United States v. Hall

• Citation: 28 F.4th 445
• Decision Date: 14 March 2022
• Docket Number: No. 20-2268,20-2268
• Parties: UNITED STATES of America v. Earl Lafayette HALL, III, Appellant
• Court: U.S. Court of Appeals — Third Circuit

28 F.4th 445

UNITED STATES of America

v.Earl Lafayette HALL, III, Appellant

No. 20-2268

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1 a January 20, 2022

Filed March 14, 2022

Ronald A. Krauss, Quin M. Sorenson, Frederick W. Ulrich, Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

Stephen R. Cerutti, II, Kim D. Daniel, Scott R. Ford, Office of United States Attorney, Middle District of Pennsylvania, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Jenny P. Roberts, Office of United States Attorney, 235 North Washington Avenue, P.O. Box 309, Suite 311, Scranton, PA 18503, Counsel for Appellee

Before: JORDAN, RESTREPO, and SMITH, Circuit Judges

OPINION OF THE COURT

SMITH, Circuit Judge.

Earl Hall challenges three pieces of evidence admitted during his criminal trial: (1) testimony from his former probation officer identifying the voice on recorded phone calls as Hall's; (2) a recording of Hall's post-arrest interview; and (3) bank records obtained without a warrant. Hall contends that his conviction must be vacated because the District Court committed constitutional or other error in admitting each piece of evidence.

The District Court did not err, so we will affirm Hall's conviction.¹ In so doing, we expound, in particular, on the due process and Federal Rules of Evidence standards governing the admission of voice identification evidence.

I

In connection with an alleged scheme to file false unemployment claims with the Unemployment Compensation for Ex-Service Members Program, Hall and his wife, Renita Blunt, were charged with several counts of mail fraud, money laundering, and aggravated identity theft, as well as one count of conspiracy to commit mail fraud and one count of conspiracy to commit money laundering. The government sought to prove Hall's involvement in the alleged scheme by using recordings of telephone calls made from Blunt's cell phone to several unemployment compensation offices. Hall and Blunt were tried jointly, and at trial, Blunt testified that it was Hall who made all but one of those calls. United States v. Blunt , 930 F.3d 119, 123–24 (3d Cir. 2019).

Hall was convicted on all but one of the counts submitted to the jury.² We vacated Hall's conviction, however, recognizing that spousal privilege grounds raised before trial should have led to the District Court's severing of Hall's prosecution from his wife's. Id. at 127.

Prior to his new trial, which resulted in the conviction before us in this appeal, Hall objected to the admission of three pieces of evidence. First, Hall challenged the admission of testimony from his former probation officer, Edgar Leon, who testified at Hall's first trial that it was Hall's voice on recorded phone calls with unemployment compensation offices. According to Hall, Leon's testimony was unreliable because it was based on insufficient contacts with Hall, and because it was a product of impermissible suggestion and pressure from the investigating officer, Joel Parisi. Thus, Hall argued that admitting Leon's testimony would violate his Fifth Amendment Due Process rights.

Second, Hall contended that the recording of Hall's post-arrest interview was inadmissible for its proffered purpose: allowing the jury to compare Hall's voice on the interview with the voice on the calls to the unemployment compensation offices. Hall claimed that admitting the interview for this purpose would impermissibly task the jury with identifying the voice on the calls, in violation of Federal Rule of Evidence 901, and thereby require them to act as voice identification experts, in violation of Rules 606 and 701. Third, Hall argued that the Fourth Amendment required the government to obtain search warrants for his bank records.³

The District Court rejected all three of Hall's evidentiary challenges. United States v. Hall , No. 1-16-cr-00050-001, 2019 WL 5892776, at *1 (M.D. Pa. Nov. 12, 2019) (denying motions to exclude Leon's testimony and to suppress bank records); App'x 570 (admitting post-arrest interview recording).

A. Leon's identification of Hall's voice

Prior to denying Hall's motion to suppress Leon's testimony, the District Court conducted a hearing during which Leon explained the basis for his identification of Hall's voice on the recorded calls. Leon testified that he was Hall's supervising probation officer starting in early 2012 and ending in late 2013. Leon's supervision of Hall began with a 45-minute, in-person orientation meeting in Leon's office. During the nearly two years that Leon supervised Hall, they met in Leon's office "approximate[ly] 17 to 18 times." App'x 441. Leon also visited Hall at his home about five times and spoke with Hall over the phone "very frequent[ly], either setting up an appointment or rescheduling an appointment." App'x 441–42.

