Case: 12-16191   Date Filed: 11/21/2013   Page: 1 of 10


                                                      [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 12-16191
                         Non-Argument Calendar
                       ________________________


               D.C. Docket No. 5:11-cr-00020-WTH-TBS-1



UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,

                                versus


DEMUNTRAY D. COX,

                                                     Defendant-Appellant.
                       _______________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                        _____________________

                            (November 21, 2013)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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        Demuntray Cox appeals his convictions for possession of ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e), and possession of

marijuana, in violation of 21 U.S.C. § 844(a). On appeal, Cox argues that (1) the

evidence against him should have been suppressed because the initial stop was

illegal and this tainted any statements he made after his arrest, and (2) at trial the

district court improperly admitted a police officer’s testimony identifying his voice

and explaining terminology used in a recorded jailhouse phone call. For the

reasons that follow, we affirm.

   I.        Background

        Cox was indicted for possession of ammunition and possession of marijuana

after police conducted a traffic stop, observed marijuana in the car, and found a

loaded gun in his pants during a search. Cox moved to suppress the evidence,

arguing that there was no reasonable suspicion or probable cause to arrest him, he

was not given Miranda1 warnings, and even if he did receive Miranda warnings,

any statements he made were tainted by the illegal arrest.

        At the suppression hearing, Deputy Trevor Fitzgerald testified as follows:

He initiated a traffic stop of a vehicle in which Cox was a passenger based on his

belief that the car’s windows were unlawfully tinted. As he followed the car, he

observed someone throw a plastic baggie with a green leafy substance from the


        1
            Miranda v. Arizona, 

(1966).
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passenger window. When the car stopped, he approached the passenger side of the

car and observed a marijuana bud between Cox’s legs. He removed Cox from the

car, handcuffed him, and placed him under arrest. He then searched Cox and

found a loaded firearm. Field tests confirmed that the baggie and bud contained

marijuana. After receiving Miranda warnings, Cox admitted that the drugs and

gun were his. Deputy Douglas Watts also testified at the suppression hearing and

confirmed Fitzgerald’s testimony about the stop and Cox’s statements.

      A magistrate judge recommended denying the motion to suppress,

concluding that the initial stop was proper based on the tinted windows, the

marijuana on the car seat was in plain view, and there was probable cause to arrest

Cox. Cox filed objections to the magistrate judge’s recommendation, arguing that

there was no evidence he knew the marijuana was in the car and thus his arrest was

unlawful. He also asserted that Miranda warnings did not cure the taint of the

improper arrest. The district court overruled the objections and denied Cox’s

motion to suppress, concluding that the initial stop was proper, the marijuana was

in plain view, and thus there was probable cause to arrest and search Cox. The

district court noted that Cox had not challenged the initial stop as unlawful or

argued that the marijuana was not in plain view.

      At trial, the government admitted recorded jailhouse phone calls made under

the personal identification number the jail assigned to Cox. ATF Special Agent

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DeWayne Krueger testified that he obtained the recordings and played them for

Fitzgerald. Fitzgerald testified that he had listened to the recordings the week

before the trial and recognized Cox’s voice. Fitzgerald stated that he had known

Cox in high school ten years earlier and could identify his voice. Fitzgerald

admitted that he had not spoken with Cox since high school until the day of the

stop, he had only spoken with Cox for fifteen or thirty minutes that day, and he had

not spoken with Cox since. Cox objected to Fitzgerald’s identification as lacking

foundation, but the court overruled the objection.

         The government played the recordings for the jury, in which the speaker

identified as Cox stated the driver of the car “know why I had the green . . . . He

told me to roll that . . . . When he seen um comin’, he say toss it out.” Cox later

stated “the only thang [he] was responsible for in there was the stick.” Fitzgerald

testified that the term “stick” was slang for gun and “green” was slang for

marijuana.

