USA v. Ron Collins,  No.  11-3098  .    Ron "Ron Ron" Collins participated in a drug-distribution conspiracy stretching from Mexico to Milwaukee that involved mass amounts of cocaine. For his role, Collins was found guilty of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and sentenced to a prison term of 360 months. Collins challenges both his conviction and the sentence imposed.

He contends that the district court improperly admitted into evidence certain tape recordings at trial.   

A. Tape Recordings    

The district court admitted into evidence three tape recordings of calls that were purportedly between Pedro Flores and Collins. (Collins contended he was not on the recording.)  On each of the recordings, Pedro discussed various information regarding the cocaine-distribution scheme with the "speaker," including prices, quantities, quality of drugs, and the use of other people to distribute the goods.  

Collins contends the tape recordings were improperly admitted because the government failed to lay a proper foundation under Federal Rule of Evidence 901.   

Rule 901(a) requires a party seeking to admit an item into evidence at trial to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." For tape recordings, this can be done in two ways: (1) a chain of custody demonstrating the tapes are in the same condition as when they were recorded, or (2) testimony demonstrating the accuracy and trustworthiness of the tapes. United States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002)  .   

In this case, the government satisfied its burden under both methods of proof. Beginning with the chain of custody: Agent Durante, who was stationed in Chicago, and Agent Jake Galvan, who was stationed in Guadalajara, Mexico, testified at length regarding the tapes' history and how Agent Galvan shipped the tapes to Agent Durante once he received them and the tape recorder from Pedro.   They testified that upon receiving the tapes, they labeled them, copied them, and downloaded their contents. They also testified that the tapes never left the government's possession after the moment of receipt.     

The government is only required to demonstrate that it took "reasonable precautions" in preserving the evidence; it is not required to "exclude all possibilities of tampering." United States v. Moore, 425 F.3d 1061, 1071-72 (7th Cir. 2005). We think the government's procedures in obtaining the tape recordings and preserving their accuracy were reasonable in light of the circumstances surrounding this case—it would be an impossible standard to always require agents to be present when a tape recording is made, especially in foreign countries. 

Moreover, the government provided ample circumstantial evidence supporting the tapes' accuracy and trustworthiness. One example is voice identification. Federal Rule of Evidence 901(b)(5) permits a witness to identify a person's voice on a recording "based on hearing the voice at any time under circumstances that connect it with the alleged speaker." This is not a very high bar. See United States v. Mendiola, 707 F.3d 735, 740 (7th Cir. 2013). 

The government proffered additional information showing that a timestamp on each of the November 2008 recordings coincided with three calls included in the cell phone records of Pedro's phone, which were admitted as evidence at trial. The date, time of day, and duration of each of the three calls matched those of the three recordings.

We are satisfied that this information also provided the district court with adequate justification to admit the tape recordings. 

For the full opinions visit the 7th Circuit Court of Appeals Web Site 

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

 

 

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