United States v. Michael Leo Harris , 338 F. App'x 892 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16000 ELEVENTH CIRCUIT
JULY 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00298-CR-J-32-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEO HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 29, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Michael Leo Harris appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). After review, we affirm.
I. BACKGROUND
In November 2007, Harris was indicted on one count of possession of a
firearm by a convicted felon. Before trial, the parties stipulated that Harris was a
convicted felon. Thus, the only issue at trial was whether Harris possessed a
firearm.
At trial, Christopher Potter, a detective and former patrol officer with the
Jacksonville Sheriff’s Office, testified that he and Officer Alex Carrion responded
to a reported automobile crash with injuries and found Harris lying on the ground a
few feet from an overturned motorcycle. Harris rolled over, and Officer Potter saw
a gun tucked into Harris’s waistband. Harris moved his hand toward the gun, and
Officer Potter drew his own gun and kicked Harris’s hand away from the gun in
Harris’s waistband.
There were two others at the scene: a male named Ernie Walden and a
female named Christy Geiger. Potter acknowledged that, as he was kicking
Harris’s hand away from the gun in Harris’s waistband, Walden said, “No, man,
that’s mine, I put that on him.” Potter stated that Geiger “started freaking out,”
was “emotional,” and cried. After the officers arrested Harris, Officer Potter went
to speak to Geiger. Potter stated that Geiger “seemed to be upset” by the situation
and was “aware . . . that there was a real possibility that Mr. Harris was going to
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get shot.”
On cross-examination, Officer Potter stated that he later determined that
Walden had been operating the motorcycle at the time of the accident and that
there had been no crash. Instead, Walden and Harris simply had fallen off the
motorcycle, possibly because they were intoxicated. Potter admitted that he did
not test for gun residue on either Harris’s or Walden’s hands.
The government next called Officer Carrion. Carrion also saw the
motorcycle laying a few feet away from Harris’s position on the ground. Seeing a
gun in Harris’s waistband, Carrion drew his weapon and pointed it at Harris.
Carrion watched as Harris reached for the gun and Officer Potter kicked Harris’s
hand away. Carrion saw Walden and Geiger at the scene. According to Carrion,
Walden “said something about, That’s my gun.” Geiger, who was crying and “a
little hysterical,” identified herself as Harris’s girlfriend.
The government then introduced an audio recording and transcript of one
particular prison phone call, made with Harris’s I-PIN number, in which Harris
appears to admit that he possessed the firearm. To lay the foundation, the
government called Thomas Price, the Jacksonville Department of Corrections’
communications coordinator, who was responsible for the inmate phone system.
Price testified that prisoners can only use the phones inside the dorms by entering
an individually assigned, seven digit I-PIN number. All inmate phone calls are
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automatically recorded, and these recordings can be copied but not altered.
Price identified a disk on which he had downloaded a copy of three calls
found by searching for Harris’s jail identification number, which corresponded
with his I-PIN number. The government’s audio recording of one particular phone
call made with Harris’s I-PIN number came from this disk. The inmate making the
call identifies himself as “Michael,” which is Harris’s first name. Price testified
that the government’s transcript of the call was accurate. Harris objected to the
admission of the audio recording and transcript because “the proper predicate
ha[d]n’t been laid.” The district court overruled Harris’s objection.
The district court then excused the jury from the courtroom while the
recording was discussed further. The court listened to the recording. The
government explained that it could not force Harris to identify the recording
because of his privilege against self-incrimination and that the other participants in
the conversation were biased in Harris’s favor. The government analogized the
authentication of the automatic phone recording to the authentication of an
automatic unmanned surveillance camera. The district court again overruled
Harris’s objection, finding that the government “ha[d] established a sufficient
predicate that it’s Mr. Harris on the line here” and that “there’s enough indicia of
reliability here that allows the transcript to be played, especially with the limiting
instruction which I intend to give.”
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Before the jury heard the recording, the district court instructed the jury that
the transcript was admitted for the limited purposes of aiding the jury to follow the
conversation and identify the speakers. The district court told the jury that
“whether the transcript correctly or incorrectly reflects the content of the
conversation or the identity of the speakers is entirely for you to determine.”
