent testified about

the numerous levels of approval required to obtain a

wiretap on the defendant’s telephone number, including a

“very extensive” probable cause affidavit, review by the

USAO and a “panel of attorneys” at the DOJ, and then

approval by the district court. Id. at 710-11. We held that

this testimony was irrelevant and unfairly prejudicial

because the “government witness was improperly vouch-

ing for how good the evidence was.” Id. at 713. Our

concern in Cunningham was that the testimony permitted

the jury to infer that the defendant was engaged in illegal

activity before the wiretap because law enforcement,

government attorneys, and a district judge each approved

it. See id.; see also United States v. Bustamante, 493 F.3d 879,

888 (7th Cir. 2007).

26 Nos. 06-1754, 06-2380 & 06-2821

Unlike in Cunningham, however, the impermissible

inference from this type of testimony is missing when the

government places a wiretap on a phone belonging to

someone other than the defendant. We addressed this

issue squarely in Bustamante and noted that testimony

regarding a wiretap on a co-conspirator’s telephone

permitted a jury to infer that the co-conspirator was engaged

in illegal activity before the wiretap. 493 F.3d at 888.

Because the defendants in that case never denied that the

co-conspirator was a drug dealer, we held that the testi-

mony did not damage or prejudice the defendants. Id.

We find the facts of this case analogous to those in

Bustamante. Baumgartner testified about the wiretap on

Herrera’s telephone number,2 and Herrera testified that the

telephone number in question belonged to him, a fact

Navar has never challenged. The testimony regarding the

wiretap procedure was relevant to Herrera’s conduct and

the likelihood that he was involved in illegal activity prior

to the wiretap. Herrera was a known drug dealer, a fact

that no party disputed. In fact, Navar’s trial strategy

included painting Herrera as an active participant in the

drug conspiracy who was now testifying against Navar to

receive a lower sentence. Thus, the impermissible infer-

ence that was the concern of Cunningham does not exist

2

Further, Baumgartner’s testimony about the wiretap approval

process was cursory, less detailed, and less problematic than

that which we found improper in Cunningham. See 462 F.3d at

710-11. Although this distinction is not our basis for finding the

testimony permissible, it supports our conclusion that the

district court did not abuse its discretion.

Nos. 06-1754, 06-2380 & 06-2821 27

here, and the district court did not abuse its discretion by

permitting Special Agent Baumgartner’s testimony.3

Despite the propriety of the district court’s decision in this

case, we note that the government stated during oral

argument that after Cunningham, it is no longer the DOJ’s

practice to elicit such wiretap testimony.

D. The District Court’s Limitation on Navar’s Cross-Exami-

nation

Next, Navar alleges that the trial court erred by restrict-

ing his counsel’s cross-examination of Jesus Herrera. After

Herrera acknowledged that he was testifying pursuant to

a plea agreement, Navar’s counsel introduced the plea

agreement into evidence and questioned Herrera exten-

sively about the effect it could have on his sentence.

Herrera conceded that he could obtain a reduced sentence

if he was truthful. Not yet satisfied, Navar’s trial counsel

then attempted to question Herrera about the Sentencing

Guidelines, including who would determine whether his

3

Further, the district court did not permit endless questioning

on this topic. Rather, it considered Navar’s objection and

instructed the prosecutor to restrict the questioning to simply

establishing the fact that government agents may not “willy-

nilly tap phones.” After Baumgartner testified that he presented

his affidavit to a district judge, the district court asked whether

the prosecutor “intend[ed] to belabor this further,” and upon

getting a negative response, stated “[t]here is no impropriety up

to this point, but try to concisely end on this issue with this

witness.”

28 Nos. 06-1754, 06-2380 & 06-2821

testimony was “truthful” and what that term means—the

actual truth, or what the government wanted to hear.

Navar now asserts that the court violated his right to

confront Herrera by sustaining the government’s objections

to this line of questioning.

The Sixth Amendment guarantees a defendant an

opportunity for effective cross-examination, but there is no

guarantee of cross-examination “ ‘to whatever extent[] the

defense might wish.’ ” United States v. Jackson, 540 F.3d 578,

591 (7th Cir. 2008) (alteration in original) (quoting Delaware

v. Van Arsdall, 475 U.S. 673, 679 (1986)). A judge has broad

discretion to place reasonable limits on cross-examination,

based on concerns of, inter alia, confusion of the issues and

relevance. United States v. Nelson, 39 F.3d 705, 708 (7th Cir.

