Federal Evidence Review

In drug conspiracy prosecution, while detective did not recall the events described in the transcript, the transcript of the recorded telephone conversation obtained by Dutch authorities was authenticated by the detective who prepared the record of the intercepted recording and her general practice in doing so, and was admissible as a past recollection recorded, in United States v. Rommy, 506 F.3d 108 (2d Cir. Nov. 5, 2007) (No. 06-0520-cr)

In admitting a transcript of a recorded conversation, a host of issues can arise. A Second Circuit case, which reviewed authenticity, hearsay and due process challenges, is instructive.

In the case, defendant Rommy, a Dutch national, was prosecuted for conspiring to import “ecstacy” (or methylenedioxymethamphetamine) into the United States. The evidence included a transcript of a recorded call obtained by Dutch authorities. On the transcript, an unidentified person tells defendant Rommy “that another unnamed individual has only 6,000 ‘Versace t-shirts’ remaining,” which the government claimed corroborated the testimony of a cooperating witness that “at Rommy’s behest, he had transported a shipment of ecstasy pills stamped with the Versace logo to Switzerland.” Rommy, 506 F.3d at 137. The transcript was offered instead of the recording “because Dutch authorities declined to provide the [recording] in light of the fact that, under Dutch law, the recording should have been destroyed some time earlier.” Rommy, 506 F.3d at 137. After the defendant was convicted, on appeal, the defendant argued that the admission of the transcript and not the recording was inadmissible hearsay (under FRE 803(5) (past recollection recorded)), that the transcript was not properly authenticated under FRE 901, and that its admission violated the defendant’s Due Process rights.

Authentication

The Second Circuit affirmed the admission of the transcript. The transcript was properly authenticated under FRE 901 by a Dutch detective sergeant who participated in the wiretap investigation. While the detective “had no specific present recollection of the October 30, 2000 call or of preparing the corresponding transcript, she testified that it had been her general practice upon listening to calls intercepted during the investigation to prepare a contemporaneous transcript. This testimony, together with the Dutch production of the transcript in response to the United States’ second [Mutual Legal Assistance Treaty] MLAT request, demonstrated a sufficiently reliable process to authenticate the transcript as a product of the Dutch wiretap investigation.” Rommy, 506 F.3d at 138.

The authentication of the defendant’s voice was also made by the Dutch detective. While another fellow officer familiar with the defendant’s voice identified it on the recording, the detective spoke with the defendant at the time or his arrest a month later. She was able to connect his voice at the time of the arrest with the one she heard during the wiretap. As the circuit noted:

“Although Rommy complains that Det. Leichel lacked personal knowledge of Rommy’s voice at the time she made an initial attribution with respect to the October 30 call, Rule 901 expressly states that voice identification can be authenticated based upon ‘hearing the voice at any time.’ Fed. R. Evid. 901(b)(5).”

Rommy, 506 F.3d at 138.

Past Recollection Recorded

The transcript was admissible under FRE 803(5). The detective’s testimony provided a foundation to show the transcript was a “record of the words she heard when she listened to the intercepted October 30 conversation.” Rommy, 506 F.3d at 138. The fact that the detective had no personal knowledge of the defendant’s voice at the time she made the transcript did not undermine its admissibility as a past recollection recorded. Her testimony indicated that she did not remember the events detailed in the transcript at the time of testifying, but that as she prepared the record of what she heard near to the time of the events that transpired, she found that the transcript of the recording correctly reflected her knowledge of the events reported. Any error in admitting the transcript was harmless based on the detective’s testimony that she identified the defendant’s voice after hearing it at the time of his arrest and connecting it with the recorded conversation.

Due Process Clause

Finally, the circuit rejected the defendant’s Due Process challenge to the admission of the transcript on the grounds that the introduction of the transcript without the underlying tape recording precluded him “from preparing a competing transcript or proving that the voice on the call was not his.” Rommy, 506 F.3d at 139. The defense was allowed to present these matters to the jury:

“[The defendant] had ample opportunity at trial to alert the jury to the unavailability of the actual recording and to challenge the reliability of the transcript. Further, cross-examination afforded Rommy the opportunity to challenge [Dutch] Det. Leichel’s present voice identification by highlighting her inability to recall either the October 30 intercept or the preparation of the transcript, as well as her lack of personal familiarity with Rommy’s voice at the time of the alleged recording and transcript preparation. Under these circumstances, we conclude that the unavailability of the original recording did not deprive Rommy of due process.”

Rommy, 506 F.3d at 139 (citing United States v. Maxwell, 383 F.2d 437, 441-43 (2d Cir. 1967) (due process was not deprived based on admission of transcript where underlying recording had been accidentally erased and transcript preparer testified about its accuracy); see also United States v. Ross, 33 F.3d 1507, 1514 n.10 (11th Cir. 1994) (concluding, in case in which original recordings were destroyed by Spanish authorities, that due process challenge to transcripts was without merit “in light of [defendant’s] ability to cross-examine the government witnesses” who had prepared transcripts)).