U.S. v. Degaglia, 89-2909

• Decision Date: 13 September 1990
• Docket Number: No. 89-2909,89-2909
• Citation: 913 F.2d 372
• Parties: 31 Fed. R. Evid. Serv. 253 UNITED STATES of America, Plaintiff-Appellee, v. John DEGAGLIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 372

913 F.2d 372

31 Fed. R. Evid. Serv. 253

UNITED STATES of America, Plaintiff-Appellee, v. John DEGAGLIA, Defendant-Appellant.

No. 89-2909.

United States Court of Appeals Seventh Circuit.

Argued May 15, 1990.

Decided Sept. 13, 1990.

K. Tate Chambers, Bradley W. Murphy, Asst. U.S. Attys., Office of the U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Charles T. Whitelock, Whitelock & Moldof, Fort Lauderdale, Fla., Jon May, May & Cohen, Miami, Fla., for defendant-appellant.

Before WOOD, Jr. and RIPPLE, Circuit Judges, and CRABB, Chief District Judge. ^*

RIPPLE, Circuit Judge.

A jury convicted John Degaglia of conspiring to possess with the intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1), and laundering money, in violation of 18 U.S.C. Sec. 1956(a)(1). On appeal, the defendant challenges three of the district court's evidentiary rulings. For the following reasons, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

On July 22, 1988, John Kepple, a government informant, introduced Ed Halligan, an agent of the Drug Enforcement Administration (DEA), to Richard Rhoda. On that date, Agent Halligan purchased two ounces of cocaine from Rhoda. On August 3, Agent Halligan purchased another four ounces of cocaine from Rhoda. Following the August 3 transaction, Kepple and Rhoda purchased $4000 in United States Postal money orders. These money orders were made out in the name of the defendant, John Degaglia.

The final cocaine purchase from Rhoda took place on August 16, 1988. On that date, Agent Halligan purchased one pound of cocaine. Shortly after the transaction was completed, DEA agents arrested Rhoda. Thereafter, Rhoda placed and allowed the agents to record a telephone call to Mr. Degaglia. Rhoda dialed the number for the defendant's home in Florida. Mr. Degaglia answered and, during the course of his conversation with Rhoda, discussed future drug deliveries. Mr. Degaglia also made statements demonstrating his involvement in Rhoda's cocaine distribution activities, including the comment that "[w]e've got excellent drug." Govt. Ex. 17T at 3.

On several occasions in July and early August of 1988, Rhoda had stayed with Mr. Degaglia at the defendant's Florida home. Kepple testified that, during this time period, Rhoda identified his source as "John," who lived in Florida. Tr. V.III at 112. Rhoda also said that he had been staying with his source and indicated that "his guy in Florida, John ... could produce whatever [Agent Halligan] could come up with the money for." Id. at 112-13.

On August 17, 1988, the day following Rhoda's arrest, DEA Agent David Olson arrested Mr. Degaglia. In carrying out the arrest, Agent Olson spoke with Mr. Degaglia for approximately ninety minutes. The agent subsequently spoke with Mr. Degaglia during the defendant's processing at the jail and heard Mr. Degaglia speak at the initial appearance.

B. District Court Proceedings

Based on these events, Mr. Degaglia was charged with one count of conspiring to possess with the intent to distribute cocaine, three counts of distributing cocaine, and one count of laundering money. ¹ At trial, the government established the facts set forth above. Agent Olson testified that Mr. Degaglia has a distinctive voice that is high pitched, raspy, and nasal. He also identified Mr. Degaglia as one of the speakers in several recorded telephone conversations. Based on the agent's identification of Mr. Degaglia's voice, the government also introduced several tape recorded conversations, including Rhoda's June 16 call to the defendant's home. The tapes were admitted over the defendant's objections that Agent Olson's testimony was insufficient to establish the tapes' authenticity and that the identification procedure was unduly suggestive.

Immediately following these objections, defense counsel also challenged, on relevance grounds, the government's stated intention to introduce testimony that guns were found in Mr. Degaglia's home at the time of his arrest. The government responded that the existence of the guns formed part of the conversation between the defendant and Agent Olson and therefore was relevant to Agent Olson's identification of Mr. Degaglia's voice. The district court agreed that the evidence was relevant, but ruled that it was admissible only if Mr. Degaglia challenged Agent Olson's identification. Defense counsel then agreed not to make Agent Olson's identification an issue for the jury.

