U.S. v. Howard, s. 94-3905

• Decision Date: 02 May 1996
• Docket Number: 94-3925,Nos. 94-3905,s. 94-3905
• Citation: 80 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles HOWARD and Darren Green, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1194

80 F.3d 1194

UNITED STATES of America, Plaintiff-Appellee, v. Charles HOWARD and Darren Green, Defendants-Appellants.

Nos. 94-3905, 94-3925.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 6, 1995.

Decided April 5, 1996.

As Amended on Denial of Rehearing and Suggestion for

Rehearing En Banc May 2, 1996.

Appeal from the United States District Court for the Southern District of Illinois. No. 94 CR 40037--J. Phil Gilbert, Chief Judge.

Ralph M. Friederich (argued), Office of the U.S. Atty., Fairview Heights, IL, for Plaintiff-Appellee.

Patricia Littleton (argued), Carbondale, IL, for Defendant-Appellant Charles Howard.

Patrick W. Fitzgerald (argued), Alton, IL, for Defendant-Appellant Darren Green.

Before CUMMINGS, ILANA DIAMOND ROVNER, and DIANE P. WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury convicted Charles Howard and Darren Green of distributing eight-tenths of a gram of crack cocaine to Eddie Lee Brown, a government informant, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The conversations surrounding the defendants' procurement of the cocaine for Brown were covertly recorded and transcribed. Howard and Green contend that the transcript was riddled with inaccuracies and should not have been introduced at trial. Howard also challenges the district court's refusal to comply with the jury's request during deliberations for the transcript of a key witness' testimony and the sufficiency of the evidence against him. Green challenges the quantities of cocaine attributed to other transactions treated as relevant conduct for sentencing purposes. We affirm the convictions of both defendants, but vacate Green's sentence and remand for reconsideration of the drug quantities attributed to him.

I.

In July or August of 1993, Eddie Lee Brown informed Carbondale police officer Chuck Shiplett (on assignment to the Southern Illinois Enforcement Group, a narcotics task force comprised of federal, state, and local law enforcement officials) that he could purchase crack cocaine from Darren Green. Brown himself had used crack cocaine, and had purchased small amounts of the drug from Green on twenty to thirty occasions. Green had told Brown that he obtained the cocaine from Charles Howard. Law enforcement officials agreed to have Brown attempt to make a purchase from Green and Howard.

In the early evening of August 31, agents dropped Brown near a group of housing projects in Carbondale known as the Elm Street projects, where Brown's aunt Willabelle Brown lived. Previously the agents had frisked him to make sure he had no drugs on his person and supplied him with $120 to purchase the crack. Brown proceeded to his aunt's residence and there met Darren Green and his uncle Donald Green. Donald Green then drove them all to the Carbondale Mobile Home Park, where Howard had a trailer. En route to the trailer, Brown gave Darren Green the purchase money; Donald Green gave him another $40 for a smaller purchase of his own. When they arrived, Green got out of the car alone and met briefly with Howard outside of Howard's trailer. Brown later testified that he saw Green hand Howard the purchase money. Green then returned to his companions, telling them that he had given Howard the money and that Howard had said he would have "your all shit" in twenty minutes. Aug. 31 Tr. 13. A moment later Green spotted an acquaintance, Melvin Foster, who invited them all to wait in his own trailer, not far from Howard's. They accepted the invitation. Eventually, Green left Foster's trailer and again met with Howard alone. When he returned, he delivered what was purported to be a "sixteenth" of crack cocaine (one-sixteenth of an ounce) to Brown and two "twenties" (small, $20 "rocks" of crack cocaine) to Donald Green. The others proceeded to smoke some of the crack Green had procured for Donald, but Brown abstained. With encouragement from Foster, however, Darren Green repeatedly urged Brown to share with them a portion of the cocaine he had purchased; Brown refused. An unhappy Darren Green and his uncle drove Brown back to his aunt's home. Brown proceeded immediately to the authorities and turned over the drug; he was again searched to ensure that he had not retained any of the narcotic or the purchase money for himself. Tests confirmed that the substance Brown had produced was 0.8 grams of cocaine base.

