United States v. Ortiz

Federal Rule of Evidence 901(a) allows the government to offer a tape recording of the defendant’s voice into evidence if it can make a prima facie case that the voice is the defendant’s, which can be established by demonstrating minimal familiarity with the voice.

Richard Anthony Ortiz was convicted for conspiracy to distribute large quantities of methamphetamine and heroin, as well as possession of heroin with intent to distribute. Ortiz argued that the district court erred in allowing into evidence his probation officer, Angela McGlynn’s, opinion as to whether or not the his voice was on the wiretapped calls. The voice on the tape was primarily speaking Spanish, with some English words such as “because,” “all right,” and “cuz you know.” McGlynn does not speak Spanish and has only heard Ortiz speak in English. She was examined by the prosecutor outside the jury’s presence in order to determine the basis for her lay opinion testimony as to the source of the voice. According to the record, she had spoken with Ortiz over the telephone and in person before. Therefore, her opinion was deemed as admissible and was presented before a jury. Ortiz was convicted and filed a timely appeal. The Ninth Circuit reviewed the evidentiary ruling, examining it for any abuse of discretion on part of the lower court in allowing lay opinion testimony into evidence. According to Federal Rule of Evidence 901(a) and to United State v. Gadson, “[w]here the government offers a tape recording of the defendant’s voice, it must also make a prima facie case that the voice on the tape is in fact the defendant’s.” Furthermore, so long as the lay opinion has familiarity with the speaker, the opinion is permissible as evidence, which requires only minimal familiarity per 901(b)(5). The panel held that the district court did not abuse its discretion in allowing the evidence because it met the admissibility requirement, therefore affirming the admissibility of the lay opinion testimony. AFFIRMED.