Case o' The Week: Voice ID "All Right" by Ninth - Ortiz, FRE 901, and (Cross-Language) Voice Identifications

  The kids are all right.

  Richard Ortiz – well, less so.

United States v. Ortiz, 2015 WL 294305 (9th Cir. Jan. 23, 2015), decision available here.

Players: Decision by Judge Tallman, joined by Judges McKeown and Owens.

Facts: Ortiz was charged with being part of a large Mexican drug trafficking organization. Id. at *1. Ortiz has been released on another federal charge, and was dealing for the organization while on supervised release. Id. 

   His probation officer – who spoke Spanish “a little” – had spoken with Ortiz six to ten times while he was on supervision, and had met him ten to fifteen times, but had only spoken to him in English. Id. 

   During the trial, and over defense objection, this P.O. was called to identify Ortiz’s voice on wiretaps, as he spoke Spanish. Id. The P.O. testified that she recognized English phrases in the call, like “all right” as a distinctive tendency of Ortiz. Id. 

  Ortiz was convicted and sentenced to fifteen years. Id.

Issue(s): “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.” Id. at *1 (fn. omitted).

Held: “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 recognized 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 [FRE] 901(b)(5). Id. at *2. Here, [the Probation Officer’s] familiarity with Ortiz’s voice was substantially more than the minimal familiarity Rule 902(b)(1)(5) requires for admission of lay identification testimony.” Id. at *3. “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.” Id.

Of Note: The standard of review, for the Ninth's analysis, is “abuse of discretion.” Id. at *2. Judge Tallman quotes from the seminal ‘09 Hinkson en banc decision, explaining that the Ninth will uphold the evidentiary ruling unless it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at *2. Hinkson's abuse-of-discretion test is a forgiving standard, with much deference afforded to the district judge. Of historical interest: the D.J. in Hinkson case was Judge Tallman, sitting by designation. See blog here. 

How to Use: The voice I.D. in Ortiz – well, it stinks. The prosecutor first specifically asked the Probation Officer if she could recognize Ortiz’s voice – then played the P.O. the calls. Not surprisingly, the P.O. identified Ortiz. Id. at *2 n.3 Why wasn’t this identification procedure unduly suggestive (thus violating due process) under Neil v. Biggers, 409 U.S. 188, 199 (1972)? Maybe it was – but Ortiz didn’t raise it before the district court or in his opening brief, and the Ninth finds the issue waived. Id. at *2 n.3. Beware of the suggestive ID issue lurking with voice-identification issues (and raise the early!)

                                               

For Further Reading: Eric McDavid was sentenced to twenty years on federal charges, despite a vigorous trial defense that he was entrapped by the FBI’s young female informant. 

  After he served years in federal prison, a slew of documents have now appeared revealing that the informant, Anna, exchanged love letters with her target (a romance denied and downplayed by prosecutors in the trial). It turns out that the FBI had in fact ordered a polygraph of Anna while she was working on McDavid– then mysteriously cancelled it. (The name of the AUSA who signed off on the polygraph has now been redacted). Brady / Giglio evidence, that went to the heart of a vigorous entrapment defense, never disclosed during a very high profile federal trial?

   For a compelling piece on a very troubling prosecution in the ED Cal, see Ben Rosenfeld, Eric McDavid Deserves Answers from Federal Officials Who Kept Information from Him at Trial, available here. 

Image of “The Kids are All Right” from http://www.listal.com/viewimage/4475458

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: FRE-dom's Just Another Word for Nothing Left to Lose -- Estrada-Eliverio

Another slow week in the Ninth gives us a chance to reach back to the recent, and disappointing, illegal reentry decision in United States v. Estrada-Eliverio, __ F.3d __, No. 07-05191, 2009 WL 3163526 (9th Cir. Oct. 5, 2009), decision available here.

Players: Decision by Judge Paez (right). Hard-fought case by San Diego Assistant Defender Vince Brunkow.

Facts: Estrada-Eliverio went to trial on one count of illegal reentry, 8 USC § 1326. Id. at *1. One element of this offense is that the defendant had previously been deported. Id. To prove Estrada-Eliverio’s prior deportation, the government submitted three A-file documents: “a notice of intent to issue a final administrative removal order, a final administrative removal order, and a warrant of removal or deportation.” Id. The seal that normally authenticates these documents was not visible, and they were therefore inadmissible as self-authenticating documents under FRE 902. Id.

To get around this problem, the government called a Border Patrol agent who testified that i) such documents are kept in A-files, ii) these documents were copies of documents of Estrada-Eliverio’s A-file, iii) this agent was the custodian of this A-file, and iv) the documents admitted were true and correct copies of the documents in the A-file, which the agent had personally seen. Id. The documents were admitted (over defense objection) under FRE 901 – “Requirement of Authentication or Identification.” Id. Estrada-Eliverio was convicted, and appealed.

Issue(s): “Estrada-Eliverio argues that the district court erroneously admitted documents from his immigration file (‘A-file’) that were not properly authenticated at trial. He contends that the district court erred by allowing authentication under Federal Rule of Evidence (‘FRE’) 901 and that, even if Rule 901 applied, the government did not satisfy the rule’s requirement. We must determine whether the Federal Rules of Criminal Procedure permit authentication of official documents under FRE 901.” Id. at *1.

Held: “We conclude that they do. In addition, we hold that the district court did not abuse its discretion in admitting the A-file documents under Rule 901.” Id.

Of Note: As always, San Diego mounts a clever and creative argument in this appeal. Ticking backwards through the Federal Rules of Civil and Criminal Procedure, the defense argues that Federal Rule of Civil Procedure 44 applies in the case – and that rule limits the ways that an “official record” can be authenticated. Id. at *2. FRE 901 is not one of those ways. Id. Judge Paez, unfortunately, doesn’t bite, and holds that an official record can be authenticated under FRE 901 in a criminal case.

Unfortunately, the decision continues on and holds that a “custodian” can authenticate an official record under FRE 901, even if the custodian has no personal knowledge of the records’ creation. Id.

How to Use: Estrada-Eliverio adds – or rather affirms – another California Penal Code section to the list of offenses that are categorical “crimes of violence” triggering the sixteen-level specific offense adjustment under USSG § 2L1.1(b)(1)(A)(ii): assault with a deadly weapon or by means likely to produce great bodily injury, California Penal Code § 245(a)(1). Id. at *3 (citing United States v. Grajeda, No. 07-50387, slip op. at 13647, 13668 (9th Cir. Sept. 21, 2009)).

For Further Reading: Estrada-Eliverio makes it clear that any document authenticated under FRE 901 would satisfy Fed. R. Civ. Pro. 44. Is the reverse true? Probably not. For a discussion of the asymmetric relationship of these rules, visit the Federal Evidence Review blog here.


Image of the Hon. Richard Paez from http://www.law.washington.edu/GatesScholar/speakers.aspx

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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