Leon described Hall's voice as "different" and as having "this deep, rich quality to it." App'x 442. Leon also characterized Hall's voice as "very distinct"—one that he could "remember ... from several meetings with him over time." App'x 441.

Leon then testified that Parisi contacted him in mid-2014, in connection with a criminal investigation of Hall, and that Parisi asked him whether he could identify Hall's voice on recorded phone calls. Subsequently, the two corresponded about the recorded calls on what Leon described as a "sporadic" basis up until Hall's first trial in 2017. App'x 442 Leon and Parisi's conversations always concerned possible identification of the voice on recorded calls as Hall's, and Parisi never provided Leon with recordings that were known not to contain Hall's voice. For example, in a September 2014 email, sent with the subject line "Earl Hall," Parisi asked Leon: "Please listen to the [attached] recordings and let me know if you believe the callers are once again Earl Hall." App'x 195. Parisi's request followed Leon's "100% sure" identification of Hall's voice on other recordings, App'x 183–84, which Leon made after being asked to do so by U.S. Probation Officer ("PO") Cristina Figueroa. Figueroa, who took over Hall's probation supervision from Leon, and who explained that she had "been supervising [Hall] for less time," had not been able to "make the same conclusion" as Leon.⁴ Id.

Although Leon definitively recognized Hall's voice on some recordings, Leon was not able to confidently identify Hall's voice in other recordings upon first listening to them. For one recording, Leon asked Parisi to provide an audio-enhanced version. After a second listen, Leon expressed that he was "90% sure it's Earl [Hall]" who was speaking in the recording. App'x 203. Leon later confirmed that his estimation was "still 90% certainty" after being prompted by Parisi to listen again to the recording. App'x 226.

In May 2016, after a first listen during another series of recordings, Leon told Parisi that the voice in some "did not sound like Earl Hall" and that, in others, he could not "with certainty say it's Earl Hall['s]" voice. App'x 213. Parisi, asking Leon to "clarify... so there is absolutely no confusion," wrote in response with respect to those recordings:

Can you please send us a reply advising your opinion, if you have one , with respect to the identity of the purported callers in the below listed recorded conversations .... If any of the recordings are of such a poor audio quality that you feel that you cannot state any opinion, please advise.

You should, of course, only express an opinion as to the identity of any of the purported callers if you are "reasonably certain " that person is the caller.

App'x 216–17 (emphases in original). In a subsequent email, Parisi added: "Given the potential Brady implications, we really need to clear up any remaining issues as soon as possible." App'x 222.

After Leon had not replied for several weeks, Parisi reminded him of the need for an answer. Leon eventually emailed in response: "Sorry about the delay. I am working from home tomorrow and can listen to the recordings again .... I can then follow along with the titles/dates of the [below listed] recordings and tell you what my impressions are accurately." Id.

After again listening to recordings about which he had initially expressed uncertainty as to the identity of the speaker, Leon identified Hall's voice on some but not all of them. For two, Leon stated: "This is Earl Hall." App'x 226–27. For another two, Leon reported that the speaker "sounds like Hall but the voice doesn't sound as deep and as distinct as his previous recordings." App'x 226. For a third set of two, Leon said: "This sounds like Earl Hall." App'x 227. But Leon could not identify the voice on one recording: "I cannot confirm this is Earl Hall. Voice sounds disguised." Id.

Leon testified that he chose to make his identifications of Hall's voice on his own accord and "did not feel pressured" by Parisi to do so. App'x 462. He also testified that he did not feel that he was "led," "intimidated," or "persuaded" by Parisi to make the identifications. Leon declared that he made the identifications "to the best of my knowledge" and "to the best of my memory and belief." App'x 463.

In denying Hall's motion to exclude Leon's testimony, the District Court concluded that the government established "sufficient indicia of reliability in PO Leon's voice identifications such that the testimony may be presented at trial." Hall , 2019 WL 5892776, at *4. And in reaching its conclusion, the District Court applied the test for due process challenges to voice identification evidence set forth in Virgin Islands v. Sanes , where we extended the Supreme Court's multi-factor due process standard for the reliability of eyewitness testimony to voice identification testimony. 57 F.3d 338, 340–41 (3d Cir. 1995) (citing Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d...