Opinion handed down November 23, 2015
Government agents overheard George Lee on a wiretapped phone arranging for the shipment of cocaine and marijuana from Houston to St. Louis.[1] Lee was later heard communicating with a drug supplier regarding the transportation of large sums of money from St. Louis to Houston.[2] Subsequently, Carmen Haire was spotted boarding a train in St. Louis with a destination of Houston.[3] He was stopped by a Drug Enforcement Agency (“DEA”) agent and subsequently arrested.[4] Large sums of money were found on him; he was transporting this money for Lee.[5] Lee was convicted of conspiracy to distribute cocaine and marijuana, conspiracy to launder the proceeds of drug trafficking, and possession of a firearm in furtherance of a drug trafficking crime.[6] Haire was convicted of conspiracy to launder the proceeds of drug trafficking.[7] Both men appealed.[8] One of Lee’s arguments presented on appeal was that insufficient foundation was laid for the wiretap recordings, such that they were inadmissible.[9] This summary will focus on that issue.
I. Facts and Holding
In November of 2011, DEA agents learned that Juan Williams was supplying cocaine to a drug dealer located in St. Louis, Missouri.[10] Thereafter, in January of 2012, postal inspectors intercepted a package, sent from Houston to St. Louis, containing cocaine.[11] The intended recipient was Carl King; he was arrested.[12] King had two cell phones in his possession that had been used to communicate with Williams.[13] DEA agents applied for and received a Title III warrant to wiretap Williams’s phones.[14] During the wiretapped conversations, George Lee was heard arranging to ship drugs to Williams and other distributors.[15]
In April of 2012, the DEA learned from the wiretap that Williams and Jamiel Johnson were bringing cash from St. Louis to Lee in Houston.[16] Local police, pursuant to a DEA request, stopped a vehicle driven by Williams and Johnson, and a vacuum-sealed plastic bag containing $69,910 was seized from the vehicle.[17] Upon release and discovering that the money was gone, Williams called Lee to discuss what had happened.[18]
Later that month, the DEA learned that Lee was mailing a package to South Carolina.[19] After obtaining a search warrant, police intercepted that package, which contained drugs.[20] Johnson later testified at trial as to other shipments that Lee sent to Williams in exchange for cash; specifically, Johnson stated that he personally saw Williams receive over ten kilograms of cocaine and over 100 pounds of marijuana from Lee.[21]
In May of 2012, Lee and Williams communicated several times via telephone regarding sending Haire from St. Louis to Houston with money.[22] In these conversations, Williams referred to Haire as his uncle or “Unc” and stated that Williams “already told [Haire] the deal” and that Haire “already [knew] what’s going on.”[23] Lee also commented “Unc 100,” meaning Haire was reliable.[24] At trial, Johnson testified that Haire was Williams’s uncle and that Williams had previously stated that he paid Haire to receive packages containing drugs at Williams’s father’s address.[25]
On June 1, 2012, a DEA agent spotted Haire boarding a train in St. Louis carrying a backpack.[26] The next day, Haire’s train stopped in Texas, where passengers transferred to a bus that would take them to Houston.[27] Here, a DEA officer spotted Haire, who appeared anxious when he saw a drug-sniffing dog.[28] The officer stopped Haire as he went to board the bus, and after discussing whether Haire was carrying money, the officer obtained Haire’s consent to search his backpack.[29] The officer found two vacuum-sealed plastic bags containing $33,530 in Haire’s backpack; the cash smelled of marijuana.[30] Later that day, Williams telephoned Lee to let him know that “they hit Unc” and to relay what Haire had told him about the day.[31]
In February 2012, DEA agents seized Lee’s car pursuant to a warrant.[32] When agents executed this warrant, Lee gave them consent to search his house.[33] In the home, agents found marijuana, electronic scales, $5000 cash, chemicals used to dilute cocaine, and several firearms.[34]
Lee and Haire were indicted for conspiracy to distribute cocaine and marijuana and for conspiracy to launder the proceeds of drug trafficking.[35] Lee was also indicted for possessing firearms in furtherance of a drug trafficking crime.[36] The jury found Lee guilty of all charges and found Haire guilty of only the money laundering charge.[37] Lee and Haire were sentenced to imprisonment and both appealed their convictions.[38]
Lee presented three arguments on appeal.[39] First, he argued that the district court improperly admitted the wiretapped phone conversations because the government failed to authenticate the recordings pursuant to Federal Rule of Evidence 901(a).[40] Second, he alleged that the district court abused its discretion in allowing special agent Johnson to give expert testimony as to the meaning of drug-related terms contained on the wiretap recordings.[41] Lastly, Lee argued that the district court abused its discretion in allowing testimony regarding his knowledge and involvement with “drug cartels and Colombians,” reasoning that this was prejudicial.[42]
