U.S. v. Andreas, 96 CR 0762.

• Decision Date: 09 July 1998
• Docket Number: No. 96 CR 0762.,96 CR 0762.
• Citation: 23 F.Supp.2d 835
• Parties: UNITED STATES of America v. Michael D. ANDREAS, Mark E. Whitacre, Terrance S. Wilson; and Kazutoshi Yamada, Defendants.
• Court: U.S. District Court — Northern District of Illinois

23 F.Supp.2d 835

UNITED STATES of America v. Michael D. ANDREAS, Mark E. Whitacre, Terrance S. Wilson; and Kazutoshi Yamada, Defendants.

No. 96 CR 0762.

United States District Court, N.D. Illinois, Eastern Division.

July 9, 1998.

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MEMORANDUM AND ORDER

MANNING, District Judge.

This matter is before the court on outstanding pre-trial motions by the government and the defendants. First, the court will address the motions related to the admissibility and use of the tape-recorded conversations regarding the alleged conspiracy to violate 15 U.S.C. § 1 by fixing the price and volume of global lysine sales.

I. The Defendants' Motions

A. Andreas' Motion to Exclude Inauthentic Audiotapes

Defendant Andreas now moves to exclude three categories of audiotapes which allegedly contain the defendants' conversations at meetings held in furtherance of the conspiracy. The conversations were recorded by defendant Mark Whitacre while he was a cooperating witness for the FBI. Andreas contends that the government cannot lay the threshold evidentiary foundation for admitting the tapes because Whitacre is unable to testify as to the authenticity of the tapes.

Whitacre is now under indictment and has invoked his Fifth Amendment privilege against self-incrimination. As such, he is unavailable to testify as to whether the so-called Whitacre tapes truly and accurately reflect the conversations contained on the tapes.

Andreas' motion separates the Whitacre tapes into three categories: (1) tape recordings of Whitacre's conversations with Andreas and/or Wilson only; (2) all other tape recordings made by Whitacre, and; (3) tape recordings made by FBI agents, with Whitacre's consent, while the agents simultaneously monitored Whitacre's conversations.

Andreas seeks to exclude group 1 as a matter of law, asserting that Whitacre is the only individual capable of authenticating the tapes. With respect to groups 2 and 3, Andreas argues that an evidentiary hearing is required to determine whether the government has sufficient evidence to authenticate them. The government has stated that it shall authenticate groups 2 and 3 with testimony of the FBI agents and co-conspirators who respectively participated or simultaneously observed the conversations. For the reasons set forth below, Andreas' motion is denied in its entirety.

Sound recordings are admissible in evidence provided the proponent lays the proper evidentiary foundation by authenticating that the recordings are what the proponent claims. See Fed.R.Evid. 901(a); Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir.1996); 5 Weinstein & Berger, WEINSTEIN'S FEDERAL EVIDENCE § 901.01. In the Seventh Circuit, the proponent has the burden of showing that the tape is a "true, accurate, and authentic recording of the conversation, at a given time, between the parties involved." United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984). Ultimately, the jury determines whether the Whitacre tapes are authentic, but only after the court initially finds that the tapes are conditionally relevant under Federal Rule of Evidence 104(b).¹ See United States v. Branch, 970 F.2d 1368, 1370 (4th Cir.1992).

1. Group 1

Andreas argues that the group 1 tapes are inadmissible because the government, without Whitacre's testimony, does not have clear and convincing evidence that the tapes accurately reflect the conversations which transpired between the defendants and their alleged co-conspirators. See generally Stringel, 89 F.3d at 420, quoting United States v. Welch, 945 F.2d 1378, 1383 (7th Cir.1991) (holding authentication of real evidence must be demonstrated with clear and convincing evidence).

In response, the government contends that the "rational juror" test governs the court's 104(b) determination and requires the court to conditionally admit group 1 if it finds that any rational juror could possibly conclude that they are authentic. Ricketts v. City of Hartford, 74 F.3d 1397, 1411 (2d Cir.1996). Moreover, the government proposes that Stringel relaxes its method of establishing authenticity by not requiring testimony of eyewitnesses who can attest to the events allegedly contained on the tapes. Under the given circumstances, the court agrees.

