United States v. Credico

217 F. Supp. 3d 825, 2016 WL 6727700, 2016 U.S. Dist. LEXIS 157640
CourtDistrict Court, E.D. Pennsylvania
DecidedNovember 14, 2016
DocketCRIMINAL NO. 14-118
StatusPublished

This text of 217 F. Supp. 3d 825 (United States v. Credico) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Credico, 217 F. Supp. 3d 825, 2016 WL 6727700, 2016 U.S. Dist. LEXIS 157640 (E.D. Pa. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

Rufe, District Judge

Defendant Justin Michael Credico is charged with making threats to law enforcement officers and their families in violation of 18 U.S.C. §§ 115(a)(1)(A) and (B). On October 26, 2016, at Defendant’s request, the Court reopened a hearing pursuant to United States v. Starks1 to assess the accuracy and authenticity of recorded voicemail messages the Government proffers for use at trial. The initial Starks hearing occurred on July 2 and August 13, 2015 but was reopened so that the parties could address the recent revelation that the recordings at issue had been created using a cassette tape rather than a computerized system. Upon consideration of the evidence presented at the reopened Starks hearing, and for the reasons stated below, the Court holds that the government has satisfied its burden of proof under Starks.

I. FACTUAL AND PROCEDURAL HISTORY

On March 11, 2014, a grand jury in this District returned a four-count Indictment against Defendant: Count One, threats to a law enforcement officer (identified as FBI Special Agent #1) in violation of 18 U.S.C. § 115(a)(1)(B); Count Two, threats to the [827]*827wife of FBI Special Agent #1 in violation of 18 U.S.C. § 115(a)(1)(A); Count Three, threats to a law enforcement officer (identified as FBI Special Agent #2) in violation of 18 U.S.C. § 115(a)(1)(B); and Count Four, threats to the daughter of FBI Special Agent #2 in violation of 18 U.S.C. § 115(a)(1)(A). The Indictment alleges that Defendant engaged in a pattern of harassment of agents in the FBI’s Philadelphia office culminating in messages left on or about February 4, 2014 in the voicemail box of FBI Special Agent #1 that contained threats against FBI Special Agent #1, FBI Special Agent #1’s wife, FBI Special Agent #2, and FBI Special Agent #2’s daughter.

At the initial Starks hearing in 2015, the government produced FBI Special Agent Joshua Hubiak, who stated that he produced the CD containing the voicemail recordings.2 Agent Hubiak testified that all of the original voicemail messages had been forwarded from the voice mailbox of FBI Special Agent #1 (who was identified at the hearing as Special Agent Joseph Milligan) to a system known as ITACC. Agent Hubiak further testified that, using ITACC, he had copied these messages onto a CD, which the government intended to introduce into evidence and play for the jury at trial.3

The government also produced FBI Special Agent Joseph Carpenter, who interrogated Defendant following his arrest on February 12, 2014.4 Agent Carpenter testified that Defendant stated on that day that he had recently called Agent Milligan to challenge him to a boxing match and to urge him to sign a waiver so that Defendant could kill him during the fight without being held legally responsible.5 Agent Carpenter produced a handwritten statement that Defendant made during the interrogation, discussing the waiver and his animus against Agent Milligan. Some of the recordings mentioning the waiver were then played for Agent Carpenter, and Agent Carpenter identified the voice in the recordings as Defendant’s.6 Additionally, the government presented Nigel Truman, a telecommunications engineer knowledgeable about the voicemail system, and Patrick Bowens, an FBI agent with extensive experience using the ITACC system.

Defendant, who was at the time representing himself pro se, then testified. On cross-examination, Defendant acknowledged that at least one of the recordings was accurate, and identified his own voice on multiple recordings. However, he claimed that some of recordings had actually been made in 2012—rather than in 2014 as the government alleged—and that some recordings had been altered, although precisely how the recordings had allegedly been altered was unclear.7 At the end of the hearing, the Court ruled that Defendant could no longer represent himself because of his inappropriate behavior and appointed attorney Riley H. Ross, III, to represent him. Based on the testimony presented at the 2015 hearing, the Court concluded that the government had met its burden under Starks to show the authenticity and accuracy of the recordings.8

[828]*828On October 8, 2016, Defendant filed a motion in limine to preclude introduction of the recordings or, in the alternative, to reopen the Starks hearing, based on the findings of a defense expert. The Court granted the motion to the extent it requested a reopening of the hearing.

At the reopened hearing on October 26, 2016, the government presented two witnesses. First, Special Agent Joseph Milligan testified that he heard the threats when he received them on his voicemail.9 He stated that he and another agent recorded the threats from the voicemail system using a cassette tape recorder so that he could take the threats to the U.S. Attorney’s Office.10 He further stated that his voicemail messages were not altered before the tape was created, the cassette tape was not altered after it was created,11 and the content of the tape was the same as what he heard on his voicemail on February 4, 2014. The last time Agent Milligan recalled having possession of the cassette tape was when he took it to the U.S. Attorney’s Office.12 Agent Milligan could not recall whether he had forwarded the voicemails to Agent Hubiak, which had been his normal practice when he received threatening voicemails from Defendant.13

Next, Special Agent Joshua Hubiak retook the stand to clarify his previous testimony. Agent Hubiak testified that, at the 2015 hearing, he testified truthfully based on his knowledge at the time.14 However, he learned after an expert hired by Defendant inspected the CDs that the CD he had created from ITACC in fact only contained two of the eight voicemails in question,15 and the CD that the government planned to use at trial instead was made from the cassette tape created by Agent Milligan and the other agent.16 Before testifying at the previous Starks hearing, Agent Hubiak had not compared the cassette tape and the ITACC CD, and therefore he testified under the assumption that the two CDs contained identical material.17 He stated that the cassette tape and a CD copy of the tape were stored in a manila case folder in a box in his and Agent Carpenter’s cubicles at the Philadelphia FBI office.18 While no log was created to memorialize the chain of custody,19 Agent Hubiak stated that, to his knowledge, the tape was not tampered with while it was stored at the FBI office.20

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Bluebook (online)
217 F. Supp. 3d 825, 2016 WL 6727700, 2016 U.S. Dist. LEXIS 157640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-credico-paed-2016.