Unpublished Disposition, 852 F.2d 573 (9th Cir. 1988)

MEMORANDUM^* 

A jury convicted Holmes Ochoa-Victoria and Alfredo Ochoa-Ochoa of conspiring to possess cocaine with intent to distribute and possessing cocaine with intent to distribute. On appeal, Ochoa-Victoria and Ochoa-Ochoa contend that the district court erred in admitting certain testimonial and documentary evidence. We affirm.

* Ochoa-Victoria contends that the district court erred in allowing Special Agent Montoya to testify regarding a drug transaction Montoya effected through Ochoa-Victoria's telephone pager after Ochoa-Victoria's arrest. He contends that the testimony constituted "other act" evidence under Federal Rule of Evidence 404(b), that it was not offered for a proper purpose under that rule, and that it was more prejudicial than probative. We review the district court's decision to admit evidence for abuse of discretion. E.g., United States v. Marchini, 797 F.2d 759, 672 (9th Cir. 1986) (admission of statement under hearsay exception), cert. denied, 107 S. Ct. 1288 (1987).

As an initial matter, it is not clear that Rule 404(b) applies here, because the "other acts" were those of Montoya and a third party--not those of the defendant. See United States v. Huddleston, 56 U.S.L.W. 4363, 4366 (May 2, 1988). Even assuming Rule 404(b) does apply, however, the district court did not abuse its discretion in admitting Montoya's testimony.

We have allowed the use of "other act" evidence in conspiracy cases to show the background and method of the conspiracy. E.g., United States v. O'Connor, 737 F.2d 814, 819 (9th Cir. 1984) (evidence regarding defendant's involvement in a prior drug transaction was relevant as background necessary to the jury's understanding of the case), cert. denied, 469 U.S. 1218 (1985); United States v. Smith, 623 F.2d 627, 631 (9th Cir. 1980) (evidence that defendant and co-defendant had previously communicated by pay phone when discussing private matters was relevant to show the method by which they "might have conspired to murder" their victim).

In admitting this evidence, the district court stated: "The sole purpose that it is being received for is circumstantial evidence as to how it was that distribution was effectuated by individuals possessed of great quantities of cocaine." In light of our decisions in O'Connor and Smith, we conclude that this was a proper purpose under Rule 404(b).¹ 

Ochoa-Victoria has failed to demonstrate how any prejudicial effect of this evidence could have outweighed its probative value. He argues that the testimony was prejudicial because the jury could have concluded from this evidence that Ochoa-Victoria was a drug dealer. This, however, would not render the evidence inadmissible under Rule 404(b). See, e.g., United States v. Moreno-Nunez, 595 F.2d 1186, 1188 (9th Cir. 1979) (testimony that the defendant had offered to supply undercover agents with drugs other than those they had requested was admissible to show the defendant's "willingness to deal in illegal drugs").

II

Ochoa-Victoria also contends that the district court erred in admitting Government Exhibit 47, a car purchase contract bearing Ochoa-Ochoa's name and Ochoa-Victoria's telephone pager number. He contends that the contract should have been excluded as hearsay.

Evidence is hearsay only if it is offered for the truth of the matter asserted. Fed.R.Evid. 801(c). If offered for any other purpose, it is not hearsay. E.g., United States v. Kirk, No. 86-1383, slip op. at 4442 (9th Cir. Apr. 14, 1988) (per curiam). The government did not offer the car purchase contract for the truth of any matter asserted in the contract. Rather, it offered the contract as circumstantial evidence that Ochoa-Ochoa lived in Apartment C-240, where the contract was seized,²  and as evidence that the defendants were close associates. RT IV 177-78. Accordingly, Exhibit 47 is not hearsay, and the district court did not abuse its discretion in admitting Exhibit 47 into evidence.

III

Both Ochoa-Victoria and Ochoa-Ochoa contend that the district court erred in allowing Special Agent Montoya to testify regarding a conversation he overheard as he stood outside Apartment C-240. Montoya testified that he heard Ochoa-Ochoa make certain statements regarding drug activities. The defendants contend that this testimony is hearsay. They argue that it does not qualify as a party admission under Federal Rule of Evidence 801(d) (2) because it was not properly authenticated--that is, because Montoya could not positively identify Ochoa-Ochoa as the speaker. We review for abuse of discretion a district court's ruling that evidence has been properly authenticated. United States v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985), cert. denied, 474 U.S. 1022 (1986).

