Witness identification of voice on tape as condition for admissibility requires only that witness have minimal familiarity with speaker's voice
EVIDENCE/SENTENCING United States v. Bush, No. 03-4224, ___ F.3d ___(10th Cir. Apr. 26, 2005)(Utah). Appeal of conviction and sentence for distribution of cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. HELD: (1) Authentication of voice on audiotape as condition precedent for admissibility is permissible under Rule 901 of Federal Rules of Evidence where any basis exists for identifying voice. Such identification need only rise to level of minimal familiarity. Once minimal familiarity is satisfied, jury assesses any issues regarding extent of witness’ familiarity with voice. Thus, detective’s testimony that he recognized defendant’s voice on tape based on three face-to-face conversations and various exchanges via telephone was more than adequate to authenticate voice as being that of defendant. All that is required under Rule 901 is that identifier have heard voice of alleged speaker "at any time." (2) Where defendant challenged prior misdemeanor conviction used to enhance sentence under sentencing guidelines by claiming he did not knowingly waive right to counsel in that prior proceeding, defendant bears burden of disproving waiver because presumption of regularity attaches to final judgments even when questions of waivers of constitutional rights are raised. To overcome presumption of regularity, defendant may not merely point to silent or ambiguous record, but instead must provide affirmative evidence establishing that prior conviction was obtained in violation of Constitution. Prior holding in Strachan v. Army Clemency & Parole Bd., 151 F.3d 1308 (10th Cir. 1998), that defendant enjoys presumption that he was denied right to counsel and that conviction is thus void where record of conviction fails to show representation by counsel or proper waiver of that right, was contrary to earlier circuit precedent. Therefore, earlier precedent, not Strachan, governs. (3) Where indictment did not charge a total amount of drugs, but individual counts did allege threshold levels of drug quantities of five, five, and fifty grams of cocaine base, jury necessarily had to find that defendant’s offenses involved total of sixty grams of cocaine base when it convicted him. Thus, because marijuana equivalent of sixty grams of cocaine base is 1200 kilograms, and under sentencing guidelines, 1200 kilograms requires base offense level of 32, same offense level as that derived from judicially-found drug quantity of 2137.30 kilograms of marijuana at sentencing, judicially-determined drug quantity did not result in sentence exceeding maximum authorized by facts established by jury verdict in violation of United States v. Booker, 125 S.Ct. 738, 756 (2005). Read the opinion here. |
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