U.S. v. Devous, 84-1279

• Decision Date: 21 June 1985
• Docket Number: No. 84-1279,84-1279
• Parties: 18 Fed. R. Evid. Serv. 663 UNITED STATES of America, Plaintiff-Appellee, v. A. Scott DEVOUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1349

764 F.2d 1349

18 Fed. R. Evid. Serv. 663

UNITED STATES of America, Plaintiff-Appellee, v. A. Scott DEVOUS, Defendant-Appellant.

No. 84-1279.

United States Court of Appeals, Tenth Circuit.

June 21, 1985.

Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo. (Richard A. Stacy, U.S. Atty. with him on brief), for plaintiff-appellee.

David L. Grindstaff (Margaret J. Clark with him on brief), Salt Lake City, Utah, for defendant-appellant.

Before BARRETT and BREITENSTEIN, Circuit Judges, and WEINSHIENK, ^* District Judge.

BARRETT, Circuit Judge.

Dr. A. Scott Devous appeals his conviction on three counts of violation of the federal drug statutes. Count I of the indictment charged Devous with the knowing and intentional distribution of a Schedule II controlled substance (Demerol), outside the course of his professional practice, to one Dawn Velikaneye, in violation of 21 U.S.C. Sec. 841(a)(1). Count II charged that Devous had knowingly and intentionally acquired Demerol by misrepresentation, fraud, deception or subterfuge, in violation of 21 U.S.C. Sec. 843(a)(3). Count III charged that Devous had failed to keep the records required by statute of disposition of several thousand capsules of Obermine (phentermine) and Bancap with codeine, in violation of 21 U.S.C. Sec. 843(a)(4)(A).

Dr. Devous moved to Green River, Wyoming, in May, 1982. He was a general practitioner and also had a weight loss clinic. R.Supp. Vol. II at 222. In February, 1983, he hired Dawn Velikaneye as a physician's assistant. The two were initially friends, but eventually became lovers. R.Supp. Vol. II at 225. At some point, they (and perhaps others) began using Demerol for recreational purposes. An investigation by the Wyoming Board of Medical Examiners revealed that Devous had written prescriptions for office use of a total of 200 bottles ¹ of Demerol at local pharmacies between January 1 and March 23, 1983. A state investigator testified that this amount of Demerol was more than the entire Ivinson Memorial Hospital in Laramie, Wyoming, had used during that time. R.Supp. Vol. I at 104-105.

After being confronted by the Board of Medical Examiners and told to account for this unusually large amount of Demerol, Devous attempted to purchase 40 more bottles of the drug from Pay Less Drugs in Green River. He telephoned the owner, Larry Hill, and told Mr. Hill that he needed the bottles because Dr. Sandy Brown, a physician from Salt Lake City, was going to visit the office and do some gastroentology procedures. R.Supp. Vol. I at 118. (This was subsequently contradicted by testimony from Dr. Brown. R.Supp. Vol. I at 55.) Devous sent Velikaneye to the pharmacy with a federal DEA Form 222. She filled out the form at the pharmacy and picked up the 40 bottles of Demerol. Devous then instructed Velikaneye to pour the Demerol from the bottles into an "IV" bag and refill the bottles with "IV" solution. Devous then went to the police with the bottles and had them destroyed, intending to take the police report of the destruction to the Board of Medical Examiners.

On April 20, Devous called the Green River police to report that Velikaneye was a drug user and had been using his DEA forms to acquire large quantities of Demerol. R.Supp. Vol. II at 374, 375. The police responded by visiting Velikaneye at her home and confronting her with Devous' accusations. Velikaneye then decided, on her own initiative, to invite Devous to her home and secretly tape a conversation with him whereby he might incriminate himself. This was done; a cassette tape was made on April 23 in which Devous repeatedly asked Velikaneye to go to the police and admit that she, and not Devous, was responsible for the Demerol purchases. Velikaneye then took the tape to the police. She was eventually granted immunity from prosecution in exchange for her testimony against Devous.

The major issue that we must resolve is whether the use of a copy of the original tape at trial, together with a transcript prepared primarily by Velikaneye, constituted reversible error.

I.

The trial court allowed the Government to play for the jury three reel-to-reel tapes. Pl.Exh. 14, 15, 16. These tapes were copied by the Green River police from a single cassette tape on which the conversation between Devous and Velikaneye was originally recorded. Velikaneye had apparently hidden a microphone under a sofa; the quality of the recording varied, possibly due to the varying proximity of Devous and Velikaneye as they were speaking. Examples of some of the audible portions of the tapes follow: ²

Devous: They [the police] say what?

