U.S. v. Puerta Restrepo, 86-1809
| Decision Date | 15 May 1987 |
| Docket Number | No. 86-1809,86-1809 |
| Citation | 814 F.2d 1236 |
| Parties | 22 Fed. R. Evid. Serv. 1255 UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos PUERTA RESTREPO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jon May, Miami, Fla., for defendant-appellant.
Eric J. Klumb, Asst. U.S. Atty., Joseph P. Studmueller, U.S. Atty., U.S. Atty's. Office, Milwaukee, Wis., for plaintiff-appellee.
Before CUMMINGS and CUDAHY, Circuit Judges, and WILL, Senior District Judge. *
After a jury trial, the defendant was found guilty of conspiracy to possess with intent to distribute some seven kilograms of cocaine (Count I) in violation of 21 U.S.C. Sec. 846, engaging in interstate travel to promote a business enterprise involving controlled substances (Count II) in violation of 18 U.S.C. Sec. 1952(a)(3), and possession with intent to distribute cocaine (Count III) in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 and sentenced to ten years on Count I, five years on Count II and ten years on Count III all to run concurrently. We affirm.
On September 27, 1985, James Brill was arrested as a result of information obtained from one Russell Buckner who had been arrested in May 1985 while attempting to deliver a quarter pound of cocaine. Between November 1984 and his arrest, Buckner, who had previously known Brill in prison, had been a "driver" for Brill and testified that he had transported cash or cocaine for him frequently with Brill present, on ten separate occasions. His trips had taken him from Oshkosh, Wisconsin, the center of Brill's activities, to Milwaukee and Madison, Wisconsin, the greater Chicago area and as far as California. At various times he delivered $250,000 to Chicago for Brill, picked up 13 kilograms of cocaine in Chicago and delivered it to Oshkosh, delivered five kilograms to California, picked up 17 kilograms in Milwaukee and delivered it to Oshkosh, delivered $525,000 to Chicago, collected $90,000 in Madison and delivered it to Oshkosh, delivered three kilograms to California, picked up 20 kilograms in Chicago and took them to Oshkosh and again carried $525,000 to Chicago. All of these payments were for cocaine provided to Brill by a man known to Buckner only as "Leon."
After his arrest but on the same day, a search of Brill's residence produced, among other items, $144,200 in cash. Brill had obviously been a substantial cocaine trafficker. Shortly after his arrest, Brill agreed to cooperate with federal drug enforcement agents and between October 31 and November 8, 1985, participated in nine recorded telephone conversations, the first seven of which were between Brill in Wisconsin and either the appellant or his brother, Armando Leon Puerta Restrepo ("Leon") in Florida and the last two of which were between Brill and the appellant in Milwaukee.
In his guarded conversations with Leon, it is clear that Brill was asking for ten kilograms of cocaine and Leon was offering only seven. Brill offered to pay $33,000 per kilo, Leon was asking $34,000. Brill agreed to pay Leon his past indebtedness for earlier cocaine deliveries as well as for the new delivery. They agreed to negotiate later the price for the new delivery.
On November 6, 1985, at about 5:45 p.m., Brill returned a call to a Florida number which had been left on his pager. A man answered and when Brill asked "Hello, Leon," said "Yeah, this is his brother, Juan." There followed a conversation in which the man identifying himself as Juan talked about the two of them having met "months ago" "with Mike" "at the hotel one day" "downstairs at the airport." He explained that "this person's leaving in the morning" because "we had a little problem" "finding something just the way you like it." Brill objected to the delay and they agreed he would call back to a number "Juan" gave him in half an hour to make final arrangements.
At 6:15 p.m. the same day, Brill called the number and a man again identifying himself as "Juan Carlos" answered, said Leon "just went home" and gave Brill a number he said was Leon's house where he At 6:30, "Leon" called back, they discussed quantities, delivery dates and money. Leon said his brother Juan was coming to Milwaukee but he was not and reminded Brill he had met Juan "in the hotel" "in the airport." Brill wanted "ten," Leon said "seven or eight." They agreed Brill would be available Friday night, November 8, in Milwaukee. Leon then told Brill that it might be as late as 10:00 p.m. and that Juan "looks just like me."
could be reached. Three minutes later, at 6:18, Brill called the number and a man who identified himself as "Leon" answered, said he was "in my house" but didn't want to talk from there. He asked Brill to give him a number where Brill could be reached and he would call back from another place in three minutes.
