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United States v. Estevez

United States District Court, Third Circuit

June 24, 2013

UNITED STATES,
v.
DESIDERIO DISLA ESTEVEZ also known as Nelson Orellana

MEMORANDUM OPINION

GENE E.K. PRATTER United States District Judge

Presently before the Court is the Government’s Motion In Limine To Introduce Evidence of Other Acts Pursuant to Fed.R.Evid. 404(b) (Docket No. 27), the Government’s Motion to Admit Tape Recordings (Filed Under Seal) (Docket No. 31), the Defendant’s Response in Opposition to both motions (Docket No. 40) and the Defendant’s Supplemental Memorandum Opposing Admissibility of Tapes (Docket No. 52). For the reasons that follow, and for the reasons discussed at the hearing held on June 21, 2013, the Court grants both Motions in part and denies both Motions in part. The Court writes primarily for the benefit of the parties, who are familiar with the facts of this case, and thus will discuss only those facts necessary to the determination of these motions.

The Government seeks to admit a series of tape recordings and transcripts of conversations which allegedly took place between Mr. Estevez and various other individuals, and conversations which allegedly took place between a Confidential Informant (“CI”) and an individual identified as “El Grande.” The Government also seeks to admit evidence of Mr. Estevez’s alleged meetings with the CI, as discussed in these conversations. Mr. Estevez objects to the admission of these tape recordings and transcripts principally on three grounds: (1) the Government cannot lay a proper foundation, as it cannot satisfy the Starks test, particularly as to the identification of the speakers; (2) portions of the conversations are inadmissible hearsay; and (3) the Government’s refusal to identify the CI and call him as a witness violates Sixth Amendment confrontation rights.

I. Authentication of the Tape Recordings and Transcripts Under Starks and Federal Rule of Evidence 901(a)

In Starks v. United States, 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.’” 515 F.2d 112, 121 (3d Cir. 1975) (quoting United States v. Knohl, 379 F.2d 427, 440 (3d Cir. 1967)). The Court of Appeals in Starks articulated the following factors for authenticating tape recordings:

1. The recording device used was capable of accurately recording the conversations;
2. The operator of the recording device was 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 pursuant to an application made and order issued under 18 U.S.C. § 2518 or through the consent of one of the parties. Copies of the application and order have been provided to the defendant in accordance with 18 U.S.C. § 2518(9); and
8. The transcripts of the tape recordings accurately represent the English language translation of the conversations on the tape recordings and accurately identify the speakers and parties to the tape-recorded conversations.

Starks, 515 F.2d at 121 n.11.

Federal Rule of Evidence 901, which was issued after the Third Circuit Court of Appeals decision in Starks, further provides that the test for authenticity requires a showing of “evidence sufficient to support a finding that the matter in question is what the proponent claims it is.” Fed.R.Evid. 901(a).

a. English Language Transcripts of the Recorded Conversations

All of the conversations that the Government intends to introduce here are in Spanish. Thus, the Government has translated the conversations from Spanish to English, and intends to introduce the English language ...


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