United States v. Earl Hall, III

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 20-2268
_______________________
UNITED STATES OF AMERICA
v.
EARL LAFAYETTE HALL, III,
Appellant
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 1-16-cr-00050-001
District Judge: Honorable Sylvia H. Rambo
__________________________
Submitted Under Third Circuit L.A.R. 34.1 (a)
January 20, 2022
Before: JORDAN, RESTREPO, and SMITH, Circuit Judges
(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
__________________________
OPINION OF THE COURT
__________________________
2
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
1
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and Hall timely appealed from the District Court’s
entry of the judgment of conviction. We have jurisdiction over
Hall’s appeal pursuant to 28 U.S.C. § 1291.
We review decisions to admit evidence over an objection for
abuse of discretion. In so doing, we review factual findings
made in support of an evidentiary ruling for clear error. We
apply de novo review to legal questions implicated in a
decision to admit evidence—including, for example, whether
admitting identification evidence would violate the
defendant’s due process rights. United States v. Brownlee, 454
F.3d 131, 137 (3d Cir. 2006).
We review denials of motions to suppress “for clear error as to
the underlying factual findings and exercise plenary review
over the District Court’s application of the law to those facts.”
United States v. Vastardis, 19 F.4th 573, 580 (3d Cir. 2021).
3
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
2
Hall was acquitted on one count of aggravated identity theft.
4
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
3
In passing, Hall also contends that Leon’s identifications of
Hall’s voice on the recordings without Hall’s counsel present
violated Hall’s Sixth Amendment right to counsel. Because
Hall did not timely include his right to counsel argument in his
motion to suppress, the District Court declined to reach it.
United States v. Hall, No. 1-16-cr-00050-001, 2019 WL
5892776, at *2 n.1 (M.D. Pa. Nov. 12, 2019).
We note that, even if the District Court had reached Hall’s right
to counsel argument, it would have been foreclosed by United
States v. Ash. Because Hall was not present at the voice
identifications, there was no possibility that Hall would have
“be[en] misled by his lack of familiarity with the law or
5
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.
overpowered by his professional adversary.” 413 U.S. 300,
317 (1973).
6
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.4
Hall appeared to suggest that Parisi’s decision to work with
Leon instead of with Figueroa was another factor calling into
question the reliability of Leon’s identification. In a June 2015
exchange, Leon asked Parisi, who had been waiting for over a
month for a response from Leon regarding Hall’s incarceration
7
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
dates for a prior offense, whether Parisi had asked Figueroa in
the meantime for that information.
Parisi responded: “No, I didn’t ask her. I decided to ask you
instead because you seem interested in helping and I thought
our phone conversations were good.” App’x 209.
Figueroa was not a witness at Hall’s second trial.
8
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”
9
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 (1972); Manson v. Brathwaite, 432 U.S. 98 (1977)).
Those factors include:
the opportunity of the witness to view the
criminal at the time of the crime; the witness’
degree of attention; the accuracy of the witness’
prior description of the criminal; the level of
certainty demonstrated by the witness at the time
of the confrontation; and the length of time
between the crime and the confrontation.
Id. at 340. As the District Court acknowledged, the Biggers
factors we applied in Sanes are not a perfect fit for Leon’s
identification of Hall’s voice: “Unlike the witness in Sanes, PO
Leon was not a victim of a crime and heard [Hall’s] voice
during times that would require a degree of attention from PO
Leon.” Hall, 2019 WL 5892776, at *4. Like the witness in
10
Sanes, though, Leon had sufficient opportunity to pay attention
to Hall’s voice and was confident in his identification of Hall’s
voice. Id.The District Court was not swayed by Hall’s
observation that Figueroa was unable to identify Hall’s voice
on the recordings. Pointing to Federal Rule of Evidence
901(b)(5), which provides that voice identification can be
made via “an opinion . . . based on hearing the voice at any
time under circumstances that connect it with the alleged
speaker,” the District Court held that “voice identification is
opinion testimony” and that Figueroa’s inability to identify
Hall’s voice was simply her opinion. The Rules of Evidence
did not preclude Leon from expressing a different opinion
about the identity of the speaker on the recordings. Id.As to Hall’s argument that Parisi was impermissibly
suggestive in how he asked Leon whether he recognized Hall’s
voice on the recordings, the District Court noted only that
“neither party has provided case law” indicating that a voice
identification process must be conducted with “open-ended
question[s]” about the identity of the speaker.5 Id. It focused
more on the reliability of Leon’s voice identification
testimony. And because it viewed Leon’s identification of
Hall’s voice as sufficiently reliable, the District Court
concluded that “the jury can make the appropriate
determination as to credibility, weight, and reliability of PO
Leon’s testimony.” Id.5
The District Court did not otherwise analyze whether the
identification process was suggestive. Hall, 2019 WL
5892776, at *4.
