FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS May 24, 2011 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-3273 (D.C. No. 2:07-CR-20168-JWL-22) KEITH McDANIEL, (D. Kan. )
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit Judges.
In 2008, defendant-appellant Keith McDaniel was charged, along with
twenty-three other individuals, with one count of conspiracy to manufacture,
possess with intent to distribute, and to distribute fifty grams or more of cocaine
base and to possess with intent to distribute and to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),
(b)(1)(A)(iii), 846, and 18 U.S.C. § 2. At trial, the district court admitted into
evidence multiple recorded telephone conversations between the conspirators
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. which investigating officers had intercepted through wiretaps. Seven of these
conversations involved Mr. McDaniel. The jury ultimately found Mr. McDaniel
guilty of conspiracy. On appeal, Mr. McDaniel contends that the district court
erred in admitting the recorded conversations. We take jurisdiction under 28
U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Mr. McDaniel’s conviction stems from his participation in a vast
conspiracy to distribute cocaine and cocaine base in and around Kansas City,
Kansas and Kansas City, Missouri from January 2006 to November 2007. The
Drug Enforcement Administration began investigating the conspiracy in 2006 at
the request of the Leavenworth, Kansas police department. After attempting
various traditional investigative techniques (e.g., surveillance, confidential
informants, and search warrants) and finding them to be ineffective means of
uncovering the size and scope of the conspiracy, federal law enforcement officers
decided to seek wiretaps. From August to October 2007, the officers applied for
and obtained wiretaps on several suspected conspirators’ phones. The
conversations intercepted by the officers implicated Mr. McDaniel, and he was
eventually arrested on February 4, 2008.
Prior to trial, several of Mr. McDaniel’s co-defendants sought to suppress
the wiretap evidence because of alleged deficiencies in the wiretap applications
and in the district judge’s approval of those applications. Mr. McDaniel joined in
-2- two of the motions. The district court denied the motions on February 18, 2009,
and Mr. McDaniel proceeded to trial along with seven of his co-defendants.
At trial, the government sought to introduce, through Officer Eric Jones,
numerous recorded conversations the investigating officers had intercepted
through the wiretaps. Prior to playing any of the conversations for the jury,
Officer Jones testified as to his familiarity with the voices on the tapes. With
respect to Mr. McDaniel, Officer Jones testified as follows:
OFFICER JONES: I have spoken with Mr. McDaniel, as well as Mr. McDaniel, for instance, is one that we didn’t positively identify until almost the end of our intercepts, and towards the end of the investigation we had an idea that it was him. We just didn’t—we couldn’t positively say initially that it was him until other aspects kind of came into play through surveillance and some other incidences later.
PROSECUTOR: As a result of talking to him and conducting surveillance, you’re able to identify phone calls associated or between [co-defendant] Monterial Wesley and Mr. McDaniel?
OFFICER JONES: Yes.
Immediately following this testimony, the prosecutor explained that she had
presented her foundation for the recorded conversations and intended to play the
tapes for the jury. The district court then invited any objections to the admission
of the recordings, and Mr. McDaniel was among the defendants who objected.
Specifically, Mr. McDaniel argued that Officer Jones had not established that he
was sufficiently familiar with Mr. McDaniel’s voice to identify him as a speaker
on any of the recordings. Following a brief discussion of the various defendants’
-3- objections, the district court conditionally admitted all of the recordings pursuant
to Fed. R. Evid. 104. Officer Jones subsequently identified Mr. McDaniel’s voice
on seven different recordings containing incriminating conversations.
In addition to Officer Jones’s voice identification testimony, Danny
Tarrants testified that he and Mr. McDaniel had been friends since 2004 and that
they had maintained consistent contact from 2004 to 2007. When the government
stated its intent to have Mr. Tarrants identify Mr. McDaniel’s voice on the
recordings, Mr. McDaniel’s counsel requested that the government be required to
play a series of conversations, some involving Mr. McDaniel and some not
involving Mr. McDaniel, in an effort to test Mr. Tarrants’s ability to identify Mr.
McDaniel’s voice. The government agreed to this procedure and it proceeded to
play three conversations for Mr. Tarrants, only one of which was a conversation
that Officer Jones had identified as involving Mr. McDaniel. Consistent with
Officer Jones’s testimony, Mr. Tarrants identified Mr. McDaniel’s voice on the
one conversation and did not identify Mr. McDaniel’s voice on the other two.
Finally, the government presented testimony from Agent Timothy McCue,
one of the leading officers in the conspiracy investigation. Agent McCue testified
that he had listened to “the majority, if not all, of [the intercepted] phone calls”
during the course of the investigation. He further stated that he had participated
in the arrest of Mr. McDaniel and that he had a conversation with him at the time
of the arrest. This conversation, Agent McCue testified, confirmed his belief that
-4- Mr. McDaniel was the speaker on the phone calls the officers had previously
associated with him during the investigation. On cross-examination, Agent
McCue expanded on the extent of his familiarity with Mr. McDaniel, stating that
he transported Mr. McDaniel to jail following his arrest and obtained biographical
information from Mr. McDaniel.
