Legal Case Summary

which is the United States versus Spence. Mr. Patrick. Yes. May I please the court, I'm Michael Patrick from Chapel Hill, North Carolina. I represent the Meetrian Spence and a appeal from the Eastern District. I'm hearing a little echo. I'm not sure. You're okay. All right. I was appointed in connection with the appeal. I did not handle the trial. I am only planning to address the evidentiary issues raised in the brief. I'm not going to address the sentencing issues. The evidentiary issues that we raised in connection with the brief involve the admission into evidence over objection of three recordings of a ledge undercover drug transactions and a recording involving a communication between the defendant and his mother from the Peemont Regional jail where he was in pretrial custody. The as we've outlined in a brief, the fourth circuit has adopted in a general fashion, some guidance for the foundational requirements for admissions of tape recordings that were laid down in the eighth circuit in the United States versus McMillan, but in the United States to be Clark, it recognized that it was not going to adhere strictly

. There an objection based on foundation made at the trial court. The government raised that in a footnote in its brief. There was foundation or there were objections made to the introduction of each. Now rule 103, not based on foundation. It was a general objection, the rule 103, of course, says for preservation purposes. Was there any description? I mean, was there just objection? Was there any description of what objection was based upon? You know, we would argue that the context really spoke for itself in this case. I mean, you know, what was being admitted were these recordings? At J.A.193, it was objection. The court says to both and the trial council says yes, sir. That's it. Yes. And the same at J.A.198 objection overrule

. That's it. That's right. The, it's hard to take it out of context. Rule 103 obviously says you're supposed to say specific objections except where the context makes it obvious. And I would suggest that to experience trial council, which was what an experienced trial judge that all were involved in this case, the only real objection that you have at this point to this type of evidence is foundational. Given the context or the point and the trial on each of these. Now, at the time of the PRC, the fourth tape recording, the trial council did make a somewhat more elaborate objection talking about lack of foundational. Requirement, but that's as to the jailhouse. That's right. So if the general objection to the first two, we would likely review it under plain error and ask the third one a piece of discretion. Well, it really depends on how you excuse me, Your Honor. It really depends on how you apply rule 103 because, you know, we do assert that it's obvious from the context. And therefore, you do not have to make a very specific objection at that point. Now, the government cited in its brief the United States V. Bollack for that point

. And when it raised that in a footnote, but if you look at the United States V. Bollack, which is a 96 opinion of this court, government was citing to the descent in that case. The judge Russell, who was in the scent, basically, who was saying we shouldn't address this because there was only a general objection to judges. Judge Phillips and Judge Mernahan, who were in the majority. And the majority weren't troubled by that. I think probably by the context of that and went ahead and dealt with those, even though it was very apparently very general objection. And I think that's what we're dealing with again here is that the objections that were made at trial, although they were non specific objections given the context of what was going on at the trial was obviously to the foundational. And as a trial lawyer, I'm very used to listening to the litany of foundational things for recordings. You ask how is made, have you identified it, have you examined the recording? Is it accurate? Do you recognize the voices? None of those questions were asked by the prosecutors, the very experienced prosecutor in this case. And it struck me when I was reading the transcript that boy, this is like a traffic court case, not a federal district court case. They're just not going through the usual litany. And there's a reason you go through the usual litany because you don't always know that you're going to get the right answers. You don't always, and the witness they were typically asking was not giving very good answers. So we don't really know what the answers to the usual questions would have been. But it seemed to be clear from the context that it had to go to the foundation given the fact that there was no foundation, no usual litany being asked in this

. The other thing I would point out that kind of highlights a reason that you don't want to skip over this is something that in fact did happen at the trial. Prosecutor Walker, and as to another, this does not relate to the recordings, but there were emotions and limited to exclude evidence of prior acts as not four or four acts. And they were denied. And then they called an agent, Max Robison, to testify to these prior acts. The prosecutor put on that testimony and it wasn't until cross examination that we've learned that the witness had no personal knowledge, no personal recollection of these prior acts. He was an officer reading from somebody, other officers reports from 12 years earlier. When that came out across examination, the court struck that testimony. I can't believe that that was an accident from a process lost the threat. I'm sorry on something other than the recordings now. Yes, sir. What I'm talking about is the importance of having the foundational questions in place because you usually assume they're going to be answered correctly. I'm giving another example you just gave us that that doesn't have anything to do with the recording. No, sir, but it has to do with some prior acts that the prosecutor called a witness who she must have known had no personal knowledge about these prior acts put on the direct testimony, didn't bother to establish that. That an only in cross did it come out that this witness at the prosecutor call had no prior knowledge of that. That's what happens when you don't go through the and that's what troubles me about these phone calls you didn't we don't really know if the usual foundational questions had been called you know gone through what would exactly would have transpired

. There was an error and there was an objection made. I think we would contend that it's pretty obvious from context of that what the basis of the objection was. And that if you take a look at any of the cases that deal with the recordings and the milling case and any of the cited cases you find that there was much more foundational basis for recordings than in this case. In this case there was no testimony in most of the cases that the transcript was reviewed that the recording was reviewed a couple times twice the main witness said yes I reviewed the recording they never testified that it was an actor recording. He never identified the voices on it. There was no testimony about the nature of the recording. What about J.A. 195 where he's asked now that voice that you hear on that recording other than yours do you recognize that to be to meet your suspense yes. And do and then they go on what about that. I think that as the one of the three recordings. Okay I thought I just heard you say he never identified any. I may have there's like four different recordings and I've got a sheet that I may have misread on that. There was never any testimony I think about the preservation of the recordings that whether they were identical to that to you know the way they originally had been recorded. There was just lack of any of the normal chain of custody preservation

. Now they did more on the PRC recording the pre pre-mountain regional recording they did identify they brought a separate witness in officer Winston to identify the voices. They had some testimony about how the recordings were transferred but there was really this was a situation where there was. A much more elaborate recording system at PRC. Yeah the pre-mountain regional J.A. Alley and going and outgoing calls are recorded somehow probably on a computerized system. But there was no explanation of that no explanation how you find find a particular recording how you even know it relates to particular witness. But there was an identification ultimately of the voices on that through officer Winslow. But that went far beyond the nature of the identification that they used in connection with the other witnesses or the other three recordings in this case. And we would suggest that it was not harmless era to admit these three recordings certainly. The bullet cases that the government cited in its brief is also instructive on that they had a that was a case who would not involve recordings but involved. The prior consistent statements that the government put into evidence without having the witness that he's. And the court said that that was improper to do that. Even though it was only a general objection made to that of that in Bollock and the majority in that case said well. Without those prior consistent statements the remainder of the government's evidence and that was a drug case I believe was a set of government witnesses of questionable veracity