11
B. The recording of Hall’s post-arrest interview
The District Court admitted the recording of Hall’s
post-arrest interview over Hall’s objection. Hall renewed his
objection at trial stating the same grounds. The government
countered that the jurors were “free to listen to the voice of Earl
Hall” in the post-arrest interview recording “and decide for
themselves whether or not [Hall was] the person” who called
in to the unemployment compensation offices. App’x 658.
The District Court overruled Hall’s objection.
C. The bank records
The District Court also rejected Hall’s motion to
suppress the bank records that were obtained by subpoena and
without a warrant. It concluded that no warrant was required
because the third-party doctrine as articulated by United States
v. Miller—which provides that there is no Fourth Amendment-
protected privacy interest in “information voluntarily
conveyed to the banks,” 425 U.S. 435, 442 (1976)—squarely
applies to bank records. Hall, 2019 WL 5892776, at *5
(alluding to Miller). The District Court reasoned that the
Supreme Court’s more recent decision in Carpenter v. United
States did not undermine Miller. Rather, the Supreme Court
explicitly held in Carpenter that its decision there did not
“disturb the application of . . . Miller.” Hall, 2019 WL
5892776, at *5 (quoting Carpenter, 138 S. Ct. 2206, 2220
(2018)).
* * *
As the defense anticipated, Leon testified at trial
concerning his identification of Hall’s voice on the recorded
calls, recounting his contacts with Hall during his time as
12
Hall’s PO. Leon said that Hall had a “deep resonating voice”
that was “very distinct,” and which Leon became “accustomed
to” while acting as his supervising probation officer. Leon then
explained that he had been “very confident” in his previous
identifications of Hall’s voice on the recorded calls to
unemployment compensation offices, except for “one or two”
where he was not sure. Leon went on to testify that he had
listened to the recordings on “multiple occasions.” App’x 678.
On cross examination, Leon acknowledged that he and
Figueroa, who could not identify the recorded voice as Hall’s,
had a similar number of contacts with Hall. Leon also admitted
he was told by Parisi that Parisi preferred working with him
over working with Figueroa, and that Parisi asked specifically
(in connection with the investigation of Hall) whether he could
identify Hall’s voice on the recordings. Leon conceded that,
with some of the recordings, he could not definitively identify
Hall’s voice until being prompted to listen to them again.
The jury found Hall guilty of every submitted count of
mail fraud, money laundering, aggravated identity theft, and
conspiracy to commit mail fraud and to commit money
laundering. Hall filed this timely appeal.
II
Hall first contends that the District Court’s admission of
Leon’s testimony identifying Hall’s voice on the recorded
phone calls violated his Fifth Amendment Due Process rights.
We disagree. Because Leon’s identification of Hall’s voice
was sufficiently reliable in light of the substantial period of
time Leon spent with Hall, both in person and over the phone,
13
allowing the jury to hear Leon’s identification testimony did
not offend due process.
Constitutional protections protecting a criminal
defendant “against a conviction based on evidence of
questionable reliability” generally do not prohibit the
introduction of the evidence. Perry v. New Hampshire, 565
U.S. 228, 237 (2012). But in a criminal trial, there are some
circumstances in which allowing a jury to consider certain
evidence can be so unfairly prejudicial to the defendant that
admitting the evidence would violate the defendant’s due
process rights. In Foster v. California, for example, the
Supreme Court determined that a police lineup was conducted
in such a suggestive manner that it was “virtually inevitable”
that the eyewitness would identify the criminal defendant. 394
U.S. 440, 443 (1969). Because the procedure “so undermined
the reliability of the eyewitness identification,” admission of
the resulting identification violated the defendant’s due process
rights. Id. (emphasis added).
