[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12343 JAN 19, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:10-cr-00019-LGW-JEG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
LATREZZ L. SINGLETON,
lllllllllllllllllllllllllllllllllllllll l Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 19, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Latrezz Singleton appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). On appeal, Singleton argues
that the district court abused its discretion in admitting into evidence a recording
and transcript of his jailhouse phone call, and that there was insufficient evidence
to support his conviction. After a thorough review of the record, we affirm.
Singleton was charged by superseding indictment with possession of a
firearm by a convicted felon. At trial, Officer Walter Baldwin of the St. Mary’s
Police Department testified that on August 14, 2009, he went to the Cumberland
Oaks apartment complex to arrest Singleton on an outstanding warrant. He found
Singleton in the breezeway of one of the buildings, handcuffed and arrested him,
and placed him in the back of his patrol car. Singleton asked to use the restroom
and Baldwin asked Officer Bell to take him.
Baldwin noticed Singleton’s car, which he recognized because he had seen
Singleton drive it on many occasions, parked nearby. Although the car was
registered to Singleton’s mother, Baldwin had not seen anyone other than
Singleton drive it. While awaiting for an officer to arrive with a dog to check the
car, Baldwin noticed Danielle Kinnitt closing the driver’s door and walking away
from the car. Baldwin saw something in her hand and instructed her to stop.
When she finally complied, Baldwin saw a gun. Kinnitt admitted that Singleton
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had called her and told her to get the gun out of his car. Baldwin instructed
Kinnitt to put the gun back where she found it and she placed it back in the car.
Baldwin then explained that he previously worked at the jail in the Camden
County Sheriff’s Office. He confirmed that the jail recorded inmates’ outgoing
phone calls and that there was a notice posted in the jail informing the inmates of
the policy. About a week after Singleton was arrested, Baldwin went to the jail to
pick up a copy of a recorded call Singleton made from jail. Baldwin stated that he
had listened to the recording.
Defense counsel objected to the admission of the recording and the
transcript made of the call. The court overruled the objection but issued a limiting
instruction to the jury to determine for itself whether the transcript correctly
reflected the content of the recording.
Kinnitt testified that she had seen Singleton with a gun many times. She
specifically identified the gun admitted as evidence as the gun she had seen
Singleton with on other occasions. Kinnitt confirmed that car Baldwin identified
as Singleton’s was the car Singleton drove. Kinnitt stated that Singleton called her
on his cell phone from the police car and told her to take the gun out of the car.
She explained that Singleton said he would distract the police so she could remove
the gun from the car, and he told her exactly where to find the gun. Kinnitt stated
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that Baldwin approached her as she was going back to her apartment and told her
to put the gun back where she had found it, which she did. Kinnitt then stated
that, when she spoke to Singleton by phone from the jail after his arrest, he
instructed her to tell the police that Baldwin gave her the gun to put in Singleton’s
car.
Kinnitt reviewed the transcript of her phone conversation with Singleton
after his arrest. She confirmed the voice on the recording was hers. Defense
counsel renewed his objection to the admission of the recording and the transcript.
The court reminded the jury of the limited use of this evidence.
St. Mary’s Police Officer Calvin Bell testified that he arrived at the
Cumberland Oaks apartment complex on August 14 as back-up for Baldwin.
Singleton was already in the back of the patrol car when he arrived. At Baldwin’s
request, Bell took Singleton to use the restroom. Bell confirmed that Singleton
used his cell phone at that time, and he told Baldwin about the call. Baldwin told
him Singleton had probably called Kinnitt to tell her to move the gun.
Finally, Joshawa Boone, a former patrolman with the St. Mary’s Police
Department, also testified that he had seen Singleton driving the car several times.
At the close of the government’s case, Singleton moved for judgment of
acquittal, arguing that the only evidence against him was that of Ms. Kinnitt, a co-
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conspirator, and there was no corroboration of her testimony. The district court
denied the motion. The jury convicted Singleton of firearm possession, and the
court sentenced Singleton to 120 months’ imprisonment.
Singleton raises two issues on appeal: First, he challenges the admission of
the jailhouse recording and the corresponding transcript. Second, he challenges
the sufficiency of the evidence to convict him.1 We address each in turn.
A. Evidentiary Admission
Singleton argues that the district court abused its discretion by admitting
this evidence because it lacked the proper foundation as to its authenticity.
We review a district court’s decision to admit evidence for an abuse of
discretion. United States v. Cole, 755 F.2d 748, 766 (11th Cir. 1985). The district
court has “broad discretion in determining whether to allow a recording to be
played before a jury.” Id. at 766 (citing United States v. Biggins, 551 F.2d 64 (5th
Cir. 1977)2).
The Federal Rules of Evidence provide that evidence is properly
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Singleton stipulated that he had a prior felony conviction. The government proffered
testimony that the gun had traveled in interstate commerce. Neither of these elements of a
§ 922(g) offense are at issue in this appeal.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit.
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authenticated when there is “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Once a
party has presented sufficient evidence to make out a prima facie case that the
proffered evidence is what it purports to be, the evidence should be admitted and
the trier of fact permitted to determine whether the proffered evidence is what it
purports to be. United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985)
(citation and internal quotations omitted). Rule 901(a) only requires some
competent evidence in the record to support authentication; circumstantial
evidence alone may be enough. United States v. Elkins, 885 F.2d 775, 785 (11th
Cir. 1989).
