USA v. Leonardo Divinci Larck

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14038
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00027-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO DIVINCI LARCK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(July 25, 2017)
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Following a jury trial, Defendant Leonard Larck appeals his convictions for
possession of a firearm by a convicted felon, possession of controlled substances
with intent to distribute, and possession of a firearm in furtherance of a drug
trafficking crime. On appeal, Defendant argues that the district court plainly erred
by admitting an unauthenticated recording of a telephone call he made while
incarcerated. After careful review, we affirm.
I. BACKGROUND
The evidence produced at trial showed that, on September 9, 2014, law
enforcement officers and emergency personnel responded to an accident involving
a marked police car and another vehicle. When emergency personnel arrived at the
scene, Defendant was lying on his stomach outside of the vehicle involved in the
crash. While moving Defendant from his stomach to his back, a bag containing
nine .45-caliber bullets fell out of the pocket of Defendant’s shorts. Defendant also
had $2,652 in cash in his shorts. In Defendant’s vehicle, officers found a black
semiautomatic pistol on the floorboard near the brake pedal. A subsequent search
of the vehicle revealed several rental car agreements (one of which had the name
Wykeisha Joyner), a scale, and plastic bags containing heroin, cocaine base, and
caffeine.
A federal grand jury subsequently charged Defendant with one count of
being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(a)(2), two
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counts of possession of controlled substances with intent to distribute, 21 U.S.C.
§ 841(a)(1), and one count of possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c).1 Defendant pled not guilty and proceeded to
trial.
At trial, the Government presented testimony from an eyewitness to the
crash, the EMT who provided medical care to Defendant, the police officers who
responded to the accident and those who conducted the subsequent search of
Defendant’s vehicle, and the forensic scientist who tested the controlled substances
found in the vehicle.
After the Government rested its case, Defendant called his sister, Wykeisha
Joyner, to testify on his behalf. Testifying that she had rented the car that was
involved in the accident, Joyner stated that she had let her cousin use the car and
that he had then loaned the car to Defendant. She further stated that the firearm
and ammunition belonged to her. On cross-examination, Joyner asserted that she
had bought the gun for protection the night before the accident and had put the gun
in the car. Because she had too much to drink that night, she asked her cousin to
drive her to work the next morning. She acknowledged that when she was initially
interviewed, she told officers that the firearm was a handgun but she did not tell
them the make or the caliber of the firearm. When asked if she had heard the
1 Defendant was charged with an additional count of possession of controlled substances with
intent to distribute (Count 4), but that count was later dismissed by the Government.
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prosecutor state during opening arguments that this case involved a .45-caliber
firearm, Joyner stated that she left the courtroom during opening arguments.
To rebut Joyner’s testimony, the Government requested permission to play a
recorded phone call made by Defendant while he was in jail. At sidebar, the
Government told the district court that the phone call would show that Defendant
was trying to have someone “come and say that they possessed the gun and that
they possessed the bullets and that the drugs were theirs and he didn’t know
anything about it.” The district court permitted the Government to play the phone
call. Before playing the recording, the Government stated: “This is a call from Mr.
Larck in the jail on September 17, 2014, at 2:43 P.M.” The Government then
played the recording without any objection from Defendant.
The jury ultimately returned a guilty verdict against Defendant on all counts
and the district court sentenced Defendant to 240 months’ imprisonment. This
appeal followed.
II. DISCUSSION
Defendant argues that the district court committed reversible error when it
admitted without proper authentication his recorded jailhouse phone call in which,
while awaiting trial, he tried to find someone who would “come and say that they
possessed the gun and that they possessed the bullets and that the drugs were theirs
and he didn’t know anything about it.” This evidence became particularly
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pertinent after Defendant’s sister testified largely to just that fact. Defendant’s
sister testified that the car Defendant was driving was her rental car, that the
firearm in the car and the ammunition in Defendant’s pocket was hers, that she
loaned the car to her cousin, and that he let Defendant drive the car at the time of
the crash.
As noted, the Government did not authenticate the call with the testimony of
someone who could verify the source of the recording. Instead, prior to playing
the taped call, the prosecutor simply indicated that this was “a call from Mr. Larck
in the jail on September 17, 2014, at 2:43 P.M.” Defendant did not object to
admission of the testimony. Now, however, he argues that his conviction should
be reversed because the Government failed to properly authenticate the call.2
In order to be able to claim error based on a court’s allegedly erroneous
ruling to admit or exclude evidence, a party must timely object to admission of that
evidence. Specifically, Rule 103 provides:
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
2 He also asserts, as a separate error, the prosecutor’s explanatory statement prior to playing the
recorded phone call. We, however, construe the prosecutor’s statement as simply part of
Defendant’s inadequate-authentication argument.
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(B) states the specific ground, unless it was apparent from the
context. . . .
Fed. R. Evid. 103(a).
Because Defendant did not raise either of these objections before the district
court, our review is limited to plain error. See United States v. Humphrey, 164
F.3d 585, 587 (11th Cir. 1999) (“The appropriate standard of review, given
[Defendant’s] failure to object in the district court . . . is plain error.”). To
constitute plain error, “there must be (1) an error (2) that is plain and (3) that has
affected the defendant’s substantial rights; and . . . (4) the error ‘seriously affects
the fairness, integrity or public reputation of judicial proceedings.’” United States
v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013) (quotations omitted) (alteration
accepted). “[T]he plain error standard is a difficult one to meet,” and “when
examined in the context of the entire case it must be so obvious that failure to
notice it would seriously affect the fairness, integrity and public reputation of
judicial proceedings.” United States v. West, 898 F.2d 1493, 1498 (11th Cir. 1990)
(quotations omitted).
