                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 22, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

       v.                                              No. 09-3273
                                            (D.C. No. 2:07-CR-20168-JWL-22)
 KEITH McDANIEL,                                         (D. Kan.)

             Defendant - Appellant.


                  ORDER GRANTING PANEL REHEARING


Before O’BRIEN and SEYMOUR, Circuit Judges.



      Appellant, Mr. Keith McDaniel, petitioned for en banc or panel rehearing.

We GRANT rehearing by the panel for the limited purpose of clarifying our

analysis of the admissibility of intercepted phone calls introduced against Mr.

McDaniel. We VACATE our May 24, 2011 Order and Judgment, and replace it

with the order issued herewith.

      Mr. McDaniel’s petition for rehearing has been circulated to all of the

judges of the court who are in regular active service as required by Fed. R. App.

P. 35. As no member of the panel and no judge in regular active service on the
court requested that the court be polled, his request for rehearing en banc is

DENIED. 1



                                          ENTERED FOR THE COURT


                                          PER CURIAM




       1
         Additional petitions for rehearing in this matter will not be permitted. See 10th
Cir. R. 40.3 (“The court will accept only one petition for rehearing from any party to an
appeal. No motion to reconsider the court’s ruling on a petition for rehearing may be
filed.”).

                                            -2-
                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                      September 22, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                          Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                               No. 09-3273
                                                 (D.C. No. 2:07-CR-20168-JWL-22)
 KEITH McDANIEL,                                              (D. Kan.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before O’BRIEN and SEYMOUR, Circuit Judges. **


       In 2008, defendant-appellant Keith McDaniel was charged, along with

twenty-three other individuals, with one count of conspiracy to manufacture,

possess with intent to distribute, and to distribute fifty grams or more of cocaine

base and to possess with intent to distribute and to distribute five kilograms or

more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),

(b)(1)(A)(iii), 846, and 18 U.S.C. § 2. At trial, the district court admitted into

       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
         The Honorable Deanell Reece Tacha, who participated in the panel decision
regarding this appeal, retired from service to the court on June 1, 2011. As a result, she
did not participate in the reissuance of this opinion. The remaining two judges are in
agreement with respect to this disposition. See 28 U.S.C. § 46(d).
evidence multiple recorded telephone conversations between the conspirators

which investigating officers had intercepted through wiretaps. Seven of these

conversations involved Mr. McDaniel. The jury ultimately found Mr. McDaniel

guilty of conspiracy. On appeal, Mr. McDaniel contends that the district court

erred in admitting the recorded conversations. We take jurisdiction under 28

U.S.C. § 1291 and AFFIRM.

                                I. BACKGROUND

      Mr. McDaniel’s conviction stems from his participation in a vast

conspiracy to distribute cocaine and cocaine base in and around Kansas City,

Kansas and Kansas City, Missouri from January 2006 to November 2007. The

Drug Enforcement Administration began investigating the conspiracy in 2006 at

the request of the Leavenworth, Kansas police department. After attempting

various traditional investigative techniques (e.g., surveillance, confidential

informants, and search warrants) and finding them to be ineffective means of

uncovering the size and scope of the conspiracy, federal law enforcement officers

decided to seek wiretaps. From August to October 2007, the officers applied for

and obtained wiretaps on several suspected conspirators’ phones. The

conversations intercepted by the officers implicated Mr. McDaniel, and he was

eventually arrested on February 4, 2008.

      Prior to trial, several of Mr. McDaniel’s co-defendants sought to suppress

the wiretap evidence because of alleged deficiencies in the wiretap applications

                                         -2-
and in the district judge’s approval of those applications. Mr. McDaniel joined in

two of the motions. The district court denied the motions on February 18, 2009,

and Mr. McDaniel proceeded to trial along with seven of his co-defendants.

      At trial, the government sought to introduce, through Officer Eric Jones,

numerous recorded conversations the investigating officers had intercepted

through the wiretaps. Prior to playing any of the conversations for the jury,

Officer Jones testified as to his familiarity with the voices on the tapes. With

respect to Mr. McDaniel, Officer Jones testified as follows:

      [OFFICER JONES]: I have spoken with Mr. McDaniel, as well as Mr.
      McDaniel, for instance, is one that we didn’t positively identify until
      almost the end of our intercepts, and towards the end of the investigation
      we had an idea that it was him. We just didn’t—we couldn’t positively say
      initially that it was him until other aspects kind of came into play through
      surveillance and some other incidences later.

