                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-16000                 ELEVENTH CIRCUIT
                                                                JULY 29, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                   CLERK

                  D. C. Docket No. 07-00298-CR-J-32-MCR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MICHAEL LEO HARRIS,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (July 29, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Michael Leo Harris appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). After review, we affirm.

                                I. BACKGROUND

      In November 2007, Harris was indicted on one count of possession of a

firearm by a convicted felon. Before trial, the parties stipulated that Harris was a

convicted felon. Thus, the only issue at trial was whether Harris possessed a

firearm.

      At trial, Christopher Potter, a detective and former patrol officer with the

Jacksonville Sheriff’s Office, testified that he and Officer Alex Carrion responded

to a reported automobile crash with injuries and found Harris lying on the ground a

few feet from an overturned motorcycle. Harris rolled over, and Officer Potter saw

a gun tucked into Harris’s waistband. Harris moved his hand toward the gun, and

Officer Potter drew his own gun and kicked Harris’s hand away from the gun in

Harris’s waistband.

      There were two others at the scene: a male named Ernie Walden and a

female named Christy Geiger. Potter acknowledged that, as he was kicking

Harris’s hand away from the gun in Harris’s waistband, Walden said, “No, man,

that’s mine, I put that on him.” Potter stated that Geiger “started freaking out,”

was “emotional,” and cried. After the officers arrested Harris, Officer Potter went

to speak to Geiger. Potter stated that Geiger “seemed to be upset” by the situation

and was “aware . . . that there was a real possibility that Mr. Harris was going to



                                           2
get shot.”

       On cross-examination, Officer Potter stated that he later determined that

Walden had been operating the motorcycle at the time of the accident and that

there had been no crash. Instead, Walden and Harris simply had fallen off the

motorcycle, possibly because they were intoxicated. Potter admitted that he did

not test for gun residue on either Harris’s or Walden’s hands.

       The government next called Officer Carrion. Carrion also saw the

motorcycle laying a few feet away from Harris’s position on the ground. Seeing a

gun in Harris’s waistband, Carrion drew his weapon and pointed it at Harris.

Carrion watched as Harris reached for the gun and Officer Potter kicked Harris’s

hand away. Carrion saw Walden and Geiger at the scene. According to Carrion,

Walden “said something about, That’s my gun.” Geiger, who was crying and “a

little hysterical,” identified herself as Harris’s girlfriend.

       The government then introduced an audio recording and transcript of one

particular prison phone call, made with Harris’s I-PIN number, in which Harris

appears to admit that he possessed the firearm. To lay the foundation, the

government called Thomas Price, the Jacksonville Department of Corrections’

communications coordinator, who was responsible for the inmate phone system.

Price testified that prisoners can only use the phones inside the dorms by entering

an individually assigned, seven digit I-PIN number. All inmate phone calls are



                                             3
automatically recorded, and these recordings can be copied but not altered.

      Price identified a disk on which he had downloaded a copy of three calls

found by searching for Harris’s jail identification number, which corresponded

with his I-PIN number. The government’s audio recording of one particular phone

call made with Harris’s I-PIN number came from this disk. The inmate making the

call identifies himself as “Michael,” which is Harris’s first name. Price testified

that the government’s transcript of the call was accurate. Harris objected to the

admission of the audio recording and transcript because “the proper predicate

ha[d]n’t been laid.” The district court overruled Harris’s objection.

      The district court then excused the jury from the courtroom while the

recording was discussed further. The court listened to the recording. The

government explained that it could not force Harris to identify the recording

because of his privilege against self-incrimination and that the other participants in

the conversation were biased in Harris’s favor. The government analogized the

authentication of the automatic phone recording to the authentication of an

automatic unmanned surveillance camera. The district court again overruled

Harris’s objection, finding that the government “ha[d] established a sufficient

predicate that it’s Mr. Harris on the line here” and that “there’s enough indicia of

reliability here that allows the transcript to be played, especially with the limiting

instruction which I intend to give.”



                                            4
      Before the jury heard the recording, the district court instructed the jury that

the transcript was admitted for the limited purposes of aiding the jury to follow the

conversation and identify the speakers. The district court told the jury that

“whether the transcript correctly or incorrectly reflects the content of the

conversation or the identity of the speakers is entirely for you to determine.”