1994). Where a trial court’s limitation on cross-examina-

tion directly implicates the “core values of the Confronta-

tion Clause,” we review the limitation de novo; otherwise,

we review for abuse of discretion. See United States v.

Smith, 454 F.3d 707, 714 (7th Cir. 2006).

One such core value is the ability to expose a witness’s

motivation for testifying, his bias, or his possible incentives

to lie. See id.; see also Van Arsdall, 475 U.S. at 678-79. How-

ever, once a trial court permits a defendant to expose a

witness’s motivation, “it is of peripheral concern to the

Sixth Amendment how much opportunity defense counsel

gets to hammer that point home to the jury.” Nelson, 39

F.3d at 708. The right to confrontation is not implicated

where “limitations on cross-examination did not deny the

defendants the opportunity to establish that the witnesses

may have had a motive to lie; rather, the limitations denied

Nos. 06-1754, 06-2380 & 06-2821 29

them the opportunity to add extra detail to that motive.” Id.

That is precisely the case here. Because the district court

did not prevent Navar’s counsel from establishing

Herrera’s motivation for testifying, the court’s limitation

did not implicate the Sixth Amendment right to confronta-

tion, and we review for abuse of discretion.

To determine whether the district court abused its

discretion by limiting Navar’s cross-examination, we must

determine whether “the jury had sufficient information to

make a discriminating appraisal of the witness’s motives

and biases.” United States v. De Gudino, 722 F.2d 1351, 1355

(7th Cir. 1983). The jury in this case heard Herrera explain

that he was testifying pursuant to a plea agreement, and

that in exchange for his truthful testimony, the government

would advocate for a lower sentence. The trial court

permitted Navar’s counsel to question Herrera about his

awareness of the Sentencing Guidelines and even allowed

Herrera to testify that he was facing a potential sentence of

235 to 297 months in prison when he entered the plea. Cf.

Nelson, 39 F.3d at 708-09 (upholding district court’s refusal

to allow cross-examination of two government witnesses

regarding the potential penalties they faced without their

plea bargains). Only when Navar’s counsel asked Herrera

to speculate about what constituted “truthful” testimony

or who made such a determination did the district judge

limit the examination. The judge stated that the questions

were confusing to the jury and were improper questions of

law beyond the witness’s knowledge, both of which are

permissible grounds for limiting cross-examination. The

jury had more than enough information to appraise

30 Nos. 06-1754, 06-2380 & 06-2821

Herrera’s motive to lie, and the district court did not abuse

its discretion.

E. Ineffective Assistance of Counsel

Last, Navar asserts that he received ineffective assistance

of counsel, based in large part on the way Navar’s trial

counsel handled the issues that we have already ad-

dressed. Such a claim is a mixed question of law and fact

that we review de novo, with a strong presumption that the

attorney performed effectively. Bednarski v. United States,

481 F.3d 530, 535 (7th Cir. 2007); United States v. Fudge, 325

F.3d 910, 923 (7th Cir. 2003).

The Sixth Amendment affords a criminal defendant the

right to counsel, U.S. Const. amend. VI, and inherent in this

right is that the defendant is entitled to the effective

assistance of counsel, McMann v. Richardson, 397 U.S. 759,

771 n.14 (1970). But “effective” does not mean successful

or without flaw. The important inquiry is “whether coun-

sel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland v. Washington,

466 U.S. 668, 686 (1984).

To prevail on a claim for ineffective assistance of counsel,

Navar must establish (1) that his attorney’s representation

fell below an objective standard of reasonableness, and (2)

that there is a reasonable probability that, but for the

ineffective assistance, the result of the proceedings would

have been different. See Strickland, 466 U.S. at 687-88;

Fudge, 325 F.3d at 923-24. Under the performance prong,

Nos. 06-1754, 06-2380 & 06-2821 31

we must determine if Navar’s counsel acted “outside the

wide range of professionally competent assistance,”

Strickland, 466 U.S. at 690, and we “maintain a strong

presumption that the defendant received effective assis-

tance,” Hardamon v. United States, 319 F.3d 943, 948 (7th

Cir. 2003). It is not our role to second-guess counsel’s

strategic decisions or “take up the role of the ‘Monday

morning quarterback.’ ” Harris v. Reed, 894 F.2d 871, 877

(7th Cir. 1990). Under the prejudice prong, a “reasonable

probability” that the result would have been different is

one “sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694.

