United States v. Marion Maurice Fields , 490 F. App'x 307 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10631
Non-Argument Calendar
________________________
D.C. Docket No. 4:10-cr-00108-BAE-GRS-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARION MAURICE FIELDS,
a.k.a. O.G.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 24, 2012)
Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.
PER CURIAM:
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Appellant Marion Maurice Fields appeals his convictions and sentences on
three counts of distributing five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B). He contends that the district court
improperly denied his motion in limine to prohibit the use of electronic recordings
and transcripts. He also challenges the factual support for his 168-month
concurrent sentences.
I.
On appeal, Fields argues that portions of the recordings were inaudible or
unintelligible. These portions, Fields argues, were so substantial as to render the
recordings as a whole untrustworthy. In a single sentence in his initial brief,
Fields also notes that a defendant must have the ability to cross examine
individuals who are party to the conversations that have been recorded.
The district court has broad discretion in deciding whether to admit a
recording into evidence, even one containing inaudible or unintelligible portions.
United States v. Lively, 803 F.2d 1124, 1129 (11th Cir. 1986); see also United
States v. Wilson, 578 F.2d 67, 69 (5th Cir. 1978).1 The district court may admit
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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into evidence a recording containing inaudible or unintelligible portions unless
those portions are “so substantial as to render the recording as a whole
untrustworthy.” Lively, 803 F.2d at 1129 (internal quotation marks omitted). In
Lively, we held that a seven-second gap near the beginning of a tape recording did
not render the whole recording untrustworthy. Id.; see also United States v.
Nicoll, 664 F.2d 1308, 1314 (5th Cir. Unit B 1982) (holding that a tape recording
was admissible despite a one-minute gap created when the tape reached the end of
one side and was turned over to continue recording), overruled on other grounds,
United States v. Henry, 749 F.2d 203 (5th Cir. 1984).
Federal Rule of Evidence 901(a) provides that the proponent of an item of
evidence “must produce evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed. R. Evid. 901(a). To admit a tape recording
into evidence, the proponent must establish the following: (1) the person operating
the recording equipment was competent; (2) the equipment functioned accurately;
(3) the recording had not been materially altered; and (4) the speakers’ identities.
Lively, 803 F.2d at 1129.
The Confrontation Clause provides criminal defendants with the right to
confront witnesses against them. U.S. Const. amend. VI. The Confrontation
Clause bars testimonial statements of a witness who did not appear at trial unless
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he was unavailable and the defendant had a prior opportunity to cross examine
him. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L.
Ed. 2d 177 (2004). Although the Supreme Court has not provided an exhaustive
definition of “testimonial statements,” statements may be “testimonial” for
purposes of the Confrontation Clause if made under circumstances that might lead
an objective witness reasonably to believe the statement would be available for use
at a trial. Id. at 52, 124 S. Ct. at 1364. The Confrontation Clause does not,
however, prohibit using testimonial statements for purposes other than
establishing the truth of the matter asserted. Id. at 59 n.9, 124 S. Ct. at 1369 n.9
(citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85 L. Ed.
2d 425 (1985)).
To raise an issue on appeal, a party must plainly and unambiguously
demarcate it. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
Passing mention of an issue in an initial brief is insufficient to raise it on appeal.
Id.
II.
Although Fields contends that the electronic recordings were untrustworthy
because substantial portions of them were inaudible or unintelligible, he has not
provided support for this claim. He has not pointed to specific examples in any of
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the recordings to show how any inaudible or unintelligible portions affected
overall trustworthiness of the recordings. Under these circumstances, we conclude
that he has not shown that the district court abused its discretion by admitting the
electronic recordings.
Fields also argues that the district court improperly denied his motion in
limine with respect to transcripts of the electronic recordings. Specifically, Fields
contends that the transcripts were potentially inaccurate because of the inaudible
and unintelligible portions of the recordings. Fields does not, however, point to
specific inaccuracies in the transcripts.