In order to introduce a recording at trial, the government must establish that
it is an “accurate reproduction of relevant sounds previously audited by a witness.”
Biggins, 551 F.2d at 66. The government carries the burden of establishing: (1)
the competency of the operator; (2) the fidelity of the recording equipment; (3) the
absence of material deletions, additions, or alterations in the relevant portions of
the recording; and (4) the identification of the relevant speakers. Id. But “[w]here
there is sufficient independent evidence of the accuracy of the tape recordings to
insure their reliability, we will not disturb the trial court’s decision to admit them
even though at the time that judgment was made the government had not carried
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its particularized burden [under Biggins].” United States v. Hughes, 658 F.2d 317,
323 (5th Cir. Unit B Oct. 1981).
A speaker’s voice may be identified by opinion testimony “based upon
hearing the voice at any time under circumstances connecting it with the alleged
speaker.” Fed. R. Evid. 901(b)(5). Absent a showing that transcripts are
inaccurate or that specific prejudice has occurred, a court does not err in allowing
transcripts to be given to the jury. United States v. Reed, 887 F.2d 1398, 1406-07
(11th Cir. 1989).
Here, the district court did not abuse its discretion when it admitted into
evidence a recording and transcript of a jailhouse phone call. Although the
government failed to establish all the Biggins factors at trial, the government
presented adequate independent evidence of the accuracy of the recording and
transcript. In her testimony, Kinnitt confirmed that the recording was of a
conversation between Singleton and herself and she verified the accuracy of the
transcript. Singleton has not alleged – and there is no evidence to support – that
the recording was altered in any way. Accordingly, we affirm as to this issue.
B. Sufficiency of the Evidence
Singleton argues that the evidence at trial was insufficient to support his
conviction for possession of a firearm by a convicted felon because the only
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evidence offered was impeached testimony by another convicted felon and there
was no evidence of his actual or constructive possession of a firearm. He further
argues that the uncorroborated testimony of his accomplice should be stricken as
incredible and insubstantial on its face.
We review de novo whether there is sufficient evidence in the record to
support a jury’s verdict in a criminal trial. United States v. Jiminez, 564 F.3d
1280, 1284 (11th Cir. 2009). We must examine the evidence in the light most
favorable to the government, drawing all reasonable inferences and making all
reasonable credibility determinations in favor of the verdict. Id. A criminal
conviction must be upheld unless the jury could not have found the defendant
guilty under any reasonable construction of the evidence. United States v. Frank,
599 F.3d 1221, 1233 (11th Cir.), cert. denied, 131 S.Ct. 186 (2010).
To obtain a conviction for being a felon in possession of a firearm, the
government must prove that (1) the defendant was a convicted felon, (2) the
defendant knowingly possessed a firearm, and (3) the firearm was in or affecting
interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Deleveaux, 205 F.3d
1292, 1296-97 (11th Cir. 2000).
A defendant may “possess” a firearm through either actual or constructive
possession. United States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993) (quotation
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omitted). To establish constructive possession, the government must show that the
defendant exercised ownership, dominion, or control over the firearm itself or the
vehicle concealing the firearm. See United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004); see also United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.
2004) (explaining that the exercise of dominion and control can be exhibited
directly by the defendant or through others). Constructive possession can also be
shown when a defendant has knowledge of the firearm coupled with the ability to
maintain control over it or reduce it to his physical possession even though he
does not have actual personal dominion. United States v. Derose, 74 F.3d 1177,
1185 (11th Cir. 1996). Additionally, a defendant can have constructive possession
of a firearm if he has the power and intention to later take control over it. Gunn,
369 F.3d at 1235. The government can show possession by direct or
circumstantial evidence. United States v. Mieres-Borges, 919 F.2d 652, 657 (11th
Cir. 1990).
In order for one to be considered an accomplice, she must be (1) concerned
with the commission of the specific crime with which the defendant is charged;
(2) an associate in guilt of that crime; and (3) a participant in that offense as a
principal or accessory. Risinger v. United States, 236 F.2d 96, 99 (5th Cir. 1956).
The uncorroborated testimony of an accomplice is sufficient to support a
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conviction if the testimony on its face is not incredible or otherwise insubstantial.
United States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991). Testimony is
“incredible or insubstantial on its face” if it relates to facts that the accomplice
physically could not have possibly observed or events that could not have
occurred under the laws of nature. Id. (quotation omitted).
Here, viewing the evidence in the light most favorable to the government, a
rational trier of fact could conclude that the evidence established Singleton’s guilt
beyond a reasonable doubt. Contrary to Singleton’s claim, the government
proffered more than the testimony of an alleged accomplice. Rather, Kinnitt
testified that she had seen Singleton with the gun, Kinnitt, Baldwin, and Boone
testified that they often saw Singleton driving the car in which the gun was found,
and the jury heard Singleton instruct Kinnitt to move the gun in the jail house
recording. Based on this testimony, a reasonable jury could have concluded that
Singleton had constructive possession of the gun.
Even if we were to conclude that Kinnitt was Singleton’s accomplice,
Singleton’s argument fails. The testimony at trial was both corroborated and not
incredible or insubstantial on its face. Accordingly, we affirm Singleton’s
conviction.
AFFIRMED.
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