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United States v. Smith

decided: February 21, 1989.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 274 -- Paul E. Plunkett, Judge.

Posner, Manion, and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge.

Defendant Tamara Jo Smith was charged in the Northern District of Illinois with conspiracy to commit bank and wire fraud, and substantive counts of bank, credit card and wire fraud. She was convicted of 31 of the 37 counts with which she was charged. Smith challenges the use of a spectrographic voice identification expert at trial, the district court's denial of her motion to sever her trial from that of her identical twin sister, and the validity of the grand jury which indicted her. We affirm.

I. Facts

Tanya and Tamara Smith are identical twins who are commonly mistaken for one another. Some of their friends, however, could distinguish them by a small scar on Tanya's forehead.

In their scheme, the two women posed as bank employees and telephoned banks authorizing them to make fictitious wire transfers of nonexistent funds. They then arranged for various individuals to pick up the money at transferee banks or at Western Union. These persons would keep a small portion for themselves and turn the bulk over to the twins.

The two women were indicted and tried together. Because identity*fn1 was a core dispute at trial, the government called a spectrographic voice identification expert to testify. The original voice identification expert, who prepared the spectrograms at issue here, was unable to testify at the last minute. The expert who testified was a substitute who was called in for the trial. Tamara challenges this expert testimony. She protests the use of spectrographic voice identification testimony in general, alleging that it is not generally accepted by the scientific community. She also contends that admission of the substitute expert's testimony violated her rights under the confrontation clause. If the person who actually prepared the spectrograms had been present to testify, Smith argues, she would have been able to discredit his qualifications and to establish that several trials in which his mentors had testified had been reversed because of the voice identification testimony.

Tamara Smith also contends that she should have been tried separately from her sister Tanya. She argues that trying them together caused her undue prejudice.

The term of the grand jury which returned the indictments of Tamara Smith and her sister had not properly been extended. Its initial 18 month term had expired at the end of March, 1986, but Smith was indicted after that time.*fn2 Judge McGarr issued a nunc pro tunc order extending the term. Thus, in addition, Tamara challenges the authority of that grand jury to indict her.

II. Voice Identification Expert Testimony

Dr. Hirotaka Nakasone testified as an expert witness and voice examiner. He compared the recorded voices of Tanya and Tamara Smith to the recorded voice of the person who called the Harris Bank on November 23, 1984 and falsely identified herself as a bank employee attempting to arrange a wire transfer. He concluded that it was highly probable that this was Tanya Smith and highly probable that it was not Tamara Smith. He found that it was probable that Tanya, not Tamara, telephoned Northern Trust Bank on May 21 and 22, 1985. Dr. Nakasone found that it was probably Tamara, and probably not Tanya, who called the American National Bank regarding a separate wire, and probably Tanya, and probably not Tamara, who made another call to a New Jersey bank.

Smith challenges the district court's admission of this evidence against her on two grounds: the lack of general acceptance of spectrograms by the scientific community, and the fact that she had no opportunity to cross-examine the police detective who prepared the spectrograms used at trial. The government disputes these contentions.

In discussing the admissibility of this evidence in general, both parties cite Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923) in which the court stated that:

Just when a scientific principle or discovery crosses a line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential forces of a principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction must be made must be sufficiently established to have gained general acceptance in a particular field in which it belongs.

Id. at 1014.

Although the validity of the judge-made rule in Frye has been criticized by some courts and commentators for numerous reasons, this circuit has continued to affirm (and to apply) the Frye standard. United States v. Carmel, 801 F.2d 997, 999 (7th Cir. 1986); United States v. Tranowski, 659 F.2d 750, 755-56 (7th Cir. 1981). Under the Frye test, several other circuits have held expert testimony concerning spectrographic voice identification admissible. See, e.g., United States v. Williams, 583 F.2d 1194, 1198-1201 (2d Cir. 1978), cert. denied, 439 U.S. 1117, 99 S. Ct. 1025, 59 L. Ed. 2d 77 (1979); United States v. Baller, 519 F.2d 463, 465-67 (4th Cir.), cert. denied, 423 U.S. 1019, 96 S. Ct. 456, 46 L. Ed. 2d 391 (1975); United States v. Franks, 511 F.2d 25, 32-34 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S. Ct. 2656, 45 L. Ed. 2d ...

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