      [PROSECUTOR]: As a result of talking to him and conducting
      surveillance, you’re able to identify phone calls associated or between [co-
      defendant] Monterial Wesley and Mr. McDaniel?

      [OFFICER JONES]: Yes.

Rec., vol. 5 at 189.

      Immediately following this testimony, the prosecutor explained that she had

presented her foundation for the recorded conversations and intended to play the

tapes for the jury. The district court then invited any objections to the admission

of the recordings, and Mr. McDaniel was among the defendants who objected.

Specifically, Mr. McDaniel argued that Officer Jones had not established that he


                                         -3-
was sufficiently familiar with Mr. McDaniel’s voice to identify him as a speaker

on any of the recordings. Following a brief discussion of the various defendants’

objections, the district court conditionally admitted all of the recordings pursuant

to Fed. R. Evid. 104. Officer Jones subsequently identified Mr. McDaniel’s voice

on seven different recordings containing incriminating conversations. Officer

Jones also testified that the phone used by Mr. McDaniel in several of the seven

calls was registered to Ms. Allicia Frazier, who is now married to Mr. McDaniel.

Officer Jones estimated that there were over 160 phone calls recorded during the

investigation that were attributed to Mr. McDaniel.

      In addition to Officer Jones’s voice identification testimony, Danny

Tarrants testified that he and Mr. McDaniel had been friends since 2004 and that

they had maintained consistent contact from 2004 to 2007. When the government

stated its intent to have Mr. Tarrants identify Mr. McDaniel’s voice on the

recordings, Mr. McDaniel’s counsel requested that the government be required to

play a series of conversations, some involving Mr. McDaniel and some not

involving Mr. McDaniel, in an effort to test Mr. Tarrants’s ability to identify Mr.

McDaniel’s voice. The government agreed to this procedure and it proceeded to

play three conversations for Mr. Tarrants, only one of which was a conversation

that Officer Jones had identified as involving Mr. McDaniel. Consistent with

Officer Jones’s testimony, Mr. Tarrants identified Mr. McDaniel’s voice on the

one conversation attributed to Mr. McDaniel and did not identify Mr. McDaniel’s

                                         -4-
voice on the other two.

      Finally, the government presented testimony from Agent Timothy McCue,

one of the leading officers in the conspiracy investigation. Agent McCue testified

that he had listened to “the majority, if not all, of [the intercepted] phone calls”

during the course of the investigation. Rec., vol. 8 at 1431. He further stated that

he had participated in the arrest of Mr. McDaniel and that he had a conversation

with him at the time of the arrest. This conversation, Agent McCue testified,

confirmed his belief that Mr. McDaniel was the speaker on the phone calls the

officers had previously associated with him during the investigation. On cross-

examination, Agent McCue expanded on the extent of his familiarity with Mr.

McDaniel, stating that he transported Mr. McDaniel to jail following his arrest,

spoke with Mr. McDaniel, and obtained biographical information from Mr.

McDaniel.

      After the government presented its witnesses and just before it concluded

its case in chief, the district court made a formal, unconditional ruling on the

record with respect to the admissibility of the recordings. The court held that “on

each of the telephone calls in question . . . I do find that either by or in

combination with the testimony of people who expressed familiarity with the

voices and/or the circumstances of the phone calls sufficient foundation has been

laid by the government to establish the authenticity of those calls.” Id. at 1614.

With respect to Mr. McDaniel specifically, the district court stated that “Mr.

                                           -5-
Jones testified about his firsthand knowledge of Mr. McDaniel’s voice, identified

his voice on those calls, and Mr. McCue provided corroboration of that particular

testimony. There’s also some circumstantial evidence that ties those calls

together as well.” Id. at 1616.

      The jury ultimately found Mr. McDaniel guilty of conspiracy, and he was

sentenced to 360 months’ imprisonment. This appeal followed.

                                  II. DISCUSSION

      On appeal, Mr. McDaniel challenges only the admissibility of the recorded

conversations. Specifically, he contends that the district court erred in admitting

the conversations because: (1) the government witnesses failed to establish

sufficient familiarity with Mr. McDaniel’s voice to identify it on the recordings;

and (2) the wiretap applications were deficient and the wiretaps were not

necessary to the investigation.

