U.S. v. Rengifo, 85-1514

• Decision Date: 06 May 1986
• Docket Number: No. 85-1514,85-1514
• Parties: 20 Fed. R. Evid. Serv. 1259 UNITED STATES of America, Appellee, v. Felix RENGIFO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 975

789 F.2d 975

20 Fed. R. Evid. Serv. 1259

UNITED STATES of America, Appellee, v. Felix RENGIFO, Defendant, Appellant.

No. 85-1514.

United States Court of Appeals, First Circuit.

Argued Feb. 6, 1986.

Decided May 6, 1986.

James Michael Merberg with whom Daniel Patrick Leonard, Boston, Mass., was on brief, for appellant.

Gary S. Katzmann, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., and Oliver C. Mitchell, Jr., Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

Before COFFIN, ALDRICH and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This appeal follows from defendant-appellant Felix Rengifo's conviction on five counts of a fifteen-count indictment which charged Rengifo and eleven other defendants with various narcotics offenses. Defendant was convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846, possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and three counts of unlawful use of a telephone to cause and facilitate a narcotics felony in violation of 21 U.S.C. Sec. 843(b).

There are four issues: (1) the authentication of tape recordings of telephone conversations and a composite tape admitted into evidence; (2) the admission into evidence of transcripts of recorded telephone conversations read to the jury and sending the transcripts to the jury room; (3) the admission into evidence of statements of coconspirators; and (4) the denial of a motion for mistrial after the jury reported it was deadlocked and giving the jury a modified Allen charge.

THE FACTS

Defendant's conviction resulted from a lengthy investigation conducted by Drug Enforcement Administration (DEA) agents and state and local police in Long Island, New York, and throughout Eastern Massachusetts. The bulk of the government's evidence consisted of a series of tape recorded telephone conversations. These were intercepted and recorded by government agents during court authorized wiretaps of a telephone located in defendant's Long Island home and a telephone located in the Brookline, Massachusetts, home of one of the codefendants, Elmer Rodriguez. Most of the recorded conversations were in Spanish.

Detective Peter Murphy (Murphy) of the Brookline Police Department compiled a composite tape, containing thirty-five selected conversations, for use during trial. Two translators, Alfredo Ayarza (Ayarza) and Guadulupe Aguilar (Aguilar) prepared English transcripts of the composite tape. At the trial, two persons read the transcripts to the jury; two readers were used so that the jury and court reporter would know when one person's recorded conversations stopped and another's started. The government then called Murphy, who had considerable experience in investigating narcotics offenses, to interpret the narcotics jargon used in the transcripts. ¹

The government alleged that the intercepted conversations memorialized a longstanding relationship between defendant and a cocaine distribution ring based in Eastern Massachusetts, whereby defendant supplied the ring with large quantities of cocaine from his Long Island home. The taped conversations recorded members of the alleged ring periodically discussing among themselves their relationships with defendant and arranging trips from Massachusetts to New York to obtain cocaine from him. Seven Spanish conversations, between members of the group and defendant personally, evidenced defendant demanding money due him for cocaine delivered on consignment and ring members placing orders with defendant for additional quantities of cocaine. At the close of the evidence, the transcripts read in court were sent to the jury room along with the exhibits over defendant's objection.

The jury commenced its deliberations about 12:34 p.m. At about 7:27 p.m., it sent two messages to the court Judge Caffrey, we are deadlocked. Where do we go from here?

/s/ Foreperson

Judge Caffrey, after lengthy discussion and three ballots we are at an impasse, and the people voting for not guilty are feeling picked on and want you to know they are not changing their minds.

/s/ Foreperson

The judge read these messages to counsel, told them that he would give the jury a modified Allen charge, and denied defendant's motion for a mistrial. After the charge was given, the jury resumed its deliberations and delivered a verdict of guilty about two hours later.