After thoughtful reflection the court concludes that the clear and convincing standard for authentication is consistent with the rational juror test. The court construes 104(b) to require the court to conditionally admit the tapes if, upon clear and convincing evidence, it concludes that a rational juror could find the tapes to be authentic. Whitacre's unavailability to corroborate the authenticity of the tapes is relevant as to their evidentiary weight, but does not bar admission.

Granted, the consistent and prevailing Seventh Circuit trend for authenticating recorded conversations has been to have participants who observed and/or recorded the conversations testify as to whether the tapes accurately reflect the events as the tapes purport. See e.g., United States v. Welch, 945 F.2d 1378, 1383 (7th Cir.1991) (conversation participant's testimony); United States v. Carrasco, 887 F.2d 794, 801 (7th Cir.1989) (government informant's testimony); United States v. Briscoe, 896 F.2d 1476, 1490 (government agents' and co-defendants' testimony).

Stringel renounced the use of rigid authentication formulae without, unfortunately, stating whether the proponents are limited to authenticating tapes exclusively through direct testimony. Of course, one could argue, as defendant Andreas does here, that Stringel imposes a direct evidence requirement because it relies in part on United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979) which established the clear and convincing standard for authenticity which led to authentication being made in virtually all cases thereafter through direct testimony.

Absent an explicit holding from the Seventh Circuit requiring that a foundation be laid by direct testimony of a first-hand observer the court is not willing to blindly follow tradition and exclude arguably reliable evidence merely because Whitacre's direct testimony is unavailable.

While tradition suggests direct testimony is necessary, the developing trend in the law has been to conditionally admit audiotapes if the proponent produces circumstantial evidence indicative of the tapes' authenticity. In United States v. Bright, 630 F.2d 804, 820 (5th Cir.1980), the First Circuit affirmed authentication by a testifying agent who did not hear the conversations at issue but observed, from afar, the recording agent initiate the conversation with the defendant. The First Circuit reasoned that the tapes were sufficiently reliable since the testifying agent observed the parties conversing and immediately took custody of the tapes, thereby ensuring they were substantially the same as when made. See also United States v. Fuentes, 563 F.2d 527 (2d Cir.1977) (holding testimony of an agent who did not observe the conversations in question was sufficient since he immediately took custody of the tapes after conversations ended).

Indeed, evidence of chain of custody coupled with other independent corroborative evidence has been sufficient to submit the tapes to the jury which then makes the ultimate authentication determination. In United States v. Khorrami, 895 F.2d 1186, 1195 (7th Cir.1990), the testimony of a victim, though not present during the recording, was deemed reliable enough to authenticate tapes of the defendant's threats because the victim could attest to the reliability of the recording device while the defendant's phone records indicated that the threatening phone calls were made from the defendant's residence. The victim's motive to testify falsely goes to credibility not admissibility.

Here, the government proposes to introduce numerous forms of circumstantial evidence which it contends provide sufficient indicia of the tapes' reliability, including: (1) FBI agents who will testify regarding the recording devices used, the chain of custody of the tapes, and identify the defendants' voices on the tapes; (2) intrinsic evidence of authenticity because the group 1 tapes contain continuous conversations related to the conspiracy which is unlikely to be confused or misinterpreted for innocuous conversation; (3) testimony of co-conspirators whose voices are captured either in groups 2 and 3, who refer to conversations contained in group 1, and; (4) expert testimony which the government asserts will establish that all of the Whitacre tapes are genuine unaltered contemporaneous recordings of the conversations thereby ensuring their accuracy and reliability.

The court is convinced that this circumstantial evidence taken as a whole is sufficiently reliable to submit the authenticity issue to the jury. The co-conspirators' statements in groups 2 and 3 are admissible under Federal Rule of Evidence 801(d)(2)(E) and independently corroborate group 1 by referring to conversations contained in the group 1. See United States v. O'Connell, 841 F.2d 1408, 1420-21 (8th Cir.1988) (using inculpatory co-conspirator statements in subset of tapes was enough to corroborate other tapes).

Expert testimony can be equally persuasive. The government and defense experts can present their competing opinions as to whether the tapes were altered or manipulated as the defendants have previously alleged. The tape technology involved here is best left to the respective experts whose credibility can then be determined by the jury.

Finally, the FBI agents can testify as to the chain of custody, identify the defendants' voices in the group 1 tapes, and describe the recording protocol used by Whitacre. Of course, the defendants will be given ample latitude in cross-examining the agents' handling of the tapes.

Accordingly, the group 1 tapes are conditionally admitted provided the government produces...