U.S. v. Greenfield, 77-5617

• Decision Date: 05 June 1978
• Docket Number: No. 77-5617,77-5617
• Citation: 574 F.2d 305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Russell GREENFIELD, M. D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 305

574 F.2d 305

UNITED STATES of America, Plaintiff-Appellee, v. William Russell GREENFIELD, M. D., Defendant-Appellant.

No. 77-5617.

United States Court of Appeals Fifth Circuit.

June 5, 1978.

James Jerry Wood, Montgomery, Ala., for defendant-appellant.

Barry E. Teague, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before WISDOM, THORNBERRY, and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Following the reversal of his first conviction on three of ten counts of knowingly distributing a controlled substance without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1), United States v. Greenfield, 5 Cir., 554 F.2d 179, the defendant was retried on those three counts, and convicted on one. He again appeals. Having considered carefully each of the errors contended to have been committed at the new trial, we find that the defendant was fairly tried and affirm the conviction. See Greenfield, supra, 554 F.2d at 180-181.

After the jury had begun its deliberations, it put a factual question to the judge. The judge gave a correct answer that he later amended inaccurately, giving the jury an incorrect summary of part of the evidence. However, immediately after the jury left the courtroom, counsel objected, the judge learned that he had been incorrect, and recalled the jury. He then gave what both sides agree to be an entirely correct statement of the evidence. The jury thereafter deliberated for some time, and returned a verdict of "not guilty" on two counts, guilty on the third.

Read in context and taking into account also the court's accurate charge, to which no objection is made, the court's comments do not betray partisanship, add to the evidence, or encroach on the jury's functions. Compare U. S. v. Cisneros, 5 Cir. 1974, 491 F.2d 1068. They were finally made entirely accurate, only a short time elapsed from misstatement to correction, and they were not unfair to the defendant.

It is also argued that the court erred in permitting the jury to hear and to read transcripts of conversations between the government's agent and Dr. Greenfield, recorded through a transmitter in the agent's shoulder bag and broadcast to a receiver in a van parked nearby. The government attempted to tape conversations on nine occasions, but could produce audible tapes on only five; the remaining four tapes were destroyed, and no records concerning them were kept. The defense argues that the extant tapes are largely inaudible, confusing, and substantially untrustworthy.

This court has not adopted any formulistic standard to guide the admissibility of tapes and transcripts. Tapes are not per se inadmissible because they are partially inaudible; the issue is whether the unintelligible portions "are so substantial as to render the recording as a whole untrustworthy. This determination is left to the sound discretion of the trial judge." U. S. v. Avila, 5 Cir. 1971, 443 F.2d 792, 795, cert. denied, 1971, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258.

The tapes were available to the defendant from the time of the first trial. The trial judge followed the course we have recommended in holding a prior hearing concerning the intelligibility of the tapes and the accuracy of the proposed transcripts,...