U.S. v. Carbone

• Decision Date: 05 September 1986
• Docket Number: No. 85-1685,85-1685
• Citation: 798 F.2d 21
• Parties: 21 Fed. R. Evid. Serv. 726 UNITED STATES of America, Appellee, v. Luis CARBONE, a/k/a "Luiggi," Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 21

798 F.2d 21

21 Fed. R. Evid. Serv. 726

UNITED STATES of America, Appellee, v. Luis CARBONE, a/k/a "Luiggi," Defendant, Appellant.

No. 85-1685.

United States Court of Appeals First Circuit.

Argued June 4, 1986.

Decided Aug. 13, 1986.

Rehearing Denied Sept. 5, 1986.

Nathan Z. Dershowitz and Alan M. Dershowitz, argued, with whom Victoria B. Eiger and Dershowitz & Eiger, P.C. were on brief, for defendant, appellant.

Jorge E. Vega Pacheco, Asst. U.S. Atty., with whom Jose A. Quiles, Acting U.S. Atty., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Appellant-defendant Luis Carbone was convicted by a jury on all three counts of an indictment charging: conspiracy with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846; aiding and abetting in the possession of half a kilogram of cocaine with intent to distribute it; and aiding and abetting in the distribution of half a kilogram of cocaine. The second and third counts allege violations of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Defendant raises three issues on appeal: the admission into evidence of tape recordings and the use of transcripts of the recordings; whether the evidence was sufficient to prove a conspiracy with intent to distribute; and whether the district court should have conducted a post-trial in camera hearing to determine whether a government witness had committed perjury during the trial.

I. THE ADMISSION OF THE TAPE RECORDINGS AND THE USE OF TRANSCRIPTS

A. The Tape Recordings

Defendant challenges the admission of the tape recordings on the grounds that none of them were authenticated properly, that some of them were inaudible, and that one was inadmissible because it was "enhanced." The contours of the law governing the admissibility of tape recordings are well defined. 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. United States v. Rengifo, 789 F.2d 975, 978-979 (1st Cir.1986). "The decision to admit [tape recordings] into evidence is reversible only if the district court abused its discretion." United States v. Cortellesso, 663 F.2d 361, 364 (1st Cir.1981). See also United States v. Slade, 627 F.2d 293, 301 (D.C.Cir.1980); United States v. Richman, 600 F.2d 286, 294 (1st Cir.1979); United States v. Biggins, 551 F.2d 64, 66 (5th Cir.1977).

This circuit has long followed the generally accepted rule that where a tape recording is challenged on the grounds of audibility the question is whether "the inaudible parts are so substantial as to make the rest more misleading than helpful" and that admissibility rests within the discretion of the trial judge. Gorin v. United States, 313 F.2d 641, 651 (1st Cir.1963); United States v. Nashawaty, 571 F.2d 71, 75 (1st Cir.1978). See also United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983); United States v. Sutherland, 656 F.2d 1181, 1200 (5th Cir.1981); United States v. Bell, 651 F.2d 1255, 1259 (8th Cir.1981); United States v. Slade, 627 F.2d at 301; United States v. Llinas, 603 F.2d 506, 508 (5th Cir.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1030, 62 L.Ed.2d 762 (1980); United States v. Knohl, 379 F.2d 427, 440 (2d Cir.1967); 1 Weinstein's Evidence, J. Weinstein & M. Berger, Sec. 106 at 106-10-11 (May, 1986).

We have upheld the use of composite tapes as evidence. United States v. DiMuro, 540 F.2d 503, 512 (1st Cir.), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1976). As long as the tape recording is properly authenticated, we see no reason why a recording that has been enhanced to improve its audibility by filtering out background noises and improving the clarity of the voices should not also be allowed in evidence. See Fountain v. United States, 384 F.2d 624, 631 (5th Cir.1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); United States v. Knohl, 379 F.2d at 440.

