US v. Ortiz
776 F.3d 1042
United States Court of Appeals, Ninth Circuit
Decided on January 23, 2015
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The Ninth Circuit: Question Of First Impression Federal Rule of Evidence 901(b)(5) Voice Identification Testimony And Lay Opinions
Issue: Whether the district court abused its discretion by admitting the opinion testimony of defendants probation officer to authenticate defendants voice on recorded wiretapped calls where he was speaking in Spanish, his probation officer did not speak Spanish, and the two had previously communicated only in English?
Summary: Defendant was convicted in the United States District Court for the Western District of Washington of conspiracy to distribute large quantities of methamphetamine and heroin with intent to distribute in violation of 21 U.S.C. 841(a)(1), (b)(1)(A), and 846. Defendant appealed arguing that the district court committed reversible error by admitting the opinion testimony of his probation office to identify his voice on intercepted phone calls. The United States Court of Appeals, Ninth Circuit affirmed holding that the trial court did not abuse its discretion, or deny defendant a fair trial, by admitting the testimony of defendants probation officer because she had requisite familiarity to authenticate defendants voice on wiretapped calls.
Holding: The United States Court of Appeals, Ninth Circuit held that the district court did not abuse its discretion, or deny defendant a fair trial, by admitting the testimony of defendants probation officer because her familiarity with defendants voice was substantially more than the minimum familiarity required for admission of lay voice identification testimony.
Facts: Defendant was indicted on April 24, 2012, along with 33 other co-defendants as part of an inter-agency investigation into the Berrelleza Drug Trafficking Organization (DTO), which moved large quantities of drugs from Mexico to the United States and smuggled cash proceeds and firearms back to Mexico. The evidence established that defendant was a leading drug re-distributor for the DTO. He was released from a halfway house in the summer of 2011 on another federal charge and began dealing narcotics for the DTO while on supervised release in the Western District of Washington.
Defendants trial was joined with that of co-defendant Raul Anchondo. On day three of the trial, outside the presence of the jury, the district court considered arguments from the prosecutor and defendant regarding whether defendants federal probation officer could offer opinion testimony identifying defendants voice on intercepted calls. In these calls, defendant spoke to co-conspirator Victor Berrelleza?Verduzco primarily in Spanish with some English words, such as all right, cuz you know, and because. The prosecutor examined defendants probation officer outside the presence of the jury to establish the basis on which she could offer an admissible lay opinion that defendants probation officer recognized the voice as that of defendant, whom she actively supervised from October 2011 until his March 2012 arrest. Defendants probation officer testified that she had previously spoken to over the telephone six to ten times and in person ten to fifteen times for a period of six months, that defendant had a distinctive voice and a tendency to say all right often during his conversations, that she spoke only [a] little Spanish, and that she had only spoken to defendant in English.2
Over defense objection, the district court ultimately allowed the testimony before the jury, concluding that defendants concerns [went] to the weight and not the admissibility of the evidence.
The jury convicted defendant of conspiracy to distribute methamphetamine and heroin and possession of heroin with intent to distribute, and sentenced him to 15 years in prison to be followed by five years of supervised release. Defendant appealed arguing that the district court erred in admitting the opinion testimony of his probation office identifying defendants voice speaking primarily Spanish on wiretapped calls because (1) the probation officer does not speak Spanish; and (2) the probation officer only heard defendant speak English.
Legal Analysis: The bench started by reciting the applicable standard of review for a district courts admission of lay opinion testimony: abuse of discretion. Under this standard, reviewing courts will presume the correctness of a district courts decision involving evidence, weight, and admission unless they are illogical, implausible, or without support in inferences that may be drawn from the facts in the record (United States v. Hinkson, 585 F.3d 1247, 1263[9th Cir. 2009]).
The government bears the burden of making a prima facie case that a voice on a tape is that of a defendant (Fed.R.Evid. 901(a); United States v. Gadson, 763 F.3d 1189, 1204[9th Cir. 2014]). Lay opinion testimony is permissible to lay a foundation for admissibility so long as the testifying witness has minimal familiarity with the voice he or she identifies (Fed.R.Evid. 901(b)(5); United States v. Plunk, 153 F.3d 1011, 1023[9th Cir. 1998]; United States v. Thomas, 586 F.2d 123, 133[9th Cir. 1978]). Once the burden is met, the weight of the evidence is a matter of the jury (United States v. Workinger, 90 F.3d 1409, 1415[9th Cir. 1996]).
Here, the district court did not abuse its discretion by admitting the lay opinion testimony of defendants probation officer despite the fact that the two had previously only spoken in English. The district court conducted a thorough analysis of the issue outside of the jury. In doing so, the trial judge reviewed and considered a Tenth Circuit case which held that a witness need not understand the language spoken to identify a voice (United States v. Zepeda-Lopez, 478 F.3d 1213[10th Cir. 200]).
In addition, the trial judge heard testimony from defendants probation officer as to the basis for recognizing defendants voice. She testified that during the six months of supervised probation, they two met roughly ten to fifteen times sometimes speaking for more than hour. In addition, they had many telephone conversations. During these interactions, she became familiar with defendants distinctive and scratchy voice, including his constant use of English words such as all right, yeah, and cuz you know. And while defendant did not identify himself on the wiretap recordings, he did identify himself by name in calls made from prison. Defendants probation office was able to recognize defendants voice after reviewing these calls and comparing the voices. Thus, her familiarity with defendants voice was substantially more than the minimum familiarity required for admission of lay voice identification testimony. Finally, defendant was not prejudiced or denied a fair trial because the district court provided the jury with an appropriate limiting instruction emphasizing the prosecutions burden of proving its case beyond a reasonable doubt. According, the United States Court of Appeals, Ninth Circuit affirmed defendants conviction.