Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, February 19, 2013

Capers: Insufficient foundation for audio recording of drug buy

In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.

The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.

The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.

The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.

The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.