Following a line of eyewitness identification cases, the
Supreme Court in Biggers clarified that the admission of
identification evidence offends due process only if the
evidence meets two criteria. First, the evidence must be “so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” 409 U.S. at 196–
97 (emphasis added). Second, if the evidence is impermissibly
suggestive, it must also be unreliable. Id. at 198–200. The two
criteria work in tandem, even though the admissibility of
identification evidence often hinges on reliability. Brownlee,
454 F.3d at 139 (“reliability is the linchpin in determining the
admissibility of identification testimony” (quoting Brathwaite,
432 U.S. at 114) (cleaned up)). Put differently, due process
14
requires the suppression of an identification only if it was
obtained pursuant to a suggestive process that in turn raises
serious questions about the reliability of the resulting
identification. Cf. Perry, 565 U.S. at 248 (holding that courts
need not inquire into the reliability of an eyewitness
identification when it is not procured “under unnecessarily
suggestive circumstances”).
Biggers set forth a multi-factor test for the reliability of
eyewitness testimony that we subsequently extended to voice
identification testimony in Sanes as a “source of guidance.”
The factors are: (1) the opportunity for the witness to view the
perpetrator at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of
the perpetrator; (4) the witness’s level of certainty at the time
of the identification; and (5) the length of time between the
crime and the confrontation. Sanes, 57 F.3d at 340 (citing
Biggers, 409 U.S. at 198–200). In Sanes, the victim of the
charged offenses became familiar with the defendant’s voice
during two alleged attacks by the defendant. Id. at 341. Fifteen
days after the second attack, the victim identified the voice
sample containing the defendant’s voice from an array of
samples of different voices, each with “unique factors.” Id. at
340–41. In making the identification, the victim was “certain”
that the voice in the sample was the voice of her attacker. Id.
at 340.
We concluded in Sanes that admitting the victim’s
identification of the defendant’s voice did not offend due
process, as the identification was neither unreliable nor
procured pursuant to a suggestive process. First, we found the
identification not to have been procured by a suggestive
process because the victim had picked out the defendant’s
15
voice sample from an array of samples bearing distinguishing
characteristics. Id. at 340. Second, the identification was
reliable because the victim “listened to her attacker for a
considerable period of time” over the course of the two attacks
and also “engaged him in conversation in the hope that she
could identify his voice.” Id. at 341. She was also confident
in her identification and made it shortly after the second attack.
Id. at 340–41.
Hall, invoking Sanes, argues both that the identification
process was impermissibly suggestive and that Leon’s
identification of the recorded voice as Hall’s was not
sufficiently reliable. Whereas the voice identification in Sanes
followed a procedure where the witness identified the
defendant’s voice from an array of unidentified voices, here,
Parisi asked Leon—specifically in connection with the
investigation of Hall—whether Leon recognized Hall’s voice
on recordings obtained through the investigation. Hall also
contends that Leon was insufficiently familiar with Hall’s
voice, characterizing Leon’s supervision of him as only
monthly and usually conducted by telephone. And Hall notes
that there was no proof offered at trial indicating that Leon
could distinguish Hall’s voice from others. He argues that
Leon’s inability to definitively identify a voice as Hall’s on
some recordings after a first listen suggests that Leon was not
sufficiently familiar with his voice to be capable of providing
a reliable identification.
Yet even assuming that the identification procedure was
suggestive, the due process challenge to the admission of
Leon’s testimony fails because Leon’s identification of Hall’s
voice on the recordings was sufficiently reliable. In reaching
this conclusion, we note that the Biggers multi-factor test we
16
adopted in Sanes for voice identifications contemplated the
reliability of a perpetrator’s identification as being made by the
victim of the offense. Sanes, 57 F.3d at 340 (concerning
victim’s identification of the defendant’s voice); Biggers, 409
U.S. at 200–01 (concerning victim’s identification of the
defendant–petitioner’s face). Crime victim identifications of
defendants present special reliability considerations, as the
nature and circumstances of the crime may affect the accuracy
of the victim’s memory of the perpetrator’s characteristics.
E.g., United States v. Stevens, 935 F.2d 1380, 1392 (3d Cir.
