U.S. v. Thompson

• Citation: 130 F.3d 676
• Decision Date: 04 December 1997
• Docket Number: No. 96-20945,96-20945
• Parties: 48 Fed. R. Evid. Serv. 447 UNITED STATES of America, Plaintiff-Appellee, v. Billy Mac THOMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 676

130 F.3d 676

48 Fed. R. Evid. Serv. 447

UNITED STATES of America, Plaintiff-Appellee, v. Billy Mac THOMPSON, Defendant-Appellant.

No. 96-20945.

United States Court of Appeals, Fifth Circuit.

Dec. 4, 1997.

Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Assistant U.S. Attorney, Richard Kent Harris, Houston, TX, for Plaintiff-Appellee.

Kevin V. Boshea, Regan, Manasseh & Boshea, New Orleans, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before MAGILL, ^* SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Billy Thompson appeals his conviction of attempting to murder a federal judge. We affirm.

I.

While in jail, Thompson solicited inmate Stephen Gerber to kill The Honorable Kenneth Hoyt, an able and respected judge of the United States District Court for the Southern District of Texas. Judge Hoyt had sent Thompson to jail on a civil contempt charge related to a civil case in Judge Hoyt's court in which Thompson was a party. In jail, Thompson met Gerber and asked him to hire a hit man. Thompson expressed outrage that Hoyt had sent him to jail and was generally displeased with the way his litigation was proceeding in Judge Hoyt's court.

Gerber, an admittedly unsavory character, wrote letters to the FBI and to Judge Hoyt, alerting each of the threat Thompson posed. Thereafter, the FBI began an investigation. Together, the FBI and Gerber concocted a plan to catch Thompson. At the FBI's prompting, Gerber gave Thompson a phone number he could use to call someone who would kill Judge Hoyt for him.

When Thompson refused to use the number, because he did not want anyone to remember his voice, Gerber gave Thompson an FBI post office box number. He told Thompson that for $20,000--$2,000 down and $18,000 after the hit--Gerber's agents would kill Judge Hoyt. All Thompson had to do was to have someone send $2,000 to the post office box.

Thompson contacted his sister and had her drive to a town thirty miles away. There, she sent four $500 money orders to the post office box via express mail; she signed the return address "Sam Jones."

Subsequently, the FBI arranged a taped conversation between Thompson and Gerber in the prison library. During the meeting, Thompson reiterated his desire to have Gerber's hit men "cuff [Judge Hoyt], chain his legs together, put weights on his feet and dump his ass [in the ocean]." On the tape, Thompson acknowledged that he had had $2,000 sent to the post office box. When Gerber questioned whether Thompson would regret his decision or would seek to back out of the deal at the last moment, Thompson repeatedly stated that he would not. ¹

A few days after the first taped conversation, the FBI attempted a second tape-recorded colloquy between the two inmates. The tape recording device failed, however, producing only an electronic noise. ²

At trial, Gerber maintained that Thompson's statements at the second meeting were consistent with those at the first. Thompson contends that the second conversation was exculpatory--that Thompson had reached a settlement in his civil case by that time and thus would have no reason to want to murder Judge Hoyt. Given this evidence, the government obtained an indictment on three charges: (1) using the mails to commit a murder for hire, in violation of 18 U.S.C. § 1958; (2) soliciting the murder of a federal judge, in violation of 18 U.S.C. §§ 373, 1114; and (3) attempting to kill a federal judge, in violation of 18 U.S.C. § 1114.

Thompson presented a two-pronged defense. First, his attorney adhered to a theory that Thompson had had his sister send $2,000 to the post office box in an effort to bribe a Supreme Court clerk to have his appeal docketed. ³

Second, Thompson's attorney attacked the veracity and reliability of the government's key witness--Gerber. ⁴ The defense called numerous witnesses to testify that Gerber was a liar, a con man, and generally not believable. Instead, the defense painted a picture of Gerber's blackmailing Thompson to make Thompson solicit Gerber to kill Judge Hoyt. Apparently, Gerber threatened that if Thompson withdrew from the agreement to harm Judge Hoyt, "serious mafia style harm" would befall Thompson's family. ⁵

The government introduced enhanced tapes of the first recorded conversation between Gerber and Thompson and properly authenticated the original tape and the enhanced versions. The defense moved to suppress the recordings as unreliable, arguing that the tapes were inaudible--even though enhanced--and thus would lead to jury confusion. The court reviewed the enhanced tapes and the original and concluded that the enhanced tapes were, for the most part, audible and not unduly confusing. Consequently, the court admitted the enhanced recording for the jury's consideration.

