                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 24, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-5096
          v.                                           (N.D. Oklahoma)
 CO REY CO RTEZ G AINES,                        (D.C. No. 05-CR -132-01-JHP)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I.    Introduction

      Defendant-Appellant Corey Cortez Gaines was tried and convicted by a

jury of knowing and intentional distribution of more than fifty grams of a mixture


      *
        This order and judgment is not binding precedent except under the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.
or substance containing a detectable amount of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A)(iii). He was sentenced to 205 months’

imprisonment followed by five years of supervised release. On appeal, Gaines

challenges the foundation for the evidentiary admission of an audiotaped

telephone conversation and also contends the government violated Brady v.

M aryland, 373 U.S. 83 (1963), by failing to disclose prior to trial an audio

recording containing allegedly exculpatory evidence. This court has jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm s Gaines’ conviction.

II.   Background

      Beginning in late 2004, the Kansas Bureau of Investigation (“KBI”) began

taping telephone calls between a confidential informant and Gaines as part of a

drug investigation. On January 5, 2005, using three-way telephone technology,

KBI Special A gent Steve Rosebrough initiated and monitored a telephone call to

an individual the confidential informant identified to Rosebrough as Gaines.

      Four days later, on January 9, Rosebrough and KBI Special A gent Tim

Holsinger observed a controlled purchase of crack cocaine which had been pre-

arranged by the confidential informant. Using a photograph, Rosebrough and

Holsinger identified Gaines as the individual who met with and sold drugs to the

confidential informant. Over the course of the two-hour surveillance period, the

officers also heard the confidential informant speak to Gaines by cell phone.

Rosebrough made audio and video recordings of the controlled buy and audio

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recordings of some of the informant’s conversations during the two hours leading

up to the buy.

        In addition to the recordings Rosebrough made from his surveillance

vehicle, the confidential informant wore a recording device for the entirety of the

tw o-hour period during which he was waiting for and ultimately met with Gaines.

A tape was made from the recording device, but the KBI did not inform the

government about the existence of the tape until after the conclusion of the first

day of trial. Gaines did not receive a copy of the tape until the morning of the

second day of trial. In light of the delayed disclosure of the tape, Gaines moved

to dismiss. The district court denied his motion.

III.    Discussion

        Gaines’ first argument on appeal, which was also raised and ruled on

below, challenges the foundation for the admission of the January 5 audiotaped

phone call. Because the confidential informant was unavailable to testify at trial,

Rosebrough provided the necessary identification of Gaines’ voice to admit the

tape of the phone call into evidence. Gaines contends Rosebrough lacked

firsthand knowledge of Gaines’ voice and, therefore, could not authenticate the

tape.

        The Federal Rules of Evidence require “authentication or identification as a

condition precedent to admissibility” of audiotaped evidence by means of, inter

alia, voice identification. See Fed. R. Evid. 901(a), (b)(5). The identification of

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a voice may be based on “opinion . . . upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.” Id. 901(b)(5). Such

foundational evidence may be offered in the form of lay opinion testimony,

United States v. Bush, 405 F.3d 909, 918 (10th Cir. 2005), and need only be based

on the witnesses’ “minimal familiarity” w ith the voice, id. at 919. “Once minimal

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

of the witness’ familiarity with the voice.” Id.

      This court review s for an abuse of discretion a district court’s decision to

admit evidence. United States v. Zepeda-Lopez, 478 F.3d 1213, 1219 (10th Cir.

2007). A district court’s ruling will not be reversed unless we are left with “a

definite and firm conviction that the lower court made a clear error of judgment

or exceeded the bounds of permissible choice in the circumstances.” Id.

