                    Case: 12-10631          Date Filed: 09/24/2012   Page: 1 of 9




                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10631
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 4:10-cr-00108-BAE-GRS-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellee,

                                                     versus

MARION MAURICE FIELDS,
a.k.a. O.G.,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (September 24, 2012)

Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Appellant Marion Maurice Fields appeals his convictions and sentences on

three counts of distributing five grams or more of cocaine base, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B). He contends that the district court

improperly denied his motion in limine to prohibit the use of electronic recordings

and transcripts. He also challenges the factual support for his 168-month

concurrent sentences.

                                               I.

       On appeal, Fields argues that portions of the recordings were inaudible or

unintelligible. These portions, Fields argues, were so substantial as to render the

recordings as a whole untrustworthy. In a single sentence in his initial brief,

Fields also notes that a defendant must have the ability to cross examine

individuals who are party to the conversations that have been recorded.

       The district court has broad discretion in deciding whether to admit a

recording into evidence, even one containing inaudible or unintelligible portions.

United States v. Lively, 803 F.2d 1124, 1129 (11th Cir. 1986); see also United

States v. Wilson, 578 F.2d 67, 69 (5th Cir. 1978).1 The district court may admit


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

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into evidence a recording containing inaudible or unintelligible portions unless

those portions are “so substantial as to render the recording as a whole

untrustworthy.” Lively, 803 F.2d at 1129 (internal quotation marks omitted). In

Lively, we held that a seven-second gap near the beginning of a tape recording did

not render the whole recording untrustworthy. Id.; see also United States v.

Nicoll, 664 F.2d 1308, 1314 (5th Cir. Unit B 1982) (holding that a tape recording

was admissible despite a one-minute gap created when the tape reached the end of

one side and was turned over to continue recording), overruled on other grounds,

United States v. Henry, 749 F.2d 203 (5th Cir. 1984).

      Federal Rule of Evidence 901(a) provides that the proponent of an item of

evidence “must produce evidence sufficient to support a finding that the item is

what the proponent claims it is.” Fed. R. Evid. 901(a). To admit a tape recording

into evidence, the proponent must establish the following: (1) the person operating

the recording equipment was competent; (2) the equipment functioned accurately;

(3) the recording had not been materially altered; and (4) the speakers’ identities.

Lively, 803 F.2d at 1129.

      The Confrontation Clause provides criminal defendants with the right to

confront witnesses against them. U.S. Const. amend. VI. The Confrontation

Clause bars testimonial statements of a witness who did not appear at trial unless

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he was unavailable and the defendant had a prior opportunity to cross examine

him. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L.

Ed. 2d 177 (2004). Although the Supreme Court has not provided an exhaustive

definition of “testimonial statements,” statements may be “testimonial” for

purposes of the Confrontation Clause if made under circumstances that might lead

an objective witness reasonably to believe the statement would be available for use

at a trial. Id. at 52, 124 S. Ct. at 1364. The Confrontation Clause does not,

however, prohibit using testimonial statements for purposes other than

establishing the truth of the matter asserted. Id. at 59 n.9, 124 S. Ct. at 1369 n.9

(citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85 L. Ed.

2d 425 (1985)).

          To raise an issue on appeal, a party must plainly and unambiguously

demarcate it. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

Passing mention of an issue in an initial brief is insufficient to raise it on appeal.

Id.

                                         II.

      Although Fields contends that the electronic recordings were untrustworthy

because substantial portions of them were inaudible or unintelligible, he has not

provided support for this claim. He has not pointed to specific examples in any of

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the recordings to show how any inaudible or unintelligible portions affected

overall trustworthiness of the recordings. Under these circumstances, we conclude

that he has not shown that the district court abused its discretion by admitting the

electronic recordings.

      Fields also argues that the district court improperly denied his motion in

limine with respect to transcripts of the electronic recordings. Specifically, Fields

contends that the transcripts were potentially inaccurate because of the inaudible

and unintelligible portions of the recordings. Fields does not, however, point to

specific inaccuracies in the transcripts.