. Typical drug case typical like this case where there were. Almost everybody testifying were admitted drug dealers who were trying to get. Help on very sentences or get their time cut all of those other witnesses without the benefit of the recordings that were really trying to document these particular transactions three substance of transactions. All the other witnesses were easily or could be questioned fairly effectively as to what their motives for testimony were like in Bollock then. Bollock suggests that if you eliminate those recordings that. That or that the admission of those recordings would not be harmless era certainly derroca was someone who would be very questionable veracity without that kind of support. You are not sure if you don't have any additional questions I'll just reserve the rest or I have some time reserve for the report. Thank you. Thank you very much Mr. Patrick. Thank you. And is Shaw. Once you give us your side of the story. May it please the court. Good morning

. I'm Shalika Sean. I'm here on behalf of the United States. Now in every case before this court it is imperative that common sense reason and logic not be thrown out the window that the court consider the context of what happened at the trial. As to the three recordings of the control buys the witness derroca Johnson thoroughly set the background that the recording was of his meaning with the defendant on a specified day. As to each of the three recordings on March 16th March 19th and March 30th. Investigator wins low testified prior to Mr. Johnson and also set the exact facts of what happened that Mr. Johnson wore a wire. Mr. Johnson testified that he understood that he was being recorded. He testified that he went to meet the defendant at a specified location, a specified time, and he testified that the recording was of his meeting with the defendant on that specific date. Further as Judge Thacker pointed out with regard to the first recording, the March 16th recording, derroca Johnson also testified that it was the defendant's voice on that recording. By the time each of these recordings was introduced in evidence, it was clear to the jury and everyone in the courtroom that the recording was of the witness and of the defendant. To ask whether what for the prosecution to have to be required to ask was that the defendant's voice on that recording for each of those recording would have been unnecessary and cumulative. The defendant when the defense points out that the government didn't go through the proper litany of questions that you asked and introducing these three recordings

. Well, I beg to differ. Here, the government laid a proper prevoundation. According to Federal Rule of Evidence 901B5, the government had to show that it was the defendant's voice on the recording. For the reasons I mentioned, I believe the government did that. Further, the standard in this court requires that the defendant demonstrate that the foundation laid at the trial court was clearly insufficient to ensure the accuracy of the recording. This is a heavy burden. Here, if you look to the Macmillan factors, again, as we articulated in brief, the Macmillan factors are not binding. The four circuit does not strictly adhere to the Macmillan factors, but rather looks at those factors in determining whether or not the foundation laid was clearly insufficient to ensure the accuracy of the recording. The Macmillan factors require that the defense was capable of recording. The operator was competent, that the recording was authentic and correct. There are no changes or deletions to the recording. The recording was preserved and the speakers were identified. The conversation was voluntary. Your honours, we submit that each one of those was met through the testimony investigator Winslow and through the testimony of Joroka Johnson. Again, investigator Winslow set the scene

. He told us that he enlisted Joroka Johnson to engage and control advise with the defendant. He then placed a wire on that defendant. He monitored that wire, that recording for the duration of the transaction, that he never lost physical sight. He never lost any observation of the defendant during the three controlled buys. That afterward, he had a specific procedure for checking, for following the defendant, and following the witness, for checking his car, checking his person, and then ensuring the accuracy of those recordings in that way. Joroka Johnson then testified as to each of the three recordings that he was equipped with a wire, that he wore the wire to the transaction with Mr. Spence. At those drug transactions that he knew he was being recorded, that after those transactions at trial, that the recording was of that specific of the March 16 transaction, the March 19th, the March 30th, he initialed each of those CDs as being accurate. He listened to those CDs in conjunction with the transcripts, and certified that the transcripts were accurate of the recording. As to the fourth recording, the Piedmont jail recording. Now, the government presented two witnesses to testify as to the accuracy of this recording. First, it presented Lieutenant Ridley from the Piedmont jail, and he testified that he was ordered to produce the recording of the defendant speaking with his mother to recordings on a specific day of phone calls by the defendant. He produced the log, and he produced the recording. He described for the court how he searched the system by searching for the defendant's name on a particular date. He testified that the system was in working order with no errors. He didn't experience any problems, creating the CD, and he did not know any malfunction with the system. Then, at trial, he testified that he recognized the desk as the one that he had prepared, and the CD contained an accurate copy of the original recording. The government then put investigator Winslow back on the stand, and had an investigator Winslow testify that he was familiar with the defendant's voice, and that he was familiar with the defendant's mother's voice, and that that recording contained the voices of the defendant and the defendant's mother. Again, this is the government-led proper foundation under Federal Rule of Evidence 901B5. Now, as to, I'm not going to address the defendant's second claim, as they've already conceded, that this court's opinion in the United States Vee Young would preclude its position, not opinion, in that with regard to that claim. Moving to the defendant's third claim, which goes to sentencing. The defendant challenges the district court's decision to not include the 1998 conviction, not consider it relevant conduct. Now, we would like to point out to the court that the defendant started this case before trial, and during trial, maintaining, insisting that that 1998 conviction was completely unrelated to the offense in this case. He filed a motion in limony, specifically saying that the facts bear little similarity to the crimes alleged. There are no common witnesses, no confidential informants, or no common co-conspirators. It would not occur in the same location, and it did not involve the same methods of distribution. Conveniently, the defendant changed his position at sentencing, and objected to the inclusion of this relevant conduct, stating now that not only was it so- The government's position of that 1998 conviction during the trial. The government's position was that that 1998 conviction should be allowed under Rule 404B as an other act, an act extrinsic to the offense of the conviction. And specifically, the government did know in its motion to introduce this conviction as 4-4B, did identify certain similarities. It did identify that they were both drug transactions, that they did occur in Elizabeth City, and there was a sale to an undercover officer, similar to a confidential informant

