REPORT AND RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
Chief Judge Skretny referred this case to this Court under 28 U.S.C. § 636. Pending before the Court is a motion by defendant Gabriel Rodriguez ("Rodriguez") to suppress evidence that two undisclosed witnesses identified him when viewing a three-ring bound photo array, or photo book, of various individuals whom the Government investigated at some point in the history of this case. Rodriguez wants the evidence suppressed because he considers the photo book unduly suggestive. Specifically, Rodriguez objects that the Government filled the photo book only with individuals under investigation; made no effort to insert photographs of individuals who resembled Rodriguez; and presented the photo book to any given witness only after hours of interviews during which the Government and that witness discussed the case. The Government opposes suppression because courts have approved the use of a photo book in the past; because nothing in the photo book distinguished Rodriguez from other people depicted; and because the Government asked witnesses only open-ended questions about whether they knew anyone depicted in the photo book.
The Court held an evidentiary hearing on March 25 and May 14, 2013 ( See generally Dkt. Nos. 133, 134.) For the reasons below, the Court respectfully recommends denying Rodriguez's motion.
The Court presumes familiarity with the general facts of the case and will proceed to the events surrounding the photo book that emerged from the evidentiary hearing.
A. The Photo Book
The photo book itself consisted of a three-ring notebook containing 35 black-and-white photographs. Agent Christopher Wisniewski ("Wisniewski") selected every photograph that appeared in the photo book. Most of the photographs depict a single person, though some depict as many as three or four people. The photographs all came from booking photos and "open sources" such as social media. The people depicted in the photographs live in various places in the country and show a mix of age, sex, and race. Every person depicted in the individual photographs, and at least one person in any group photograph, was a target, subject, or person of interest at some point in the history of the Government's investigation. The Government lost interest in pursuing some of the people depicted as the investigation progressed, but the photo book never contained "dummy" or "filler" photographs of people who had nothing to do with the investigation or the alleged drug conspiracy.
B. Presentation of the Photo Book
At the hearing, Wisniewski and Agent Thomas Webb ("Webb") testified credibly and consistently about how the Government used the photo book. Over the course of the investigation, various law enforcement agents interviewed people whom they believed had information relevant to the investigation. The total number of interviews is unknown, but agents testified that they used the photo book for about two years. The interviews sometimes spanned multiple sessions and sometimes lasted as long as about 10 hours. The interviews lasted as long as they did because they were, at least in part, "confirmatory." By "confirmatory, " the agents meant that they wanted to confirm that the interviewees actually knew people related to the investigation and were providing truthful answers before exposing part of the investigation through the presentation of the photo book. "If we felt comfortable showing the book, we would then present the book to the witness, open it for them, simply ask them to thumb through the pages and tell us if they recognized anyone." (Dkt. No. 134 at 8.) If an interviewee did know someone in the photo book then "[w]e would discuss it further, we would ask them who they were and how they were connected to the case or any information that the witness had about them." ( Id. ) Any interviewee who eventually saw the photo book was never told during the preceding interviews whether anyone mentioned during the interviews would appear in the photo book. The agents never told any interviewee who anyone in the photo book was or why those pictures appeared in the photo book. Twice, during interviews in June 2012 and January -, an interviewee recognized Rodriguez in the photo book.
C. Pending Motion
Rodriguez seeks suppression of any evidence derived from the photo book presentation as unusual and suggestive. Rodriguez, through counsel, asserts that "I have never seen an identification procedure done the way that this one was. The agents did not follow the accepted procedures for showing their witnesses photographs of the suspects." (Dkt. No. 147 at 5.) According to Rodriguez, agents tainted the two identifications of him by failing to include "dummy" photographs in the photo book and by preceding the presentations of the photo book with lengthy interviews about the case. Agents also failed to include in the photo book any photographs of anyone who looked similar to Rodriguez, effectively rendering the photo book an individual showup. Finally, the photograph of Rodriguez in the photo book was a mug shot while photographs of some others were not, thus highlighting the Rodriguez photograph. Rodriguez argues that these characteristics of the photo book assembly and presentation would have led any interviewees to realize that everyone in the photo book was under investigation and would have increased the chance of misidentifying Rodriguez when they had someone else in mind.
The Government opposes suppression of the two identifications of Rodriguez. The Government asserts that agents assembled the photo book in a neutral way that did not indicate to interviewees that it was hoping to have someone identify Rodriguez. The Government asserts further that the instructions accompanying the presentation of the photo book were neutral in that agents asked only whether the interviewees recognized anyone depicted and how. Because the interviewees were free to explain how they recognized anyone from prior experiences, the Government concludes that this case differs from the ...