United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER OF COURT
M. DIGIROLAMO UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
Admissibility of 911 Call Recording
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,
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.
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
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, ...