. He didn't experience any problems, creating the CD, and he did not know any malfunction with the system. Then, at trial, he testified that he recognized the desk as the one that he had prepared, and the CD contained an accurate copy of the original recording. The government then put investigator Winslow back on the stand, and had an investigator Winslow testify that he was familiar with the defendant's voice, and that he was familiar with the defendant's mother's voice, and that that recording contained the voices of the defendant and the defendant's mother. Again, this is the government-led proper foundation under Federal Rule of Evidence 901B5. Now, as to, I'm not going to address the defendant's second claim, as they've already conceded, that this court's opinion in the United States Vee Young would preclude its position, not opinion, in that with regard to that claim. Moving to the defendant's third claim, which goes to sentencing. The defendant challenges the district court's decision to not include the 1998 conviction, not consider it relevant conduct. Now, we would like to point out to the court that the defendant started this case before trial, and during trial, maintaining, insisting that that 1998 conviction was completely unrelated to the offense in this case. He filed a motion in limony, specifically saying that the facts bear little similarity to the crimes alleged. There are no common witnesses, no confidential informants, or no common co-conspirators. It would not occur in the same location, and it did not involve the same methods of distribution. Conveniently, the defendant changed his position at sentencing, and objected to the inclusion of this relevant conduct, stating now that not only was it so- The government's position of that 1998 conviction during the trial. The government's position was that that 1998 conviction should be allowed under Rule 404B as an other act, an act extrinsic to the offense of the conviction. And specifically, the government did know in its motion to introduce this conviction as 4-4B, did identify certain similarities. It did identify that they were both drug transactions, that they did occur in Elizabeth City, and there was a sale to an undercover officer, similar to a confidential informant. And it was quite close in time to the conspiracy charged here. Well, the indictment charged the conspiracy starting in 2000. However, the statements by co-conspirators dated the conspiracy back to June of 1998. The acts of this 1998 conviction did occur in May of 1998, so yes, Your Honor, they did occur within 12 days time period. But the difference here is, as the court told us in the haunch. Did the district court judge during sentencing discuss those factors, the time period and the similarities in coming to the conclusion that the 1998 conviction was not in fact part of relevant conduct for the instant offense? Yes, Your Honor, this exact issue was before the Senate's in court. The defendant objected to the PSR and the district court dealt with that. In its decision, the district court recognized and actually believed that the government's position at trial had been that this 1998 conviction was relevant conduct. And he asked the government, well, should it, should it count this as relevant conduct, that was your position. The government explained that while it had made arguments regarding the similarity, that was specifically to indicate the reliability of the evidence as required for admission under Rule 404B. But the government maintained that at no point did it believe or assert the position that that 1998 act was part of the offensive conviction or part of a single course of conduct. And the reason for that is that there was no evidence. There was nothing in the investigative materials to link that one sale to an undercover police officer in May of 1998 to the conspiracy which began in June of 1998. And in 19th of 1998? Yes, Your Honor, May 19th of 1998. Two weeks before the conspiracy

. And it was quite close in time to the conspiracy charged here. Well, the indictment charged the conspiracy starting in 2000. However, the statements by co-conspirators dated the conspiracy back to June of 1998. The acts of this 1998 conviction did occur in May of 1998, so yes, Your Honor, they did occur within 12 days time period. But the difference here is, as the court told us in the haunch. Did the district court judge during sentencing discuss those factors, the time period and the similarities in coming to the conclusion that the 1998 conviction was not in fact part of relevant conduct for the instant offense? Yes, Your Honor, this exact issue was before the Senate's in court. The defendant objected to the PSR and the district court dealt with that. In its decision, the district court recognized and actually believed that the government's position at trial had been that this 1998 conviction was relevant conduct. And he asked the government, well, should it, should it count this as relevant conduct, that was your position. The government explained that while it had made arguments regarding the similarity, that was specifically to indicate the reliability of the evidence as required for admission under Rule 404B. But the government maintained that at no point did it believe or assert the position that that 1998 act was part of the offensive conviction or part of a single course of conduct. And the reason for that is that there was no evidence. There was nothing in the investigative materials to link that one sale to an undercover police officer in May of 1998 to the conspiracy which began in June of 1998. And in 19th of 1998? Yes, Your Honor, May 19th of 1998. Two weeks before the conspiracy. Yes, presumably the 1998 conspiracy dated back to June of 1998 but involved two grams of sale per month. We don't know exactly what date that sale was made in June of 1998. So assuming for the defendant that it was only 12 days and that conspiracy began on June 1 of 1998. Now, under Hodge, this court told us that the mere fact that both involved drug distribution is not enough to support treating as relevant conduct. And we point that out today because the government acknowledges that they were both drug transactions. They were. But they did in May of 1998, the defendant sold crack cocaine. It was the, it was a statement of a co-conspirator by the name of Bowser that dated the conspiracy back to June of 1998. He is the only co-conspirators whose conduct went between 1998 and 2000. And all of the drug quantity alleged there was powder cocaine, not croc cocaine. So we are dealing with a different drug in that context in looking at that similarity of time. Additionally in Hodge, the court relied heavily on the abundance of evidence indicating the regularity of sales that connected that prior drug transaction with the transactions that were part of the offensive conviction. And your honors, we don't have that today. There was no evidence in the investigative materials or in the record to indicate to connect the May 1998 action with the conspiracy that began in June of 1998. And it's that lack of evidence that makes us not part of a single episode or spree as explain an application note nine of section 1B1

