United States v. Lo Bue

• Decision Date: 14 January 1960
• Citation: 180 F. Supp. 955
• Parties: UNITED STATES of America, Plaintiff, v. Luigi LO BUE, Frances LoBue, also known as Francesca Geni, Defendants.
• Court: U.S. District Court — Southern District of New York

180 F. Supp. 955

UNITED STATES of America, Plaintiff, v. Luigi LO BUE, Frances LoBue, also known as Francesca Geni, Defendants.

United States District Court S. D. New York.

January 14, 1960.

S. Hazard Gillespie, Jr., U. S. Atty., S. D. New York, New York City, for the Government. John S. Clark, Asst. U. S. Atty., New York City, of counsel.

Samuel Altman, Gaspare Cusumano, New York City, for defendants.

HERLANDS, District Judge.

The question presented is: What evidence is sufficient to lay the foundation for the admissibility of a telephone conversation where the witness is unable to recognize the caller's or declarant's voice as that of the defendant?

The defendants Louis LoBue and Frances LoBue (also known as Francesca Geni) are charged with violating the general conspiracy statute (U.S.C.A., Title 18, § 371) and the substantive provisions of U.S.C.A. Title 8, § 1324(a) (3, 4). Upon the trial of this indictment, the prosecution has called one Mrs. Lena Vicari as a witness.

Mrs. Vicari testified that in December of 1956 she received a telephone call from New York City at her home in Rochester. The caller spoke with a female voice. Defense counsel has objected to Mrs. Vicari's proposed testimony as to the telephone conversation upon the ground that she has not identified nor is she able to identify the voice at the other end of the telephone as that of the female co-defendant.

It appears that Mrs. Vicari never met the defendants, and that she cannot testify that she recognized the declarant's voice as that of the female co-defendant.

The Court has held a voir dire hearing out of the jury's presence on the question of the competency of the proposed testimony concerning the telephone conversation.

As a general rule, before evidence of a telephone conversation may be admitted into evidence, it is necessary to have the declarant's voice identified. This identification may be made on the basis of the witness' then existing familiarity with the declarant's voice, or on the basis of a subsequent conversation with the declarant and a retroactive recognition of the voice used in the antecedent conversation.

The requirement of direct recognition of the voice is not, however, an inexorable or mechanical rule. Circumstantial evidence may be sufficient to identify the speaker. Indeed, "The substance of the communication may itself be enough to make them prima facie proof." Van Riper v. United States, 2 Cir., 1926, 13 F.2d 961-968, per Judge Learned Hand.

Where the foundation proof consists of an aggregate of circumstances establishing that it was extremely remote or highly improbable that anyone other than the defendant was the declarant, there is sufficient proof of the defendant's identity as the speaker. Van Riper v. United States, supra, followed in Jarvis v. United States, 1 Cir., 1937, 90 F.2d 243, 245; Hartzell v. United States, 8 Cir., 1954, 72 F.2d 569, 578. See McCormick, Evidence (1954) 405, 406.

With the foregoing principle as a frame of reference, we now turn to the following facts as to which evidence was adduced upon the voir dire hearing held before the Court:

1. In the telephone call from New York City to the witness in Rochester around August 24, 1956, the female voice identified herself (the declarant) as "Francesca Geni".

2. The declarant gave the witness her address as 2464 Washington Avenue, Bronx, and her telephone number as CY 5-9563, which in fact were then the address and telephone number of the co-defendant Frances LoBue (also known as Francesca Geni).

3. In the conversation between the witness and the declarant, the declarant said that the witness' nephew, Pietro, was then at the declarant's home; that she was treating the nephew nicely; that, although she was then pregnant, she had given up her bed to Pietro and that she had slept on the floor; that she wanted $300 to be sent to her by Western Union money order; and that she would send Pietro upstate to his aunt, the...