Navar faces the added difficulty of pursuing his ineffec-

tive assistance claim on direct appeal. We typically do not

review an ineffective assistance of counsel claim on direct

review, United States v. Best, 426 F.3d 937, 944 (7th Cir.

2005), but if we do, the defendant must rely on the trial

record alone, because he lacks the ability to develop a

factual record regarding the attorney’s trial conduct, see

United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991).

Without record of an attorney’s motives, “every indulgence

will be given to the possibility that a seeming lapse or error

by defense counsel was in fact a tactical move, flawed only

in hindsight.” Id. at 417-18; see also United States v. Johnson-

Wilder, 29 F.3d 1100, 1104 (7th Cir. 1994) (“[T]ypically the

trial record will be silent about the reasons for actions taken

by trial counsel.”). Navar chose to brief and argue his

ineffective assistance claim in this appeal, and we believe

the proper outcome is clear from this record. Thus, we will

address his claim.

32 Nos. 06-1754, 06-2380 & 06-2821

Navar alleges that his counsel provided ineffective

assistance in three ways: (1) by his confident statements

regarding the burden of proof during his opening state-

ment; (2) by failing to request that the district court instruct

the jury concerning Herrera’s and Tmiri’s plea agreements

at the time of their testimony; and (3) by failing to request

a jury instruction for Special Agent Tulshi’s voice identifi-

cation similar to those provided for an eyewitness identifi-

cation. We analyze each of these alleged errors separately

and find that none of them deprived Navar of his Sixth

Amendment rights.

1. Counsel’s Comments Regarding the Burden of Proof

As outlined above, supra pt. II.A., Navar’s counsel made

a number of confident statements regarding the govern-

ment’s burden of proof, which Navar now argues so

tarnished the proceedings that his assistance was ineffec-

tive. We have already determined that defense counsel’s

statements did not shift the burden of proof in violation of

Navar’s right to due process. For similar reasons, Navar’s

counsel was not ineffective by making the statements, and

Navar fails to satisfy either prong of the Strickland analysis.

Making the statements in question was a tactical decision

designed to persuade the jury of the strength of Navar’s

case. The district court, the prosecutor, Thomas’s attorney,

and Navar’s counsel himself each stated the proper burden

of proof at various times throughout the trial. Nothing

indicates that Navar’s counsel seriously intended to give

up the benefit of the government’s burden of proof (nor

could he), nor that the jury was confused on the issue.

Nos. 06-1754, 06-2380 & 06-2821 33

While the statements appear overconfident in light of the

evidence implicating Navar, they were not objectively

unreasonable, nor is there a probable likelihood that the

outcome would have differed without the statements.

2. Failure to Request an Instruction Regarding Plea Agree-

ments of Cooperating Witnesses

Both Herrera and Tmiri testified against Navar pursuant

to a plea agreement with the government. At the close of

evidence, the district court instructed the jury using the

Seventh Circuit’s Pattern Instruction 3.13, entitled “Wit-

nesses Requiring Special Caution,” which specifically

warned the jury that Herrera and Tmiri received the

recommendation of a reduced sentence, that they were

involved in the conspiracy for which Navar is on trial, and

that they both pleaded guilty for that offense. Despite the

fact that the district court delivered this limiting instruc-

tion, Navar asserts that his trial counsel should have

requested a similar instruction contemporaneously with

the witnesses’ testimony.

First, defense counsel’s assistance was not objectively

unreasonable. Navar’s counsel may have wished to avoid

emphasizing that Herrera and Tmiri were members of a

large criminal drug conspiracy, where both witnesses were

implicating his client as a higher-ranking member of the

same organization. We can only speculate about his

motivations, but we must presume they were strategic

unless persuaded otherwise, and we are not.

Second, Navar also fails to show prejudice. The district

court properly instructed the jury at the end of trial, which

34 Nos. 06-1754, 06-2380 & 06-2821

we presume, without more, the jury understood and

considered and was effective for its limiting purpose.

