United States v. Roger Ross
686 F. App'x 691
| 11th Cir. | 2017Background
- Roger Ross was convicted of conspiracy to possess with intent to distribute cocaine and cocaine base, multiple counts for using communication facilities to distribute drugs, and conspiracy to falsify records in a federal investigation.
- At trial the government introduced recorded phone calls purportedly featuring Ross and testimony identifying his voice from a cookout and later interactions.
- Ross contested admission of the recordings arguing his voice was not properly authenticated.
- The government also sought admission of alleged co-conspirators’ out-of-court statements under Fed. R. Evid. 801(d)(2)(E); Ross argued the government failed to prove an underlying conspiracy.
- The district court admitted the recordings and the co-conspirator statements; the Eleventh Circuit reviewed those evidentiary rulings for abuse of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of recorded calls (voice ID) | Gov: recordings authenticated by witnesses familiar with Ross’s voice | Ross: voice not properly identified; recordings inadmissible | Court: Affirmed — testimony by witnesses who heard Ross at a cookout and during surveillance sufficed under Rule 901(b)(5) and record contained competent evidence |
| Admission of co-conspirator statements under Rule 801(d)(2)(E) | Gov: statements admissible because conspiracy shown by preponderance (including Ross’s own statements) | Ross: government failed to prove existence of conspiracy so statements should be excluded | Court: Affirmed — Ross’s own statements and the recorded conversations provided independent evidence that a conspiracy existed and statements were in furtherance |
| Standard of review for factual findings on "in furtherance" | Gov: defer to district court’s factual findings | Ross: challenge factual finding that statements were in furtherance | Court: Applied clearly erroneous standard and found no clear error |
| Sufficiency argument preservation on appeal | Gov: N/A | Ross: attempted sufficiency claim regarding authentication | Court: Ross abandoned sufficiency argument by making only passing references; not preserved on appeal |
Key Cases Cited
- United States v. Puentes, 50 F.3d 1567 (11th Cir. 1995) (officer familiarity developed during surveillance can authenticate voice)
- United States v. Reeves, 742 F.3d 487 (11th Cir. 2014) (government must prove speaker identity; district court has discretion to play recordings)
- United States v. Munoz, 16 F.3d 1116 (11th Cir. 1994) (authenticity must be supported by competent evidence)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (issue may be abandoned on appeal by passing references)
- United States v. Magluta, 418 F.3d 1166 (11th Cir. 2005) (clear-error review of factual findings whether statement was in furtherance)
- United States v. Turner, 871 F.2d 1574 (11th Cir. 1989) (definition of clearly erroneous standard)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (expert testimony must have reliable basis in discipline)
- United States v. Hough, 803 F.3d 1181 (11th Cir. 2015) (elements and admissibility of co-conspirator statements under Rule 801(d)(2)(E))
- United States v. Knowles, 66 F.3d 1146 (11th Cir. 1995) (conspiracy may be proven by circumstantial evidence)
- United States v. Santiago, 837 F.2d 1545 (11th Cir. 1988) (liberal standard for determining whether a statement was in furtherance)
- United States v. Lopez, 758 F.2d 1517 (11th Cir. 1985) (a defendant’s own statements may serve as independent evidence of a conspiracy)