. Yes, presumably the 1998 conspiracy dated back to June of 1998 but involved two grams of sale per month. We don't know exactly what date that sale was made in June of 1998. So assuming for the defendant that it was only 12 days and that conspiracy began on June 1 of 1998. Now, under Hodge, this court told us that the mere fact that both involved drug distribution is not enough to support treating as relevant conduct. And we point that out today because the government acknowledges that they were both drug transactions. They were. But they did in May of 1998, the defendant sold crack cocaine. It was the, it was a statement of a co-conspirator by the name of Bowser that dated the conspiracy back to June of 1998. He is the only co-conspirators whose conduct went between 1998 and 2000. And all of the drug quantity alleged there was powder cocaine, not croc cocaine. So we are dealing with a different drug in that context in looking at that similarity of time. Additionally in Hodge, the court relied heavily on the abundance of evidence indicating the regularity of sales that connected that prior drug transaction with the transactions that were part of the offensive conviction. And your honors, we don't have that today. There was no evidence in the investigative materials or in the record to indicate to connect the May 1998 action with the conspiracy that began in June of 1998. And it's that lack of evidence that makes us not part of a single episode or spree as explain an application note nine of section 1B1.3. Mayor honors, were there any during the life of the conspiracy was crack cocaine, one of the drugs that was distributed or just pure powder? The indictment alleges crack cocaine. So it alleges starting in 2000, the defendant, there were co-conspirators, an evidence to indicate that the defendant was dealing in crack cocaine from 2000 up until 2011 I believe. But the 1998 and 1999 relevant conduct only related to cocaine. So I point out that difference to explain that it was a longer period of time before the defendant, we have evidence that the defendant was dealing in crack cocaine and get between May of 1998. It didn't, he did not start dealing again in crack cocaine until 2000. And under Hodge, there are three factors that we consider, and this is also an application note nine of 1B1.3. You consider the similarity, the regularity, and the distance in time. So I'm trying to articulate how, how those different factors vary based on the drug that was actually sold in May 1998. Your eyes, I would also like to point out that with regard to not counting this as relevant conduct, the defendant bears a burden to demonstrate prejudice, to show that this in fact affected the Senate said he could have received. Now in this case, if this was sent back to the district court, we know because the district court told us that the district court would impose the same Senate, even as an alternate variant of Senate. Even if we were, we're presuming that there was procedural error. But if the defendant were granted relief, we looked to whether or not the Senate imposed, which effectively was a 324 month Senate. He got 324

.3. Mayor honors, were there any during the life of the conspiracy was crack cocaine, one of the drugs that was distributed or just pure powder? The indictment alleges crack cocaine. So it alleges starting in 2000, the defendant, there were co-conspirators, an evidence to indicate that the defendant was dealing in crack cocaine from 2000 up until 2011 I believe. But the 1998 and 1999 relevant conduct only related to cocaine. So I point out that difference to explain that it was a longer period of time before the defendant, we have evidence that the defendant was dealing in crack cocaine and get between May of 1998. It didn't, he did not start dealing again in crack cocaine until 2000. And under Hodge, there are three factors that we consider, and this is also an application note nine of 1B1.3. You consider the similarity, the regularity, and the distance in time. So I'm trying to articulate how, how those different factors vary based on the drug that was actually sold in May 1998. Your eyes, I would also like to point out that with regard to not counting this as relevant conduct, the defendant bears a burden to demonstrate prejudice, to show that this in fact affected the Senate said he could have received. Now in this case, if this was sent back to the district court, we know because the district court told us that the district court would impose the same Senate, even as an alternate variant of Senate. Even if we were, we're presuming that there was procedural error. But if the defendant were granted relief, we looked to whether or not the Senate imposed, which effectively was a 324 month Senate. He got 324. Specifically a savvy on the two date. Hargrove, are you? Yes, Your Honor. Essentially, if we're considering that there was some sort of procedural error, which were not. But if there were, we make the argument that it would still be substantively reasonable. And under this court standard, you look to two things. Would the court have imposed the same Senate? I think clearly from the record he says he would have. And two, would the Senate impose be substantively reasonable? Now in this case, if the defendant were to win his argument, he was already given the highest base defense level based on the significant drug quantity attributed to him. So he would remain at a total offense level of 38. His criminal history category, he correctly asserts, would drop from a criminal history category three to a level two. This would affect his advisor guideline range, making him, his advisor guideline range, 262 to 327 months in prison. Now I remind the court that the defendant was sentenced to 324 months on counts one in four. And 240 months on counts two in three. Terms to run concurrently. So effectively, he was sentenced to serve 324 months. A sentence that would be within the revised advisor guideline range, if the defendant were to obtain the relief he seeks

. Specifically a savvy on the two date. Hargrove, are you? Yes, Your Honor. Essentially, if we're considering that there was some sort of procedural error, which were not. But if there were, we make the argument that it would still be substantively reasonable. And under this court standard, you look to two things. Would the court have imposed the same Senate? I think clearly from the record he says he would have. And two, would the Senate impose be substantively reasonable? Now in this case, if the defendant were to win his argument, he was already given the highest base defense level based on the significant drug quantity attributed to him. So he would remain at a total offense level of 38. His criminal history category, he correctly asserts, would drop from a criminal history category three to a level two. This would affect his advisor guideline range, making him, his advisor guideline range, 262 to 327 months in prison. Now I remind the court that the defendant was sentenced to 324 months on counts one in four. And 240 months on counts two in three. Terms to run concurrently. So effectively, he was sentenced to serve 324 months. A sentence that would be within the revised advisor guideline range, if the defendant were to obtain the relief he seeks. So under Savianma Tuttei and looking at Hargrove and this court's opinion on his floor is, the sentence imposed would be substantively reasonable. So the defendant has failed to demonstrate any prejudice or any error that can be corrected by the district court. Seeing that the court has no further questions and closing, we want to express that what the district court did is not improper. The court did not err in admitting any of the four recordings. Norded at error in excluding the 1998 conviction from relevant conduct. The reality is one that there was overwhelming evidence at trial to support the defendant's conviction. And two, even if this court were to find that the 1998 conviction were relevant conduct, his defendant's 324 months on it is within the revised guideline range anyway. Therefore, we ask this court to affirm the district court. Thank you. Thank you very much, Mr. Patrick. You have a few minutes and a rebuttal if you'd like to take that. Thank you, Governor. I didn't address the sentencing issues, but since Judge Thacker has mentioned it in my opposing counsel as I'll address it very briefly. We didn't address the sentencing issue last, the third issue largely because we acknowledged in the brief the Savianma Tuttei problem in this

