Once the government presents sufficient foundation testimony, the party challenging the tape recordings bears the burden of showing the recordings are inaccurate. Tapes are not inadmissible merely because one can conjure up hypothetical possibilities that tampering occurred.
Defendant's conviction resulted from a lengthy investigation conducted by Drug Enforcement Administration (DEA) agents and state and local police in Long Island, New York, and throughout Eastern Massachusetts. The bulk of the government's evidence consisted of a series of tape recorded telephone conversations. These were intercepted and recorded by government agents during court authorized wiretaps of a telephone located in defendant's Long Island home and a telephone located in the Brookline, Massachusetts, home of one of the codefendants, Elmer Rodriguez. Most of the recorded conversations were in Spanish.
Did the district court commit numerous reversible errors in the admission of evidence?
The court affirmed defendant's conviction holding that the district court did not err in admitting the challenged evidence. First, tape recordings of telephone conversations and a composite tape were properly authenticated. An officer's testimony was sufficient to raise a presumption of official regularity and after he explained how the recordings were obtained, defendant failed to make any showing of alteration, deletion or other inaccuracy. Second, the court rejected defendant's contention that the transcripts of the phone conversations were suspect merely because they were based on the composite tape because the qualifications of the government's translators and the word-for-word accuracy of the transcripts were explored in depth at trial. Third, statements made by co-conspirators were properly admitted under Fed. R. Evid. 801(d)(2)(E) because there was ample independent proof to establish the existence of a conspiracy. And finally, the trial court appropriately responded to the jury's impasse by giving a modified Allen charge.