U.S. v. Bagguley

Decision Date22 December 1987
Docket Number86-5033,Nos. 86-5032,s. 86-5032
PartiesUnpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Appellee. v. David Frank BAGGULEY, Appellant. UNITED STATES of America, Appellee v. George Evans HARP, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

George V. Laughrun, II; Richard M. Koch (Goodman, Carr, Nixon & Laughrun; Walker, Palmer & Miller, on brief, for appellants.

Max O. Cogburn, Jr., Chief Assistant United States Attorney (Charles R. Brewer, United States Attorney, on brief), for appellee.

Before WIDENER and JAMES DICKSON PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

PER CURIAM:

David Frank Bagguley and George Evans Harp appeal from their convictions by a jury of conspiracy to possess and distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846 and for possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Appellants claim error in several of the trial judge's evidentiary rulings; in the laying of venue in the Western District of North Carolina; in the district court's refusal to grant defendants their requested number of additional peremptory challenges; in the court's admonishing and questioning defense witnesses; and in its refusal to issue two writs of habeas corpus ad testificandum. Appellants also complain that a DEA agent's pre-trial warnings to defense witnesses not to perjure themselves violated Harp's due process rights. We find no prejudicial error and affirm.

I

The activities out of which the convictions for conspiracy and possession in this case arose occurred while appellants, along with seven co-defendants, were prisoners in the Federal Correctional Institution in Terre Haute, Indiana. The subject matter of the conspiracy was heroin that originated in California with the family of co-conspirato Ciopat Siripan, who entered a guilty plea during trial. From California, the heroin followed a route to Granite falls, North Carolina, the home of the parents of William Merle Wright, another co-conspirator, who cooperated with the government after pleading guilty in this case. Wright's mother was to give the package containing the heroin to Wright's girlfriend, Sandra Edmisten. From Edmisten the package was to go to indiana and ultimately to Barbara Harp, appellant Harp's wife. Part of the heroin then was to have been smuggled into the prison in Terre Haute and the remainder sold through a severed co-defendant, Billy Youngworth, in Boston.

Because Wright's father, in Granite Falls, became suspicious about the package he had been told contained "legal papers," he gave it to the local sheriff's department, which in turn gave it to the DEA. Finding heroin in the package, the DEA foiled the scheme by replacing the heroin with flour and then, as the conspirators had planned, delivering the "heroin" to an address where Barbara Harp later came to retrieve it. She was arrested, along with her two companions, and all three pleaded guilty

The government's evidence that Bagguley and Harp were involved in the conspiracy to possess and distribute this heroin consisted of the testimony of three co-defendants who pleaded guilty and cooperated with the government. Other evidence was in the form of tapes of telephone conversations placed by different conspirators from the prison. These calls included ones placed by William Wright to Sandra Edmisten in the Western District of North Carolina.

Telephone conversations of prisoners at the Terre Haute correctional facility are routinely monitored and taped and the tapes stored in a locked room at the prison. Prisoners are made aware of the monitoring by posted signs and by acknowledgment forms they sign. The tapes admitted into evidence in this case were enhanced copies of the originals. The originals had been removed from the locked prison room by an investigator who turned them over to a DEA agent. That agent stored them in a DEA storage room in Indiana and later sent them to another agent in Greensboro, North Carolina. The DEA agent in Greensboro listened to the thirty tapes sent to him. The tapes next were sent to the FBI in Washington, D.C., and later returned to Greensboro, where they remained until trial. While the tapes were in Washington, officials there made the enhanced copies, which were compared with the originals by the agent back in Greensboro and introduced at trial.

II

On this appeal, appellants raise best evidence rule and authenticity questions about the Terre Haute tapes in addition to challenging the validity of regular interception of prisoner calls under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq.

They also challenge two other evidentiary rulings by the district court. Both contend that the admission of evidence regarding a second package of heroin weighing forty-five ounces was improper, contending that was evidence of a transaction occurring after the indicted conspiracy. Bagguley also challenges the court's determination that evidence of his indigence was irrelevant.