. So under Savianma Tuttei and looking at Hargrove and this court's opinion on his floor is, the sentence imposed would be substantively reasonable. So the defendant has failed to demonstrate any prejudice or any error that can be corrected by the district court. Seeing that the court has no further questions and closing, we want to express that what the district court did is not improper. The court did not err in admitting any of the four recordings. Norded at error in excluding the 1998 conviction from relevant conduct. The reality is one that there was overwhelming evidence at trial to support the defendant's conviction. And two, even if this court were to find that the 1998 conviction were relevant conduct, his defendant's 324 months on it is within the revised guideline range anyway. Therefore, we ask this court to affirm the district court. Thank you. Thank you very much, Mr. Patrick. You have a few minutes and a rebuttal if you'd like to take that. Thank you, Governor. I didn't address the sentencing issues, but since Judge Thacker has mentioned it in my opposing counsel as I'll address it very briefly. We didn't address the sentencing issue last, the third issue largely because we acknowledged in the brief the Savianma Tuttei problem in this. So the district court certainly said that at trial in sentencing. Although in looking at the record and looking at Hodge as we cited it, that was a situation where Virginia based crack or drug case found that three years prior a drug distribution in New York was relevant conduct. But all of the evidence in this case is much closer in times, the same kind of drugs, same place, same small town in North Carolina. If it's relevant conduct and Hodge, it ought to be relevant conduct. But again, the district judge indicated we give the same sentence. And that's largely the reason I didn't want to take the court's time in my original argument on that. Going back to the points that they made in terms of the three recordings. They, the government exerts that the Mimilin factors were demonstrated. We assert just the opposite that very few of the Mimilin factors were inserted. And I'll just run down them very quickly. Whether the recording device was capable, I don't think there was testimony about that on any of the three except for the first one where they said the recording device was malfunctioning for a good part. The time was the operator competent. That's the second factor. I don't think there's any testimony on that was the recording authentic and correct. There was some testimony but not consistent testimony about that

. So the district court certainly said that at trial in sentencing. Although in looking at the record and looking at Hodge as we cited it, that was a situation where Virginia based crack or drug case found that three years prior a drug distribution in New York was relevant conduct. But all of the evidence in this case is much closer in times, the same kind of drugs, same place, same small town in North Carolina. If it's relevant conduct and Hodge, it ought to be relevant conduct. But again, the district judge indicated we give the same sentence. And that's largely the reason I didn't want to take the court's time in my original argument on that. Going back to the points that they made in terms of the three recordings. They, the government exerts that the Mimilin factors were demonstrated. We assert just the opposite that very few of the Mimilin factors were inserted. And I'll just run down them very quickly. Whether the recording device was capable, I don't think there was testimony about that on any of the three except for the first one where they said the recording device was malfunctioning for a good part. The time was the operator competent. That's the second factor. I don't think there's any testimony on that was the recording authentic and correct. There was some testimony but not consistent testimony about that. Was there any change made to the recording afterwards before it was reduced in court? There was no testimony on that. Was the recording preserve that is testimony from the agents that we kept it in the safe place. That's where things are. There's no testimony about that. Were the speakers ID does just that could not on the first recording they did ID the speakers but they didn't do it on the second and third recordings. And was the last factors was a voluntary. I think the context of it in the case of yes on all three was voluntary. But the same speaker on the second and third recordings. I'm sorry. Wasn't it the same speaker on the second and third recording? The same person was wearing the wire. But there was no testimony about who the other speakers were or identification. The other speakers on the second and third. And if you look at the cases you know we cited a lot of cases in the brief. I think you'll find that when they were sight with the foundation or requirements and all the ones that they've upheld, there's more significantly more than the foundation in this case. So we again assert that under rule one or three we didn't have to make more than a general objection

. Was there any change made to the recording afterwards before it was reduced in court? There was no testimony on that. Was the recording preserve that is testimony from the agents that we kept it in the safe place. That's where things are. There's no testimony about that. Were the speakers ID does just that could not on the first recording they did ID the speakers but they didn't do it on the second and third recordings. And was the last factors was a voluntary. I think the context of it in the case of yes on all three was voluntary. But the same speaker on the second and third recordings. I'm sorry. Wasn't it the same speaker on the second and third recording? The same person was wearing the wire. But there was no testimony about who the other speakers were or identification. The other speakers on the second and third. And if you look at the cases you know we cited a lot of cases in the brief. I think you'll find that when they were sight with the foundation or requirements and all the ones that they've upheld, there's more significantly more than the foundation in this case. So we again assert that under rule one or three we didn't have to make more than a general objection. And if you take a look at whether the foundation, proper foundation was made that it was not. And as a consequence it was not harmless era. And that this case should be remanded for a new trial in the district court. Thank you very much. Thank you Mr. Patrick. Court notes that you're court appointed and we wish to express our appreciation to you for taking that obligation. Thank you.

