U.S. v. Biggins

• Citation: 551 F.2d 64
• Decision Date: 22 April 1977
• Docket Number: No. 76-1857,76-1857
• Parties: 1 Fed. R. Evid. Serv. 710 UNITED STATES of America, Plaintiff-Appellee, v. Ulysses BIGGINS, a/k/a Jake Frazier, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 64

551 F.2d 64

1 Fed. R. Evid. Serv. 710

UNITED STATES of America, Plaintiff-Appellee, v. Ulysses BIGGINS, a/k/a Jake Frazier, Defendant-Appellant.

No. 76-1857.

United States Court of Appeals Fifth Circuit.

April 22, 1977.

James W. Matthews, Miami, Fla. (Court-appointed), for defendant-appellant.

Robert W. Rust, U.S. Atty., Don R. Boswell, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

Ulysses Biggins appeals from his conviction for possessing and distributing heroin in violation of 21 U.S.C. § 841(a)(1). After a brief jury trial, Biggins was given concurrent three year sentences. Two issues are raised on appeal. First, Biggins argues that the prosecution established an insufficient foundation for the introduction into evidence of a tape recording and a re-recording of a conversation incriminating him. Second, Biggins argues that it was error for the trial court to admit evidence of an offense with which the appellant was not charged. We affirm.

I. Facts

Clarence Lydes was a confidential informant for the Drug Enforcement Administration. Lydes met Biggins at a bar and discussed with him the possibility of obtaining narcotics. Appellant told Lydes to contact him through Bertha Coudgo. On May 19, 1975, Lydes went to Coudgo's apartment to purchase narcotics from the appellant. The appellant told Lydes to return on the following day, when appellant would deliver the heroin. Appellant did not appear the next day. On May 30, 1975, Lydes and DEA agent Audis Wells returned to Coudgo's apartment. The appellant there agreed to sell one ounce of heroin for $1,600 at Lydes's apartment later that day.

Lydes's apartment was monitored by means of electronic surveillance. From his vantage point in an apartment across the street, Agent John Anderson of the Palm Beach County Sheriff's Department monitored and recorded the conversation that ensued within Lydes's apartment. During the course of that conversation, the appellant sold Wells one ounce of heroin for $1,500. Shortly thereafter, Wells obtained laboratory confirmation that the substance he had purchased was heroin.

At the appellant's trial, the government introduced the original tape recording of the conversation in Lydes's apartment and a re-recording of the original tape, ostensibly filtered for noise.

II. Establishing a Foundation for the Admission of Sound Recordings

Admitting sound recordings into evidence at a criminal trial presents discrete dangers to which courts have been justly sensitive. In the oft-cited case of United States v. McKeever, 169 F.Supp. 426 (S.D.N.Y.1958), rev'd on other grounds, 271 F.2d 669 (2d Cir. 1959), the court established seven criteria as conditions precedent to admitting sound recordings. The Eighth Circuit has recently adopted that test in the context of electronic monitoring. United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). ¹

Although we neither adopt nor reject that test as a whole, we think that certain of its requirements may justifiably be imposed on the party seeking to introduce sound recording evidence. The court properly admits a sound recording into evidence only when the party introducing it carries its burden of going forward with foundation evidence demonstrating that the recording as played is an accurate reproduction of relevant sounds previously audited by a witness. As a general rule, at least in the context of a criminal trial, this requires the prosecution to go forward with respect to the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers.

This burden properly falls to the government because it has access to such information in a way the criminal defendant does not. A defendant will often hear the tape recording for the first time in court. More so than photographs or other demonstrative evidence, sound recordings are susceptible to alterations that may be impossible to detect. It is therefore important that the defendant be alerted regarding any possible uncertainties or distortions in the recording before it is introduced as evidence against him.

Nevertheless, the trial judge has broad discretion in determining whether to allow a recording to be played before the jury. ² The standards for foundation evidence we adopt serve the paramount purpose of ensuring the accuracy of the recording. Strict compliance with the government's particularized burden is the preferred method of proceeding. If the trial judge independently determines that the recording accurately reproduces the auditory evidence, however, his discretion to admit the evidence is not to be sacrificed to a formalistic adherence to the standard we establish. If there is independent evidence of the accuracy of the tape recordings admitted at trial, we shall be extremely reluctant to disturb the trial court's decision even though at the time that decision was made the government had not carried its particularized burden of going forward.

In the case at bar the appellant objects that the government's foundation for the tape recordings was deficient because it failed to satisfy the McMillan test in several ways. First, appellant argues that the government failed to prove the competency of the operator. Second, the appellant contends that the government failed to establish the accuracy of the recording. Third, the appellant claims that the government's witness failed to identify a voice on the tape as that of the appellant.

The only foundation for the admission into evidence of the original or the filtered recording is found in the testimony of John Anderson, who monitored the conversation in Lydes's apartment. Anderson was not explicitly shown to be a competent operator of electronic monitoring equipment. We know neither that he was trained in the use of this equipment nor even whether he had ever used it before. Anderson averred only that he was "on electronic surveillance" for DEA. On the other hand, Anderson evinced some familiarity with the techniques of electronic surveillance, and it would be a reasonable inference that he was competent to use the monitor and tape recorder. But a greater uncertainty exists. Some person whom Anderson did not know and about whose competence there is no evidence both re-recorded and filtered the original tape of the conversation. These are not sophisticated operations, to be sure, but an incompetent operator could alter the conversation, perhaps without being aware that he had done so. Nevertheless, these...