Authenticating Wiretap Recordings

D.C. Circuit affirms admission of wiretap recordings, rejecting claims that the person duplicating the recordings had to listen to all of the tapes and a challenge to the chain of custody, in United States v. Celis, 608 F.3d 818 (D.C. Cir. June 18, 2010) (per curiam) (Nos. 07-3075, 07-3076, 07-3078)

Recorded conversations can supply key evidence at trial. In contrast with trial testimony summarizing an event, a recording can illuminate what key participants were saying and planning at the moment. Unless recorded conversations are properly authenticated, this important evidence will be inadmissible. A recent D.C. Circuit case considered some challenges to the authentication of wiretap recordings.

In the case, the defendants were prosecuted for conspiring to import cocaine and to manufacture and distribute cocaine for import into the United States from Colombia, South America. At trial, evidence included wiretapped recordings of telephone conversations. The defense claimed that the government failed to authenticate the recordings and provide an adequate chain of custody. Four individuals identified one key defendant and the voices of others on the recordings at trial. First, the defense argued, the government failed to offer a witness involved in duplicating the recordings who “had listened to all of the tapes to ensure a perfect duplication.” Second, the government provided an inadequate chain of custody of the recordings “because it provided no evidence of who transferred the original recordings from their maker” to the official making the duplications. Celis, 608 F.3d at 842. The jury convicted the defendants. On appeal, the challenge to the admission of the wiretap recordings was renewed.

The D.C. Circuit affirmed the admission of the wiretap recordings. In authenticating the recordings, the standard was whether the government, as the proponent of the evidence, could show that, “as a matter of reasonable probability, possibilities of misidentification and adulteration have been eliminated.” Celis, 608 F.3d at 842 (quoting United States v. White, 116 F.3d 903, 920–21 (D.C. Cir. 1997) (internal quotation marks omitted)); FRE 901(a) (“The requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). The government provided evidence on the process in which the recordings were made, including that the equipment was working properly and access to the equipment was limited to authorized personnel. One official involved in the duplication testified that “the duplication process resulted in an ‘exact’ copy of the original recording.” Celis, 608 F.3d at 842. There was no requirement that one person listen to all of the recordings in the duplication process. As the circuit noted, “Despite the fact that no one listened to each tape from beginning to end, the district court heard evidence relating to the integrity of the duplication procedures and the quality of the machinery. Based upon this showing, we conclude that the court did not abuse its discretion by determining that the recordings were authentic ‘as a matter of reasonable probability.’” Celis, 608 F.3d at 842 (quoting White, 116 F.3d at 920–21).

The D.C. Circuit also rejected the chain of custody challenge. There was no requirement for the government to “show the identity of each person who had custody of the tapes.” Celis, 608 F.3d at 842. The government readily met its burden to show that “as a matter of reasonable probability, possibilities of misidentification and adulteration have been eliminated,” under White and other cases. The chain of custody procedures were noted and complied with. The official making the recordings testified that:

Each DVD receives a number, and then it is put in its package, in its case, and it’s given to another division, another agency within that same work area. And they are in charge of keeping the chain of custody of the DVD, and they place it in the vault, which is in an area with restricted access.

Based on this showing, the recordings were properly authenticated and admitted at trial.

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