United States District Court, S.D. New York
November 14, 2005.
FERNANDO BOSCH, Defendant.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
The United States Attorney's Office for the Southern District
of New York (the "Government") filed a motion in limine by
letter dated November 3, 2005 requesting permission to (1) admit
Title III recordings at trial through a single summary witness;
(2) admit expert testimony regarding the use and meaning of codes
within narcotics organizations and other aspects of the operation
of the drug trade; and (3) admit a portion of an undated letter
sent by the defendant to the Court and the Government. The Court
did not receive any submission from defense counsel in response
to the Government's motion.
A. AUTHENTICATION OF WIRETAP RECORDINGS THROUGH A SUMMARY
The Government expects to offer evidence from court-authorized
wiretaps conducted by the Drug Enforcement Administration's
("DEA") New York Field Division. The Government requests
permission to authenticate wiretap recordings through a single
summary witness rather than through the individual agents and
translators who monitored each individual wiretap recording at the time the
relevant conversations were intercepted. The Government proposes
to authenticate the recordings through Special Agent Francis Rau
of the DEA, who was one of the case agents responsible for the
wiretaps conducted in the investigation of the defendant.
The "general standard" for admitting recordings into evidence
is that the offeror "produce clear and convincing evidence of
authenticity and accuracy." See United States v. Fuentes,
563 F.2d 527, 532 (2d cir. 1977); see also United States v.
Tropeano, 252 F.3d 653, 661 (2d Cir. 2001). The Second Circuit
has ruled that there is no requirement that recordings be
authenticated through a contemporaneous witness to the recorded
conversations. See Fuentes, 563 F.2d at 532. Pursuant to this
authority, the Court grants the Government's motion to
authenticate the wiretap recordings with a summary witness,
subject to the Court's determination at trial that the summary
witness' testimony is sufficient to "produce clear and convincing
evidence of authenticity and accuracy." Fuentes,
563 F.2d at 532.
B. EXPERT TESTIMONY
The Government also requests permission to admit expert
testimony regarding the use of narcotics codes and other aspects
of the drug trade. The Second Circuit has held that expert
testimony is admissible in regards to the use of codes and other
aspects of the drug trade pursuant to Federal Rule of Evidence
702. United States v. Garcia, 291 F.3d 127, 139 (2d Cir. 2002).
Accordingly, the Court grants the Government's motion to submit
expert testimony, subject to the Court's determination at trial
that the proposed expert witnesses are qualified.
C. ADMISSION OF DEFENDANT'S LETTER
In or about April, 2005, Mr. Bosch sent an undated letter to
the Court and sent copies of the letter to the Government and to
his counsel. The letter contained statements that relate to the
charges against Mr. Bosch in this proceeding. The Government
seeks to offer a portion of the letter at trial. Specifically,
the Government seeks to offer the section of the letter entitled
"Procedural and Factual Background."
It is evident that this section of the letter, which contains
inculpatory statements, is relevant. The letter was sent while
Mr. Bosch was in custody and after counsel was assigned to
represent him. There is no allegation or other indication that
the letter was submitted in response to any interrogation by law
enforcement. It is well established that a defendant's voluntary
statements made while in custody but not in response to any
interrogation by law enforcement may be used against a defendant
at trial. Rhode Island v. Innis, 446 U.S. 291 (1980); United
States v. Gaynor, 472 F.2d 899, 900 (2d Cir. 1973). Therefore,
the Court holds that the portion of the letter entitled
"Procedural and Factual Background" is admissible. II. Order
For the reasons stated above, it is hereby
ORDERED that the motion of the United States Attorney's
Office for the Southern District of New York (the "Government")
to authenticate wiretap recordings at trial through a single
summary witness is granted, subject to the Court's ruling at
trial regarding the sufficiency of the summary witness'
testimony; and it is further
ORDERED that the motion of the Government to submit expert
testimony regarding the use and meaning of codes within narcotics
organizations and other aspects of the operation of the drug
trade is granted, subject to the Court's ruling at trial as to
the qualifications of proposed expert witnesses; and it is
ORDERED that the motion of the Government to admit the
portion of an undated letter entitled "Procedural and Factual
Background" sent by the defendant Fernando Bosch to the Court and
to the Government in or about April 2005 is granted.
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