1991) (“Courts have recognized that victims, out of fear, often
focus their attention on the perpetrator’s weapon, rather than
his face.” (collecting cases)); Brownlee, 454 F.3d at 139–40
(similar); see generally 2019 Report of the U.S. Court of
Appeals for the Third Circuit Task Force on Eyewitness
Identifications, 92 TEMP. L. REV. 1, 77–93 (2019) (discussing
research on the posited influence of certain “estimator
variables”—such as the “weapon focus” effect, the “cross-race
effect,” and the length and circumstances of the time that the
witness has to observe the perpetrator—on the reliability of
eyewitness identifications).
By contrast, non-victim voice identification witnesses
in some circumstances are “in a position to offer uniquely
reliable testimony.” Brown v. Harris, 666 F.2d 782, 786
(2d Cir. 1981). Non-victim witnesses such as Leon may be
among those who have familiarized themselves with the
defendant’s voice under circumstances controlling for
factors—such as stress—that could impair the accuracy of a
voice identification. For example, the witness may have heard
the defendant’s voice over the course of multiple or extended
conversations. E.g., id. (witnesses had interviewed defendant–
petitioner for “many hours”); United States v. Brown, 510 F.3d
1757, 67 (1st Cir. 2007) (similar); United States v. Kim, 577 F.2d
473, 482 n.20 (9th Cir. 1978) (similar). Because non-victim
witnesses may have learned a defendant’s voice through
controlled circumstances, their knowledge of the defendant’s
voice may be “so firm that [it] is not susceptible to suggestion.”
Harris, 666 F.2d at 786; see also Kim, 577 F.2d at 483(concluding that there was “little, if any, indication that any
voice witness in this case was manipulated so that the mental
image derived from the identification procedure supplanted
that derived from the witness’s own experience” (cleaned up));
see generally 2019 Report of the Third Circuit Task Force, 92
TEMP. L. REV. at 17 (distinguishing identifications of
perpetrators “already well known to the witness” from “when
the witness and perpetrator are strangers”).
Further, a voice identification may be particularly
reliable if the witness has the benefit of identifying the voice
on a recording of the crime itself as “memorialized on tape.”
Harris, 666 F.2d at 786; compare with Sanes, 57 F.3d at 340(involving victim’s identification of the defendant’s voice on a
voice exemplar). And a voice identification may be more
reliable if the witness has “the luxury of listening to the tape in
an office” or a similar environment “where they can devote
their full attention to [the identification].” Harris, 666 F.2d at
786; accord United States v. Recendiz, 557 F.3d 511, 528
(7th Cir. 2009); cf. Brown, 510 F.3d at 68 (concluding that a
voice identification was admissible even though the
circumstances there—“three men huddled together listening to
the same cell phone”—were “not the best for making a voice
identification”).
Here, Leon was not a victim but rather Hall’s probation
officer. He was familiar with Hall’s voice because of their
18
repeated conversations, by phone and in person, which took
place over a period of almost two years. Leon identified Hall’s
voice on the recorded calls to unemployment compensation
offices over the course of several months, on his own time,
with headphones, and remotely via email correspondence.
Leon testified that he neither felt pressured nor was led by
Parisi to make specific voice identifications.
Thus, Leon’s identification of Hall’s voice was reliable
enough to satisfy the requirements of due process as applied to
identification evidence. Because Leon learned Hall’s voice
under controlled circumstances—during his time supervising
Hall as his probation officer—his voice identification at trial
met the criteria for identification testimony that our sister
circuits have described as “uniquely reliable.” Harris, 666
F.2d at 786; Recendiz, 557 F.3d at 528. Leon’s identification
of Hall’s voice also satisfies the Sanes and Biggers standards:
Leon had ample opportunity to hear and pay attention to Hall’s
voice over the course of their multiple conversations.6 Sanes,
57 F.3d at 340 (including factors such as the opportunity to
perceive the perpetrator and the witness’s degree of attention).
Even if we assume Parisi improperly primed Leon to make
voice identifications by asking him if he could identify Hall’s
6
Hall also suggests that Leon’s identifications of his voice
were unreliable because they occurred too long after their
contacts with one another. We disagree in light of the “degree
of contact” between Hall and Leon. Brown, 510 F.3d at 67
(“Given the degree of contact between [the voice identification
witnesses] and [the defendant], we accord very little weight to
the fact that most of it occurred ten or twelve years prior to [the
defendant’s] arrest.”).