which is the United States versus Spence. Mr. Patrick. Yes. May I please the court, I'm Michael Patrick from Chapel Hill, North Carolina. I represent the Meetrian Spence and a appeal from the Eastern District. I'm hearing a little echo. I'm not sure. You're okay. All right. I was appointed in connection with the appeal. I did not handle the trial. I am only planning to address the evidentiary issues raised in the brief. I'm not going to address the sentencing issues. The evidentiary issues that we raised in connection with the brief involve the admission into evidence over objection of three recordings of a ledge undercover drug transactions and a recording involving a communication between the defendant and his mother from the Peemont Regional jail where he was in pretrial custody. The as we've outlined in a brief, the fourth circuit has adopted in a general fashion, some guidance for the foundational requirements for admissions of tape recordings that were laid down in the eighth circuit in the United States versus McMillan, but in the United States to be Clark, it recognized that it was not going to adhere strictly. There an objection based on foundation made at the trial court. The government raised that in a footnote in its brief. There was foundation or there were objections made to the introduction of each. Now rule 103, not based on foundation. It was a general objection, the rule 103, of course, says for preservation purposes. Was there any description? I mean, was there just objection? Was there any description of what objection was based upon? You know, we would argue that the context really spoke for itself in this case. I mean, you know, what was being admitted were these recordings? At J.A.193, it was objection. The court says to both and the trial council says yes, sir. That's it. Yes. And the same at J.A.198 objection overrule. That's it. That's right. The, it's hard to take it out of context. Rule 103 obviously says you're supposed to say specific objections except where the context makes it obvious. And I would suggest that to experience trial council, which was what an experienced trial judge that all were involved in this case, the only real objection that you have at this point to this type of evidence is foundational. Given the context or the point and the trial on each of these. Now, at the time of the PRC, the fourth tape recording, the trial council did make a somewhat more elaborate objection talking about lack of foundational. Requirement, but that's as to the jailhouse. That's right. So if the general objection to the first two, we would likely review it under plain error and ask the third one a piece of discretion. Well, it really depends on how you excuse me, Your Honor. It really depends on how you apply rule 103 because, you know, we do assert that it's obvious from the context. And therefore, you do not have to make a very specific objection at that point. Now, the government cited in its brief the United States V. Bollack for that point. And when it raised that in a footnote, but if you look at the United States V. Bollack, which is a 96 opinion of this court, government was citing to the descent in that case. The judge Russell, who was in the scent, basically, who was saying we shouldn't address this because there was only a general objection to judges. Judge Phillips and Judge Mernahan, who were in the majority. And the majority weren't troubled by that. I think probably by the context of that and went ahead and dealt with those, even though it was very apparently very general objection. And I think that's what we're dealing with again here is that the objections that were made at trial, although they were non specific objections given the context of what was going on at the trial was obviously to the foundational. And as a trial lawyer, I'm very used to listening to the litany of foundational things for recordings. You ask how is made, have you identified it, have you examined the recording? Is it accurate? Do you recognize the voices? None of those questions were asked by the prosecutors, the very experienced prosecutor in this case. And it struck me when I was reading the transcript that boy, this is like a traffic court case, not a federal district court case. They're just not going through the usual litany. And there's a reason you go through the usual litany because you don't always know that you're going to get the right answers. You don't always, and the witness they were typically asking was not giving very good answers. So we don't really know what the answers to the usual questions would have been. But it seemed to be clear from the context that it had to go to the foundation given the fact that there was no foundation, no usual litany being asked in this. The other thing I would point out that kind of highlights a reason that you don't want to skip over this is something that in fact did happen at the trial. Prosecutor Walker, and as to another, this does not relate to the recordings, but there were emotions and limited to exclude evidence of prior acts as not four or four acts. And they were denied. And then they called an agent, Max Robison, to testify to these prior acts. The prosecutor put on that testimony and it wasn't until cross examination that we've learned that the witness had no personal knowledge, no personal recollection of these prior acts. He was an officer reading from somebody, other officers reports from 12 years earlier. When that came out across examination, the court struck that testimony. I can't believe that that was an accident from a process lost the threat. I'm sorry on something other than the recordings now. Yes, sir. What I'm talking about is the importance of having the foundational questions in place because you usually assume they're going to be answered correctly. I'm giving another example you just gave us that that doesn't have anything to do with the recording. No, sir, but it has to do with some prior acts that the prosecutor called a witness who she must have known had no personal knowledge about these prior acts put on the direct testimony, didn't bother to establish that. That an only in cross did it come out that this witness at the prosecutor call had no prior knowledge of that. That's what happens when you don't go through the and that's what troubles me about these phone calls you didn't we don't really know if the usual foundational questions had been called you know gone through what would exactly would have transpired. There was an error and there was an objection made. I think we would contend that it's pretty obvious from context of that what the basis of the objection was. And that if you take a look at any of the cases that deal with the recordings and the milling case and any of the cited cases you find that there was much more foundational basis for recordings than in this case. In this case there was no testimony in most of the cases that the transcript was reviewed that the recording was reviewed a couple times twice the main witness said yes I reviewed the recording they never testified that it was an actor recording. He never identified the voices on it. There was no testimony about the nature of the recording. What about J.A. 195 where he's asked now that voice that you hear on that recording other than yours do you recognize that to be to meet your suspense yes. And do and then they go on what about that. I think that as the one of the three recordings. Okay I thought I just heard you say he never identified any. I may have there's like four different recordings and I've got a sheet that I may have misread on that. There was never any testimony I think about the preservation of the recordings that whether they were identical to that to you know the way they originally had been recorded. There was just lack of any of the normal chain of custody preservation. Now they did more on the PRC recording the pre pre-mountain regional recording they did identify they brought a separate witness in officer Winston to identify the voices. They had some testimony about how the recordings were transferred but there was really this was a situation where there was. A much more elaborate recording system at PRC. Yeah the pre-mountain regional J.A. Alley and going and outgoing calls are recorded somehow probably on a computerized system. But there was no explanation of that no explanation how you find find a particular recording how you even know it relates to particular witness. But there was an identification ultimately of the voices on that through officer Winslow. But that went far beyond the nature of the identification that they used in connection with the other witnesses or the other three recordings in this case. And we would suggest that it was not harmless era to admit these three recordings certainly. The bullet cases that the government cited in its brief is also instructive on that they had a that was a case who would not involve recordings but involved. The prior consistent statements that the government put into evidence without having the witness that he's. And the court said that that was improper to do that. Even though it was only a general objection made