Haire also asserted three arguments on appeal.[43] He first argued that the district court abused its discretion by admitting certain evidence – specifically, portions of the wiretapped conversations between Lee and Williams and portions of Johnson’s testimony.[44] He then argued that the district court erred in giving a willful blindness instruction to the jury.[45] Haire finally claimed that the government failed to present sufficient evidence to convict him of conspiracy to launder the proceeds of drug trafficking.[46]
II. Legal Background
Evidence obtained by electronic monitoring has historically faced a variety of challenges. Early on, several of these challenges were rooted in the Fourth Amendment and centered on a defendant’s right to privacy.[47] Defendants challenged the “eavesdropping” as “physical penetration” that infringed on their Fourth Amendment rights, and where a secret agent or informant was used to obtain evidence of this sort, defendants contended that their constitutionally justifiable expectation of privacy was invaded.[48] In addition, challenges arose as to the permitted use of evidence obtained by electronic monitoring, and defendants advanced the argument that the use should be limited to corroborating the testimony of the informant.[49] Finally, the foundation required for the introduction of evidence obtained by electronic monitoring became a debated issue.[50]
After several years of grappling with the constitutional issues presented in this context, the Supreme Court of the United States was able to reach a resolution; it is now relatively well settled that a defendant’s constitutional rights under the Fourth Amendment are not violated when a government agent, with the consent of a government informant, electronically monitors a defendant’s conversations with the informant.[51] Additionally, courts have refused to limit the purpose of this type of evidence to that of mere corroboration of the informant’s testimony,[52] pointing out that an electronic recording is oftentimes more reliable that an individual’s memory.[53] Lastly, courts have approved requirements for laying foundation for the introduction of evidence obtained by electronic monitoring.[54] This final issue, the requisite foundation for the introduction of electronic monitoring evidence, plays a role in the instant case.[55]
Under the Federal Rules of Evidence, a proponent must authenticate or identify the evidence that it presents.[56] Specifically, Rule 901(a) provides: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[57]
In United States v. McKeever, the U.S. District Court for the Southern District of New York, after acknowledging that foundation must be established prior to the admission of sound recordings, faced the issue of determining exactly what foundation must be laid to ensure sufficient trustworthiness of the evidence at issue.[58] The court ultimately laid out seven showings required to establish foundation.[59]
A foundation must be established by showing the following facts: (1) that the recording device was capable of taking the conversation now offered in evidence; (2) that the operator of the device was competent to operate the device; (3) that the recording is authentic and correct; (4) that changes, additions or deletions have not been made in the recording; (5) that the recording has been preserved in a manner that is shown to the court; (6) that the speakers are identified; (7) that the conversation elicited was made voluntarily and in good faith, without any kind of inducement.[60]
The Eighth Circuit subsequently approved this formulation, with little discussion, in the case of Slatinsky v. Bailey.[61] Here, the court noted that the showings required to establish proper foundation for a recording had been laid out in McKeever and acknowledged that the Second Circuit had approved the manner of handling the tape recording; it then adoptedMcKeever’s formulation.[62]
This formulation, now adopted by the Eighth Circuit, was later applied to electronic recordings in United States v. McMillan.[63] In this case, McMillan was convicted of distributing heroin.[64] One of the primary issues on appeal was whether certain tape recordings had been improperly admitted at McMillian’s trial.[65] These tape recordings consisted of telephone conversations between McMillan and a government informant who arranged to purchase heroin from McMillan.[66] One of the grounds on which the defense objected to the playing of the recordings was that no proper foundation had been laid for the introduction of the tapes.[67] In determining whether foundation had been laid, the Eighth Circuit turned toMcKeever’s seven required showings; the court noted that these had been approved in Stantinsky.[68]
McMillan argued that requirements three (that the recording be authentic and correct) and six (that the speakers are identified) were not met in his case.[69] The court disagreed.[70] The court noted that sometimes, it was necessary that both the informant and the recorder testify to properly lay foundation, but it quickly clarified that this was not required in every case – the party to the conversation does not always have to testify that the recording was authentic and correct and also identify the speakers.[71] Here, the recording agent testified that he heard the voice of the informant at all times during the making of the recording; that that part of the conversation was accurate; and that immediately after the calls were completed, the tape was replayed by the recording agent to the informant and informant verified the conversations.[72] The court was satisfied that this adequately established that the recordings were true and accurate.[73]