After the government presented its witnesses and just before it concluded
its case in chief, the district court made a formal, unconditional ruling on the
record with respect to the admissibility of the recordings. The court held that “on
each of the telephone calls in question . . . I do find that either by or in
combination with the testimony of people who expressed familiarity with the
voices and/or the circumstances of the phone calls sufficient foundation has been
laid by the government to establish the authenticity of those calls.” With respect
to Mr. McDaniel specifically, the district court stated that “Mr. Jones testified
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FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS May 24, 2011 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-3273 (D.C. No. 2:07-CR-20168-JWL-22) KEITH McDANIEL, (D. Kan. )
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit Judges.
In 2008, defendant-appellant Keith McDaniel was charged, along with
twenty-three other individuals, with one count of conspiracy to manufacture,
possess with intent to distribute, and to distribute fifty grams or more of cocaine
base and to possess with intent to distribute and to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),
(b)(1)(A)(iii), 846, and 18 U.S.C. § 2. At trial, the district court admitted into
evidence multiple recorded telephone conversations between the conspirators
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. which investigating officers had intercepted through wiretaps. Seven of these
conversations involved Mr. McDaniel. The jury ultimately found Mr. McDaniel
guilty of conspiracy. On appeal, Mr. McDaniel contends that the district court
erred in admitting the recorded conversations. We take jurisdiction under 28
U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Mr. McDaniel’s conviction stems from his participation in a vast
conspiracy to distribute cocaine and cocaine base in and around Kansas City,
Kansas and Kansas City, Missouri from January 2006 to November 2007. The
Drug Enforcement Administration began investigating the conspiracy in 2006 at
the request of the Leavenworth, Kansas police department. After attempting
various traditional investigative techniques (e.g., surveillance, confidential
informants, and search warrants) and finding them to be ineffective means of
uncovering the size and scope of the conspiracy, federal law enforcement officers
decided to seek wiretaps. From August to October 2007, the officers applied for
and obtained wiretaps on several suspected conspirators’ phones. The
conversations intercepted by the officers implicated Mr. McDaniel, and he was
eventually arrested on February 4, 2008.
Prior to trial, several of Mr. McDaniel’s co-defendants sought to suppress
the wiretap evidence because of alleged deficiencies in the wiretap applications
and in the district judge’s approval of those applications. Mr. McDaniel joined in
-2- two of the motions. The district court denied the motions on February 18, 2009,
and Mr. McDaniel proceeded to trial along with seven of his co-defendants.
At trial, the government sought to introduce, through Officer Eric Jones,
numerous recorded conversations the investigating officers had intercepted
through the wiretaps. Prior to playing any of the conversations for the jury,
Officer Jones testified as to his familiarity with the voices on the tapes. With
respect to Mr. McDaniel, Officer Jones testified as follows:
OFFICER JONES: I have spoken with Mr. McDaniel, as well as Mr. McDaniel, for instance, is one that we didn’t positively identify until almost the end of our intercepts, and towards the end of the investigation we had an idea that it was him. We just didn’t—we couldn’t positively say initially that it was him until other aspects kind of came into play through surveillance and some other incidences later.
PROSECUTOR: As a result of talking to him and conducting surveillance, you’re able to identify phone calls associated or between [co-defendant] Monterial Wesley and Mr. McDaniel?
OFFICER JONES: Yes.
Immediately following this testimony, the prosecutor explained that she had
presented her foundation for the recorded conversations and intended to play the
tapes for the jury. The district court then invited any objections to the admission
of the recordings, and Mr. McDaniel was among the defendants who objected.
Specifically, Mr. McDaniel argued that Officer Jones had not established that he
was sufficiently familiar with Mr. McDaniel’s voice to identify him as a speaker
on any of the recordings. Following a brief discussion of the various defendants’
-3- objections, the district court conditionally admitted all of the recordings pursuant
to Fed. R. Evid. 104. Officer Jones subsequently identified Mr. McDaniel’s voice
on seven different recordings containing incriminating conversations.
In addition to Officer Jones’s voice identification testimony, Danny
Tarrants testified that he and Mr. McDaniel had been friends since 2004 and that
they had maintained consistent contact from 2004 to 2007. When the government
stated its intent to have Mr. Tarrants identify Mr. McDaniel’s voice on the
recordings, Mr. McDaniel’s counsel requested that the government be required to
play a series of conversations, some involving Mr. McDaniel and some not
involving Mr. McDaniel, in an effort to test Mr. Tarrants’s ability to identify Mr.
McDaniel’s voice. The government agreed to this procedure and it proceeded to
play three conversations for Mr. Tarrants, only one of which was a conversation
that Officer Jones had identified as involving Mr. McDaniel. Consistent with
Officer Jones’s testimony, Mr. Tarrants identified Mr. McDaniel’s voice on the
one conversation and did not identify Mr. McDaniel’s voice on the other two.
