The opinion of the court was delivered by: Surrick, J.
Presently before the Court is the Government's Motion to Admit Tape Recordings (ECF No. 554). For the following reasons, the Government's Motion will be granted.
On May 9, 2012,*fn2 a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn3 Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Kaboni Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.)
On October 9, 2004, six people, including four children, died as a result of arson at a home located at 3256 North Sixth Street, Philadelphia, Pennsylvania. (Def.'s Mot. 1, ECF No. 376.) The Indictment alleges that Kaboni Savage and Kidada Savage solicited and ordered Lewis and Merritt to set fire to the home of Eugene Coleman, a former associate of Savage. (Indictment 21-23.) Kaboni Savage believed that Coleman was cooperating with the Government and planned to testify against Savage in his 2005 federal drug conspiracy trial.*fn4 The firebombing took the lives of Coleman's mother, infant son, and four other relatives. The Government intends to show at trial that the firebombing was ordered by Kaboni Savage in order to intimidate Coleman and prevent him from testifying against him at the 2005 drug conspiracy trial.
On July 27, 2012, the Government filed a Motion to Admit Tape Recordings. (Gov't's Mot., ECF No. 554.) Merritt filed a Response on August 21, 2012. (Def.'s Resp., ECF No. 577.) On September 10, 2012, the Government filed a Reply to Defendant Merritt's Opposition to the Government's Motion to Admit Tape Recordings. (Gov't's Reply, ECF No. 594.) We held a Starks hearing on the Government's Motion on October 22, 2012. (Min. Entry, ECF No. 675.) At that hearing, the parties presented additional argument on the Motion.
The Government asks the Court to find that the offered recordings and transcripts are authentic and accurate. (Gov't's Mot. 1-2.) Specifically, the Government asserts that it has satisfied the admission requirements articulated in United States v. Starks, 515 F.2d 112 (3d Cir. 1975), that: (1) the recording devices used were capable of accurately recording the conversations; (2) the operators of the recording devices were competent; (3) the tape recordings are authentic and correct; (4) there have been no changes in, additions to, or deletions from the tape recordings; (5) the tape recordings have been properly preserved; (6) the speakers on the tape recordings are properly identified; (7) the conversations were lawfully intercepted either as recordings freely and voluntarily consented to, or were recordings pursuant to applications made and orders issued under 18 U.S.C. § 2518(9); and (8) the transcripts of the tape recordings accurately represent the conversations on the tape recordings and accurately identify the speakers and parties to the tape recorded conversation. (Gov't's Mot. 1-2.)
In Starks, the Third Circuit Court of Appeals held that "the burden is on the government 'to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings.'" Starks, 515 F.2d at 121 (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir. 1967)); see also Fed R. Evid. 901 ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.").*fn5 In attempting to admit such recordings, "[w]hen a colorable attack is made as to a tape's authenticity and accuracy, the burden on those issues shifts to the party offering the tape, and the better rule requires that party to prove its chain of custody." Starks, 515 F.2d at 122.
The parties raise two issues with regard to the admissibility of the recordings the Government seeks to introduce into evidence at trial. First, Defendant Merritt objects to the admission of recordings from January 5, 2005 at the Special Housing Unit ("SHU") of the Federal Detention Center ("FDC") in Philadelphia, Pennsylvania. (Def.'s Resp. 8.) Second, the Government noted that it may introduce up to 500 conversations at trial and that after collaboration between the parties, portions of particular transcripts remain in dispute. (Oct. 22, 2012 Hr'g Tr. 3-4 (on file with Court).)
At the Starks hearing, Special Agent Kevin Lewis, the case agent for
the investigation into the Kaboni Savage Organization ("KSO")
testified with regard to the audio recordings and transcripts
generated by the Government. In doing so, he described the different
types of recordings the Government obtained during the investigation
of the KSO, including: (1) "prison calls" or telephone calls made by
inmates in the FDC in Philadelphia and the United States
Penitentiary ("USP") in Atlanta*fn6 ; (2) "body wires"
or phone recordings involving confidential witnesses; (3) "consensual
body wires" or recordings made in person with a witness using a
concealed recorder; (4) wiretaps or "bugs" of the visiting room and
visiting booths at the FDC, Kaboni Savage's prison cell, the SHU, and
the cellular telephones of Kaboni Savage, Kidada Savage, Gerald
Thomas, and Wendell Mason; and (5) prior trial testimony of Kaboni
Savage and Kidada savage. (Id. at 6-22; Gov't's Mot. 5.)*fn7
The primary sources of the recordings the Government intends
to introduce at trial involve the prison calls, consensual recordings,
and recordings originating from testimony of Defendants under oath in
prior judicial proceedings. (Gov't's Mot. 4-5.)
Special Agent Lewis provided testimony about the equipment and individuals involved in intercepting communications and the manner by which transcripts were generated and reviewed. Specifically, he noted that the equipment included a system called VoiceBox, which allowed for live-monitoring of calls as they were made. (Id. at 23.) If calls were pertinent, they were recorded and preserved in a Magneto optical disc. (Id. at 24.) If the calls were deemed non-pertinent, they were not recorded, and monitors would perform spot-checks to determine if the conversations became pertinent. (Id.) The recordings could not be altered or deleted. (Id. at 24-25.) Once recorded, the conversations were stored on high capacity disks in the VoiceBox System. (Id. at 24.) The calls were compiled on the disks, of which there are two copies that were sealed with the federal judge that approved the Title III wiretap at the conclusion of the wiretap. (Id.)
Special Agent Lewis testified that he later listened to recordings of conversations he had live monitored and did not notice any discrepancies. (Id. at 10, 25.) By live monitoring conversations and listening to recordings obtained thereafter, Special Agent Lewis was able to identify Defendants' and other participants' voices based on personal interactions with them and from hearing them on the wiretaps. (Id. at 12, 42.) With regard to the transcripts of the various recordings, Special Agent Lewis and his partner prepared the transcripts and later compared the transcripts to the recordings after dozens of listens to ensure that they were fair and accurate representations. (Id. at 12-14, 31, 33, 35-36, 39.) These same procedures were followed for each of the different types of recordings the Government seeks to admit, including prison calls involving Kaboni Savage, the January 5, 2005 cell block wiretaps, and the wiretap recordings from the cellular phone taps. (Id. at 14, 39-42, 49-50.)
A. Authenticity of the ...