A.    Voice Identification

      We review a district court’s decision to admit evidence for abuse of

discretion. United States v. Parker, 551 F.3d 1167, 1171 (10th Cir. 2008). Under

Fed. R. Evid. 901(b)(5), voice identification testimony is admissible when the

witness has heard the voice “at any time under circumstances connecting it with

the alleged speaker.” We have repeatedly instructed that Rule 901 sets a low bar

for admissibility, requiring only that the witness demonstrate “minimal

familiarity” with the voice being identified. See, e.g., United States v. Bush, 405

                                        -6-
F.3d 909, 919 (10th Cir. 2005); Parker, 551 F.3d at 1172; United States v.

Zepeda-Lopez, 478 F.3d 1213, 1219 (10th Cir. 2007). “Once minimal familiarity

is satisfied, it is for the jury to assess any issues regarding the extent of the

witness’ familiarity with the voice.” Bush, 405 F.3d at 919; see also United

States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979).

       Mr. McDaniel contends that Officer Jones’s testimony was not specific

enough to establish minimal familiarity because it is unclear when Officer Jones

and Mr. McDaniel spoke, for how long they spoke, where they spoke, or how

much Mr. McDaniel said during their conversation. Indeed, Mr. McDaniel asserts

that “[f]or all that can be gleaned from Officer Jones’s testimony, it may have

been an entirely one-sided conversation, with Mr. McDaniel saying virtually

nothing.”

       Rule 901 only requires that the witness have heard the voice “at any time

under circumstances connecting it with the alleged speaker.” Here, Officer Jones

testified that he had “spoken with Mr. McDaniel,” and through “surveillance and

some other incidences later,” he was able to identify Mr. McDaniel’s voice on the

recordings. 1 Rec., vol. 5 at 189. Similarly, Agent McCue established his

       1
        Officer Jones testified that they had conducted surveillance of Ms. Frazier’s
house in an attempt to identify who was using the telephone that was later attributed to
Mr. McDaniel. During cross-examination, he clarified that the surveillance of Ms.
Frazier’s house had been unsuccessful because no activity was observed there. We
disagree, however, with Mr. McDaniel’s claim that during cross-examination, Officer
Jones “retracted” his statement that surveillance assisted in identifying Mr. McDaniel on
the recordings. The so-called “retraction” was limited to the discussion of surveillance of

                                           -7-
familiarity with Mr. McDaniel’s voice by testifying that he had a conversation

with Mr. McDaniel, had obtained biographical information from Mr. McDaniel,

and had transported Mr. McDaniel to jail. Although these statements during trial

are general in nature, the district court also had additional information about the

investigation and the officers’ familiarity with Mr. McDaniel’s voice that was not

available to the jury. Finally, further evidence including Mr. Tarrants’s

identification of Mr. McDaniel’s voice on one of the calls corroborated the voice

identification.

      “The admissibility of a taped conversation rests within the sound discretion

of the trial judge.” Zepeda-Lopez, 478 F.3d at 1219 (internal quotation marks

omitted). We are satisfied that the district court did not abuse its discretion in

ruling that the admission of the intercepted calls was supported by sufficient

evidence to satisfy Rule 901. Any remaining arguments questioning Officer

Jones or Agent McCue’s familiarity with Mr. McDaniel’s voice go to the weight

of the voice identification testimony, not its admissibility. See Axselle, 604 F.2d

at 1338 (holding that a witness who testified that he had heard a defendant’s voice

“at one time other than during the call in question” had established minimal

familiarity, and that defendant’s arguments regarding the extent of the witness’s

familiarity “go to the weight of the evidence”); see also Bush, 405 F.3d at 919.

      B.     Wiretaps


Ms. Frazier’s home.

                                         -8-
      Pursuant to Fed. R. App. P. 28(i), Mr. McDaniel adopts the arguments of

his co-defendant, Shevel Foy, with respect to the legality of the wiretaps.

Specifically, he contends that: (1) the officers failed to properly establish

authorization in their wiretap applications; and (2) the affidavits in support of the

wiretaps did not establish necessity. We adopt our analysis from United States v.

Foy, 641 F.3d 455 (10th Cir. 2011), and affirm the district court’s refusal to

suppress the wiretap evidence for the reasons stated in that opinion.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM.



                                        ENTERED FOR THE COURT


                                        PER CURIAM




                                         -9-
