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United States v. Allen

United States District Court, D. Maryland

February 23, 2018

UNITED STATES OF AMERICA
v.
WILLIAM K. ALLEN, Defendant

          MEMORANDUM OPINION AND ORDER OF COURT

          THOMAS M. DIGIROLAMO UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant's motion for judgment of acquittal under Fed. R. Crim. P. 29 of his remaining charges in this case of driving while under the influence of drugs, in violation of 36 C.F.R. § 4.23(a)(1); unsafe operation of a motor vehicle, in violation of 36 C.F.R. § 4.22(b)(1); and failing to display a front license tag, in violation of Md. Code Ann., Transp. § 13-411, as incorporated under 36 C.F.R. § 4.2. Defendant contends that the Court should enter a judgment of acquittal under Fed. R. Crim. P. 29 or dismiss for lack of jurisdiction under Fed. R. Crim. P. 12(b)(2) because the Government has failed to prove the existence of federal jurisdiction in this case.

         BACKGROUND

         The Court reviews the facts relevant to the present motions. During the trial testimony of United States Park Police (“USPP') Officer Easter, the arresting officer in this case, the Court allowed over Defendant's objection the Government's introduction of evidence of a portion of a recording of a 911 call made to the USPP on August 8, 2017, that was played at trial (Gov't Ex. 2). The audio recording of the 911 call contains the caller's observations to the dispatcher while the caller was traveling on the Baltimore-Washington Parkway (the “Parkway”) and following an erratically driven white Mercedes Benz. The caller advised the USPP dispatcher that the white Mercedes Benz was traveling northbound on the Parkway past the I-95/I-495 exit, swerving onto the grass and driving “all over the place” while approaching NASA Goddard. The caller advised the dispatcher that the vehicle ran another vehicle off the side of the road and that it had been stopping in the middle of the road. The caller also provided the Maryland registration number of the Mercedes Benz.

         During the 911 caller's communication with the dispatcher, USPP communications advised officers to be on the lookout for a white Mercedes Benz traveling recklessly and erratically on the Parkway. At the time, Officer Easter was conducting a traffic stop off the Parkway on Soil Conservation Road. After receiving the notice, Officer Easter entered the Parkway, after which the USPP dispatcher advised the officer that the vehicle had left the Parkway and was traveling on Route 197, followed by the complaining 911 caller's vehicle.

         While on Route 197, Officer Easter observed a white Mercedes Benz traveling more slowly than the flow of traffic and failing to maintain its lane. The officer also observed a vehicle with activated hazard lights that matched the description of the complaining 911 caller's vehicle following the Mercedes Benz. On the basis of these observations, Officer Easter, with his emergency lights activated, pulled in behind the white Mercedes Benz to initiate a traffic stop. At that point, the white Mercedes Benz made a hard right turn into the curb. After the white Mercedes Benz stopped, Officer Easter approached it and found Defendant to be the driver. Upon exiting the vehicle at the officer's direction, Defendant appeared disoriented. After conducting field sobriety tests on Defendant, Officer Easter arrested him for, among other offenses, driving under the influence of alcohol or drugs, in violation of 36 C.F.R. § 4.23(a)(1). Defendant's vehicle, which had only one affixed Maryland registration tag, was searched and ultimately impounded. Because alcohol intoxication was not suspected, Defendant was transported to Prince George's Hospital for a blood draw rather than a breath sample, to which he consented.

         Officer Easter at trial identified one of the speakers on the 911 recording as a USPP communications dispatcher. Officer Easter further testified that the USPP dispatch unit is located in Anacostia, Washington, DC. When a 911 call is forwarded to USPP, a live recording is made at the time of the call on the recorded line in Anacostia. USPP officers can obtain recordings of such 911 calls upon request to their on-duty supervisor. Officer Easter never spoke to the complaining 911 caller, however. The officer further testified that during 911 calls one USPP dispatcher is in contact with the caller while another dispatcher relays the information to the police on the radio. Defendant seeks to exclude the recording of the 911 call, contending that the Government failed to lay a foundation for the admission of the recording and failed to establish a hearsay exception that would permit the statements contained in it to be admitted for their truth. Defendant also seeks a judgment of acquittal or dismissal of this case because of a lack of federal jurisdiction.

         DISCUSSION

         A. Admissibility of 911 Call Recording

         As an initial matter, the Court notes that the statements by the complaining 911 caller fall under the present-sense-impression exception to the hearsay rule under Fed.R.Evid. 803(1). See, e.g., United States v. Dean, 823 F.3d 422, 427-28 (8th Cir. 2016) (per curiam). “The reason present sense impressions are considered inherently reliable is because statements contemporaneously describing an event are unlikely to reflect memory loss or provide an opportunity to lie.” United States v. Orm Hieng, 679 F.3d 1131, 1147 (9th Cir. 2012) (Berzon, J., concurring). Moreover, the 911 recording does not constitute inadmissible hearsay under the Sixth Amendment's Confrontation Clause. See United States v. Laudermilt, 576 F. App'x 177, 180 (4th Cir. 2014); see also Davis v. Washington, 547 U.S. 813, 822 (2006).

         Defendant argues that the Court should not have admitted a portion of the recording of the 911 call at trial because it was not properly authenticated. Defendant contends that the recording is inadmissible because Officer Easter had not spoken with the 911 call dispatcher whose voice was on the recording, did not work out of the same location as the dispatcher, did not know how the Government had obtained the recording, had not listened to the recording before trial, and did not know if the portion of the call played by the Government was complete. Defendant also maintains that the Government did not lay a foundation for the admission of the recording because neither the dispatcher nor the 911 caller appeared to authenticate their voices, no custodian of records testified about the process of making 911 call recordings, and no one certified that the recording was accurate and complete.

         The Court notes that “[t]he proponent of an audio recording must show that the recording was sufficiently authentic to be admitted into evidence.” United States v. Wilson, 115 F.3d 1185, 1188-89 (4th Cir. 1997) (citing United States v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992)). The requirement of authentication is satisfied when there is “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). All that is required under Fourth Circuit precedent for the admissibility of recorded conversations is “some proof that the audio recording accurately reflects the conversation in question.” United States v. Spence, 566 F. App'x 240, 243 (4th Cir. 2014) (per curiam) (citing United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993); United States v. Branch, 970 F.2d 1368, 1371-72 (4th Cir. 1992)).

Illustrative examples of such evidence include (1) testimony by a knowledgeable witness that “[the audio recording] is what it is claimed to be, ” Fed.R.Evid. 901(b)(1); (2) “[a]n opinion identifying a person's voice-whether heard firsthand or through mechanical or electronic transmission or recording-based on hearing the voice at any time under circumstances that connect it with the alleged speaker, ” id. at (b)(5); or (3) testimony “describing a process or system and showing that it produces an accurate result, ” id. at (b)(9).

Id. (alterations in original). District courts are afforded “wide latitude in determining if a proponent of tape recordings had laid an adequate foundation from which the jury reasonably could have concluded that the recordings were authentic and, ...


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