UNITED STATES OF AMERICA v. ROSALIO CRUZ-REA and ZOYLA GARCIA-REA Nos. 09-3591, 10-1355

Law enforcement authorities launched an investigation in the summer of 2007 into the shipment of cocaine from California and Utah to Indianapolis, Indiana. During the course of this investigation, the Drug Enforcement Administration (DEA) obtained court authority to wiretap twenty-four telephone conversations which featured Spanish speakers using code language to discuss drug activities . 

Two witnesses testified to having two of these conversations with Cruz-Rea on the telephone. However, Officer Marytza Toy was the only witness who actually testified that she recognized Cruz-Rea as the speaker in each of the twenty-four recorded conversations, including both of the conversations detailed above.

She based her identification on a fifteen second voice exemplar that she listened to at least fifty to sixty times. Admittedly unusual, this voice exemplar was actually a recording of Cruz-Rea's booking process, which consisted of Cruz-Rea saying his name, address, date of birth, and telephone number in English.

 A. Lay Opinion Voice Identification Testimony

We review the district court's admission of Officer Toy's voice identification testimony for abuse of discretion. United States v. Neighbors, 590 F.3d 485, 492 (7th Cir. 2009).

Rule 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Fed. R. Evid. 910(b)(5).

We have consistently interpreted this rule to require that the witness have only "minimal familiarity" with the voice. Neighbors, 590 F.3d at 493; United States v. Recendiz, 557 F.3d 511, 527 (7th Cir. 2009). Once the court admits voice identity testimony, opposing counsel may cast doubt upon the witness' opinion through cross-examination, additional testimony, or other evidence. See, e.g., United States v. Jones, 600 F.3d 847, 857-58 (7th Cir. 2010); Neighbors, 590 F.3d at 494.

It is ultimately the trier of fact's responsibility to determine the accuracy and reliability of the identification testimony, and when reaching its determination, the trier of fact may consider circumstantial evidence that tends to corroborate or contradict the identification. Neighbors, 590 F.3d at 493-94; United States v. Mansoori, 304 F.3d 635, 665 (7th Cir. 2002); United States v. Degaglia, 913 F.2d 372, 376 (7th Cir. 1990).

Officer Toy testified that she became familiar with Cruz-Rea's voice by listening to an approximately fifteen second voice exemplar at least fifty to sixty times. Officer Toy then identified Cruz-Rea's voice on twenty-four wiretapped telephone conversations.  

Given the length of the voice exemplar and the number of times that Officer Toy listened to the exemplar, the district court did not abuse its discretion in determining that the government had laid sufficient foundation for Officer Toy's voice identification testimony under Rule 901(b)(5). See Neighbors, 590 F.3d at 493-94.

The accuracy and reliability of the testimony was a question for the jury to weigh, and the court properly admitted the corroborating testimony to aid the jury in this role. Jones, 600 F.3d at 858.

Cruz-Rea also argues that Officer Toy's voice identification was unhelpful and therefore inadmissable under Federal Rule of Evidence 701 because the jury could have listened to the tapes and identified the voices without the aid of Officer Toy's opinion.

Rule 701 states that lay opinion is proper when it is "(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701 (emphasis added).

Although Rule 701 requires that testimony be "helpful," we have never held that testimony is unhelpful merely because a jury might have the same opinion as the testifying witness. See, e.g., United States v. Noel, 581 F.3d 490, 496 (7th Cir. 2009); United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990).

Accordingly, we affirm the district court's ruling on this issue.

AFFIRMED.

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