United States v. Jose Hernandez , 702 F. App'x 151 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE IVAN HERNANDEZ, a/k/a Pelon, a/k/a Vampiro, a/k/a Ivan, a/k/a
Ivanovich,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:14-cr-00111-FDW-DCK-1)
Submitted: July 26, 2017 Decided: August 1, 2017
Before GREGORY, Chief Judge, and KING and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard H. Tomberlin, TOMBERLIN LAW OFFICE, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Ivan Hernandez was convicted by a jury of conspiracy to distribute and to
possess with intent to distribute heroin, 21 U.S.C. § 846 (2012), and money laundering
conspiracy, 18 U.S.C. § 1956 (1)(1)(B)(i), (h) (2012), and sentenced to 432 months’
imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), conceding that there are no meritorious issues for appeal, but
questioning whether the district court erred in allowing a DEA agent to identify
Hernandez’s voice in an audio recording of a telephone call, even though the agent had
never spoken to Hernandez in person, and in denying Hernandez’s motion to suppress
evidence retrieved from a cellular telephone. Although advised of his right to file a
supplemental pro se brief, Hernandez has not done so. We affirm.
Counsel first asserts that the district court erred in allowing DEA agent Dustin
Harmon to identify Hernandez’s voice in a recorded phone call when Harmon had not
personally heard Hernandez’s voice. We review a district court’s evidentiary rulings for
abuse of discretion. United States v. Garcia, 855 F.3d 615, 621 (4th Cir. 2017).
At trial, Agent Harmon testified at length about his involvement in the
investigation leading to Hernandez’s indictment. Harmon stated that Hernandez became
a target early on and that, through a confidential informant, he and members of the
investigative team attempted to set up controlled purchases of cocaine from Hernandez.
Harmon provided detailed testimony about recorded conversations between the informant
and Hernandez, from whom she was arranging a large controlled purchase of heroin, to
be delivered to Charlotte. Harmon later testified that he compared the voice in those
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recorded telephone conversations with Hernandez’s voice in recorded calls he made from
jail.
The proponent of an audio recording carries the burden of demonstrating that the
recording was sufficiently authentic to be admitted into evidence. United States v.
Wilson, 115 F.3d 1185, 1188–89 (4th Cir. 1997). The requirement for authentication is
satisfied when there is “evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). “We have consistently allowed district
courts wide latitude in determining if a proponent of tape recordings had laid an adequate
foundation from which the jury reasonably could have concluded that the recordings were
authentic and, therefore, properly admitted.” United States v. Branch, 970 F.2d 1368,
1372 (4th Cir. 1992).
We find that the district court did not abuse its discretion in allowing Harmon’s
testimony. Harmon had listened to numerous calls in which the caller identified himself
as Hernandez and was able to compare the voice in those calls with the person speaking
to Camacho. The district court properly concluded that Harmon’s opinion was
admissible. See Fed. R. Evid. 901(b)(5). In any event, later witnesses with personal
knowledge of Hernandez’s voice identified Hernandez in the phone calls; therefore, any
potential error in allowing Harmon to identify Hernandez was harmless. See United
States v. McBride, 676 F.3d 385, 400 (4th Cir. 2012) (holding that, where there is a high
probability that an error did not affect judgment, it is harmless).
Second, counsel asserts that the district court erred in denying Hernandez’s motion
to suppress evidence obtained from the search of a cell phone. In reviewing a district
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court’s ruling on a motion to suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v. Stover, 808 F.3d 991, 994
(4th Cir. 2015), cert. denied, 137 S. Ct. 241 (2016). We construe the evidence presented
in the light most favorable to the Government, the prevailing party on Hernandez’s
motion to suppress. Id.Although initially ruled inadmissible because the underlying search was not based
on voluntary consent, the district court later allowed the evidence under the independent
source doctrine. The independent source doctrine “provides for the admissibility of
evidence if it would have been obtained even absent an illegal search.” Murray v. United
States, 487 U.S. 533, 537-43 (1988). It “allows trial courts to admit evidence obtained in
an unlawful search if officers independently acquired it from a separate, independent
source,” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016); see also United States v. Bullard,
645 F.3d 237, 244 (4th Cir. 2011). The doctrine applies to evidence observed during a
warrantless search that is later obtained pursuant to a valid warrant. Murray, 487 U.S.
539-39. To find the search with a warrant “genuinely independent,” the unlawful search
must not have affected (1) the officer’s “decision to seek the warrant” or (2) the
magistrate judge’s “decision to issue [it].” Murray, 487 U.S. at 542. We have reviewed
the record and find that the district court did not err in denying Hernandez’s motion to
suppress the evidence obtained from the Samsung T199 phone because the search
pursuant to the warrant was “genuinely independent” of the initial search. Murray, 487
U.S. at 542.
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In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Hernandez’s
conviction and sentence. This court requires that counsel inform Hernandez, in writing,
of the right to petition the Supreme Court of the United States for further review. If
Hernandez requests that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof was served on
Hernandez.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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