With respect to the June 16 call, Rhoda's half of the conversation was not permitted into evidence because he did not testify. Mr. Degaglia objected that the introduction of only his portion of the conversation would confuse and mislead the jury. He also claimed that the tape was unclear with respect to the word "drug" in the comment "[w]e've got excellent drug," Tr. V.II at 45. The district court overruled these objections, admitted the tape in redacted form, and instructed the jurors that they must resolve any dispute about the content of the tape. Mr. Degaglia did not present any evidence and, based on the government's case, the jury returned a guilty verdict on all five counts. He now alleges that trial errors require reversal of his conviction.

II ANALYSIS

A. Standard of Review

On appeal, Mr. Degaglia challenges several of the district court's evidentiary rulings. Our review of these rulings is limited to whether the district court abused its discretion. See United States v. McNeese, 901 F.2d 585, 598 (7th Cir.1990); United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir.1990). Mr. Degaglia "carries a heavy burden in challenging the trial court's admission of evidence because ' "a reviewing court gives special deference to the evidentiary rulings of the trial court." ' United States v. Shukitis, 877 F.2d 1322, 1327 (7th Cir.1989) (citation omitted)." United States v. Barnes, 909 F.2d 1059, 1069 (7th Cir.1990); see Briscoe, 896 F.2d at 1489-90 (quoting Shukitis ). We recognize that the district judge, "who saw and heard the evidence firsthand, can best balance probity and prejudice." McNeese, 901 F.2d at 598. Thus, we uphold evidentiary rulings unless the defendant demonstrates that the district court abused its discretion. Id.; see also Barnes, 909 F.2d at 1069; Briscoe, 896 F.2d at 1490. With specific regard to the admissibility of tape recordings, this court has noted that "the trial judge exercises broad discretion in determining whether [the government has satisfied its burden of authenticating a tape recording]. Accordingly, the trial judge's ruling on the admissibility of the tape will not be overturned on appeal absent 'extraordinary circumstances.' " United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984) (citations omitted); see also United States v. Carrasco, 887 F.2d 794, 802 (7th Cir.1989) (quoting Faurote ).

B. Merits

Mr. Degaglia submits that the lynchpin in the government's case against him was the admission of the tape recording of a conversation between him and Richard Rhoda on June 16. He raises several objections to the admission of that tape. In the following subsections, we shall address each of his submissions.

1. Authentication of the June 16 tape recording

The defendant asserts that the identification of his voice on the June 16 tape was unreliable and that the procedures used to make that identification were unduly suggestive.

Before evidence may be introduced, the party requesting its admission must provide proof "sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). With regard to recorded conversations, "[i]t is a well-settled principle of law that the party attempting to admit a tape recording into evidence must prove, by clear and convincing evidence, 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); see United States v. Carrasco, 887 F.2d 794, 802 (7th Cir.1989) (quoting Faurote ); United States v. Shukitis, 877 F.2d 1322, 1327 (7th Cir.1989).

Here, the government sought to identify Mr. Degaglia's voice primarily through the testimony of Agent Olson. "[T]he standard of familiarity necessary for an authenticating witness to identify the voices of participants in conversations recorded on tape" is clear:

Federal Rule of Evidence 901(b)(5) ... permits voice identification ... to be made "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker."

As long as the basic requirement of familiarity is met, lay opinion testimony is an acceptable means for establishing the speaker's identity.

United States v. Briscoe, 896 F.2d 1476, 1490 (7th Cir.1990) (quoting United States v. Vega, 860 F.2d 779, 788 (7th Cir.1988)). " 'Minimal familiarity is sufficient for admissibility purposes.' " United States v. Alvarez, 860 F.2d 801, 809 (7th Cir.1988) (quoting United States v. Cerone, 830 F.2d 938, 949 (8th Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988)), cert. denied, --- U.S. ----, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989).

In this case, the government met its burden of proof under Rule 901. First, Agent Olson's testimony establishes that he was at least minimally familiar with the defendant's voice. The agent testified that he had verbal contact with Mr. Degaglia on several occasions for periods of up to one and one-half hours. ² Agent Olson further testified that Mr. Degaglia has a very distinctive voice. See Fed.R.Evid. 901(b)(4). Based on his familiarity with the defendant's voice, Agent Olson positively identified one of the voices on the tape as belonging to Mr. Degaglia. ³ See Fed.R.Evid. 901(b)(5). Nothing more was required. ⁴

With regard to Mr. Degaglia's claim that the identification process was impermissibly suggestive and...