"Joe Sent Me"

Charge: conspiracy to transport in interstate commerce obscene films and magazines concerning and involving children in violation of 18 U.S.C. §1465.

At the trial of D, former president of J-E, Inc., of California, K, the owner-operator of Kip's Discount, a West Virginia retail outlet dealing in sexually explicit matter, testified that in 1997 he had placed an order for kiddi-porn in a telephone conversation with "Joe" at J-E's place of business in California. Following the telephone conversation, the items of child pornography mentioned in the indictment, consisting of magazines and films, were shipped from J-E in California to Kip's Discount in West Virginia by Greyhound bus. Upon receipt, K turned them over to an agent of the FBI.

D contended that he could not be guilty of the charges because during the period in question he was not involved extensively enough in or with J-E's business operations to have been implicated in, or even aware of, those violations if they did in fact occur. D admitted incorporating J-E and being its president until 1996 but alleged that he resigned in that year to attend to other business and was succeeded by others who continued to manage and operate J-E.

D objected to permitting the witness to testify to the contents of the telephone conversations, arguing that since the witness had never met him, he could not identify him as the person with whom he had spoken at J-E. The witness testified that he had communicated by telephone with J-E on at least four occasions, always speaking with "Joe," concerning ordering, pricing, and shipping adult materials and kiddi-porn, some of those conversations having been initiated by him and some by J-E. The witness could not pinpoint the exact dates upon which he talked with "Joe" but identified and dated two of the J-E invoices forwarded to Kip's Discount, several of which corresponded to merchandise actually received by Kip's Discount and found to be child pornography. An FBI agent testified that during a search of J-E's premises shortly after these telephone calls, he saw a sign on the door of D's office reading "Joe Espinoza." Are the telephone conversations admissible?

If the criminal action were against J-E, Inc., and K still could not identify the voice of "Joe," would the case for admission be stronger or weaker than in the criminal action against D?