The government also provided a transcript of the enhanced recording to aid the jury in listening to the tapes. The defense contested the introduction of the transcript, contending that the jury would be confused by the transcript and would use the government's transcript--rather than the tape--to make its decision. Thompson also proffered that the government's transcript was inaccurate.

The court instructed the jury that the tape--not the transcript--was the evidence for its consideration and that any inconsistencies it found between the two should be resolved in favor of the tape. Moreover, the court told the jury that it was to use the transcript only when listening to the tape. Thompson never introduced his own transcription to rebut the alleged inaccuracies in the government's version.

II.

A.

"Admission of tape recordings falls within the 'sound discretion' of the trial court." ⁶ We will reverse a decision to admit such evidence only if the court abuses its discretion--that is, if it relies on an incorrect view of the law or on clearly erroneous factual findings. We also review the decision to admit a transcript of the recording, for use in aiding the jury, for an abuse of discretion. See United States v. Wilson, 578 F.2d 67, 69 (5th Cir.1978).

B.

Tape recordings are admissible in a criminal trial if they are reliable. "The government has the duty of laying a foundation that the tape recordings accurately reproduce the conversations that took place, i.e., that they are accurate, authentic, and trustworthy. Once this is done, the party challenging the recordings bears the burden of showing that they are inaccurate." See United States v. Carbone, 798 F.2d 21, 24 (1st Cir.1986) (citation omitted). ⁷ We will reverse the admission of tapes on the ground that they are inaudible only if "the inaudible parts are so substantial as to make the rest more misleading than helpful." Gorin v. United States, 313 F.2d 641, 652 (1st Cir.1963); accord United States v. Nixon, 777 F.2d 958, 973 (5th Cir.1985).

Once recordings are admitted, the defendant can seek to impeach them by showing, for example, that the voice on the tape is not his; that the tapes do not recount the entire event; that they have been altered; or that they are untrustworthy or contradictory. The point is that the tapes themselves can be used to create a reasonable doubt in the jurors' minds.

C.

1.

The government properly authenticated the tapes. ⁸ At trial, FBI Agent Steger testified that he made the original recording of the conversation between Thompson and Gerber that took place on February 13, 1996. He tested the recording equipment both before and after the tape was made, and it was operating properly. He placed the recording device in the jail library and turned it on. He also observed the conversation between Gerber and Thompson as it took place. The tape began running before Gerber and Thompson arrived and continued to run after they left.

Steger made several trips, every few minutes, to check to see whether Gerber and Thompson were still talking. The conversation lasted approximately forty-two minutes. After Gerber and Thompson left the library, Steger retrieved the tape and turned it over to the FBI clerk responsible for maintaining evidence.

2.

The government then produced evidence to authenticate the enhanced tapes. FBI Agent Gregory Major, a signal processing analyst, testified as an expert in the field of tape enhancement. He stated that an enhanced tape is "an improvement in the intelligibility of the voice information over the original recording through use of audio filters for purposes of playback before a jury or for transcription purposes." He testified that he made an enhanced recording of the recording made by Steger and explained in detail the procedure by which the tape recordings are enhanced. He also stated that the noises that were filtered out of the original recording were those from a public address system and occasional knocking against the microphone.

Major explained that in making the enhanced version of the recording, he did not add or delete any words. Gerber also testified that the enhanced tapes accurately reflected the conversation that took place between him and Thompson in the prison library.

3.

The government also presented Steger's testimony for purposes of authenticating the transcripts. He testified that he had prepared a transcript of the tape recording. ⁹ In preparing the transcription, Steger stated that he had listened to the tapes several times and that, as a result, he had updated his transcript repeatedly. Nothing indicates that Steger intentionally mis-transcribed the recorded conversation.

4.

Thompson challenged the admissibility of the tapes, arguing that they were inaudible. ¹⁰ The court conducted an in camera review of the recordings and overruled the objections, stating that "[d]efendant is correct that parts of the tape are unintelligible, but other parts, especially of the enhanced tapes, can be easily understood."

5.

Although we give deference to the district court's findings, we would reach the same result if we were reviewing...