(quotation omitted). No such error in judgment occurred here. Rosebrough’s

identification of Gaines’ voice on the January 5 phone call was based on the

similarity between that voice and the voice Rosebrough heard during phone calls

on January 9 prior to the conclusion of the controlled drug buy. See United States

v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979) (“[F]amiliarity with another’s

voice may be acquired either before or after the particular speaking which is the

subject of the identification.”). Furthermore, Rosebrough was able to visually

identify Gaines as G aines drove into the parking lot where the drug buy was to

occur; Rosebrough could hear Gaines simultaneously talking with the confidential

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informant on the informant’s cell phone when he identified G aines. 1

Additionally, after the confidential informant entered Gaines’ car to obtain the

drugs and while Rosebrough was both listening to and watching the drug

transaction, Rosebrough heard the confidential informant call the person in the

car “Corey,” leading to further confirmation the informant was speaking with

Gaines. Rosebrough therefore had the requisite “minimal familiarity” to permit

the admission of the January 5 audiotape.

      Gaines’ second argument is that the two-hour audiotape made from the

recording device worn by the confidential informant on January 9 contains

exculpatory evidence indicating a third person and not Gaines actually met with

and sold crack cocaine to the confidential informant on January 9. Gaines

contends there is a reasonable probability that earlier disclosure of this tape

would have affected the outcome of the proceedings and that, in light of this

material evidence, the district court’s failure to grant his motion to dismiss denied

him a fair trial. See Brady, 373 U.S. 83, 87 (1963) (“[T]he suppression by the

prosecution of evidence favorable to an accused. . . violates due process w here

the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.”).




      1
       In his testimony Special Agent Holsinger also visually identified the driver
of the vehicle at the site of the drug buy as Gaines.

                                            -5-
      This court reviews a defendant’s Brady claim de novo. See United States v.

Velarde, 485 F.3d 553, 558 (10th Cir. 2007). In order to establish a Brady

violation, the defendant must show “(1) the prosecution suppressed evidence, (2)

the evidence was favorable to the defendant, and (3) the evidence was material.”

Id. (quotation omitted). M ateriality under the third Brady prong is defined as “a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Id. at 559 (quotation

omitted). W hen exculpatory evidence is disclosed during rather than after trial,

“the materiality inquiry focuses on whether earlier disclosure would have created

a reasonable doubt of guilt.” United States v. Young, 45 F.3d 1405, 1408 (10th

Cir. 1995).

      Regardless of whether the evidence on the tape was actually exculpatory, 2

Gaines has failed to show the delayed disclosure of the tape materially affected

the outcome of the proceeding. After the existence of the tape was disclosed,

Gaines and his counsel were given several hours to review its contents. The court

then allowed lengthy argument from each side as it considered how to proceed.

Although the court denied Gaines’ motion to dismiss, it provided Gaines several

opportunities to propose alternative remedies. Despite the government’s explicit



      2
        Because neither tape was admitted into evidence, this court cannot
determine whether the evidence on the tape is actually exculpatory. The district
court, however, found the contents of the tape were not “overtly exculpatory,”
and that factual finding is entitled to deference.

                                         -6-
willingness to continue the trial for a week to give Gaines the opportunity for

further investigation, Gaines declined to ask for a continuance. In fact, Gaines

indicated to the court he wanted to “put this to [the] jury pretty quick.” Gaines

was given the opportunity to re-examine Special Agent Holsinger and, because

only Holsinger had testified prior to the disclosure of the tape, Gaines also had a

full opportunity to examine every other government witness with respect to any

allegedly exculpatory information on the tape and to use the tape in fashioning his

defense. Had the material on the tape been as clearly helpful to him as he claims,

Gaines could easily have introduced the tape into evidence in order to highlight

the portions of the tape he believed were exculpatory. The tape, however, was

never introduced. 3 In light of this record, we conclude there is no reasonable

probability the result of the trial would have been different had the tape been

disclosed earlier.




      3
       Given the late disclosure of the tape, the government never sought to
introduce the tape as evidence.

                                         -7-
IV.   Conclusion

      Because the January 5 audiotape was properly admitted and the delay in the

disclosure of the January 9 tape was not material, Gaines’ conviction is

A FFIR M E D.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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