Opinion
Case No. 07-900(DMC).
October 15, 2008
ORDER
This matter comes before the Court upon Defendant Jose N. Orozco's ("Defendant Orozco") motion for a new trial pursuant to FED. R. CRIM. P. 33 and Defendant Terry Battle's ("Defendant Battle") motion for a new trial pursuant to FED. R. CRIM. P. 33; and after further reviewing all submissions; and for the reasons stated in the Court's Opinion issued on this day;
IT IS on this 15th day of October, 2008;
ORDERED Defendant Orozco's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied; and it is further
ORDERED Defendant Battle's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied.
OPINION
This matter comes before the Court upon Defendant Jose N. Orozco's ("Defendant Orozco") motion for a new trial pursuant to Fed.R.Crim.P. 33 and Defendant Terry Battle's ("Defendant Battle" collectively, "Defendants") motion for a new trial pursuant to Fed.R. Crim P. 33. After carefully considering the submissions of the parties, and based upon the following, it is the finding of this Court that Defendant Orozco's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied; Defendant Battle's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied.I. BACKGROUND
Defendants Battle and Orozco were tried by jury before this Court on charges of conspiracy to possess with intent to distribute more than five (5) kilograms of cocaine in violation of 12 U.S.C. §§ 841(a)(1) and 841(b)(1). Defendants' trial began on March 3, 2008, and concluded on March 5, 2008. On March 6, 2008, both Defendants were convicted as charged.During trial, the Government utilized audio recordings and transcripts of telephone conversations. Prior to the introduction of these materials, Defendants objected and made a motion in limine challenging their admissibility. At side bar, defense counsel argued that the telephone conversations were not properly authenticated. The Court denied Defendants motion in limine, and the telephone recordings and transcripts were entered into evidence.
During its case-in-chief, the Government asked its witness Larry McCargo when he and Defendant Battle met. In response, Mr. McCargo told the jury that they met when Defendant Battle "was just coming home from being incarcerated." Defense council objected to this statement as evidence of a prior criminal record. The Court sustained Defendants' objection and a curative statement was made to the jury.
Similarly, the Government submitted into evidence phone records reflecting telephone calls made from Defendant Battle's cellular telephone. The defense objected to the use of Defendant Battle's cellular telephone records on the basis that the records were obtained via subpoena and not a Data Communications Warrant.
Defendants Orozco and Battle both move for a new trial on the basis that the cellular telephone recordings and transcripts for calls between Defendant Battle and a third party were not properly authenticated and should not have been admitted at trial. Defendant Battle additionally moves on the basis that he was severally prejudiced by the testimony of Government witness Mr. McCargo pertaining to Defendant Battle's prior criminal history. Defendant Battle further moves on the basis that the Government should have been prohibited from entering into evidence telephone records obtained by subpoena and not a Data Comminations Warrant.
II. Discussion
i. Legal Standard
Motions for a new trial are governed by Fed.R.Crim.P. 33. Rule 33 provides, in relevant part, that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." This rule gives District Courts broad discretion in determining whether a new trial is appropriate. United States v. Jasin, 280 F.3d 355, 360 (3d Cir. 2002). "[W]hen a district court evaluates a Rule 33 motion it does not view the evidence favorably to the Government, but instead exercises its own judgment in assessing the Government's case." United States v. Silveus, WL 4138460 *8 (3d Cir. Sept. 8, 2008) (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002)). Rule 33 motions are not favored and should be "granted sparingly and only in exceptional cases." Id. (quotingGov't of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted))
In this case, Defendants claim that evidentiary errors occurred and that these errors compel granting of a new trial. When a defendant seeks a new trial pursuant to evidentiary errors, such relief is required only if "the errors, when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1994) (citation omitted). Evidentiary errors are not viewed in isolation, but rather are viewed in conjunction with all of the evidence introduced at trial. After considering all the evidence introduced at trial, the Court must determined whether the evidentiary errors were sufficiently prejudicial to require a new trial. Id. ii. Defendants' Motion Pertaining To The Telephone Recordings And Transcripts Of Defendant Battle's Phone Calls With An Unidentified Third Party
Defendants argue that recordings and transcripts of telephone calls between Defendant Battle and an unidentified person the Government refers to as Julio should not have been admitted at trial because the Government did not establish that the third party's name was in fact Julio. The Government correctly points out that the recordings and transcripts were introduced at trial under Fed.R.Evid. 801(d)(2)(E) as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
Defendants' argument raises a Fed.R.Evid. 901 authentication challenge. For evidence to be admitted, the party moving to introduce it must provide "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). "The burden of proof for authentication is slight." United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994) (citations omitted). Examples of appropriate methods of authentication include "[t]estimony that a matter is what it is claimed to be," Fed.R.Evid. 901(b)(1); "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," Fed.R.Evid. 901(b)(4); "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker," Fed.R.Evid. 901(b)(5); and for "[t]elephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called," Fed.R.Evid. 901(b)(6)(A). These examples are provided as illustrations only and not as an exhaustive list of how authentication must be done. Fed.R.Evid. 901(b). The Third Circuit has explained that authenticity is not "on a par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility." United States v. McGlory, 968 F.2d 309, 328-29 (3d Cir. 1992). The Third Circuit further explains that authentication requires only "a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court." Id. With regard to recorded telephone conversations, "[i]t is well-settled that [they] may be authenticated by circumstantial evidence as well as by direct recognition of the person calling." United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993).