I. THE AUTHENTICATION OF THE ORIGINAL TAPE RECORDINGS AND COMPOSITE TAPE

Defendant contends that tape recordings may only be authenticated by someone who was either a party to the recorded conversation or who overheard the recorded conversation though not personally participating in it. He argues that the recorded conversations here should not have been admitted because the witnesses relied on by the government to authenticate them could not speak or understand Spanish, the language in which most of the conversations took place. Defendant also claims that the trial court abused its discretion in admitting the composite tape in light of Murphy's admission that he relied on a "duplicate original" to compile the composite and that he did not check that "duplicate original" against the original tape.

The government relied on the testimony of three witnesses to authenticate the tape recorded evidence: ² Agent John Hampe (Hampe) of the Boston DEA office testified to the authenticity of the recordings obtained from the telephone of codefendant Rodriguez; Agent Thomas Cregan of the Melville, Long Island DEA office testified to the authenticity of the recordings obtained from defendant's telephone; and Murphy testified to the authenticity of the composite tape. Defendant confines his objection on appeal to the adequacy of Hampe and Murphy's authentication. We examine defendant's contentions concerning the authentication of the original recordings and the composite separately.

A. The Original Tape Recordings

This circuit does not require that the witness authenticating tape recorded conversations be someone who either participated in or personally overheard the subject matter of the recording in evidence. See United States v. Cortellesso, 663 F.2d 361 (1st Cir.1981). The government there relied exclusively on the testimony of the supervising F.B.I. agent to authenticate tape recordings of intercepted telephone conversations. The agent testified in detail to the procedures followed to obtain the recordings: his presence at the initial testing of the equipment; his personal preparation of transcripts of the tapes; and his custody of the original logs and tape recordings. We held this testimony sufficient to raise the "presumption of official regularity" and held it unnecessary to have the agents who did the actual monitoring of the calls take the stand to confirm that they followed their supervisor's instructions or to deny tampering with the tapes. Id. at 364. We also held that, once the government presents sufficient foundation testimony, the party challenging the tape recordings bears the burden of showing the recordings are inaccurate and that this could be done, for example, by engaging an expert to examine the tapes. Tapes are not inadmissible merely because "one can conjure up hypothetical possibilities that tampering occurred." Id. (quoting United States v. Haldeman, 559 F.2d 31, 109 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977)).

Hampe's testimony mirrors that of the agent in Cortellesso in virtually every respect. He supervised the wiretap of the Rodriguez telephone from the first day it was authorized throughout its duration. His testimony evidenced intimate knowledge of every minute detail of the procedures followed. The wiretap was controlled from a room in the DEA's office in Boston designated the "listening post" which was fitted with the equipment necessary to intercept telephone conversations. It contained a Mitel decoder, three tape recorders and an interface box. The decoder made a record every time the headset of the target telephone was lifted and printed out any numbers dialed. It also noted the time and date of any incoming calls if those calls were answered. The three tape recorders were powered by an attached interface device which was in turn attached to the decoder. Whenever the decoder was activated, electricity would pass through the interface and cause the recorders to turn on and record. Thus, all three recorders acted simultaneously and recorded identical sounds, making in effect three original recordings. The parties stipulated that all the government's equipment was in working order throughout the period of electronic surveillance.

Hampe also described in detail the activities of the agents actually manning the listening post. He testified that he visited the "listening post" periodically and observed the agents noting the time and date of each call, whether it was incoming or outgoing, the number dialed, and whether the conversation was in English or Spanish. Individual calls on each tape were identified numerically. Hampe explained further that each tape was numbered as it was removed from the recorder and that all the tapes were stored under lock and key at the end of each surveillance period. Ultimately, one set of tapes was sealed by court order and the other sets were stored in the vault of the Boston DEA office. Hampe testified that he had some familiarity with the voices of the speakers in the recorded conversations because he had obtained voice exemplars from defendant and Rodriguez, among others, and, in addition, had listened to some of the actual conversations.

We find that Hampe's testimony was sufficient to raise a presumption of official regularity. After Hampe's thorough explanation of how these recordings were obtained, the burden shifted to defendant to show why the recordings should be rejected as inauthentic. The flat assertion that Hampe was unqualified to authenticate the...