With these legal principles as a background, we now turn to the trial proceedings. Defendant was furnished with copies of the tape recordings to be offered in evidence in enough time prior to the start of the trial so that he could listen to them and prepare a list of objections to their use, which he did. The objections were not made, however, until after the trial started. Defendant's motion that the trial judge listen to the tapes outside of the presence of the jury before ruling on their admissibility was denied. The stated reason was that defendant should have requested a pretrial hearing on the admissibility of the recordings. Defendant's appellate counsel now argues that the judge who handled the pretrial proceedings, a different judge than the trial judge, told defendant's trial counsel that he would not rule on evidentiary challenges until the challenged evidence was offered at trial. Our examination of the record has revealed no such ruling, nor could we find a motion by defendant asking for a pretrial hearing and ruling on the admissibility of the tape recordings. We also note that, although the trial judge verbally chastised defense counsel more than once for not asking for a pretrial ruling on the admissibility of the recordings and related transcripts, counsel did not assert that such an attempt had been made and rejected.

The preferred way of handling challenges to the accuracy and audibility of tape recordings is at a pretrial hearing. If this is not possible, we see no reason why the district court must lengthen a trial by listening to the tapes outside the presence of the jury. Some tape recording playbacks run for a considerable period of time. If the recordings are properly authenticated, the trial judge can listen to them as they are played to the jury and rule on objections when made. This is the manner in which most testimony is presented. It is within the district court's discretion to determine how evidentiary challenges shall be met. The basic question is whether the tapes were properly admitted into evidence. We find that they were.

Before the tape recordings were admitted into evidence, Edwin Hernandez, the DEA agent in charge of the investigation, explained how each recording was made. There were two types of recordings used: a body recorder, called a Nagra, used by an undercover agent to record conversations uttered at meetings; and tape recordings of telephone conversations. Herndandez described in detail how the body recorder worked and how the conversations were recorded. An expert witness, Robert Brady, also testified as to the operation of the tape recorders. The voices on each of the recordings were identified by a person present during the meeting or privy to the telephone conversation. All the conversations were in Spanish but before the tapes were played the trial judge ascertained that Spanish was the native language of all the jurors. Appellant has suggested that since the conversants used Puerto Rico "street" language the jurors would have had difficulty understanding what was said. This overlooks the fact that the jurors were natives of Puerto Rico and its street language is not foreign to them. We find that the authentication process was satisfactory.

We have played all of the tapes and find that none of them were so inaudible or unintelligible as to make them more misleading than helpful. It is true that exhibit 15, the tape of the visit of government informant Rivera (Manny on the tape) to defendant's office on September 19, 1984, had large gaps due to inaudibility caused by the overlay of background noises. This tape, however, was filtered and then enhanced into a new tape, exhibit 19, which was clear and understandable. The judge explained to the jury that exhibits 15 and 19 were recordings of the same conversations and had them both played.

Defendant objects to the admission of exhibits 15 and 19 because of the enhancement. There is no basis for finding as a matter of law that the enhancement process rendered exhibits 15 and 19 inaccurate and untrustworthy. Robert Brady, a self-employed electrical engineer specializing in developing surveillance equipment for law enforcement agencies, testified for the government. He explained the filtration and enhancement process; it was his opinion that neither process altered or distorted the words recorded. Defendant's expert, Frank M. McDermott, gave a detailed critique of the tape recordings; it was his opinion that they were not accurate. The credibility of the expert witnesses was properly left to the jury.

B. The Use of Transcripts

The trial judge permitted the jury to use transcripts to follow each recording as it was played. Each transcript had two columns: the left-hand column, entitled "Transcript," was in Spanish; the right-hand column, entitled "Translation," was in English. Copies of the transcripts had been furnished defendant prior to trial along with the tape recordings so he had ample opportunity to check their accuracy. When the government first offered a transcript for use by the jury, defendant objected to the admissibility of all the transcripts on two grounds: lack of proper authentication, and inaccuracies in both the Spanish transcripts and the English translations. Defendant requested that the judge check the transcripts against the tape for accuracy before allowing the jury to use them. The judge ruled that the transcripts would not be admitted in evidence, that the jury would be instructed that the tapes, not the transcripts, were evidence and that any differences between the two must be resolved in favor of what was heard on the recording. The motion that the judge check the transcripts against the tapes for accuracy outside the presence of the jury was denied but defense counsel was told that she could point out any...