Further, Navar’s counsel extensively cross-examined each

witness regarding his plea agreement and the benefits each

received, thereby explaining their bias to the jury. Counsel

was not ineffective under Strickland.

3. Failure to Submit a Voice Identification Instruction

As a third basis for his ineffective assistance claim, Navar

argues that his counsel acted unreasonably by failing to

request a contemporaneous limiting instruction regarding

Special Agent Tulshi’s voice identification. Noting that a

trial court should instruct a jury when a witness makes a

visual identification, Navar claims that a voice identifica-

tion should be similarly treated and cites United States v.

Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

To be entitled to an instruction on a defense theory,

Navar must demonstrate that (1) the proposed instruction

correctly stated the law; (2) the theory advanced by the

instruction was supported by the evidence; (3) the theory

advanced was not part of the charge presented to the jury;

and (4) the failure to include the instruction on the defen-

dant’s theory denied the defendant a fair trial. Magana, 118

F.3d at 1208.

Navar’s argument is short, undeveloped, and incorrect.

We have already upheld the reliability of Tulshi’s voice

identification, and Federal Rule of Evidence 901(b)(5) states

that a witness may identify a voice after hearing it at any

time, under circumstances connecting it with the speaker.

Nos. 06-1754, 06-2380 & 06-2821 35

The admissibility of a visual identification, however, is

based on “[w]hether the witness had an adequate opportu-

nity to observe the offender at the time of the offense.”

Telfaire, 469 F.2d at 558 (emphasis added) (appending a

model special instruction on identification). The two types

of identification are distinct and treated differently. See

Magana, 118 F.3d at 1208-09 (holding that a proposed

instruction would erroneously instruct the jury where it

stated that the reliability of a witness’s voice identification

depends on the ability to hear the defendant’s voice at

the time of the offense). Therefore, even if Navar’s counsel

had proposed the desired instruction, the district court

would have properly rejected it, as it is an incorrect

statement of law. Further, Navar has pointed to nothing

about the desired instruction, if given, that would have

altered the trial’s outcome. Therefore, he has failed to

establish prejudice resulting from his counsel’s decision

not to request the instruction.

III. G ERARDO R ECENDIZ—C OUNSEL’S M OTION FOR

W ITHDRAWAL

Finally, we address an Anders brief submitted by counsel

for a co-defendant, Gerardo Recendiz. Recendiz was

charged with participating in the same conspiracy to

possess with the intent to deliver in excess of five kilo-

grams of cocaine, as well as conspiracy to conduct

financial transactions with the proceeds of unlawful

activity in violation of 18 U.S.C. § 1956(h). Recendiz

pleaded guilty on July 12, 2005, and on March 6, 2006, after

applying two downward adjustments, the trial court

36 Nos. 06-1754, 06-2380 & 06-2821

sentenced him to 135 months in federal prison, the

bottom of the range according to the Sentencing Guide-

lines. He filed a timely notice of appeal on March 14, 2006.

Recendiz’s attorney filed an Anders brief in support of his

June 7, 2007, motion to withdraw as Recendiz’s appointed

appellate counsel. See Anders v. California, 386 U.S. 738

(1967). Recendiz did not file a response. We have re-

viewed counsel’s Anders brief and agree that there are no

non-frivolous issues for appeal. The district court properly

accepted Recendiz’s guilty plea, and Recendiz indicated

that he did not wish to challenge his plea. The district

court also properly calculated and considered the applica-

ble Sentencing Guidelines range, did not clearly err in its

factual findings, and imposed a reasonable sentence at the

bottom of the range after considering the factors articu-

lated in 18 U.S.C. § 3553(a). We therefore grant counsel’s

motion to withdraw and dismiss Recendiz’s appeal.

IV. C ONCLUSION

For the above reasons, we reject each of Navar’s chal-

lenges. Marco Thomas adopted only Navar’s argument

regarding the opening statement, which fails for the same

reasons. We therefore A FFIRM both defendants’ convictions.

We agree with Recendiz’s counsel that no non-frivolous

issues exist for appeal, and we therefore G RANT his motion

to withdraw and D ISMISS Recendiz’s appeal.

3-3-09