Opinion
Criminal No. 00-730(CCC).
March 7, 2001.
Edgar R. Vega-Pabon, San Juan, PR., attorney for Appellant Counselors.
Timothy Vazquez U.S. Attorney's Office District of Puerto Rico Criminal Division, San Juan, PR., attorney for Appellee Counselors.
REPORT AND RECOMMENDATION
A hearing was held on March 1, 2001, as to above defendant's motion regarding tape recordings (D.E. #72) and the United States' reply (D.E. #76) which had been referred to this magistrate (D.E. #100).
The defendant is challenging the inaudibility of the enhanced version counsel received as to an alleged conversation held by a confidential witness (CW) and the defendant that the government intends to produce during trial. (Exhibit 2) The conversation is claimed to be a consensual recording of a conversation held during a meeting between the CW and defendant where a covert tape recorder was used. For purposes of the hearing before this magistrate both parties agree that although the original recording is available, the enhanced version has been the one examined and for all practical purposes it is to be presumed better than the original. The government proffered the subject matter of the tape recording. FBI Agent John Gresner indicated there is a record as to how the tape recording was preserved. The enhancement was performed at the FBI laboratories because the original had a muzzling sound and that for the fact that the recorder was concealed while in operation a rubbing noise was noticeable. If and when necessary, the technician in charge of the tape enhancement could be called. The government stated that up to the present all that is considered necessary regarding this conversation would be presented through the testimony at trial of the CW. Although a transcript of the conversation is available to the government, prepared by a language specialist of the FBI, neither the transcript nor the translation were authenticated and these matters were also reserved for trial. Defendant objected, however, to the transcript since the case agent that testified before this magistrate did not participate in preparing or supervising either of the above.
This conversation was logged by the law enforcement agency on October 20, 2000, but is alleged to have been recorded on April 19, 2000. No additional explanation for this time frame was provided.
The case agent could not testify as to what equipment was used by the CW, except that it must have been a regular, small, compact recorder, not a Nagra or body recording device.
Defendant has not received from the government a copy of the original recording and neither the agent nor the government had heard the original recording of the conversation at issue.
The government further indicated that for purposes of this hearing it is not required to show, nor was it prepared to do so, if defendant's voice can be identified in the recording.
The issue of audibility cannot be resolved by assuming the existence and accuracy of an unauthenticated government transcript.
The burden of authentication does not erect a particularly high hurdle. Rule 901(a), (b)(5) of Evidence. United States v. Ortiz, 966 F.2d 707, 716 (1st Cir. 1992).
After entertaining all above arguments and the government's agent within the limited scope of having prepared the copy of the enhanced recording to be considered by this magistrate, both parties agreed that all that was thereafter necessary was the in camera examination of the taped recording. Using the same playing machine that the government and the case agent had used and was to present during trial, a Sony BM77 Transcriber, the recorded conversation was subsequently examined. Some 22 minutes into the examination of the taped recording, of this approximately 47 minutes conversation, this magistrate noticed that although audible as to the noises and some male voices, the content was unintelligible. Thus, the recording was further examined on three separate occasions in full, and still with the exception of a few short phrases and some scant words subject to variable interpretations, even when utilizing to the best of our ability the speed and tone controls, the recording in general and for the most part was unintelligible.
The admissibility of this tape recorded conversation is to be considered within the parameters of United States v. Carbone, 798 F.2d 21 (1st Cir. 1986). See United States v. Doyon, 194 F.3d 207 (1st Cir. 1999). More recently, in United States v. Aisenberg, 120 F. Supp.2d 1345 (M.D.Fl. 2000), Carbone was found to be instructive as to the legal standard governing audibility, but distinguishable insofar that the determination on audibility, as in the instant case, at the pretrial stage remained as a possibility.
The trial court must decide whether "the inaudible parts are so substantial as to make the rest more misleading than helpful". United States v. Carbone , 78 F.2d 21, 24 (1st Cir. 1986).
Before determining admissibility of audio recording, the proponent of proffered evidence must establish by other evidence that the matter offered is genuine and authentic, and otherwise provide necessary foundation; that recording must be audible both in the sense that listener can hear satisfactorily the words spoken and reliably distinguish them from other words that sound familiar and other sounds, and in the sense that enough of the recording is distinguishable to permit listener to reasonably determine the sense in which the words are used.
Audible means that some sound or part of some sound can be heard sufficiently to permit listener to ascertain with reasonable reliability the sense in which the speaker used any word or words that can be heard; trustworthiness or reliability is an elemental component of term audible within the law of evidence.
At trial the government would have needed to present also foundation evidence as to, for example, if contested, the competency of the operator; the fidelity of the equipment; absence of any meaningful alteration to the recording, the identity of the speakers.
A trial judge has wide latitude in determining the admissibility of tape-recorded evidence. United States v. Huff, 959 F.2d 731 (8th Cir. 1992), cert. denied, 474 U.S. 1023, 106 S.Ct. 577 (1985); United States v. Scaife, 749 F.2d 338 (6th Cir. 1984); United States v. Watson, 594 F.2d 1330 (10th Cir. 1979), cert. denied, 444 U.S. 840 (1979).