Given the Government’s concession that the admission of the recorded
phone call without proper authentication constituted an error that was plain, as set
out in the first two prongs of the plain-error test, we will assume that to be the case
for purposes of this appeal. Proper authentication of a recording requires the
Government to “establish that it ‘is an accurate reproduction of relevant sounds
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previously audited by a witness.’” United States v. Reeves, 742 F.3d 487, 501
(11th Cir. 2014) (quotations omitted); Fed. R. Evid. 901(a) (stating that in order to
satisfy the authentication requirements, the proponent “must produce evidence
sufficient to support a finding that the item is what the proponent claims it is” and,
in particular, the Government has the burden of showing the accuracy of the
recording equipment, the identification of the speakers, and that relevant portions
of the recording were not altered or deleted).
But even assuming that it should have been obvious to the district court that
its failure to sua sponte exclude admission of this unobjected-to-evidence
constituted error, Defendant still founders on the third and fourth prongs of the
plain-error test. As to the third prong of the test, Defendant cannot show that his
substantial rights were affected. To meet this prong of the test, a defendant must
show that the error “affected the outcome of the district court proceedings.” See
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (“In regard to
this third prong, it is the defendant rather than the government who bears the
burden of persuasion with respect to prejudice.” (quotations omitted) (alterations
accepted)).
Yet, Defendant does not assert that it was not his voice on the call, nor does
he contend that the Government would have been unable to properly authenticate
the recording, had Defendant simply alerted the prosecution to his objection to the
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Government’s failure to do so. To the contrary, Defendant acknowledges that the
Government had a witness readily available to authenticate the call. Thus, we must
conclude that had Defendant voiced any objection, the Government would have
simply called that witness to the stand and the recording would then have been
properly authenticated.
Even without this recorded phone call suggesting that Defendant had been
attempting to suborn testimony that the firearm and ammunition were not his, his
sister’s testimony was quite shaky. As the only defense witness, Joyner testified
that she had never owned a firearm before, but had happened to purchase a firearm
the night before the accident because of threats she had received. Yet, despite
these threats and her purported desire to protect her family, Joyner left the gun in a
rental car overnight that she loaned to someone else. Moreover, Joyner was unable
to provide any specific details about the person from whom she purchased the gun.
She also had difficulty responding when asked by the Government whether she had
originally told interviewing officers specifics about the gun, or whether instead her
more detailed trial testimony about the make and model of the firearm was possible
because she had been present during opening arguments.
Further, Joyner claimed ownership of only the gun and ammunition. Yet,
drugs were also found in the car at the time Defendant was arrested. Plus, along
with a large sum of cash, the bag of bullets to which Joyner claimed ownership
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was found in Defendant’s pockets. Defendant’s direct possession of bullets
bolstered an inference that it was he who possessed the gun; the large sum of cash
tied him to the drugs; and the jury could infer that a person who is dealing drugs
might well seek the protection of a weapon. Cf. United States v. Thomas, 242 F.3d
1028, 1032 n.5 (11th Cir. 2001) (noting that large sums of cash can be an indicator
of drug trafficking). Indeed, Defendant was the sole occupant of the vehicle where
the drugs, drug paraphernalia, and the firearm were found.
Finally, the usefulness of the recording for the Government’s purposes
appears to have been limited by its poor sound quality. When the Government
initially played the recording, the district court stated that it could not hear it.
Defense counsel said essentially the same thing during closing arguments, noting
that the recording was difficult to understand. Further, the jury also seems to have
a hard time making out the conversation because it asked for a transcript during
deliberations, and was told that one was not available. In short, Defendant has not
shown that the failure to authenticate the recording affected the outcome of trial.
Cf. Rodriguez, 398 F.3d at 1300 (explaining that the burden is on the defendant to
show that his substantial rights were affected).
Even had Defendant satisfied the first three prongs of the plain-error test,
Defendant has not shown that admission of an unauthenticated recording to which
he lodged no objection “seriously affects the fairness, integrity or public reputation
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of judicial proceedings.” Madden, 733 F.3d at 1320 (quotations omitted)
(alteration accepted). As noted, there has been no challenge to the authenticity of
the recording, just that the Government failed to go through the steps to
authenticate it. Through earlier colloquy about the recording, Defendant and the
district court were well aware that a witness was present at trial to authenticate the
recorded phone calls. Had defense counsel thought it strategically beneficial to
require authentication, he could have insisted that the Government do so prior to
admission of the recording. It is Defendant’s burden to show that the inherent
fairness of the proceedings was compromised by the above events, and we
conclude that he has failed to do so. See Madden, 733 F.3d at 1320; see also
United States v. Monroe, 353 F.3d 1346, 1349–50 (11th Cir. 2003) (“Under plain-
error review, the silent defendant has the burden to show the error plain,
prejudicial, and disreputable to the judicial system.” (quotations omitted)).
Accordingly, Defendant’s convictions are AFFIRMED.
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