19
voice on recorded calls, Hall has not mustered evidence
sufficient to indicate that the suggested identification
“supplanted that derived from [Leon’s] own experience.” Kim,
577 F.2d at 483.
Because Leon’s testimony was also “an
opinion . . . based on hearing the voice at any time under
circumstances that connect [the voice] with the alleged
speaker,”7 thereby satisfying Rule 901(b)(5)’s requirements
for voice identification,8 all remaining questions about the
weight and credibility of Leon’s testimony were properly
placed before the jury. Recendiz, 557 F.3d at 528 (“Any
remaining concerns regarding the accuracy of [the witness’s]
recollection of the voice are relevant to the weight of the
7
Although here, Leon sufficiently identified Hall’s voice
through “direct recognition of the person calling,” we note that
the identity of the speaker on a telephone call may also be
authenticated “by circumstantial evidence.” United States v.
Console, 13 F.3d 641, 661 (3d Cir. 1993) (citing FED. R. EVID.
901; id. advisory committee’s note to subdivision (b), example
(4)).
8
Rule 901(b)(5)’s standard aside, we held in United States v.
Vento that “it is permissible to base the identification of a voice
heard in intercepted conversations on relatively few
conversations between [the person identifying the voice] and
the accused person.” 533 F.2d 838, 865 (3d Cir. 1976). Hall
appears to suggest that Vento is no longer persuasive in part
because it is nearly 50 years old. But that is no basis to set
aside precedent. And Vento’s reasoning remains directly on
point because it tracks the language of Rule 905(b)(5), even
without specifically invoking that rule.
20
testimony, not its admissibility.”). As the Supreme Court
teaches us in Perry: “The Constitution . . . protects a defendant
against a conviction based on evidence of questionable
reliability, not by prohibiting introduction of the evidence, but
by affording the defendant means to persuade the jury that the
evidence should be discounted as unworthy of credit.” 565
U.S. at 237. Leon’s identification did not fall into the due
process exception to this general rule. Id. (citing Dowling v.
United States, 493 U.S. 342, 352 (1990)). So traditional
constitutional safeguards such as “confrontation plus cross-
examination” of Leon sufficed to protect Hall against the
possibility of a fundamentally unfair conviction. Id. (citing
Delaware v. Fensterer, 474 U.S. 15, 18–20 (1985) (per
curiam)).
Thus, the District Court did not err by admitting Leon’s
testimony.
III
Hall fares no better in his second challenge relating to
the recorded phone calls that were the subject of Leon’s
testimony. He claims that the admission of a recording of his
post-arrest interview, which the government introduced so that
the jury could compare Hall’s voice in the interview with the
voice in the recorded phone calls, contravened the Federal
Rules of Evidence in two ways. First, Hall argues that
admitting the interview recording violated Rule 901(a)’s
prohibition against unidentified evidence by improperly
tasking the jury with using Hall’s voice in the interview to
identify the voice on the recorded phone calls. Second, Hall
contends that admitting the interview recording so that the jury
could compare it with the recorded phone calls inappropriately
charged the jurors with acting as their own voice identification
21
expert witnesses, in violation of Rule 606(a)’s prohibition
against juror testimony before other jurors at trial and of
Rule 701(c)’s prohibition against lay testimony based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702.
We do not agree that admitting the interview recording
violated Rule 901’s identification requirements because the
government sufficiently identified Hall’s voice on the calls
during pretrial proceedings using Leon’s testimony. See
discussion supra. Thus, we see no issue with playing the
interview recording in conjunction with the recorded calls “so
that the jury could make its own aural comparisons.” United
States v. Baller, 519 F.2d 463, 466–67 (4th Cir. 1975)
(affirming admission of voice spectrography expert analysis
“despite doubts within the scientific community about its
absolute accuracy,” in part because the tapes compared in the
analysis were played to the jury). In so concluding, we note
that it would have been permissible under the Rules of
Evidence for the government to have sought to identify Hall’s
voice in the recorded calls using Hall’s voice in the recorded
interview. FED. R. EVID. 901(b)(5) (providing that voices may
be identified “based on hearing the voice at any time under
circumstances that connect it with the alleged speaker”
(emphasis added)).
