United States v. Richard Ortiz , 776 F.3d 1042 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30361
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00062-
RSL-28
RICHARD ANTHONY ORTIZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
December 11, 2014—Seattle, Washington
Filed January 23, 2015
Before: M. Margaret McKeown, Richard C. Tallman, and
John B. Owens, Circuit Judges.
Opinion by Judge Tallman
2 UNITED STATES V. ORTIZ
SUMMARY*
Criminal Law
Affirming a conviction, the panel held that the district
court did not abuse its discretion in admitting the opinion
testimony of the defendant’s probation officer, identifying the
defendant’s voice speaking primarily Spanish on wiretapped
calls, notwithstanding that the probation officer was not
fluent in Spanish and had only heard the defendant speak
English.
The panel held that the probation officer’s familiarity
with the defendant’s voice was substantially more than the
minimal familiarity required by Fed. R. Evid. 901(b)(5) for
admission of lay voice identification testimony. The panel
explained that the defendant’s challenges ultimately go to the
weight rather than the admissibility of the testimony.
COUNSEL
Peter A. Camiel (argued), Mair & Camiel P.S., Seattle,
Washington, for Defendant-Appellant.
Michael S. Morgan (argued), Assistant United States
Attorney, Office of the United States Attorney; Jenny A.
Durkan, United States Attorney, Seattle, Washington, for
Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ORTIZ 3
OPINION
TALLMAN, Circuit Judge:
Richard Anthony Ortiz appeals his conviction for
conspiracy to distribute large quantities of methamphetamine
and heroin, and possession of heroin with intent to distribute
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.
Ortiz contends the district court erred in admitting the opinion
testimony of his United States probation officer, Angela
McGlynn, identifying Ortiz’s voice speaking primarily
Spanish on wiretapped calls because McGlynn does not speak
Spanish and had only heard Ortiz speak English.1 Since we
hold the district court did not abuse its discretion in ruling on
the authentication of his voice on the recordings, we affirm
Ortiz’s conviction.
I
A
Richard Anthony Ortiz 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. According to drug
ledgers seized, Ortiz 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
1
Ortiz’s challenge to the admissibility of prison calls and Title III
wiretap calls are disposed of in a Memorandum Disposition filed
contemporaneously with this opinion.
4 UNITED STATES V. ORTIZ
narcotics for the DTO while on supervised release in the
Western District of Washington.
B
Ortiz’s 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 Ortiz regarding whether Ortiz’s federal
probation officer, Angela McGlynn, could offer opinion
testimony identifying Ortiz’s voice on intercepted calls. In
these calls, Ortiz spoke to co-conspirator Victor Berrelleza-
Verduzco primarily in Spanish with some English words,
such as “all right,” “‘cuz you know,” and “because.” As part
of the court’s authentication inquiry to determine the
sufficiency of the foundation, the prosecutor examined
McGlynn outside the presence of the jury to establish the
basis on which she could offer an admissible lay opinion that
she recognized the voice as that of Ortiz, whom she actively
supervised from October 2011 until his March 2012 arrest.
McGlynn testified that she had previously spoken to Ortiz
over the telephone six to ten times and in person ten to fifteen
times for a period of six months, that Ortiz 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 Ortiz in English.2
Over defense objection, the district court ultimately
allowed McGlynn’s testimony before the jury, concluding
2
At one point, when McGlynn was asked “Do you speak Spanish at
all?” she replied “At all? A little.” At another point, when asked “Do you
speak any [Spanish]?” she replied “I do.” But when asked if she was
“able to really understand the Spanish in the calls?” she responded “No.”
UNITED STATES V. ORTIZ 5
that Ortiz’s “concerns [went] to the weight and not the
admissibility of the evidence.”
The jury convicted Ortiz of Conspiracy to Distribute
Methamphetamine and Heroin (Count 1), and Possession of
Heroin with Intent to Distribute (Count 26). On December
13, 2013, the district court sentenced Ortiz to 15 years in
prison to be followed by five years of supervised release.
This appeal followed.
II
Where objection to an evidentiary ruling has been
properly preserved, we review a district court’s admission of
lay opinion testimony for abuse of discretion. See United
States v. Beck, 418 F.3d 1008, 1013–15 & n.3 (9th Cir. 2005).
Given that the district court applied the correct legal standard,
we uphold these rulings 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) (en banc).
Ortiz challenges the admission of McGlynn’s lay opinion
testimony because she did not speak Spanish and had only
heard Ortiz speak English.3 We reject Ortiz’s contention that
3
For the first time on appeal, Ortiz also argues the identification
procedure was impermissibly suggestive under Neil v. Biggers, 409 U.S.
188, 199 (1972), violating Ortiz’s right to due process because the
prosecutor specifically asked McGlynn whether she could identify Ortiz’s
voice prior to listening to the calls. The defense contends this was unduly
suggestive since the prosecutor inferred that Ortiz’s voice was known to
have been captured on the calls before McGlynn had been asked to listen
to them. However, we do not reach this argument as Ortiz waived it by
failing to raise it before the district court and failing to show good cause
6 UNITED STATES V. ORTIZ
admitting McGlynn’s testimony constitutes reversible error
as a matter of law.
Under Federal Rule of Evidence 901(a), “[w]here the
government offers a tape recording of the defendant’s voice,
it must also make a prima facie case that the voice on the tape
is in fact the defendant’s . . . .” United States v. Gadson, 763
F.3d 1189, 1204 (9th Cir. 2014) (citation omitted). “Lay
opinion . . . is permissible so long as the witness testifying
has [the] requisite familiarity with the speaker.” United
States v. Thomas, 586 F.2d 123, 133 (9th Cir. 1978). The
opinion must be “based on hearing the voice at any time
under circumstances that connect it with the alleged speaker.”
