A jury convicted former Chicago Police Sergeant Larry Hargrove of racketeering conspiracy and other crimes stemming from his participation in a robbery, extor *447 tion, and narcotics ring that targeted suspected drug dealers using the guise of legitimate police investigations. Hargrove asks us to vacate his convictions on the ground that two key categories of evidence should have been excluded: (1) tape-recorded statements made by Eddie Hicks, one of Hargrove’s coconspirators, to an undercover government informant; and (2) eyewitness identifications made from a photo array Hargrove contends was unduly suggestive. We reject his arguments and affirm.
The recorded statements of Hargrove’s coconspirator, Hicks, were admissible under Rule 801(d)(2)(E) of the
Federal Rules of Evidence
and were not testimonial hearsay subject to analysis under the Confrontation Clause as interpreted in
Crawford v. Washington,
I. Background
While a sergeant with the Chicago Police Department (“CPD”), Larry Hargrove was part of a four-man crew that robbed suspected drug dealers. In uniform and driving unmarked cruisers, the group staged phony home raids and automobile stops and then threatened the targeted drug dealers and others on the scene with arrest, keeping any drugs, cash, or weapons they discovered. From 1992 to 1999, these robberies, thefts, and extortions netted the coconspirators tens of thousands of dollars in cash, multi-kilogram quantities of cocaine, hundreds of pounds of marijuana, and several firearms. The other members of the group were Eddie Hicks, a CPD narcotics sergeant with access to the names and addresses of suspected drug dealers, and two civilians named Lawrence Knitter and Matthew Moran.
At trial (there were two, the first ending in a mistrial) the government introduced video- and audio-taped conversations between Hicks and Arthur Veal, a drug dealer who hired Hicks in late 1996 or early 1997 to recover a large quantity of marijuana that had been stolen from him. Veal began cooperating with the government in late 2000. In the taped conversations, which took place between December 2000 and January 2001, Hicks discussed various robbery plans with Veal. During some of these discussions, Hicks referred to Har-grove’s role in prior robberies. During one conversation, Hicks mentioned that Hargrove continued to receive a cut of the proceeds, even though he had retired from the CPD in March 2000 and moved to Las Vegas, because he had been “there when times were tough.” Over Hargrove’s objection on Confrontation Clause grounds, the district court admitted Hicks’s recorded statements as statements of a cocon-spirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence.
The government also introduced evidence that three eyewitnesses to one of the robberies positively identified Har-grove from a photo array. The three witnesses were police officers in Alsip, Illinois, who responded to a 911 dispatch to an Alsip apartment building and found four CPD officers conducting a raid' — or so *448 it appeared. The four men were Hicks, Hargrove, Knitter, and Moran. Hicks told the Alsip officers a cover story about the “raid,” and after an Alsip police dispatcher confirmed that Hicks was a Chicago police sergeant, the Alsip officers left the scene. The Internal Affairs Division of the CPD learned of the Alsip incident, however, and began its own investigation.
As part of this investigation, a CPD Internal Affairs officer showed the Alsip officers photo arrays of CPD officers in an effort to identify the officers who were at the Alsip apartment. The Alsip officers had reported that three of the men in the apartment were black and the fourth was white. One of the photo arrays contained the photos of eleven black CPD officers, including Hargrove; three of the Alsip police officers picked Hargrove’s photo out of this array. Hargrove was the only CPD officer depicted in the photo array with a beard and glasses; the other ten had varying degrees of facial hair. None of the Alsip officers, however, had told Internal Affairs investigators that any of the four men in the Alsip apartment had a beard or wore glasses. Hargrove did not move to suppress the identifications before trial as required by Rule 12(b)(3) of the Federal Rules of Criminal Procedure.
A jury ultimately found Hargrove guilty of four offenses: (1) racketeering conspiracy; (2) conspiracy to distribute and possess with intent to distribute cocaine and marijuana; (3) conspiracy to commit robbery and extortion; and (4) possession of a firearm in relation to a crime of violence. The district court sentenced Hargrove to 216 months’ imprisonment.