As for the sixth showing, the identity of the speaker, the court noted, “the standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time.”[74] While it was not entirely clear whether the recording agent’s identification of the informant was based on another hearing of the informant’s voice or on the circumstances that gave rise to the recording, the court found the showing as to the speaker’s identity sufficient to lay foundation.[75] “In view of the identity between the scenario arranged on the telephone and that subsequently enacted . . . ‘the substance of the communication [was] itself [ ] enough to make prima facie proof.”[76] The court concluded that a proper foundation was laid for the introduction of the tapes.[77]
III. Instant Decision
In the instant case, the court ultimately affirmed the judgments of the district court.[78] As for Lee’s arguments, the court found: (1) the district court did not abuse its discretion in admitting the recordings of the wiretapped phone conversations; (2) the district court did not abuse its discretion in admitting Johnson’s testimony as to the meaning of drug-related terms used by Lee and his co-conspirators on the recordings; and (3) the district court did not abuse its discretion in admitting testimony about “drug cartels and Colombians.”[79]
In deciding whether the recordings had been properly admitted, the court turned to the McKeever showings as applied in McMillan to determine if the recordings had been properly authenticated.[80] The court noted that these requirements were “merely helpful guidelines that must be viewed in light of the circumstances rather than rigidly applied.”[81] It then found that the government made the requisite showings, such that foundation was laid and the recordings were sufficiently authenticated.[82] As for the first showing, (the device was capable of recording the statements) the court provided, “the very fact that the recordings in this case exist establishes that the device was capable of recording conversations.”[83] In looking at the second showing (the operator was competent to operate the device), the court again took a practical approach, finding that the fact that the operator made the recordings showed he was competent.[84] The court then found showings three (the recordings were authentic and correct), four (changes have not been made), five (the recordings have been preserved), and six (the speakers are identified) satisfied by Agent Johnson’s testimony, simply stating “Johnson identified the speakers on the recordings and testified about the equipment used by the DEA to make unalterable recordings of each conversation.”[85] Lastly, the court found the seventh showing (the conversation was voluntary) satisfied by the testimony and the record, neither of which suggested that the conversations were involuntary. [86]
The court also rejected Haire’s arguments, finding: (1) the district court did not abuse its discretion by admitting wiretapped statements (that mentioned him) or Johnson’s testimony; (2) the district court did not abuse its discretion in giving the willful blindness instruction; and (3) there was sufficient evidence to convict him of conspiracy to launder the proceeds of drug trafficking.[87]
IV. Comment
Looking to the court’s decision regarding the admissibility of the phone conversation recordings, it is clear that the court’s decision to admit the evidence was correct. Rule 901(a) of the Federal Rules of Evidence requires that evidence be authenticated or identified.[88] In order to do this, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[89]
The Haire court ensured the Rule’s satisfaction without being overly rigid. The Haire court examined the McKeever showings but avoided being overly analytical. This practical and pragmatic approach is appropriate where issues of greater significance are present and where there is very little doubt as to the authenticity of a piece of evidence. In the instant case, the court applied common sense and placed trust in the recording government agent. The court recognized the importance of the evidence and the clarity of the issue before it and ensured efficiency without being distracted with an overly formalistic approach.
– Lynsey Russell
[1] United States v. Haire, 806 F.3d 991, 994 (8th Cir. 2015).
[49] United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974) (citing United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973)).
[50] See United States v. McKeever, 169 F. Supp. 426, 430 (S.D.N.Y. 1958); see also Slatinsky v. Bailey, 330 F.2d 13 (8th Cir. 1984).
[55] United States v. Haire, 806 F.3d 991, 996 (8th Cir. 2015).
[58] United States v. McKeever, 169 F. Supp. 426, 429-30 (S.D.N.Y. 1958).
[61] 330 F.2d 136, 140-41 (8th Cir. 1964).
[63] 508 F.2d 101, 104 (8th Cir. 1974)
[78] United States v. Haire, 806 F.3d 991, 999 (8th Cir. 2015).
