United States v. Hall

          MEMORANDUM

          SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE

         Before the court are two pretrial motions filed by Defendant Earl Lafayette Hall, III (“Hall” or “Defendant”). Defendant's written pretrial motion raises three issues: (1) the voice identification testimony of Edgar Leon was obtained in violation of Defendant's due process rights; (2) the bank records should be suppressed as the records were obtained in violation of Defendant's Fourth Amendment rights; and (3) the aggravated identity theft counts of the Second Superseding Indictment (Counts 23 through 29) should be dismissed as Defendant is being prosecuted for conduct not covered by 18 U.S.C. § 1028A(a)(1). (Doc. 313.) During the hearing on the aforementioned motion, Defendant set forth orally an additional motion to suppress the voice identification testimony of Edgar Leon because it violated Defendant's Sixth Amendment right to counsel. (See Doc. 340.) For the reasons stated herein, the motions will be denied.

         I. Background

         On November 9, 2016, Hall and his wife/co-Defendant Renita Blunt (“Blunt”; collectively, “Defendants”) were charged in a thirty-one count Second Superseding Indictment comprised of twelve counts of mail fraud in violation of 18 U.S.C. § 1341; ten counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); seven counts of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1); one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349; and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). (Doc. 63.) Defendants are accused of perpetrating a scheme between January 2013 and June 2015 that involved submitting counterfeit United States military discharge certificates bearing the names, dates of birth, and social security numbers of eleven individuals to agencies in various states in order to fraudulently collect unemployment compensation benefits for ex-service members.

         Prior to trial, Defendants filed separate motions for severance of trial, which the court denied in an order dated March 1, 2017. (Docs. 92, 96, 111.)

         Trial commenced on March 6, 2017. During trial, Hall moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on all counts except Count 28. The court granted the motion with respect to Counts 25 and 27 for aggravated identity theft, but denied the motion as to all other counts. On March 10, 2017, the jury found Hall guilty of Counts 1 through 12 for mail fraud; Counts 13 through 22 for money laundering; Counts 23, 24, 26, and 28 for aggravated identity theft as to Brandon Abbott, Bryce Good, Shawnta Williams, and Charles Campbell; Count 30 for conspiracy to commit mail fraud; and Count 31 for conspiracy to commit money laundering. (Doc. 131.) Hall was acquitted of Count 29 for aggravated identity theft. (Id.) Defendants subsequently filed post-trial motions, which were denied on December 21, 2017. (Docs. 241-242, 244-245.) Hall was sentenced to 116 months imprisonment on February 15, 2018. (Doc. 272.)

         Following sentencing, Defendants appealed their convictions to the Third Circuit Court of Appeals. On July 12, 2019, the Third Circuit issued an opinion reversing the District Court's denial of the motions for severance, vacating Defendants' convictions and sentences, and remanding the matter for new, separate trials. (See Doc. 290.) On August 29, 2019, the court issued a scheduling order setting a pretrial motions deadline and trial date. (Doc. 306.) Hall timely filed a motion to suppress on September 16, 2019 (Doc. 313), and a hearing was held on October 7, 2019. At the hearing, Hall made an oral motion to submit an additional and untimely argument regarding the suppression of the voice identifications at issue. The motions are now fully briefed and ripe for disposition.

         II. Discussion

         Hall raises four arguments in his pretrial motions, which the court will address in turn.^[1]

         A. Voice identification by Edgar Leon

         Edgar Leon (“PO Leon”), Hall's former probation officer, was called by the Government in the March 2017 trial to identify the voice of the caller in recordings from several state agencies that dealt with unemployment benefits for former military members. Hall now challenges PO Leon's voice identification arguing that it violated his due process rights.

         Defendant's brief, as well as testimony at the hearing, detailed the history of PO Leon's interactions with Hall, PO Leon's contact with case agents, and Hall's contact with other probation officers. Because the court is writing for the benefit of the parties, it is not going to reiterate every email chain or contact in this memorandum, rather, it will highlight key contacts and generally summarize the communications.

         First, the records provided by the United States Probation Office in the Northern District of Illinois (“probation office records”) indicate that PO Leon began supervising Hall on November 1, 2011, and concluded his supervision of Hall on December 23, 2013, at which time Hall was reassigned to Probation Officer Christina Figueroa (“PO Figueroa”). (Def. Ex. 102; Doc. 343-2, p. 6 of 11.) PO Figueroa reportedly supervised Hall from December 23, 2013, until his supervision was terminated on April 9, 2015. (Def. Ex. 102; Doc. 343-2, p. 6 of 11.) According to these records, PO Leon had six in person or telephone interactions with Hall, and PO Figueroa had nine such interactions.^[2] (Def. Ex. 102.)

         Next, the parties provided over one hundred pages of agent notes and email communications between agents and PO Leon and PO Figueroa. (Gov't Ex. 1; Def. Ex. 106.) Agent Joel Parisi (“Agent Parisi”) initially contacted PO Figueroa on July 17, 2014. On July 21, 2014, Agent Parisi emailed PO Figueroa two audio recordings to see whether she could identify the voices as Hall or Blunt. PO Figueroa responded the following day stating that PO Leon is “100% sure” that the male voice is Hall but she “could not make the same conclusion as [she had] been supervising [him] for less time.” Agent Parisi subsequently began communicating with PO Leon directly regarding the audio recordings and emailed additional recordings for PO Leon to listen to on September 14, 2014. In this and subsequent emails, Agent Parisi specifically asked whether PO Leon could identify the voice of the caller as Earl Hall.

         Moving forward, on May 23, 2016, Agent Parisi emailed PO Leon stating he mailed a CD with “all 13 PA telephone calls” to him and summarized nine other calls already emailed to PO Leon. PO Leon responded on May 25, 2016, stating:

The Hawaii session with Sam Adams did not sound like Earl Hall. I cannot, with a high degree of certainty, say that was him.

Out of the 13 recordings, I find the following:

#1 poor recording and can't with certainty say it's Earl Hall.

#2, #3, #4, #6, #7, #9, #10,

#5 I'm not certain it's Earl Hall

#8 high degree but not 100% ...