Velikaneye: That you're setting me up because uh, you're in trouble with the medical board, some shittin' thing and I said that I don't know about I don't know anything about it. I said, you know--I can't say anything about it.

Devous: I want you to tell them that you do know about this. You tell them that the Demerol I'm short, you ordered. And you got. You tell 'em that.

Velikaneye: I'm not going to be responsible for forty bottles worth of Demerol!

Devous: Dawn, I'm responsible. Not you.

* * *

* * *

Devous: Well, yeah, they'll do that stuff. They're just trying to make noise but we're not uh--you know, we have to stick right down that line or else it isn't gonna work. They can make threats, they can threaten, they can do anything they want, but we've got to follow that right down the line. And, you know, you can tell them that you ordered anything you want, it's my responsibility, and I told them that. I take full responsibility. And that's all there is to it. And this--and I told you before, I smell a trap. I smell a trap, and you know this is designed from the very beginning to protect me. That's the reason we're doing this--to protect me.

* * *

* * *

Devous: Dawn, you are scared. Dawn, now listen to me. I--how many times do I gotta tell you this? I have got to make this thing look good so I can explain a bunch of Demerol that isn't there, okay? As soon as that's done satisfactorily, then the whole thing gets dropped, okay? I told you Dawn, I will--I will do everything I can to make sure you don't get in any trouble for this because you're doin' it to help me.

Velikaneye: I'm not worried that I'm gonna get in trouble. That is not what scares me--getting into trouble. They can't do anything to me.

Devous: Well then what do you care?

Velikaneye: I don't want this blot on my record. I don't want to go through town and have everybody feel that I'm in a rehabilitation center on drugs--because of drugs. This town is a mean, vindictive town. I've lived here for 25 years.

* * *

* * *

Devous: Dawn, I--I'm gonna take care of you. You know I hope you believe that. Don't let anybody sucker you into saying anything. Tell them you've used drugs, tell them you got it from my office, tell them you ordered it. And then it's over. That's it.

(Tape # 1, Pl.Exh. 13.)

Velikaneye: This--this is the way I feel--even if I did tell them, I still think they're gonna check it out, you know.

Devous: Well what's there to check out? If you give 'em an "IV" bag, they've got all the Demerol.

Velikaneye: I don't wanna give 'em that much.

Devous: Why? That's how much we're missing Dawn, that means you haven't used much. You give them the Demerol. Tell them you've just been passing it in there on these big orders and tell them you're keeping it so it clears me. You're not using it. You give it back to them. You know that's like robbing a bank and giving--givin' 'em back the money. That way they'll believe you.

(Tape # 2, Pl.Exh. 13.)

Although Devous did not object to the admission of the tapes at trial, he does so now, claiming that the admission of a copy without accounting for nonproduction of the original violated the Best Evidence Doctrine. Further, Devous now claims that the original had been tampered with.

As a preliminary matter, we note that, since objection to the admission of the tapes was not made below, the "plain error" standard guides our review. Fed.R.Crim.P. 52(b); Fed.R.Evid. 103(d). These rules refer to "plain errors affecting substantial rights." Id. This language in turn has been interpreted by the Supreme Court to refer to errors that "are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); and "... error so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). See also United States v. Young, --- U.S. ----, ----, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1984); United States v. Frady, supra, 456 U.S. at 163, n. 14, 102 S.Ct. at 1592, n. 14.

We hold that there was no "plain error" in admitting the tapes as evidence. We are mindful of the Supreme Court's admonition in Young that "[r]eviewing courts are not to use the plain error doctrine to consider trial court errors not meriting appellate review absent timely objection--a practice which we have criticized as 'extravagant protection' " (citations omitted), United States v. Young, supra, --- U.S. at ----, 105 S.Ct. at 1047; and therefore limit ourselves to the following observations: It is well settled in this circuit that the admissibility of tape recordings that are partially inaudible lies within the sound discretion of the trial court. United States v. Watson, 594 F.2d 1330, 1335 (10th Cir.1979), cert. denied, sub nom Brown v. United States, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979); United States v. Brinklow, 560 F.2d 1008, 1011 (10th Cir.1977). Once the proper foundation is laid, as it was here, R.Supp. Vol. II at 254-258, the tapes were admissible as "duplicates" under Fed.R.Evid. 1001(4) and 1003, notwithstanding Devous' post hoc and factually unsupported allegation that the original cassette had been...