We also conclude that admitting the interview recording
for purposes of comparison to the voice on the recorded calls
did not improperly charge the jurors with serving as expert
witnesses. Hall does not identify a case, nor have we found
one, that limits voice comparison testimony to the realm of
expert opinion. Rather, our sister circuits have held that lay
witnesses may offer voice identification testimony, e.g., United
22
States v. Mendiola, 707 F.3d 735, 739 (7th Cir. 2013),9 and the
advisory committee notes to Rule 901 explicitly state that
“aural voice identification is not a subject of expert testimony,”
id. (quoting FED. R. EVID. 901 advisory committee’s note to
subdivision (b), example (5)). Voice identification evidence,
contrary to Hall’s contention, is subject to the “general rule”
that “expert testimony not only is unnecessary but indeed may
properly be excluded in the discretion of the trial judge.”
Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962); see also FED.
R. EVID. 702 advisory committee note on proposed rules
(“Whether the situation is a proper one for the use of expert
testimony is to be determined on the basis of assisting the trier
[of fact].”).
9
See also United States v. Cambindo Valencia, 609 F.2d 603,
640 (2d Cir. 1979) (“voice identification is not generally
considered to be an area where expertise is important” (citing
FED. R. EVID. 901 advisory committee’s note to subdivision
(b), example (5))); United States v. Lampton, 158 F.3d 251,
259 (5th Cir. 1998) (similar); United States v. Zepeda-Lopez,
478 F.3d 1213, 1220 (10th Cir. 2007) (“the defendant’s
arguments that a [lay] witness’s voice identification testimony
was deficient because the witness was not an expert in voice
identification . . . go to the weight of the evidence” (emphasis
added)); cf. United States v. Diaz-Arias, 717 F.3d 1, 14–15
(1st Cir. 2013) (seeing no issue with lay voice identification
testimony and concluding that the jurors were not “misled into
thinking that [the lay voice identification witness] was an
expert witness”).
23
Accordingly, we hold that the District Court’s
admission of the post-arrest interview recording was not
contrary to the Federal Rules of Evidence.
IV
Hall’s final evidentiary challenge is to the admission of
his bank records that were obtained pursuant to ordinary
subpoenas. According to Hall, he had a Fourth Amendment-
protected privacy interest in the contents of his bank records,
so the government was prohibited from obtaining the records
without first securing a search warrant. Because the
government did not obtain the bank records pursuant to a
warrant, Hall contends that the records should have been
suppressed. He argues that suppression is required under
Carpenter, in which the Supreme Court held that the
government must obtain a warrant before seeking to obtain an
individual’s cell phone location information, even though the
individual “continuously reveals his location to his wireless
carrier.” 138 S. Ct. at 2216–17.
Hall’s Fourth Amendment suppression argument is
squarely foreclosed by Miller and the third-party doctrine,
which provide that there is no Fourth Amendment-protected
privacy interest in bank records voluntarily conveyed to the
banks. 425 U.S. at 442. The Supreme Court reaffirmed Miller
as good law in Carpenter. 138 S. Ct. at 2216 (“the third-party
doctrine applies to . . . bank records”); id. at 2220 (“We do not
disturb the application of . . . Miller”).
In the wake of Carpenter, some courts have expressed
doubt that the third-party doctrine extends to certain
information collected by modern technologies. E.g., United
States v. Moalin, 973 F.3d 977, 989–93 (9th Cir. 2020)
24
(doubting, but not reaching, whether warrantless telephony
metadata collection comported with the Fourth Amendment, as
suppression was not warranted on the facts). But of course,
Hall is not seeking to suppress personal information collected
by technologies unanticipated by Miller. He simply challenges
the warrantless seizure of bank records that do not
substantively differ in character from the bank records
considered by the Miller Court. Even if Hall were correct that
modern realities cast doubt on the continued persuasiveness of
Miller’s reasoning, we would still be bound to follow it.
Agostini v. Felton, 521 U.S. 203, 237 (1997) (“the Court of
Appeals should follow the case which directly controls”).
After all, “only the Supreme Court may reverse its prior
precedent,” and Carpenter expressly declined to overrule
Miller. United States v. Moore-Bush, 963 F.3d 29, 31 (1st Cir.
2020) (discussing Carpenter’s reach), withdrawn on other
grounds, 982 F.3d 50 (1st Cir. Dec. 9, 2020).
V
For these reasons, we will affirm Hall’s conviction.
25