      In the recording, the person who initiates the collect call identifies himself as

“Michael.”1 The pre-recorded voice on the collect call then identifies “Michael” as

an inmate in the Duval County Jail. Roughly seven minutes into the call, a male, a

female, and “Michael” begin discussing the contents of a police report, suggesting

that the report incorrectly states that “Michael” was originally on his stomach. The

female then states, “Michael was laying on his back. . . . That’s how they seen the

fucking gun.” “Michael” asks, “[Y]ou didn’t hear me tell the police he did put it

there?” The female responds, “[Y]ou said, yall [sic] planted that on me, yall [sic]

planted that gun on me.” The female then states that she “was so fucking scared”

and “just st[ood] there screaming please don’t shoot him, please don’t shoot him.”

Apparently referring to the gun, “Michael” states, “[T]hat bitch ain’t got no bullets,

no nothing. I just remember grabbing that motherfucker out of the house.”

“Michael” then mentions that, when he fell off of the motorcycle, he could not get

his leg out from underneath it. He asks if the motorcycle was messed up.



      1
          Thereafter, the transcript referred to him as “Michael Harris.”

                                                  5
      On cross-examination, Price admitted that inmates sometimes exchanged or

stole I-PIN numbers, but stated that they were told to keep their I-PIN numbers

confidential.

      The jury found Michael Harris guilty. He was sentenced to 195 months’

imprisonment. Harris timely appealed.

                                 II. DISCUSSION

      Harris argues that his conviction should be reversed because neither the

recording of the phone call nor the transcript was authenticated properly.

      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’s determination of authenticity should not be disturbed unless there is no

competent evidence in the record to support it. United States v. Munoz, 16 F.3d

1116, 1120-21 (11th Cir. 1994). Moreover, the district court has “broad discretion

in determining whether to allow a recording to be played before the jury.” Cole,

755 F.2d at 766 (citing United States v. Biggins, 551 F.2d 64 (5th Cir. 1977)).

      Evidence is properly 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). Rule 901 requires only the presentation of “sufficient evidence to

make out a prima facie case that the proffered evidence is what it purports to be.”

United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985). “Once that



                                          6
prima facie showing has been made, the evidence should be admitted” and the trier

of fact permitted to determine whether the proffered evidence is what it purports to

be. Id. at 1002.

       Furthermore, this Court held in Biggins that a district court “properly admits

a sound recording into evidence only when the party introducing it carries its

burden of going forward with foundation evidence demonstrating that the

recording as played is an accurate reproduction of relevant sounds previously

audited by a witness.” 551 F.2d at 66.2 The proponent bears 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. The primary purpose of these requirements is to “ensur[e] the

accuracy of the recording.” Id. at 67. Therefore, even if one or more of the above-

listed requirements has not been satisfied, “[i]f there is independent evidence of the

accuracy of the tape recordings admitted at trial, we shall be extremely reluctant to

disturb the trial court’s decision” to admit the recording. Id.

       Here, we conclude the district court did not abuse its discretion in admitting

the recording. Harris challenges only that the government failed to prove the

fourth Biggins factor because no witness identified the voice on the recording as


       2
       This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

                                                7
his. Although no witness identified the voice as Harris’s, the evidence showed that

the recording was associated with Harris’s jail identification number, which

corresponded with the unique I-PIN number assigned to Harris. Morever, the

speaker identified himself as “Michael,” which is Harris’s first name. The inmate

speaker in the recording also makes reference to the actual facts at the time of the

motorcycle accident that were within the Defendant Harris’s knowledge, further

corroborating that the Defendant is the speaker. As such, the government met its

burden of authentication by providing sufficient evidence to make out a prima facie

case that the speaker in the recording is Michael Harris.

      For similar reasons, we also cannot say the district court abused its

discretion in admitting the transcript of the recording. Harris claims that the people

who prepared the transcript of the recording attributed the dialogue to him without

any personal knowledge to justify the attribution. However, as noted above, the

government met its burden of showing that the speaker is Harris. Moreover, the

district court reviewed the accuracy of the transcript and instructed the jury on the

limitations of the use of the transcript.

      For these reasons, we affirm Harris’s conviction.

      AFFIRMED.




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