Appeal from a judgment of the United States District Court for the Southern District of New York (Vincent L. Broderick, J.) convicting appellants of violations of federal narcotics laws. Affirmed.
Before Van Graafeiland, Circuit Judge, Markey, Chief Judge, U.s. Court of Customs and Patent Appeals,*fn* and Dooling, District Judge, U.s. District Court for the Eastern District of New York.*fn**
Isiah Williams and Michael Manning were convicted of violating federal narcotics laws, 21 U.S.C. § 846 (1972) and 21 U.S.C. § 841 (1972). The admission of spectrographic voice-identification evidence is challenged for the first time in this circuit. We affirm.
On November 12, 1976, an undercover police officer attempted unsuccessfully to purchase heroin from a man introduced to him as "Biggie," an event witnessed by three surveillance officers, including Detective Copeland, who followed "Biggie" into a bar four days later. Copeland asked "Biggie" for identification, pretending he was investigating a complaint that a man named "Biggie" was taking numbers. "Biggie" admitted that his name was Isiah Williams, and that he was called "Biggie," but denied taking numbers. Explaining his unemployment, Williams showed Copeland a support truss he was wearing. Surveillance officers also observed these events.
On November 30, 1976, Officer Lopez arranged to purchase heroin from "Biggie." The two drove to a building. "Biggie" entered the building. He emerged with another man and both joined Lopez in the car. "Biggie" introduced the other man as "Red." Lopez handed "Biggie" money and "Red" gave the heroin to Lopez. "Red" was later identified as Manning. Except for the transactions in the car, these events were observed by the same surveillance officers.
On December 10, 1976, Lopez purchased additional heroin from "Biggie," in a similar transaction observed by the same surveillance officers.
On December 13, 1976, "Biggie" telephoned Lopez concerning another heroin sale. Lopez taped the call. The proposed sale never materialized. Two days later, Lopez called "Biggie" to arrange another date, and taped that conversation. Two more meetings between Lopez and "Biggie" were observed by the same surveillance team.
At trial, Lopez and the surveillance officers unequivocally identified Manning as "Red." Lopez was unable to make an in-court identification of Williams as "Biggie" upon viewing Williams and his arrest photo, a difficulty apparently caused by Williams' having drastically altered his appearance. Lopez did identify a 1972 photo of Williams as "Biggie." All three surveillance officers identified Williams as "Biggie." At the time of his arrest, Williams recognized Copeland from the "numbers complaint ruse," and was found to be wearing a truss.
After his arrest, Williams gave telephone voice exemplars which were taped. After a pre-trial hearing, voice analysis evidence was ruled admissible.*fn1 At the trial spectrographic voice identification expert Frank Lundgren made aural and spectrographic comparisons of Williams' voice in the exemplars and of "Biggie's" voice in the taped conversations with Lopez.
Referring to appellant Manning in his rebuttal summation, the prosecutor told the jury:
The only important thing is that you have the testimony of Agent Lopez, who saw this man clearly on two occasions, and who is able to recognize him, there being no substantial change in appearance. We know, if we know nothing else in this case, that Agent Lopez is a careful and completely honest, scrupulous man, and would not make such an identification if he were not absolutely sure.
I suggest you bear that in mind above all else when considering Mr. Manning.
The sole issue in Williams' appeal is whether it was error to admit a spectrographic voice analysis as ...