Fed. R. Evid. 901(b)(5). “Rule 901(b)(5) establishes a low
threshold for voice identifications”—an identifying witness
need only be “minimally familiar with the voice he
identifies.” United States v. Plunk, 153 F.3d 1011, 1023 (9th
Cir. 1998) (internal quotation marks omitted), overruled on
other grounds recognized by United States v. Hankey, 203
F.3d 1160, 1169 n.7 (9th Cir. 2000). Once the offering party
meets this burden, “the probative value of the evidence is a
matter for the jury.” United States v. Workinger, 90 F.3d
1409, 1415 (9th Cir. 1996). The district court does not abuse
its discretion when it admits evidence that meets the
minimum requirements for authentication under the Federal
Rules of Evidence and allows the defense to argue that the
jury should give the evidence minimal weight. Id. at 1416.
for its omission during trial in his Opening Brief. Fed. R. Crim. P.
12(b)(3)(C), (c)(3); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.
2000); United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995)
(issues not raised and argued in the opening brief are deemed waived),
cert. denied, 516 U.S. 814 (1995).
UNITED STATES V. ORTIZ 7
We have never before determined whether a person who
has not heard the speaker in a specific language and speaks
only “[a] little” of the language herself, but also recognizes
the voice from a handful of English words in the taped
conversations plus multiple other English conversations, has
the “requisite familiarity” to authenticate a voice under Rule
901(b)(5). Despite the lack of precedent, the district court
conducted a thorough analysis of the issue. Outside the
presence of the jury, the district court asked Ortiz and the
government to provide it with any cases related to the
admission of McGlynn’s opinion testimony so that it might
consider the precedent during the recess. The government
referred the district court to a Tenth Circuit case in support of
the proposition that a witness need not understand the
language spoken to identify a voice. United States v. Zepeda-
Lopez, 478 F.3d 1213 (10th Cir. 2007). Without the jury
present, the trial judge heard Officer McGlynn testify as to
the basis for recognizing Ortiz’s voice. The district court
held that McGlynn could testify given the low threshold for
lay opinion authentication testimony and concluded that
Ortiz’s objection went to the weight of the evidence, not its
admissibility.
In Zepeda-Lopez, the agent identifying the defendant’s
voice did not speak Spanish but had listened to six recordings
including one in which the defendant had self-identified by
his nickname. The defendant also admitted his voice was on
three of the taped calls. Id. at 1216, 1219. Additionally, the
agent listened to the defendant’s testimony in court before
offering an opinion to the jury. Id. Unlike in this case, the
district court in Zepeda-Lopez conducted the admissibility
determination in the presence of the jury and reasoned that
the self-identification on the Spanish call created a baseline
to which the agent could compare subsequent recordings. Id.
8 UNITED STATES V. ORTIZ
at 1219. The jury in Zepeda-Lopez listened to the Spanish
calls and, in light of defendant’s objection to the agent’s
opinion testimony, the district court provided a limiting
instruction:
Special agent Barrett will tell you whom he
believes the various speakers are. But you’re
going to be listening to the tapes and see if
one voice is the same on the other [sic]. It’s
entirely up to you to decide whether you agree
with him or not, okay? That’s your decision.
Id. at 1216.
In Ortiz’s case, he did not self-identify in any of the
Spanish calls and the jury did not listen to the Spanish
recordings. Without objection from Ortiz, the English
transcripts prepared by the government were read aloud to the
jury.
McGlynn testified that although she spoke some Spanish,
she was not fluent in Spanish. She further testified that she
had spoken to Ortiz—in English—in person and over the
phone during the six months she had supervised him as his
probation officer. McGlynn had met with Ortiz in person
roughly ten to fifteen times over the course of six
months—with some conversations lasting an hour—in
addition to many more conversations over the phone. She
characterized Ortiz’s voice as “pretty distinctive” and “kind
of scratchy,” and she testified that he “has some inflections”
in his voice. It is also relevant as to weight that some of the
UNITED STATES V. ORTIZ 9
recorded phone conversations included words spoken in
English. McGlynn noted that Ortiz “uses the word[s] ‘all
right’ frequently.” In one of the recorded phone calls, that
phrase was used in English three times, and it also appears in
several other calls. The calls contained other English words
and phrases like “microwave,” “yeah,” and “‘cuz you know.”
In addition to the recorded Spanish calls, McGlynn listened
to recorded calls in English that Ortiz made from prison in
which he self-identified by name, much like the self-
identifying exemplar that the court in Zepeda-Lopez relied on.
478 F.3d at 1219. McGlynn testified that she was “pretty
certain” it was Ortiz’s voice on the recorded phone calls in
Spanish.
Here, McGlynn’s familiarity with Ortiz’s voice was
substantially more than the minimal familiarity Rule
901(b)(5) requires for admission of lay voice identification
testimony. See, e.g., Plunk, 153 F.3d at 1023.
Ultimately Ortiz’s challenges go to the weight rather than
the admissibility of McGlynn’s testimony. Indeed, the district
court provided the jury an appropriate limiting instruction and
emphasized the prosecution’s burden of proving its case
beyond a reasonable doubt:
It is ultimately up to you to determine whether
that is Richard Anthony Ortiz on [the Spanish
calls]. You shouldn’t assume that by the fact
that it is [on the written transcript]. That is
obviously how the transcript has been
prepared by the government, and I have put it
10 UNITED STATES V. ORTIZ
in front of you, but you will decide whether
the government has proven it is indeed that
person beyond a reasonable doubt.
The district court did not err in how it handled this
evidentiary issue at trial.
AFFIRMED.