In the recording, the person who initiates the collect call identifies himself as
“Michael.”1 The pre-recorded voice on the collect call then identifies “Michael” as
an inmate in the Duval County Jail. Roughly seven minutes into the call, a male, a
female, and “Michael” begin discussing the contents of a police report, suggesting
that the report incorrectly states that “Michael” was originally on his stomach. The
female then states, “Michael was laying on his back. . . . That’s how they seen the
fucking gun.” “Michael” asks, “[Y]ou didn’t hear me tell the police he did put it
there?” The female responds, “[Y]ou said, yall [sic] planted that on me, yall [sic]
planted that gun on me.” The female then states that she “was so fucking scared”
and “just st[ood] there screaming please don’t shoot him, please don’t shoot him.”
Apparently referring to the gun, “Michael” states, “[T]hat bitch ain’t got no bullets,
no nothing. I just remember grabbing that motherfucker out of the house.”
“Michael” then mentions that, when he fell off of the motorcycle, he could not get
his leg out from underneath it. He asks if the motorcycle was messed up.
1
Thereafter, the transcript referred to him as “Michael Harris.”
5
On cross-examination, Price admitted that inmates sometimes exchanged or
stole I-PIN numbers, but stated that they were told to keep their I-PIN numbers
confidential.
The jury found Michael Harris guilty. He was sentenced to 195 months’
imprisonment. Harris timely appealed.
II. DISCUSSION
Harris argues that his conviction should be reversed because neither the
recording of the phone call nor the transcript was authenticated properly.
We review a district court’s decision to admit evidence for an abuse of
discretion. United States v. Cole, 755 F.2d 748, 766 (11th Cir. 1985). The district
court’s determination of authenticity should not be disturbed unless there is no
competent evidence in the record to support it. United States v. Munoz, 16 F.3d
1116, 1120-21 (11th Cir. 1994). Moreover, the district court has “broad discretion
in determining whether to allow a recording to be played before the jury.” Cole,
755 F.2d at 766 (citing United States v. Biggins, 551 F.2d 64 (5th Cir. 1977)).
Evidence is properly authenticated when there is “evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Fed. R.
Evid. 901(a). Rule 901 requires only the presentation of “sufficient evidence to
make out a prima facie case that the proffered evidence is what it purports to be.”
United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985). “Once that
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prima facie showing has been made, the evidence should be admitted” and the trier
of fact permitted to determine whether the proffered evidence is what it purports to
be. Id. at 1002.
Furthermore, this Court held in Biggins that a district court “properly admits
a sound recording into evidence only when the party introducing it carries its
burden of going forward with foundation evidence demonstrating that the
recording as played is an accurate reproduction of relevant sounds previously
audited by a witness.” 551 F.2d at 66.2 The proponent bears the burden of
establishing: (1) the competency of the operator; (2) the fidelity of the recording
equipment; (3) the absence of material deletions, additions, or alterations in the
relevant portions of the recording; and (4) the identification of the relevant
speakers. Id. The primary purpose of these requirements is to “ensur[e] the
accuracy of the recording.” Id. at 67. Therefore, even if one or more of the above-
listed requirements has not been satisfied, “[i]f there is independent evidence of the
accuracy of the tape recordings admitted at trial, we shall be extremely reluctant to
disturb the trial court’s decision” to admit the recording. Id.Here, we conclude the district court did not abuse its discretion in admitting
the recording. Harris challenges only that the government failed to prove the
fourth Biggins factor because no witness identified the voice on the recording as
2
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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his. Although no witness identified the voice as Harris’s, the evidence showed that
the recording was associated with Harris’s jail identification number, which
corresponded with the unique I-PIN number assigned to Harris. Morever, the
speaker identified himself as “Michael,” which is Harris’s first name. The inmate
speaker in the recording also makes reference to the actual facts at the time of the
motorcycle accident that were within the Defendant Harris’s knowledge, further
corroborating that the Defendant is the speaker. As such, the government met its
burden of authentication by providing sufficient evidence to make out a prima facie
case that the speaker in the recording is Michael Harris.
For similar reasons, we also cannot say the district court abused its
discretion in admitting the transcript of the recording. Harris claims that the people
who prepared the transcript of the recording attributed the dialogue to him without
any personal knowledge to justify the attribution. However, as noted above, the
government met its burden of showing that the speaker is Harris. Moreover, the
district court reviewed the accuracy of the transcript and instructed the jury on the
limitations of the use of the transcript.
For these reasons, we affirm Harris’s conviction.
AFFIRMED.
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