Defendants rely on United States v. Starks, 515 F.2d 112, 121 n. 11 (3d Cir. 1975) to claim that authentication requires identification of a speaker on a recording. The Starks Court in footnote 121 provides a list of methods for laying foundation for the admissibility of tape recorded evidence. Id. The Starks Court refers to its list as "useful expositions," which suggests that the list does not constitute requirements or a standard. Furthermore, in light of Console, the fact that Starks was decided prior to the enactment of Fed.R.Evid. 901 and the fact that the relevant part of the Starks Opinion appears to be based on facts distinct from the instant case, the Court agrees with the Government that the Starks approach does not constitute a rigid standard and is not controlling in this case.
As provided for by Fed.R.Evid. 801(d)(2)(E), a statement by a coconspirator is admissible at trial. The Third Circuit has held that the identity of the coconspirator does not have to be established for the statement to be admissible. McGlory, 968 F.2d at 335. If the statement is admissible, a recorded version of that statement that can be verified as accurate is also admissible. Moreover, a recording of a telephone conversation can be authenticated by circumstantial evidence. Console, 13 F.3d at 661. ICE Special Agent Jason Venticinque was present when Defendant Battle made the telephone calls the recordings of which are in question. Agent Venticinque has verify that the recordings are accurate representations of the telephone conversations that took place. In this case, the Government has demonstrated enough circumstantial evidence to authenticate the recordings and transcripts in question.
iii. Mr. McMargo's Testimony That Defendant Battle Was Incarcerated
Defendant Battle individually seeks a new trial based on the testimony of Mr. McCargo that he met Defendant Battle in 2001 when Defendant Battle "was just coming home from being incarcerated." In response, the Government relies on Thornton and argues that the curative statement made by the Court sufficiently resolved the violation of the general rule that the Government can not offer testimony of a defendant's prior criminal history at trial. 1 F.3d at 157.
Defense counsel suggests that because the Government undoubtably prepared Mr. McCargo to testify at trial that it intentionally sought to introduce evidence of Defendant Battles's past criminal history. The Government stipulates that it did not intend to elicit from Mr. McCargo a response detailing Defendant Battle's past criminal record nor did it try to capitalize on Mr. McCargo's inappropriate statement.
Defendant Battle relies on two (2) cases, Unites States v. Hurst, 510 F.2d 1035 (6th Cir. 1975) and United State v. Gray, 468 F.2d 257 (3d Cir. 1972). The Hurst case is inapposite to Defendant Battle's motion. In Hurst, the Sixth Circuit found improper testimony that the defendant "was in a cell at the time of his arrest" to be a harmless error despite the fact that the trial Court did not give a curative instruction to the jury. 510 F.2d at 1036. The Hurst Court found the testimony harmless because the evidence of the defendant's guilt was so overwhelming that the improper testimony could not have influenced the jury's verdict. Id.
The second case relied on by the defense is also distinguishable. In Gray, the Government asked the defendant on cross-examination whether he killed his wife. 468 F.2d at 258. Equally as problematic, the Government offered testimony in its case-in-chief that the defendant had previously been imprisoned.Id. The trial Court called the prosecutor's questions concerning events unrelated to the bank robbery for which the defendant was charged "highly prejudicial." The trial Court, however, did not declare a mistrial. Id. at 259. The Third Circuit ordered a new trial after highlighting the prosecutor's question about the defendant's wife. Id. The Gray Court found that there had been grievous prejudicial error which compelled reversal. Id. Gray is an extreme case where there was intentional questioning by the prosecution to bring into the record inappropriate testimony. The Government here argues that the circumstances in Gray are nothing like those in the instant case and the Court agrees.
Mr. McCargo should not have made a statement about Defendant Battle's prior criminal history, however, defense counsel objected during trial and a curative statement was made to the jury. The Government offered a significant amount of evidence against Defendant Battle which negates any possible prejudicial effect of Mr. McCargo's statement. Furthermore, the Government did not elicit nor capitalize on Mr. McCargo's statement. Defendant Battle has not demonstrated that Mr. McCargo's statement had a "substantial influence" on the outcome of the trial. Therefore, Mr. McCargo's statement does not provide sufficient grounds to warrant the granting of a new trial.
iv. Telephone Toll Records Submitted As Evidence At Trial
Defendant Battle further seeks a new trial based on his belief that the Court erred in admitting his cellular telephone records into evidence because the records were obtained by subpoena and not a Data Communications Warrant.
18 U.S.C. § 2703 "authorizes the government to require disclosure of stored communications and transaction records by third-party service providers." United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). Defendant Battle incorrectly cites 18 U.S.C. § 2703(a) to support his argument that a warrant was required for the government to obtain his phone records. This section, however, only governs the disclosure of stored electronic communications. 18 U.S.C. § 2703(c) provides that the Government may obtain information and toll records regarding electronic communication devices via administrative or trial subpoena. Moreover, 18 U.S.C. § 2703(c)(3) allows a Governmental entity to obtain such records without notice being provided to the subscriber or customer.
The Government properly obtained a subpoena for Defendant Battle's cellular phone records and Sprint/Nextel complied with the subpoena as it was required to do. The admission into evidence of Defendant Battle's cellular phone records does not constitute an error and therefore does not warrant the granting of a new trial.
III. CONCLUSION
For the reasons stated, it is the finding of this Court that Defendant Orozco's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied; Defendant Battle's motion for a new trial pursuant to Fed.R.Crim.P. 33 is denied. An appropriate Order accompanies this Opinion.