On November 8, Brill and Leon had another telephone conversation about when Juan would arrive and why Leon was not coming himself. Leon again said Juan "looks just like me." Also, "he has my same voice and everything" and that Brill had met Juan at the Hilton in Chicago, apparently referring to the O'Hare Hilton which was consistent with "Juan's" earlier statement to Brill that they had met "months ago" "at the hotel" "downstairs at the airport."
About 9:00 p.m. on November 8, the appellant, Juan Carlos Puerta Restrepo, arrived at the Milwaukee airport accompanied by a female. He made a number of telephone calls from pay phones at the airport to a number which was supposedly Brill's pager though actually in DEA Agent Hehr's possession. Juan and his companion left the airport and checked in at the Quality Inn where he again called the pager number from a lobby pay phone and then from his room, 114.
Later Brill called him in his room and asked when they would be getting together. Juan replied the next day. Brill said he was supposed to leave town then. Juan said he was waiting "for this guy to come in" possibly about one or two in the morning. They agreed that Brill would call him around one in the morning to see if "this guy" had arrived.
Later about 10:45 p.m., Brill called Juan at his room and said he was going to be in the area and would "cruise over and get everything taken care of" "as soon as everything's ready and you're all set for me." Juan asked "So you gonna bring that with you" and Brill replied, "Yeah, I'll be all set." Brill instructed Juan to call and place a code on the pager when the other party arrived and he would come right over and "take care of everything."
About 1:15 a.m. on November 9, Ceasar Ramirez and a female companion arrived in a grey Audi at the Quality Inn and ultimately checked into Room 112 next to Room 114 occupied by appellant and his companion. About 2:30 a.m. all four were arrested and their rooms searched. The keys to the Audi were found in appellant's room, 114, along with a Quality Inn "comment card" on which was written "335" multiplied by "7" and a total of "234500." Seven kilograms of heroin were found secreted in the Audi. Also on the card the number "140000" was written to which was added the "234500" and a total of "374.500."
When arrested, the appellant asked the arresting officers what was going on. He was read his rights and then asked where the cocaine was. He said he did not know what they were talking about and had just come to Milwaukee with his girlfriend.
The appellant's principal contention is that the district court improperly admitted into evidence the November 6, 1985 tape of a 5:45 p.m. conversation between Brill and a person who identified himself as "Juan Carlos" on the ground that the government had not established by clear and convincing evidence that the person with whom Brill was talking was appellant. See United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985); United States v. Faurote, 749 F.2d 40, 43 (7th Cir.1984).
The appellant concedes that Brill talked to him, the "real" Juan Carlos, at 6:15 p.m. when he told Brill that Leon had left to go to his house and gave Brill his telephone Rule 901(a) of the Federal Rules of Evidence provides:
number. He urges that the substance of the 6:15 p.m. conversation indicates that this was the first time that he had talked with Brill, wasn't aware of the prior conversation or its subject matter and, that given the length, with beepers and pagers, to which Brill and Leon went to defeat surveillance or telephone interception, it is inconceivable that Juan would have given Brill Leon's home telephone number had he been a member of the conspiracy. He points out that when Brill called Leon at the number given to him by Juan, Leon refused to talk to him, asked Brill for a number where he could be reached and called him at that number. He also asked Brill who had given him the home telephone number. When told it was Juan Carlos, Leon told Brill he did not like to talk from his home and not to call him at that number again.
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Appellant contends that the failure of the prosecution to have anyone identify the voice of the person to whom Brill spoke at 5:45 p.m. as that of Juan Carlos or of the same person to whom he spoke at 6:15 p.m. who was admittedly Juan Carlos, even though a number of witnesses were available who could have done so, is a failure of authentication. He points out, correctly, that self-identification by a speaker alone is not sufficient authentication. See, e.g., United States v. Pool, 660 F.2d 547, 560 (5th Cir.1981).
On the other hand, it is not necessary that someone familiar with the speaker's voice identify it. United States v. Bonanno, 487...
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