The district court has discretion to provide transcripts to the jury as an aid in
listening to a recording. United States v. Onori, 535 F.2d 938, 947
(5th Cir. 1976). If a defendant is unsatisfied with a transcript’s accuracy, he may
produce his own version of the whole transcript or of the disputed portions.
United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993); see also Wilson,
578 F.2d at 69-70. In Hogan, we held that a defendant did not show an abuse of
discretion where he did not point to specific inaccuracies in the government’s
transcript and did not provide his own transcript. Hogan, 986 F.2d at 1376.
Fields has not pointed to specific portions of the transcript that were
inaccurate, and he did not provide to the jury his own version of any disputed
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portions of the transcripts. Under these circumstances, we conclude that he has
not shown that the district court abused its discretion by allowing the jury to use
the transcripts that the government provided.
III.
Next, Fields argues that the district court erred in attributing to him the
following: 54.2 grams of cocaine base recovered during Spaulding’s arrest on
May 17, 2010, and 30.5 grams of cocaine base and a firearm, both recovered on
July 12, 2010, during an attempt to arrest Fields at a residence that he was renting
at the time. Specifically, he argues that the government did not prove, by a
preponderance of the evidence, that he possessed any of these items. As to the
cocaine base recovered on May 17, 2010, Fields contests the reliability of a DEA
agent’s testimony that Spaulding stated, in a DEA interview, that Fields had
supplied him with the cocaine base. Fields also emphasizes that he was not
present at the transaction on May 17, 2010, that resulted in Spaulding’s arrest. As
to the cocaine base and firearm recovered on July 12, 2010, Fields argues that,
although officers observed someone flee from the residence, the government did
not establish that Fields was that individual. Therefore, he contends the
government did not establish that the cocaine and firearm belonged to Fields.
We review the district court’s factual findings for clear error and its
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application of the Sentencing Guidelines de novo. United States v. Lindsey, 482
F.3d 1285, 1294 (11th Cir. 2007). The sentencing judge may consider reliable
hearsay. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001). We
review the reasonableness of a sentence under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed.
2d 445 (2007). “We may set aside a sentence only if we determine, after giving a
full measure of deference to the sentencing judge, that the sentence imposed truly
is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en
banc), cert. denied, 131 S. Ct. 1813 (2011).
In calculating the appropriate advisory guideline range, the district court
may consider criminal acts for which a defendant has not been charged, provided
that the government has proven those acts by a preponderance of the evidence.
Lindsey, 482 F.3d at 1294. The district court may consider types and quantities of
drugs not specified in the count of conviction when calculating the offense level.
U.S.S.G. § 2D1.1, comment. (n.12). Nevertheless, if a defendant objects to the
drug amount, the government must still prove the amount by a preponderance of
the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).
In United States v. Rodriguez, the defendant was convicted of conspiracy to
possess with intent to distribute ecstacy and possession with intent to distribute
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ecstacy. Rodriguez, 398 F.3d at 1292, 1294. The indictment did not include the
drug quantity attributable to the defendant, and the jury did not make a specific
finding as to quantity. Id. at 1294. Authorities arrested the defendant after he had
transported 2,000 ecstacy tablets as part of a deal with a confidential informant.
Id. at 1293. The PSI, however, attributed 30,000 ecstacy tablets to the defendant
based upon a coconspirator’s trial testimony. Id. at 1294-95. The district court
adopted the PSI’s finding as to drug quantity over the defendant’s objections that
the coconspirator’s testimony was inconsistent, vague, and unreliable. Id. We
upheld the district court’s calculation of the drug amount because the district court
did not clearly err in determining that the coconspirator’s testimony was credible.
Id. at 1297.
We conclude from the record that Fields also has not shown that the district
court clearly erred in attributing to him the cocaine base recovered on May 17,
2010, or the cocaine base and firearm recovered on July 12, 2010. Although he
argues that the testimony regarding each of these items was not credible, he simply
has not shown that the district court’s conclusion to the contrary was clear error.
IV.
For the aforementioned reasons, we affirm Fields’s convictions and
sentences.
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AFFIRMED.
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