to that of that in Bollock and the majority in that case said well. Without those prior consistent statements the remainder of the government's evidence and that was a drug case I believe was a set of government witnesses of questionable veracity. Typical drug case typical like this case where there were. Almost everybody testifying were admitted drug dealers who were trying to get. Help on very sentences or get their time cut all of those other witnesses without the benefit of the recordings that were really trying to document these particular transactions three substance of transactions. All the other witnesses were easily or could be questioned fairly effectively as to what their motives for testimony were like in Bollock then. Bollock suggests that if you eliminate those recordings that. That or that the admission of those recordings would not be harmless era certainly derroca was someone who would be very questionable veracity without that kind of support. You are not sure if you don't have any additional questions I'll just reserve the rest or I have some time reserve for the report. Thank you. Thank you very much Mr. Patrick. Thank you. And is Shaw. Once you give us your side of the story. May it please the court. Good morning. I'm Shalika Sean. I'm here on behalf of the United States. Now in every case before this court it is imperative that common sense reason and logic not be thrown out the window that the court consider the context of what happened at the trial. As to the three recordings of the control buys the witness derroca Johnson thoroughly set the background that the recording was of his meaning with the defendant on a specified day. As to each of the three recordings on March 16th March 19th and March 30th. Investigator wins low testified prior to Mr. Johnson and also set the exact facts of what happened that Mr. Johnson wore a wire. Mr. Johnson testified that he understood that he was being recorded. He testified that he went to meet the defendant at a specified location, a specified time, and he testified that the recording was of his meeting with the defendant on that specific date. Further as Judge Thacker pointed out with regard to the first recording, the March 16th recording, derroca Johnson also testified that it was the defendant's voice on that recording. By the time each of these recordings was introduced in evidence, it was clear to the jury and everyone in the courtroom that the recording was of the witness and of the defendant. To ask whether what for the prosecution to have to be required to ask was that the defendant's voice on that recording for each of those recording would have been unnecessary and cumulative. The defendant when the defense points out that the government didn't go through the proper litany of questions that you asked and introducing these three recordings. Well, I beg to differ. Here, the government laid a proper prevoundation. According to Federal Rule of Evidence 901B5, the government had to show that it was the defendant's voice on the recording. For the reasons I mentioned, I believe the government did that. Further, the standard in this court requires that the defendant demonstrate that the foundation laid at the trial court was clearly insufficient to ensure the accuracy of the recording. This is a heavy burden. Here, if you look to the Macmillan factors, again, as we articulated in brief, the Macmillan factors are not binding. The four circuit does not strictly adhere to the Macmillan factors, but rather looks at those factors in determining whether or not the foundation laid was clearly insufficient to ensure the accuracy of the recording. The Macmillan factors require that the defense was capable of recording. The operator was competent, that the recording was authentic and correct. There are no changes or deletions to the recording. The recording was preserved and the speakers were identified. The conversation was voluntary. Your honours, we submit that each one of those was met through the testimony investigator Winslow and through the testimony of Joroka Johnson. Again, investigator Winslow set the scene. He told us that he enlisted Joroka Johnson to engage and control advise with the defendant. He then placed a wire on that defendant. He monitored that wire, that recording for the duration of the transaction, that he never lost physical sight. He never lost any observation of the defendant during the three controlled buys. That afterward, he had a specific procedure for checking, for following the defendant, and following the witness, for checking his car, checking his person, and then ensuring the accuracy of those recordings in that way. Joroka Johnson then testified as to each of the three recordings that he was equipped with a wire, that he wore the wire to the transaction with Mr. Spence. At those drug transactions that he knew he was being recorded, that after those transactions at trial, that the recording was of that specific of the March 16 transaction, the March 19th, the March 30th, he initialed each of those CDs as being accurate. He listened to those CDs in conjunction with the transcripts, and certified that the transcripts were accurate of the recording. As to the fourth recording, the Piedmont jail recording. Now, the government presented two witnesses to testify as to the accuracy of this recording. First, it presented Lieutenant Ridley from the Piedmont jail, and he testified that he was ordered to produce the recording of the defendant speaking with his mother to recordings on a specific day of phone calls by the defendant. He produced the log, and he produced the recording. He described for the court how he searched the system by searching for the defendant's name on a particular date. He testified that the system was in working order with no errors. He didn't experience any problems, creating the CD, and he did not know any malfunction with the system. Then, at trial, he testified that he recognized the desk as the one that he had prepared, and the CD contained an accurate copy of the original recording. The government then put investigator Winslow back on the stand, and had an investigator Winslow testify that he was familiar with the defendant's voice, and that he was familiar with the defendant's mother's voice, and that that recording contained the voices of the defendant and the defendant's mother. Again, this is the government-led proper foundation under Federal Rule of Evidence 901B5. Now, as to, I'm not going to address the defendant's second claim, as they've already conceded, that this court's opinion in the United States Vee Young would preclude its position, not opinion, in that with regard to that claim. Moving to the defendant's third claim, which goes to sentencing. The defendant challenges the district court's decision to not include the 1998 conviction, not consider it relevant conduct. Now, we would like to point out to the court that the defendant started this case before trial, and during trial, maintaining, insisting that that 1998 conviction was completely unrelated to the offense in this case. He filed a motion in limony, specifically saying that the facts bear little similarity to the crimes alleged. There are no common witnesses, no confidential informants, or no common co-conspirators. It would not occur in the same location, and it did not involve the same methods of distribution. Conveniently, the defendant changed his position at sentencing, and objected to the inclusion of this relevant conduct, stating now that not only was it so- The government's position of that 1998 conviction during the trial. The government's position was that that 1998 conviction should be allowed under Rule 404B as an other act, an act extrinsic to the offense of the conviction. And specifically, the government did know in its motion to introduce this conviction as 4-4B, did identify certain similarities. It did identify that they were both drug transactions, that they did occur in Elizabeth City, and there was a sale to an undercover officer, similar to a confidential informant. And it was quite close in time to the conspiracy charged here. Well, the indictment charged the conspiracy starting in 2000. However, the statements by co-conspirators dated the conspiracy back to June of 1998. The acts of this 1998 conviction did occur in May of 1998, so yes, Your Honor, they did occur within 12 days time period. But the difference here is, as the court told us in the haunch. Did the district court judge during sentencing discuss those factors, the time period and the similarities in coming to the conclusion that the 1998 conviction was not in fact part of relevant conduct for the instant offense? Yes, Your Honor, this exact issue was before the Senate's in court. The defendant objected to the PSR and the district court dealt with that. In its decision, the district court recognized and actually believed that the government's position at trial had been that this 1998 conviction was relevant conduct. And he asked the government, well, should it, should it count this as relevant conduct, that was your position. The government explained that while it had made arguments regarding