Federal Rule of Evidence 901(a) requires that evidence be authenticated or identified as a condition precedent to admissibility. This requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). The proponent "need only make a prima facie showing of authenticity" to satisfy Rule 901(a). Black, 767 F.2d at 1342; see also United States v. Turner, 528 F.2d 143, 163 (9th Cir.) (per curiam) ("once a prima facie case of voice authorship is established, the identity of the particular speaker is an issue of fact and may be proved by circumstantial evidence alone"), cert. denied, 423 U.S. 996 (1975).

Federal Rule of Evidence 901(b) lists various means by which evidence may be authenticated or identified. As an example, it states that a voice may be identified "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Fed.R.Evid. 901(b) (5). The defendants suggest that this is the only method by which a voice may be identified. Not so. Rule 901(b) plainly states that its examples are offered " [b]y way of illustration only, and not by way of limitation."

We have consistently held that voice identification may be established by either direct or circumstantial evidence. E.g., United States v. Basey, 613 F.2d 198, 201 (9th Cir. 1979), cert. denied, 446 U.S. 919 (1980); Turner, 528 F.2d at 163 (identification made both by direct evidence in the form of opinion testimony and by circumstantial evidence consisting of "telephone numbers, telephone wire tap locations, street addresses, both given and surnames in telephone conversations, and the observed conduct of appellants in visiting the places of residence of known co-conspirators.")

Here, admittedly, the government offered no direct evidence to identify Ochoa-Ochoa as the speaker. It did, however, make out a prima facie showing of identification through circumstantial evidence. Montoya testified on direct examination that he saw Ochoa-Ochoa approach Apartment C-240, knock on the door, and enter the apartment. RT II 45. After Ochoa-Ochoa entered, the door was closed and bolted. RT III 95. Montoya further testified that he "overheard Ochoa-Ochoa immediately upon entering the apartment greet the other person in the apartment." RT II 48. Montoya then overheard a conversation between two people, one of whom made certain statements relating to drug distribution. Montoya testified that it was Ochoa-Ochoa who made these statements. Id. On redirect examination, Montoya explained that he had identified Ochoa-Ochoa as the speaker because the comments at issue were made by the person standing nearest the door, and Ochoa-Ochoa had just entered the apartment. RT III 95. This testimony was sufficient to support a finding by the jury that Ochoa-Ochoa was the speaker. Accordingly, it satisfied the requirements of Rule 901(a).

IV

Finally, Ochoa-Ochoa contends that the district court erred in refusing to suppress statements he made in response to police questioning after his arrest, when he had not been advised of his Miranda rights. We review de novo a district court's determination that a threat to public safety temporarily suspends the obligation to administer Miranda warnings. United States v. Brady, 819 F.2d 884, 886 (9th Cir. 1987), cert. denied, 108 S. Ct. 1032 (1988). We conclude that the district court did not err in refusing to suppress Ochoa-Ochoa's statements. Even assuming that Agent Guerrero's questions constituted "interrogation" under Miranda, no Miranda violation occurred in this case.

It is well-established that a threat to public safety may excuse a police officer's failure to administer Miranda warnings before asking questions designed to minimize or eliminate the threat. E.g., New York v. Quarles, 467 U.S. 649, 655-56 (1984); Brady, 819 F.2d at 887. In Quarles, police officers chased an armed suspect into a supermarket. When they arrested the suspect in the market moments later, he was no longer armed. Before advising him of his Miranda rights, a police officer asked where the gun was; the suspect responded, "The gun is over there." The Supreme Court held that this response was admissible despite the lack of Miranda warnings. The Court reasoned that the threat to public safety outweighed the need for Miranda warnings.

We applied the public safety exception in Brady, a case factually similar to this case. In Brady, a police officer investigating a reported assault ordered a suspect out of a car and frisked him, but found no weapons. The officer then asked whether there was a gun in the car. The suspect responded in the affirmative. 819 F.2d at 885. We recognized that the case differed factually from Quarles in that the police officer "had no reason to think that Brady had placed an unguarded weapon in a public place." Id. at 888. We concluded, however, that the officer's question "arose from his concern with public safety, his desire to obtain control of what could be a dangerous situation." Id. (emphasis added). Thus, we recognized that the public safety exception may apply when a police officer is faced with a potential threat to public safety, even if the officer has no concrete reason to think that weapons are present.

In this case, as in Brady, the police were faced with a potentially dangerous situation. They were about to execute a search warrant on an apartment occupied by suspected drug dealers. They did not know what lay ahead. The potential for violence in such situations is serious. A shoot-out could endanger not only the lives of the investigating officers, but those of bystanders and neighbors in adjoining apartments. Guerrero's questions--"How many people are in the apartment?" and "Are there any weapons in the apartment?"--were aimed at minimizing this threat. We therefore conclude that the district court did not err in admitting Ochoa-Ochoa's statements under the public safety exception to Miranda.

AFFIRMED.