United States v. Demuntray D. Cox , 544 F. App'x 908 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16191
Non-Argument Calendar
________________________
D.C. Docket No. 5:11-cr-00020-WTH-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMUNTRAY D. COX,
Defendant-Appellant.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
_____________________
(November 21, 2013)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Demuntray Cox appeals his convictions for possession of ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e), and possession of
marijuana, in violation of 21 U.S.C. § 844(a). On appeal, Cox argues that (1) the
evidence against him should have been suppressed because the initial stop was
illegal and this tainted any statements he made after his arrest, and (2) at trial the
district court improperly admitted a police officer’s testimony identifying his voice
and explaining terminology used in a recorded jailhouse phone call. For the
reasons that follow, we affirm.
I. Background
Cox was indicted for possession of ammunition and possession of marijuana
after police conducted a traffic stop, observed marijuana in the car, and found a
loaded gun in his pants during a search. Cox moved to suppress the evidence,
arguing that there was no reasonable suspicion or probable cause to arrest him, he
was not given Miranda1 warnings, and even if he did receive Miranda warnings,
any statements he made were tainted by the illegal arrest.
At the suppression hearing, Deputy Trevor Fitzgerald testified as follows:
He initiated a traffic stop of a vehicle in which Cox was a passenger based on his
belief that the car’s windows were unlawfully tinted. As he followed the car, he
observed someone throw a plastic baggie with a green leafy substance from the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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passenger window. When the car stopped, he approached the passenger side of the
car and observed a marijuana bud between Cox’s legs. He removed Cox from the
car, handcuffed him, and placed him under arrest. He then searched Cox and
found a loaded firearm. Field tests confirmed that the baggie and bud contained
marijuana. After receiving Miranda warnings, Cox admitted that the drugs and
gun were his. Deputy Douglas Watts also testified at the suppression hearing and
confirmed Fitzgerald’s testimony about the stop and Cox’s statements.
A magistrate judge recommended denying the motion to suppress,
concluding that the initial stop was proper based on the tinted windows, the
marijuana on the car seat was in plain view, and there was probable cause to arrest
Cox. Cox filed objections to the magistrate judge’s recommendation, arguing that
there was no evidence he knew the marijuana was in the car and thus his arrest was
unlawful. He also asserted that Miranda warnings did not cure the taint of the
improper arrest. The district court overruled the objections and denied Cox’s
motion to suppress, concluding that the initial stop was proper, the marijuana was
in plain view, and thus there was probable cause to arrest and search Cox. The
district court noted that Cox had not challenged the initial stop as unlawful or
argued that the marijuana was not in plain view.
At trial, the government admitted recorded jailhouse phone calls made under
the personal identification number the jail assigned to Cox. ATF Special Agent
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DeWayne Krueger testified that he obtained the recordings and played them for
Fitzgerald. Fitzgerald testified that he had listened to the recordings the week
before the trial and recognized Cox’s voice. Fitzgerald stated that he had known
Cox in high school ten years earlier and could identify his voice. Fitzgerald
admitted that he had not spoken with Cox since high school until the day of the
stop, he had only spoken with Cox for fifteen or thirty minutes that day, and he had
not spoken with Cox since. Cox objected to Fitzgerald’s identification as lacking
foundation, but the court overruled the objection.
The government played the recordings for the jury, in which the speaker
identified as Cox stated the driver of the car “know why I had the green . . . . He
told me to roll that . . . . When he seen um comin’, he say toss it out.” Cox later
stated “the only thang [he] was responsible for in there was the stick.” Fitzgerald
testified that the term “stick” was slang for gun and “green” was slang for
marijuana.
The jury convicted Cox on both counts of the indictment, and the district
court sentenced him to 105 months’ imprisonment. This is Cox’s appeal.
II. Discussion
1. Motion to Suppress
Cox argues that there was no reasonable suspicion to stop the car in which
he was a passenger, and that the tinted windows were a pretext to stop the car. He
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asserts that there was no evidence he knew the marijuana was in the car and thus
his arrest was unlawful. Finally, he argues that giving Miranda warnings did not
cure the taint of the unlawful arrest. The government contends that the issues are
not properly before this court because Cox failed to challenge the magistrate
judge’s finding that the stop was lawful and that the drugs were in plain view.
Generally, we review the district court’s factual findings on a motion to
suppress only for clear error, but review its application of the law to those facts de
novo. United States v. Ramirez–Chilel, 289 F.3d 744, 748–49 (11th Cir. 2002).
When a defendant fails to make specific objections to a magistrate judge’s report
and recommendation, however, we deem challenges to those specific issues
abandoned. See Fed. R. Crim. P. 59(b)(2) (a defendant’s failure to file specific
written objections to a magistrate judge’s report waives the defendant’s right to
further review of that issue). Such claims are not subject to plain-error review.
United States v. Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (en banc).
Upon review of the record, we agree with the government that Cox failed to
preserve his arguments. In the report, the magistrate judge found that police
properly stopped the car for tinted windows and officers observed marijuana in
plain view on the passenger’s seat. Thus, the magistrate judge concluded that
Cox’s arrest and the subsequent search were lawful. In his objections to this
report, Cox failed to challenge the initial stop or the finding that the drugs were in
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plain view with any specificity. Rather, Cox argued that there was no evidence he
knew the marijuana was in the car. Under our precedent, we decline to address
arguments not raised in the objections to the magistrate judge’s report, and Cox’s
lack of specificity in filing objections is fatal to his claims. See United States v.
Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (requiring defendants to state
objections with specificity, using clear and precise language). Accordingly,
because Cox did not properly challenge the magistrate judge’s determination that
the police conducted a lawful traffic stop during which they observed marijuana in
plain view, the district court properly denied the motion to suppress.
2. Evidentiary Issues
Cox argues that the district court erred by admitting (a) Fitzgerald’s voice
identification testimony, (b) the recorded jail house calls, and (c) Fitzgerald’s
testimony concerning slang terms heard during the calls. In addition to asserting
that the evidence was not admissible under any rule of evidence, Cox contends that
the admission was more prejudicial than probative under Federal Rule of Evidence
403.
We review the district court’s admission of evidence for abuse of
discretion.” United States v. Capers, 708 F.3d 1286, 1305 (11th Cir.), cert. denied
2013 WL 2227240 (No. 12-10378) (Oct. 7, 2013) (internal quotation marks
omitted). Arguments not raised before the district court are subject to plain error
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review. United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). To
demonstrate plain error, Cox must show that: “(1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the
fairness of the judicial proceedings.” Id. Generally, “the trial judge has broad
discretion in determining whether to allow a recording to be played before the
jury.” United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977). 2 Although Cox
objected to Fitzgerald’s identification and testimony, preserving these issues for
appellate review, he failed to challenge the admission of the tape on authenticity
grounds. Nor did he argue that the admission of the evidence violated Rule 403.
We therefore review these arguments for plain error.
Regardless of which standard of review applies, evidentiary challenges are
also subject to harmless error review. See United States v. Ghertler, 605 F.3d
1256, 1270 (11th Cir. 2010) (discussing harmless error in the admission of voice
identification). Reversible error occurs only when the evidentiary ruling is not
harmless, meaning that there is a reasonable likelihood that the error affected the
defendant’s substantial rights. United States v. Hands, 184 F.3d 1322, 1329 (11th
Cir. 1999). We determine whether error was harmless “by weighing the record as
a whole . . . examining the facts, the trial context of the error, and the prejudice
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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created thereby as juxtaposed against the strength of the evidence of [the]
defendant’s guilt.” Id. (citation and internal quotation marks omitted).
A. Voice Identification
Voice identification testimony can be admitted only after it is determined
sufficient evidence supports a finding “the item is what the proponent claims it is.”
Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion testimony
“based on hearing the voice at any time under circumstances that connect it with
the alleged speaker.” Id. 901(b)(5). “Once a witness establishes familiarity with
an identified voice, it is up to the jury to determine the weight to place on the
witness’s voice identification.” Brown v. City of Hialeah, 30 F.3d 1433, 1437
(11th Cir. 1994).
Here, the testimony showed that Fitzgerald was familiar with Cox’s voice
from high school and from the day of the arrest. The jury determined that this
familiarity was sufficient, and we find no reason to disagree.
Even assuming that this was error, however, we find the error harmless. In
this case, the evidence against Cox was overwhelming. Cox admitted after arrest
that the marijuana and ammunition were his. Fitzgerald testified that he saw
someone throw a plastic baggie containing a leafy green substance from the
passenger window, and he smelled marijuana in the car. Fitzgerald further stated
that field tests confirmed the substances found in the passenger seat and the plastic
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baggie were marijuana. In light of this evidence, any error in the admission of
Fitzgerald’s voice identification was harmless. Finally, because of this
overwhelming evidence, Cox cannot show that the admission of Fitzgerald’s
testimony was unduly prejudicial under Rule 403.
B. Terminology
The district court also permitted Fitzgerald to explain terminology heard on
the recorded phone calls. Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education, may testify in the form of an
opinion or otherwise if (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. We have held that, “[l]aw enforcement officers may
testify as to the meaning of slang or code words.” United States v.
Carrazana, 921 F.2d 1557, 1567 (11th Cir. 1991) (citation omitted).
Here, Fitzgerald testified that the term “stick” referred to a gun and the term
“green” meant marijuana. Under our precedent, there was nothing improper about
permitting Fitzgerald’s testimony about the use of code words.
C. Authenticity of the Recordings
Finally, Cox challenges the recordings on the grounds that the government
failed to properly authenticate them. As noted, Cox did not raise this issue at trial,
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and thus we review for plain error. Gresham, 325 F.3d at 1265. The party
introducing an audio tape into evidence has the burden of presenting sufficient
evidence to show that a recording is an authentic reproduction of a conversation.
United States v. Sarro, 742 F.2d 1286, 1292 (11th Cir. 1984). In order to
authenticate a recording, the government ordinarily must show “(1) the
competency of the operator; (2) the fidelity of the recording equipment; (3) the
absence of material deletions, additions, or alterations in the relevant part of the
tape; and (4) the identification of the relevant speakers.” Id. If, however, “there is
independent evidence of the accuracy of the tape recordings admitted at trial, we
shall be extremely reluctant to disturb the trial court’s decision even though at the
time that decision was made the government had not carried its particularized
burden of going forward.” Id. (internal quotation marks omitted).
Here, the testimony at trial established that each inmate was assigned a
personal identification number and that Cox’s number was used to place the calls.
Cox did not object to the admission of the recording for lack of authenticity, and
we cannot conclude that there is any error here. Even if we were to find error, the
admission of these calls was harmless in light of the overwhelming evidence and
our admonition in Sarro.
For the foregoing reasons, we affirm Cox’s convictions.
AFFIRMED.
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