         The jury convicted Cox on both counts of the indictment, and the district

court sentenced him to 105 months’ imprisonment. This is Cox’s appeal.

   II.      Discussion

            1. Motion to Suppress

         Cox argues that there was no reasonable suspicion to stop the car in which

he was a passenger, and that the tinted windows were a pretext to stop the car. He

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asserts that there was no evidence he knew the marijuana was in the car and thus

his arrest was unlawful. Finally, he argues that giving Miranda warnings did not

cure the taint of the unlawful arrest. The government contends that the issues are

not properly before this court because Cox failed to challenge the magistrate

judge’s finding that the stop was lawful and that the drugs were in plain view.

      Generally, we review the district court’s factual findings on a motion to

suppress only for clear error, but review its application of the law to those facts de

novo. United States v. Ramirez–Chilel, 

, 748–49 (11th Cir. 2002).

When a defendant fails to make specific objections to a magistrate judge’s report

and recommendation, however, we deem challenges to those specific issues

abandoned. See Fed. R. Crim. P. 59(b)(2) (a defendant’s failure to file specific

written objections to a magistrate judge’s report waives the defendant’s right to

further review of that issue). Such claims are not subject to plain-error review.

United States v. Lewis, 

, 1221 (11th Cir. 2007) (en banc).

      Upon review of the record, we agree with the government that Cox failed to

preserve his arguments. In the report, the magistrate judge found that police

properly stopped the car for tinted windows and officers observed marijuana in

plain view on the passenger’s seat. Thus, the magistrate judge concluded that

Cox’s arrest and the subsequent search were lawful. In his objections to this

report, Cox failed to challenge the initial stop or the finding that the drugs were in

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plain view with any specificity. Rather, Cox argued that there was no evidence he

knew the marijuana was in the car. Under our precedent, we decline to address

arguments not raised in the objections to the magistrate judge’s report, and Cox’s

lack of specificity in filing objections is fatal to his claims. See United States v.

Schultz, 

, 1361 (11th Cir. 2009) (requiring defendants to state

objections with specificity, using clear and precise language). Accordingly,

because Cox did not properly challenge the magistrate judge’s determination that

the police conducted a lawful traffic stop during which they observed marijuana in

plain view, the district court properly denied the motion to suppress.

          2. Evidentiary Issues

       Cox argues that the district court erred by admitting (a) Fitzgerald’s voice

identification testimony, (b) the recorded jail house calls, and (c) Fitzgerald’s

testimony concerning slang terms heard during the calls. In addition to asserting

that the evidence was not admissible under any rule of evidence, Cox contends that

the admission was more prejudicial than probative under Federal Rule of Evidence

403.

       We review the district court’s admission of evidence for abuse of

discretion.” United States v. Capers, 

, 1305 (11th Cir.), cert. denied

(No. 12-10378) (Oct. 7, 2013) (internal quotation marks

omitted). Arguments not raised before the district court are subject to plain error

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review. United States v. Gresham, 

, 1265 (11th Cir. 2003). To

demonstrate plain error, Cox must show that: “(1) an error occurred; (2) the error

was plain; (3) it affected his substantial rights; and (4) it seriously affected the

fairness of the judicial proceedings.” 

trial judge has broad

discretion in determining whether to allow a recording to be played before the

jury.” United States v. Biggins, 

, 66 (5th Cir. 1977). 2 Although Cox

objected to Fitzgerald’s identification and testimony, preserving these issues for

appellate review, he failed to challenge the admission of the tape on authenticity

grounds. Nor did he argue that the admission of the evidence violated Rule 403.

We therefore review these arguments for plain error.