Another issue raised on appeal is that the court abused its discretion in denying the six co-defendants, who stood trial together, more than two additional peremptory challenges. Prior to the beginning of trial, attorneys for all defendants filed motions requesting that they be allotted more than the ten peremptory challenges given them as a group by Fed.R.Crim.P. 24(b). The district court, exercising the discretion given by Rule 24(b), denied these motions. During voir dire, defense attorneys informed the court that they were in conflict regarding how to exercise the ten peremptories and renewed the request for additional challenges. The court granted the defendants only two additional challenges. The defendants eventually exercised only nine of the twelve challenges allocated to them.

Appellants also complain that they were denied a fair trial when the judge admonished defense witnesses George Drinkwine and William Slipka to confine their testimony to the questions put to them and when he examined appellant Bagguley concerning how Bagguley had received certain letters that defendants wanted admitted into evidence. Appellants argue on appeal that this intervention by the trial judge signaled to the jury that the judge was biased against defendants.

Appellants also assert that they were denied a fair trial because DEA Agent John Ingram spoke with defense witness William Slipka before trial and warned him that he should testify truthfully. Simultaneously, a charge against Slipka that previously had been dropped was reopened.

Finally, appellant Harp assigns as error the court's refusal to issue writs of habeas corpus ad testificandum for his wife, Barbara Harp, and Billy Youngworth, both of whom were in prison at the time of trial. Youngworth was in the Mecklenburg County, North Carolina, jail, and Barbara Harp was in prison in Kentucky.

The only issues warranting discussion on appeal are those regarding admission of the copies of the taped telephone conversations and the challenge to the trial judge's refusal to issue the writs of habeas corpus ad testificandum. We have considered the other issues and find them without merit.

III

Appellants advance several reasons that the copied tape recordings of the telephone calls placed from the Terre Haute prison should have been excluded. They assert that the tapes were inadmissible because all speakers were not identified, because there was not a sufficient showing of chain of custody, because the best evidence rule precluded admission of the enhanced copies rather than the originals, and because inaudible portions of the tapes rendered them untrustworthy. Appellants also argue that the district court should have suppressed the tapes on the grounds that prison officials illegally monitored the prisoners' calls, in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510 et seq.

While these contentions raise seemingly disparate concerns, at least the first four of them converge insofar as they challenge the authenticity and reliability of the tapes. The first contention, that identification of all speakers is necessary before tapes are admitted, refers to one of seven requirements often enunciated by courts for the admission of tape recordings. * The primary aim of these requirements is to give assurance that tapes are accurate. United States v. Biggins, 551 F.2d 64, 66-67 (5th Cir.1977). This goal of accuracy is sufficiently satisfied even when all speakers are not identified, as long as relevant speakers are. In the challenged recordings in this case, the more relevant party was the caller, who in each case was an identified member of the conspiracy. Insofar as the conversations may be deciphered to involve the heroin scheme, the names of the recipients of the calls are not critical to the tapes' accuracy or their relevance. There was therefore no error in admitting them despite the failure to identify every party.

The contention that chain of custody of the tapes was not sufficiently established refers to the requirement of Fed.R.Evid. 901 that real evidence be proven authentic. One way of proving authenticity of tape recordings is by chain of custody. See United States v. Ellis, 493 F.Supp. 1092, 1104 (M.D.Tenn.1978). Evidence of chain of custody also ensures that the condition of real evidence, such as these tapes, has not been substantially altered. See G. Lilly, An Introduction to the Law of Evidence Sec. 10.9 (1978). As does identification of relevant speakers, chain of custody thus tends to insure accuracy.

All that is required of chain of custody...

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2 cases
  • U.S. v. Hammond, Crim CCB-01-0004.
    • United States
    • U.S. District Court — District of Maryland
    • June 12, 2001
    ...made by BOP personnel of inmates' personal calls are covered by the law enforcement exception. See United States v. Bagguley, 838 F.2d 468, 1987 WL 35045, *4-5 (4th Cir. Dec.22, 1987). Several other circuit courts have echoed this result. See United States v. Van 77 F.3d 285, 291-92 (9th Ci......
  • United States v. Cannon
    • United States
    • U.S. District Court — District of South Carolina
    • December 20, 2012
    ...made from prison. The Fourth Circuit has previously recognized the admissibility of prison phone calls. See United States v. Bagguley, 838 F.2d 468 (4th Cir. 1987) (per curiam) (finding recordings of prison phone calls admissible despite challenges based on the best evidence rule, the authe......

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