United States v. Mickens, 837 F. Supp. 745 (W.D.Va. 1993) allowed the admission of partially inaudible tape after the Court evaluated the audible portion of the tape in light of other evidence adduced at trial and determined that the inaudible portions of the tape did not render it untrustworthy.
The Court upheld the admissibility of tape-recorded conversation where as much as 25 percent of the taped conversation was inaudible. United States v. Hall, 342 F.2d 849 (4th Cir. 1965), cert. denied, 382 U.S. 812, 86 S.Ct. 28 (1965) (citing with approval) Addison v. United States, 317 F.2d 808 (5th Cir. 1963), cert. denied, 376 U.S. 905, 84 S.Ct. 658 (1964) wherein the Court admitted tape recording of a conversation even though one-half of the tape was defective.
Likewise, Monroe v. United States, 234 F.2d 49, 55 (D.C. Cir. 1955), the determination as to the trustworthiness of a tape recording is left to the sound discretion of the trial judge. United States v. Llinas, 603 F.2d 506 (5th Cir. 1979) (citing with approval) United States v. Avila, 443 F.2d 792 (5th Cir. 1971); United States v. Onori, 535 F.2d 938 (5th Cir. 1976).
The fact of some inaudibility does not require exclusion of the entire tape from evidence. United States v. Bryant, 480 F.2d 785 (2d Cir. 1973); United States v. Carson, 464 F.2d 424 (2d Cir. 1972); United States v. Weiser, 428 F.2d 932 (2d Cir. 1969); United States v. Kaufer, 387 F.2d 17 (2d Cir. 1967). In Bryant, supra, the judge was required to listen to the tapes in camera to determine whether and to what extent they are unintelligible or inaudible. In his comprehension of the tapes the judge may legitimately derive such assistance as he can from the transcripts offered by all parties.
It lies within the judge's power to determine that a tape, or a portion thereof, is unintelligible, notwithstanding the contentions of the parties that particular words can be heard. Rule 104(a) F.R. Evid. If the unintelligible portions are so great as to render the entire tape untrustworthy, the judge must exclude it entirely from evidence. United States v. Zappola, affirmed on other grounds, 677 F.2d 264 (2d Cir. 1982).
The decision to admit tape recordings is reviewed under the abuse of discretion standard. United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990); United States v. Santana, 898 F.2d 821, 823-24 (1st Cir. 1990). The trial court has a broad discretion in ruling on the admissibility of tape recordings, even where portions of tapes are unintelligible. Panzardi, supra; United States v. Bernal, 884 F.2d 1518 (1st Cir. 1989).
Panzardi was upheld after the court held a hearing to determine the audibility of the tapes and during the hearing received testimony of the task force agents regarding the surveillance, and the chain of custody of the tapes. Expert testimony was also heard regarding the enhanced and filtered version of the recording to eliminate background noises. Prior to trial, the court also heard the tapes and ruled that they were authentic, substantially audible and trustworthy. See United States v. McIntyre, 836 F.2d 467 (10th Cir. 1987). See United States v. Font-Ramrez, 944 F.2d 42, (1st Cir. 1991) (After the government lays a foundation for the admission of a tape, the party challenging the recording bears the burden of showing that it is inaccurate); United States v. Rengifo, 789 F.2d 975-978 (1st Cir. 1986) (The fact that a recording lent credibility to the testimony of a witness, could be the reason for the party to seek its admission. That evidence is cumulative has never been a bar to admissibility).
In Font-Ramrez the government authenticated the tape and identified defendants' voices through the direct testimony of a cooperating informant, which made the tape admissibility helpful by placing the defendants together and corroborating the informant's testimony. In the present case, this magistrate has not been placed in a position to assess the above issues.
United States v. Desantis, 802 F. Supp. 794 (E.D.N.Y. 1992), citing with approval, United States v. Bryant, 480 F.2d 785 (2d Cir. 1973). (Whether a recording is sufficiently audible to be probative, is a matter within the sound discretion of the trial judge and where an objection to audibility is made the correct procedure is for the judge to have had the tape played out of the jury's presence so that he/she can rule on the objection before the jury heard the recording).
Cape v. United States, 283 F.2d 430 (9th Cir. 1960) (whether tape recording was treated as independent or merely corroborative evidence, the test of its admissibility is basically the same: "unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy, the recording is admissible"). See also Daniel E. Feld, Annotation, Omission or Inaudibility of Portions of Sound Recording as Affecting its Admissibility in Evidence, 57 A.L.R.3d 746 (1974); Daniel E. Feld, Annotation, Admissibility in Evidence of Sound Recording as Affected by Hearsay and Best Evidence Rules, 58 A.L.R.3d 598 (1974); Stuart D. Murray, Annotation, Admissibility of Tape Recordings or Transcripts of "911" Emergency Telephone Calls, 3 A.L.R. 5th 784 (1993).
Considering the findings of this magistrate after examining the recording at issue and the above discussed jurisprudence, it is recommended that the recording be deemed inadmissible for being substantially unintelligible.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).
In San Juan, Puerto Rico, March 7, 2001.