       Regardless of which standard of review applies, evidentiary challenges are

also subject to harmless error review. See United States v. Ghertler, 

, 1270 (11th Cir. 2010) (discussing harmless error in the admission of voice

identification). Reversible error occurs only when the evidentiary ruling is not

harmless, meaning that there is a reasonable likelihood that the error affected the

defendant’s substantial rights. United States v. Hands, 

, 1329 (11th

Cir. 1999). We determine whether error was harmless “by weighing the record as

a whole . . . examining the facts, the trial context of the error, and the prejudice


       2
         In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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created thereby as juxtaposed against the strength of the evidence of [the]

defendant’s guilt.” 

internal quotation marks omitted).

             A. Voice Identification

      Voice identification testimony can be admitted only after it is determined

sufficient evidence supports a finding “the item is what the proponent claims it is.”

Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion testimony

“based on hearing the voice at any time under circumstances that connect it with

the alleged speaker.” 

a witness establishes familiarity with

an identified voice, it is up to the jury to determine the weight to place on the

witness’s voice identification.” Brown v. City of Hialeah, 

, 1437

(11th Cir. 1994).

      Here, the testimony showed that Fitzgerald was familiar with Cox’s voice

from high school and from the day of the arrest. The jury determined that this

familiarity was sufficient, and we find no reason to disagree.

      Even assuming that this was error, however, we find the error harmless. In

this case, the evidence against Cox was overwhelming. Cox admitted after arrest

that the marijuana and ammunition were his. Fitzgerald testified that he saw

someone throw a plastic baggie containing a leafy green substance from the

passenger window, and he smelled marijuana in the car. Fitzgerald further stated

that field tests confirmed the substances found in the passenger seat and the plastic

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baggie were marijuana. In light of this evidence, any error in the admission of

Fitzgerald’s voice identification was harmless. Finally, because of this

overwhelming evidence, Cox cannot show that the admission of Fitzgerald’s

testimony was unduly prejudicial under Rule 403.

             B. Terminology

      The district court also permitted Fitzgerald to explain terminology heard on

the recorded phone calls. Federal Rule of Evidence 702 provides that:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education, may testify in the form of an
      opinion or otherwise if (a) the expert’s scientific, technical, or other
      specialized knowledge will help the trier of fact to understand the
      evidence or to determine a fact in issue; (b) the testimony is based on
      sufficient facts or data; (c) the testimony is the product of reliable
      principles and methods; and (d) the expert has reliably applied the
      principles and methods to the facts of the case.

Fed. R. Evid. 702. We have held that, “[l]aw enforcement officers may

testify as to the meaning of slang or code words.” United States v.

Carrazana, 

, 1567 (11th Cir. 1991) (citation omitted).

      Here, Fitzgerald testified that the term “stick” referred to a gun and the term

“green” meant marijuana. Under our precedent, there was nothing improper about

permitting Fitzgerald’s testimony about the use of code words.

             C. Authenticity of the Recordings

      Finally, Cox challenges the recordings on the grounds that the government

failed to properly authenticate them. As noted, Cox did not raise this issue at trial,
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and thus we review for plain error. 

. The party

introducing an audio tape into evidence has the burden of presenting sufficient

evidence to show that a recording is an authentic reproduction of a conversation.

United States v. Sarro, 

, 1292 (11th Cir. 1984). In order to

authenticate a recording, the government ordinarily must show “(1) the

competency of the operator; (2) the fidelity of the recording equipment; (3) the

absence of material deletions, additions, or alterations in the relevant part of the

tape; and (4) the identification of the relevant speakers.” 

“there is

independent evidence of the accuracy of the tape recordings admitted at trial, we

shall be extremely reluctant to disturb the trial court’s decision even though at the

time that decision was made the government had not carried its particularized

burden of going forward.” 

marks omitted).

      Here, the testimony at trial established that each inmate was assigned a

personal identification number and that Cox’s number was used to place the calls.

Cox did not object to the admission of the recording for lack of authenticity, and

we cannot conclude that there is any error here. Even if we were to find error, the

admission of these calls was harmless in light of the overwhelming evidence and

our admonition in Sarro.

      For the foregoing reasons, we affirm Cox’s convictions.

      AFFIRMED.

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