the similarity, that was specifically to indicate the reliability of the evidence as required for admission under Rule 404B. But the government maintained that at no point did it believe or assert the position that that 1998 act was part of the offensive conviction or part of a single course of conduct. And the reason for that is that there was no evidence. There was nothing in the investigative materials to link that one sale to an undercover police officer in May of 1998 to the conspiracy which began in June of 1998. And in 19th of 1998? Yes, Your Honor, May 19th of 1998. Two weeks before the conspiracy. Yes, presumably the 1998 conspiracy dated back to June of 1998 but involved two grams of sale per month. We don't know exactly what date that sale was made in June of 1998. So assuming for the defendant that it was only 12 days and that conspiracy began on June 1 of 1998. Now, under Hodge, this court told us that the mere fact that both involved drug distribution is not enough to support treating as relevant conduct. And we point that out today because the government acknowledges that they were both drug transactions. They were. But they did in May of 1998, the defendant sold crack cocaine. It was the, it was a statement of a co-conspirator by the name of Bowser that dated the conspiracy back to June of 1998. He is the only co-conspirators whose conduct went between 1998 and 2000. And all of the drug quantity alleged there was powder cocaine, not croc cocaine. So we are dealing with a different drug in that context in looking at that similarity of time. Additionally in Hodge, the court relied heavily on the abundance of evidence indicating the regularity of sales that connected that prior drug transaction with the transactions that were part of the offensive conviction. And your honors, we don't have that today. There was no evidence in the investigative materials or in the record to indicate to connect the May 1998 action with the conspiracy that began in June of 1998. And it's that lack of evidence that makes us not part of a single episode or spree as explain an application note nine of section 1B1.3. Mayor honors, were there any during the life of the conspiracy was crack cocaine, one of the drugs that was distributed or just pure powder? The indictment alleges crack cocaine. So it alleges starting in 2000, the defendant, there were co-conspirators, an evidence to indicate that the defendant was dealing in crack cocaine from 2000 up until 2011 I believe. But the 1998 and 1999 relevant conduct only related to cocaine. So I point out that difference to explain that it was a longer period of time before the defendant, we have evidence that the defendant was dealing in crack cocaine and get between May of 1998. It didn't, he did not start dealing again in crack cocaine until 2000. And under Hodge, there are three factors that we consider, and this is also an application note nine of 1B1.3. You consider the similarity, the regularity, and the distance in time. So I'm trying to articulate how, how those different factors vary based on the drug that was actually sold in May 1998. Your eyes, I would also like to point out that with regard to not counting this as relevant conduct, the defendant bears a burden to demonstrate prejudice, to show that this in fact affected the Senate said he could have received. Now in this case, if this was sent back to the district court, we know because the district court told us that the district court would impose the same Senate, even as an alternate variant of Senate. Even if we were, we're presuming that there was procedural error. But if the defendant were granted relief, we looked to whether or not the Senate imposed, which effectively was a 324 month Senate. He got 324. Specifically a savvy on the two date. Hargrove, are you? Yes, Your Honor. Essentially, if we're considering that there was some sort of procedural error, which were not. But if there were, we make the argument that it would still be substantively reasonable. And under this court standard, you look to two things. Would the court have imposed the same Senate? I think clearly from the record he says he would have. And two, would the Senate impose be substantively reasonable? Now in this case, if the defendant were to win his argument, he was already given the highest base defense level based on the significant drug quantity attributed to him. So he would remain at a total offense level of 38. His criminal history category, he correctly asserts, would drop from a criminal history category three to a level two. This would affect his advisor guideline range, making him, his advisor guideline range, 262 to 327 months in prison. Now I remind the court that the defendant was sentenced to 324 months on counts one in four. And 240 months on counts two in three. Terms to run concurrently. So effectively, he was sentenced to serve 324 months. A sentence that would be within the revised advisor guideline range, if the defendant were to obtain the relief he seeks. So under Savianma Tuttei and looking at Hargrove and this court's opinion on his floor is, the sentence imposed would be substantively reasonable. So the defendant has failed to demonstrate any prejudice or any error that can be corrected by the district court. Seeing that the court has no further questions and closing, we want to express that what the district court did is not improper. The court did not err in admitting any of the four recordings. Norded at error in excluding the 1998 conviction from relevant conduct. The reality is one that there was overwhelming evidence at trial to support the defendant's conviction. And two, even if this court were to find that the 1998 conviction were relevant conduct, his defendant's 324 months on it is within the revised guideline range anyway. Therefore, we ask this court to affirm the district court. Thank you. Thank you very much, Mr. Patrick. You have a few minutes and a rebuttal if you'd like to take that. Thank you, Governor. I didn't address the sentencing issues, but since Judge Thacker has mentioned it in my opposing counsel as I'll address it very briefly. We didn't address the sentencing issue last, the third issue largely because we acknowledged in the brief the Savianma Tuttei problem in this. So the district court certainly said that at trial in sentencing. Although in looking at the record and looking at Hodge as we cited it, that was a situation where Virginia based crack or drug case found that three years prior a drug distribution in New York was relevant conduct. But all of the evidence in this case is much closer in times, the same kind of drugs, same place, same small town in North Carolina. If it's relevant conduct and Hodge, it ought to be relevant conduct. But again, the district judge indicated we give the same sentence. And that's largely the reason I didn't want to take the court's time in my original argument on that. Going back to the points that they made in terms of the three recordings. They, the government exerts that the Mimilin factors were demonstrated. We assert just the opposite that very few of the Mimilin factors were inserted. And I'll just run down them very quickly. Whether the recording device was capable, I don't think there was testimony about that on any of the three except for the first one where they said the recording device was malfunctioning for a good part. The time was the operator competent. That's the second factor. I don't think there's any testimony on that was the recording authentic and correct. There was some testimony but not consistent testimony about that. Was there any change made to the recording afterwards before it was reduced in court? There was no testimony on that. Was the recording preserve that is testimony from the agents that we kept it in the safe place. That's where things are. There's no testimony about that. Were the speakers ID does just that could not on the first recording they did ID the speakers but they didn't do it on the second and third recordings. And was the last factors was a voluntary. I think the context of it in the case of yes on all three was voluntary. But the same speaker on the second and third recordings. I'm sorry. Wasn't it the same speaker on the second and third recording? The same person was wearing the wire. But there was no testimony about who the other speakers were or identification. The other speakers on the second and third. And if you look at the cases you know we cited a lot of cases in the brief. I think you'll find that when they were sight with the foundation or requirements and all the ones that they've upheld, there's more significantly more than the foundation in this case. So we again assert that under rule one or three we didn't have to make more than a general objection. And if you take a look at whether the foundation, proper foundation was made that it was not. And as a consequence it was not harmless era. And that this case should be remanded for a new trial in the district court. Thank you very much. Thank you Mr. Patrick. Court notes that you're court appointed and we wish to express our appreciation to you for taking that obligation. Thank you