United States v. Michael Leo Harris

338 F. App'x 892
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 29, 2009
Docket08-16000
StatusUnpublished
Cited by2 cases

This text of 338 F. App'x 892 (United States v. Michael Leo Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Leo Harris, 338 F. App'x 892 (11th Cir. 2009).

Opinion

PER CURIAM:

Michael Leo Harris appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). After review, we affirm.

I. BACKGROUND

In November 2007, Harris was indicted on one count of possession of a firearm by a convicted felon. Before trial, the parties stipulated that Harris was a convicted fel *893 on. Thus, the only issue at trial was whether Harris possessed a firearm.

At trial, Christopher Potter, a detective and former patrol officer with the Jacksonville Sheriffs Office, testified that he and Officer Alex Carrion responded to a reported automobile crash with injuries and found Harris lying on the ground a few feet from an overturned motorcycle. Harris rolled over, and Officer Potter saw a gun tucked into Harris’s waistband. Harris moved his hand toward the gun, and Officer Potter drew his own gun and kicked Harris’s hand away from the gun in Harris’s waistband.

There were two others at the scene: a male named Ernie Walden and a female named Christy Geiger. Potter acknowledged that, as he was kicking Harris’s hand away from the gun in Harris’s waistband, Walden said, “No, man, that’s mine, I put that on him.” Potter stated that Geiger “started freaking out,” was “emotional,” and cried. After the officers arrested Harris, Officer Potter went to speak to Geiger. Potter stated that Geiger “seemed to be upset” by the situation and was “aware ... that there was a real possibility that Mr. Harris was going to get shot.”

On cross-examination, Officer Potter stated that he later determined that Walden had been operating the motorcycle at the time of the accident and that there had been no crash. Instead, Walden and Harris simply had fallen off the motorcycle, possibly because they were intoxicated. Potter admitted that he did not test for gun residue on either Harris’s or Walden’s hands.

The government next called Officer Carrion. Carrion also saw the motorcycle laying a few feet away from Harris’s position on the ground. Seeing a gun in Harris’s waistband, Carrion drew his weapon and pointed it at Harris. Carrion watched as Harris reached for the gun and Officer Potter kicked Harris’s hand away. Carrion saw Walden and Geiger at the scene. According to Carrion, Walden “said something about, That’s my gun.” Geiger, who was crying and “a little hysterical,” identified herself as Harris’s girlfriend.

The government then introduced an audio recording and transcript of one particular prison phone call, made with Harris’s I-PIN number, in which Harris appears to admit that he possessed the firearm. To lay the foundation, the government called Thomas Price, the Jacksonville Department of Corrections’ communications coordinator, who was responsible for the inmate phone system. Price testified that prisoners can only use the phones inside the dorms by entering an individually assigned, seven digit I-PIN number. All inmate phone calls are automatically recorded, and these recordings can be copied but not altered.

Price identified a disk on which he had downloaded a copy of three calls found by searching for Harris’s jail identification number, which corresponded with his I-PIN number. The government’s audio recording of one particular phone call made with Harris’s I-PIN number came from this disk. The inmate making the call identifies himself as “Michael,” which is Harris’s first name. Price testified that the government’s transcript of the call was accurate. Harris objected to the admission of the audio recording and transcript because “the proper predicate ha[d]n’t been laid.” The district court overruled Harris’s objection.

The district court then excused the jury from the courtroom while the recording was discussed further. The court listened to the recording. The government explained that it could not force Harris to identify the recording because of his privi *894 lege against self-incrimination and that the other participants in the conversation were biased in Harris’s favor. The government analogized the authentication of the automatic phone recording to the authentication of an automatic unmanned surveillance camera. The district court again overruled Harris’s objection, finding that the government “ha[d] established a sufficient predicate that it’s Mr. Harris on the line here” and that “there’s enough indicia of reliability here that allows the transcript to be played, especially with the limiting instruction which I intend to give.”

Before the jury heard the recording, the district court instructed the jury that the transcript was admitted for the limited purposes of aiding the jury to follow the conversation and identify the speakers. The district court told the jury that “whether the transcript correctly or incorrectly reflects the content of the conversation or the identity of the speakers is entirely for you to determine.”

In the recording, the person who initiates the collect call identifies himself as “Michael.” 1 The pre-recorded voice on the collect call then identifies “Michael” as an inmate in the Duval County Jail. Roughly seven minutes into the call, a male, a female, and “Michael” begin discussing the contents of a police report, suggesting that the report incorrectly states that “Michael” was originally on his stomach. The female then states, “Michael was laying on his back.... That’s how they seen the fucking gun.” “Michael” asks, “[Y]ou didn’t hear me tell the police he did put it there?” The female responds, “[Y]ou said, yall [sic] planted that on me, yall [sic] planted that gun on me.” The female then states that she “was so fucking scared” and “just st[ood] there screaming please don’t shoot him, please don’t shoot him.” Apparently referring to the gun, “Michael” states, “[T]hat bitch ain’t got no bullets, no nothing. I just remember grabbing that motherfucker out of the house.” “Michael” then mentions that, when he fell off of the motorcycle, he could not get his leg out from underneath it. He asks if the motorcycle was messed up.

On cross-examination, Price admitted that inmates sometimes exchanged or stole I-PIN numbers, but stated that they were told to keep their I-PIN numbers confidential.

The jury found Michael Harris guilty. He was sentenced to 195 months’ imprisonment. Harris timely appealed.

II. DISCUSSION

Harris argues that his conviction should be reversed because neither the recording of the phone call nor the transcript was authenticated properly.

We review a district court’s decision to admit evidence for an abuse of discretion. United States v. Cole, 755 F.2d 748, 766 (11th Cir.1985). The district court’s determination of authenticity should not be disturbed unless there is no competent evidence in the record to support it. United States v. Munoz, 16 F.3d 1116, 1120-21 (11th Cir.1994). Moreover, the district court has “broad discretion in determining whether to allow a recording to be played before the jury.”

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338 F. App'x 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-leo-harris-ca11-2009.