II. Discussion
Hargrove claims the district court committed constitutional error in admitting both the Hicks-Veal recordings and the identifications by the Alsip police officers. He contends the admission of the Hicks-Veal tapes violated his Confrontation Clause right, or alternatively, were not statements of a coconspirator because by retiring and moving to Las Vegas he withdrew from the conspiracy. The identifications, he argues, were the product of an unduly suggestive photo array in violation of his right to due process.
A. The Hicks-Veal Recordings
Hargrove claims the Hicks-Veal recordings are inadmissible under
Crawford,
which held that the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford
addressed the Confrontation Clause limitations on the admission of testimonial hearsay, but the coconspirator statements made by Hicks are neither hearsay nor “testimonial” as the Supreme Court has defined that term in
Davis. Crawford,
Under Rule 801(d)(2)(E) the statements of coconspirators made “during the course and in furtherance of the conspiracy” are considered admissions by a party opponent and are not hearsay. The use of this sort of evidence does not implicate the Confrontation Clause.
Bourjaily v. United States,
Hargrove argues in the alternative that Hicks’s recorded statements were inadmissible because Hargrove had already withdrawn from the conspiracy when Hicks made them; that is, he claims Hicks’s statements were not made “during the course” of a conspiracy between Hicks and Hargrove. Fed.R.Evid. 801(d)(2)(E). Hargrove forfeited this objection by failing to raise it below, so our review is for plain error.
United States v. Jaimes-Jaimes,
There is no evidence that Hargrove disavowed or took steps to defeat the conspiracy simply by moving west. To the contrary, there is evidence of frequent postretirement phone calls between Har-grove and Hicks, and a mention in one of the Hicks-Veal recordings that Hargrove was still getting a cut of the take after his move to Las Vegas. Accordingly, the admission of the Hicks-Veal recordings as statements of a coconspirator during the course of the conspiracy was not error. 1
B. The Photo Lineup
Hargrove also claims the photo array from which the Alsip police officers identified him was unduly suggestive. However, Hargrove never moved to suppress these identifications and did not otherwise raise this argument in the district
*450
court.
2
Motions to suppress evidence must be made before trial, Fed.R.Crim.P. 12(b)(3)(C), and failure to do so results in waiver under Rule 12(e). Rule 12(e) permits relief from waiver only for “good cause.”
United States v. Johnson,
We have explained that where a defendant merely neglects to make a motion that Rule 12(b)(3) requires be made before trial (as opposed to intentionally forgoing the motion), a Rule 12(e) waiver “is more akin to a forfeiture than a waiver” and will call for plain-error review
'provided
the defendant can make the “good cause” showing required by Rule 12(e).
Johnson,
Hargrove has given us no explanation for his failure to seek suppression of this identification evidence before trial as required by Rule 12(b)(3)(C). He certainly had advance notice that the government intended to introduce these identifications because the government used this evidence during the first trial, which ended in a mistrial. Hargrove has not made the good cause showing required by Rule 12(e) for relief from the waiver; we need not move on to the question of whether he was prejudiced to the degree required in plain-error review.
But even if we did move to the next step, Hargrove has not convinced us that the district court plainly erred in admitting the identifications made by the Alsip police officers. Unduly suggestive identification procedures violate due process when they create a substantial likelihood of misidentification.
Neil v. Biggers,
The judgment of the district court is Affirmed.
Notes
. Because the recordings were properly admitted, Hargrove’s tag-along claim that the government's closing argument improperly referenced inadmissible evidence&emdash;that is, the recordings&emdash;also fails.
. In support of his argument that he raised a due-process objection to the photo array at trial, Hargrove cites his motion for a new trial and the trial transcript at large. His motion for a new trial made no such objection (which would, in any event, have been too late); it merely argued that the out-of-court identifications were unreliable because the Alsip officers also picked photos of men not present at the apartment. The five volumes of trial transcripts (Hargrove provides no more specific citation) contain no reference to a due-process objection to the photo array.