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United States v. Gallo-Moreno

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ARGUED NOVEMBER 3, 2008

Before KANNE, EVANS, and SYKES, Circuit Judges.

In 1994 Fernando Carrion was indicted for his involvement in a large-scale drug conspiracy in Chicago, and a warrant was issued for his arrest. Three years later Arturo Gallo-Moreno was arrested on suspicion of being Carrion. Gallo-Moreno’s resulting bench trial focused primarily on the issue of identity-whether Gallo-Moreno was Carrion-and the district court found Gallo-Moreno guilty on the drug-conspiracy and related narcotics charges. On appeal GalloMoreno advances three reasons why we should reverse his convictions. He argues that the district court improperly admitted evidence regarding an uncharged attempted drug transaction in Texas in violation of Rule 404(b) of the Federal Rules of Evidence. He also con-tends that DEA Agent Rafael Tovar’s testimony identifying him as Carrion should have been suppressed. On this point he makes two separate constitutional arguments: He claims Tovar’s out-of-court identification was unduly suggestive and unreliable in violation of his Fifth Amendment right to due process and that it independently violated his Sixth Amendment right to counsel.

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