      The district court has discretion to provide transcripts to the jury as an aid in

listening to a recording. United States v. Onori, 535 F.2d 938, 947

(5th Cir. 1976). If a defendant is unsatisfied with a transcript’s accuracy, he may

produce his own version of the whole transcript or of the disputed portions.

United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993); see also Wilson,

578 F.2d at 69-70. In Hogan, we held that a defendant did not show an abuse of

discretion where he did not point to specific inaccuracies in the government’s

transcript and did not provide his own transcript. Hogan, 986 F.2d at 1376.

      Fields has not pointed to specific portions of the transcript that were

inaccurate, and he did not provide to the jury his own version of any disputed

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portions of the transcripts. Under these circumstances, we conclude that he has

not shown that the district court abused its discretion by allowing the jury to use

the transcripts that the government provided.

                                         III.

      Next, Fields argues that the district court erred in attributing to him the

following: 54.2 grams of cocaine base recovered during Spaulding’s arrest on

May 17, 2010, and 30.5 grams of cocaine base and a firearm, both recovered on

July 12, 2010, during an attempt to arrest Fields at a residence that he was renting

at the time. Specifically, he argues that the government did not prove, by a

preponderance of the evidence, that he possessed any of these items. As to the

cocaine base recovered on May 17, 2010, Fields contests the reliability of a DEA

agent’s testimony that Spaulding stated, in a DEA interview, that Fields had

supplied him with the cocaine base. Fields also emphasizes that he was not

present at the transaction on May 17, 2010, that resulted in Spaulding’s arrest. As

to the cocaine base and firearm recovered on July 12, 2010, Fields argues that,

although officers observed someone flee from the residence, the government did

not establish that Fields was that individual. Therefore, he contends the

government did not establish that the cocaine and firearm belonged to Fields.

      We review the district court’s factual findings for clear error and its

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application of the Sentencing Guidelines de novo. United States v. Lindsey, 482

F.3d 1285, 1294 (11th Cir. 2007). The sentencing judge may consider reliable

hearsay. United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001). We

review the reasonableness of a sentence under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed.

2d 445 (2007). “We may set aside a sentence only if we determine, after giving a

full measure of deference to the sentencing judge, that the sentence imposed truly

is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en

banc), cert. denied, 131 S. Ct. 1813 (2011).

      In calculating the appropriate advisory guideline range, the district court

may consider criminal acts for which a defendant has not been charged, provided

that the government has proven those acts by a preponderance of the evidence.

Lindsey, 482 F.3d at 1294. The district court may consider types and quantities of

drugs not specified in the count of conviction when calculating the offense level.

U.S.S.G. § 2D1.1, comment. (n.12). Nevertheless, if a defendant objects to the

drug amount, the government must still prove the amount by a preponderance of

the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).

      In United States v. Rodriguez, the defendant was convicted of conspiracy to

possess with intent to distribute ecstacy and possession with intent to distribute

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ecstacy. Rodriguez, 398 F.3d at 1292, 1294. The indictment did not include the

drug quantity attributable to the defendant, and the jury did not make a specific

finding as to quantity. Id. at 1294. Authorities arrested the defendant after he had

transported 2,000 ecstacy tablets as part of a deal with a confidential informant.

Id. at 1293. The PSI, however, attributed 30,000 ecstacy tablets to the defendant

based upon a coconspirator’s trial testimony. Id. at 1294-95. The district court

adopted the PSI’s finding as to drug quantity over the defendant’s objections that

the coconspirator’s testimony was inconsistent, vague, and unreliable. Id. We

upheld the district court’s calculation of the drug amount because the district court

did not clearly err in determining that the coconspirator’s testimony was credible.

Id. at 1297.

      We conclude from the record that Fields also has not shown that the district

court clearly erred in attributing to him the cocaine base recovered on May 17,

2010, or the cocaine base and firearm recovered on July 12, 2010. Although he

argues that the testimony regarding each of these items was not credible, he simply

has not shown that the district court’s conclusion to the contrary was clear error.

                                         IV.

      For the aforementioned reasons, we affirm Fields’s convictions and

sentences.

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AFFIRMED.




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