Finally, the government presented testimony from Agent Timothy McCue,
one of the leading officers in the conspiracy investigation. Agent McCue testified
that he had listened to “the majority, if not all, of [the intercepted] phone calls”
during the course of the investigation. He further stated that he had participated
in the arrest of Mr. McDaniel and that he had a conversation with him at the time
of the arrest. This conversation, Agent McCue testified, confirmed his belief that
-4- Mr. McDaniel was the speaker on the phone calls the officers had previously
associated with him during the investigation. On cross-examination, Agent
McCue expanded on the extent of his familiarity with Mr. McDaniel, stating that
he transported Mr. McDaniel to jail following his arrest and obtained biographical
information from Mr. McDaniel.
After the government presented its witnesses and just before it concluded
its case in chief, the district court made a formal, unconditional ruling on the
record with respect to the admissibility of the recordings. The court held that “on
each of the telephone calls in question . . . I do find that either by or in
combination with the testimony of people who expressed familiarity with the
voices and/or the circumstances of the phone calls sufficient foundation has been
laid by the government to establish the authenticity of those calls.” With respect
to Mr. McDaniel specifically, the district court stated that “Mr. Jones testified
about his firsthand knowledge of Mr. McDaniel’s voice, identified his voice on
those calls, and Mr. McCue provided corroboration of that particular testimony.
There’s also some circumstantial evidence that ties those calls together as well.”
The jury ultimately found Mr. McDaniel guilty of conspiracy, and he was
sentenced to 360 months’ imprisonment. This appeal followed.
II. DISCUSSION
On appeal, Mr. McDaniel challenges only the admissibility of the recorded
conversations. Specifically, he contends that the district court erred in admitting
-5- the conversations because: (1) the government witnesses failed to establish
sufficient familiarity with Mr. McDaniel’s voice to identify it on the recordings;
and (2) the wiretap applications were deficient and the wiretaps were not
necessary to the investigation.
A. Voice Identification
We review a district court’s decision to admit evidence for abuse of
discretion. United States v. Parker, 551 F.3d 1167, 1171 (10th Cir. 2008). Under
Fed. R. Evid. 901, voice identification testimony is admissible when the witness
has heard the voice “at any time under circumstances connecting it with the
alleged speaker.” We have repeatedly instructed that Rule 901 sets a low bar for
admissibility, requiring only that the witness demonstrate “minimal familiarity”
with the voice being identified. See, e.g., United States v. Bush, 405 F.3d 909,
919 (10th Cir. 2005); Parker, 551 F.3d at 1172; United States v. Zepeda-Lopez,
478 F.3d 1213, 1219 (10th Cir. 2007). “Once minimal familiarity is satisfied, it is
for the jury to assess any issues regarding the extent of the witnesses’ familiarity
with the voice.” Bush, 405 F.3d at 919; see also United States v. Axselle, 604
F.2d 1330, 1338 (10th Cir. 1979).
Mr. McDaniel contends that Officer Jones’s testimony was not specific
enough to establish minimal familiarity because it is unclear when Officer Jones
and Mr. McDaniel spoke, for how long they spoke, where they spoke, or how
much Mr. McDaniel said during their conversation. Indeed, Mr. McDaniel asserts
-6- that “[f]or all that can be gleaned from Officer Jones’s testimony, it may have
been an entirely one-sided conversation, with Mr. McDaniel saying virtually
nothing.” These arguments implicate the extent of Officer Jones’s familiarity
with Mr. McDaniel’s voice and thus go to the weight of the voice identification
testimony, not its admissibility. See Axselle, 604 F.2d at 1338 (holding that a
witness who testified that he had heard a defendant’s voice “at one time other
than during the call in question” had established minimal familiarity, and that
defendant’s arguments regarding the extent of the witness’s familiarity “go to the
weight of the evidence”); see also Bush, 405 F.3d at 919. Indeed, Rule 901 only
requires that the witness have heard the voice “at any time under circumstances
connecting it with the alleged speaker.” Here, Officer Jones testified that he had
“spoken with Mr. McDaniel,” and in response to the prosecutor’s questioning, he
confirmed that he was familiar with Mr. McDaniel’s voice “[a]s a result of talking
to him and conducting surveillance.” The district court did not abuse its
discretion in concluding that this testimony provided sufficient foundation to
admit the recordings. 1
B. Wiretaps
Pursuant to Fed. R. App. P. 28(i), Mr. McDaniel adopts the arguments of
1 Because we conclude that Officer Jones’s testimony provided sufficient foundation to admit the recordings, we need not address Mr. McDaniel’s additional arguments that Mr. Tarrants and Agent McCue failed to adequately authenticate the recordings.
-7- his co-defendant, Shevel Foy, with respect to the legality of the wiretaps.
Specifically, he contends that: (1) the officers failed to properly establish
authorization in their wiretap applications; and (2) the affidavits in support of the
wiretaps did not establish necessity. We adopt our analysis from Case No. 09-
3314, United States v. Foy, and affirm the district court’s refusal to suppress the
wiretap evidence for the reasons stated in that opinion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha Circuit Judge
-8-