                                               NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          ________

                         No. 08-4666
                         _________


              UNITED STATES OF AMERICA

                              v.

                     JOSE N. OROZCO,
                               Appellant

                          ________

                         No. 09-1017
                         _________


              UNITED STATES OF AMERICA

                              v.

                      TERRY BATTLE,
                              Appellant

                          ________

        On Appeal from the United States District Court
                   for the District of New Jersey
       (D.C. Nos. 2-07-cr-00900-002, 2-07-cr-00900-001)
        District Judge: Honorable Dennis M. Cavanaugh

                          _______

          Submitted Under Third Circuit LAR 34.1(a)
                     December 12, 2011
                    Before: SLOVITER, VANASKIE, Circuit Judges
                             and STENGEL, * District Judge


                                   (Filed: January 4, 2012)
                                            ______

                                         OPINION
                                          ______


SLOVITER, Circuit Judge.

       Jose Orozco and Terry Battle (collectively, “Appellants”) appeal from the District

Court’s judgment of conviction for conspiracy to possess and distribute more than five

kilograms of cocaine. Battle also challenges the District Court’s judgment of sentence.

We will affirm. 1

       Because we write primarily for the parties, we need not discuss the facts or

procedural history of this case.

       Appellants argue that the District Court erred by admitting into evidence a

transcript and recording of a telephone conversation between Battle and an individual that

the Government referred to as “Julio LNU.” “We review the district court’s ruling as to

proper authentication for abuse of discretion.” United States v. McGlory, 968 F.2d 309,

328 (3d Cir. 1992). Under Federal Rule of Evidence 901(a), the requirement of

authentication or identification as a condition precedent to admissibility is satisfied “by

   *
    Hon. Lawrence F. Stengel, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
   1
     The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                              2
evidence sufficient to support a finding that the matter in question is what its proponent

claims.” United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993). Moreover,

“telephone calls may be authenticated by circumstantial evidence as well as by direct

recognition of the person calling.” Id.

       Here, the Government has offered sufficient evidence of the authenticity of the

transcript because Agent Jason Venticinque – who was present during Battle’s telephone

conversation with “Julio” – established the prima facie authenticity of the transcript by

testifying that it accurately reflects Battle’s recorded conversation. In addition, the

Government presented evidence of phone calls from which the jury could infer that the

transcript reflected Battle’s conversation with a co-conspirator named Julio. 2 The

District Court therefore did not abuse its discretion by admitting a transcript of that

telephone conversation into evidence. 3

       Battle claims that the District Court also erred by denying his motion to suppress

allegedly untrustworthy recordings and transcripts of his telephone conversations with

witness Larry McCargo. This court “reviews the District Court’s denial of a motion to


   2
     At trial, the Government indicated that it was offering the transcript as a co-
conspirator statement under Federal Rule of Evidence 801(d)(2)(E). Appellants claim,
however, that the Government was required to identify the speaker as Julio under United
States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975) (noting that it is “difficult to lay
down a uniform standard” for authentication of tape recordings but suggesting that a key
factor is whether “the speakers are identified”). Even assuming arguendo that the
Government was required to identify the speaker before admitting the transcript, it
presented sufficient evidence to do so.
   3
     To the extent that Appellants challenge the District Court’s admission of the
recorded conversation itself, we conclude, for the reasons stated above, that such
admission was also proper under Federal Rule of Evidence 901.
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suppress for clear error as to the underlying factual findings. . . .” United States v. Perez,

280 F.3d 318, 336 (3d Cir. 2002). The District Court did not err in denying Battle’s

motion to suppress these recordings and transcripts because suppression hearing

testimony demonstrated that they were accurate and unaltered. Moreover, although there

were pauses throughout the challenged recordings, the District Court appropriately

concluded that such deficiencies would “go to the weight as to what the jury thinks when

they listen to those tapes,” rather than admissibility. Appellee’s Supp. App. at 31.

       Battle next claims that the District Court plainly erred by failing to declare a

mistrial after McCargo, during his testimony, alluded to Battle’s previous incarceration.

We review the District Court’s decision not to grant a mistrial sua sponte for plain error.

United States v. Riley, 621 F.3d 312, 338-39 (3d Cir. 2010).

       The District Court’s failure to grant a mistrial in response to McCargo’s remark

was not plain error because McCargo’s reference to Battle’s past incarceration was

neither pronounced nor persistent and occurred only once over the course of a three-day

trial. Moreover, the District Court instructed the jurors to “draw no inference at all from

[McCargo’s remark].” Appellant’s Supp. App. at 487. Thus, McCargo’s remark did not

affect the outcome of the District Court proceedings, see United States v. Lee, 573 F.3d

155, 162 (3d Cir. 2009) (“We . . . presume that juries follow their instructions.”), and the

Court did not plainly err by failing to declare a mistrial.

       Battle asserts that the District Court erred by admitting into evidence data

communication records that the Government obtained by subpoena, rather than a warrant.

Battle, however, failed to raise his objection at the time the records were offered. This

                                               4
court reviews non-contemporaneous objections for plain error. United States v. Lee, 612

F.3d 170, 193 (3d Cir. 2010). Battle claims that the District Court erred based on Section

2703(a) of the Stored Communications Act, which “covers the circumstances in which a

governmental entity may require providers to disclose the contents of wire or electronic

communications in electronic storage.” In re Application of the U.S. for an Order

Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d

304, 306 (3d Cir. 2010). That section, however, is not at issue here because the

Government did not acquire the contents of wire or electronic communications. Rather,

the challenged records include, inter alia, the name and address of the cell phone’s

subscriber, telephone connections, and session times and durations, which are properly

obtained via subpoena under 18 U.S.C. § 2703(c)(2).

       Battle claims that the District Court erred by denying his motion to suppress his

post-arrest statements because he did not freely waive his Miranda rights. “A defendant

may waive his Miranda rights if the waiver is made knowingly, intelligently, and

voluntarily.” United States v. Pruden, 398 F.3d 241, 246 (3d Cir. 2005). While “[t]he

ultimate question of voluntariness of a Miranda waiver is subject to plenary review, . . .

we review the . . . facts supporting that conclusion for clear error.” Id. at 245-46.

       Here, the District Court did not err by concluding that Battle voluntarily waived

his Miranda rights. Battle maintains that his post-arrest statements were coerced because

ICE agents “denied appellant telephone access[,] . . . physically isolated him and

threatened to plant narcotics on his wife” if he failed to cooperate. Appellant Battle’s Br.

at 15. In rejecting those arguments, the District Court credited the testimony of ICE

                                              5
agents rather than Battle and concluded that Battle’s waiver was not procured by duress.

Such credibility determinations are “uniquely within the province of the trial court,”

United States v. Bethancourt, 65 F.3d 1074, 1081 n.4 (3d Cir. 1995), and there is no

indication that the District Court erred in reaching its conclusions.

       Finally, Battle claims that the District Court erred by concluding that his Advisory

Guidelines sentence range was not based on an overrepresentation of his criminal history

and therefore denying his request for a downward departure. “We do not have

jurisdiction to review discretionary decisions by district courts to not depart downward,”

United States v. Jones, 566 F.3d 353, 366 (3d Cir. 2009), unless the Court was acting

under the “mistaken belief that it lacks discretion to do otherwise.” Because there is no

indication that the District Court mistakenly believed that it lacked discretion to grant

Battle’s request for a departure, we will dismiss Battle’s argument for lack of appellate

jurisdiction.

       For the foregoing reasons, we affirm the District Court’s judgments of conviction

and sentence.




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