Brown testified at the defendants' trial, so the jury had the benefit of his first-hand account of the transaction. Brown was wearing a microcassette recorder and two transmitters throughout the transaction, and the resulting tape recording documented Brown's conversations that evening with Darren and Donald Green. Thus, Brown is heard counting out the purchase money to Green during the drive to the trailer, and Green is heard, following his first meeting with Howard, telling Brown and Donald Green that Howard would have the cocaine in twenty minutes. He is also heard in the course of the ensuing wait in Foster's trailer discussing his history of trafficking in narcotics with Howard.

In addition to this evidence, the jury heard the testimony of Carbondale police officer Scott Miller, who was one of six or seven people who conducted surveillance of the transaction. Miller observed Brown and the Greens arrive at the mobile home park and then saw Darren Green meet with Howard. He watched as Brown and the Greens retired to Foster's trailer, and later noticed Darren Green leave and return to Howard's trailer. Howard met Green at the door of the trailer and then the two met alone inside of a vehicle in which two women had recently arrived to visit Howard.

Clinton Wooley, a user of crack cocaine, testified that he had purchased the drug from Charles Howard on a number of occasions. He had also purchased crack from Darren Green on approximately five occasions. Like Brown, Wooley recalled Green saying that he obtained the cocaine from Howard.

Finally, Melvin Foster testified that when Brown and the Greens had visited his trailer on the day of the transaction, all of them had immediately begun smoking crack cocaine that Brown had brought with him. Foster insisted that he had not seen anything change hands between Darren Green and Brown. ¹

II.

A. The Transcript

The conversations recorded on August 31, 1993 by virtue of the microphone hidden on Brown's person are, like so many covertly recorded dialogues, difficult to make out at times. The original transcript produced by the government to the defendants is thus rife with "inaudibles" and unidentified speakers. However, two weeks in advance of trial, the government produced a revised transcript in which much of the dialogue is clarified and the speakers are in most instances identified. The government reported that it had taken the prosecution team four twelve-hour days to make the corrections. Motion Hrg. Tr. 18. Both defendants sought in limine to exclude the revised transcript from trial, arguing principally that the tape recording itself was so garbled that use of the transcript would unduly invade the jury's factfinding province and prejudice the defendants. The defendants themselves never submitted a transcript of their own.

At the start of trial, Judge Gilbert heard the defendants' objections to the transcript and subsequently reviewed the tape and transcript himself during a break in the proceedings. After listening to portions of the tape, Judge Gilbert agreed that the conversations were difficult to follow, but saw nothing in the revised transcript that he could discern to be "clearly inaccurate or a fabrication." Motion Hrg. Tr. 32. Finding that the transcript would aid the jury (id. at 33), he overruled the defendants' objections and permitted the government to provide copies of the transcript to the jurors when the tape was played. He did, however, admonish the jury that the tape recording itself was the evidence of the conversations, not the transcript. Tr. 95.

Green argues on appeal that the audio tape was so difficult to comprehend that the defense could neither be expected to stipulate to the accuracy of the government's transcript nor prepare an alternate version. Nor could the jury, he reasons, be expected to decipher the tape and make an independent assessment of the transcript's accuracy. Green also points out that the government never presented any evidence as to how the identity of the speakers was determined for purposes of the transcript. Under these circumstances, he argues, the district court erred in permitting the jury to see the transcript. Although, as we have noted, Judge Gilbert did deliver cautionary instructions about the limited purpose of the transcript, his failure to do so "consistently," in Green's view, "compounded the harm" to him. Green Br. 18.

Howard argues more broadly that in the absence of a stipulation to the accuracy of the transcript or the submission by the defense of an alternate version, the district court may not, when the defense has objected to the accuracy of the government's version, permit the jury to see that version. In this case, Howard objected to several passages of the transcript in which his name is mentioned. Where, as here, the tape recording is lengthy and in many instances difficult to hear, Howard reasons, it is unrealistic to expect that the jury will merely use the transcript as an "aid" in determining whether it really was his name that was mentioned and what else the speakers actually said. Pragmatically speaking, he argues, the jury will simply yield its fact-finding function to the government and accept the representations of the transcript.

The district court enjoys broad discretion in determining whether to permit the use of written transcripts as an aid to the jury in listening to recorded conversations. E.g., United States v. Durman, 30 F.3d 803, 811 (7th Cir.1994), cert. denied sub nom. Castellanos v. United States, --- U.S. ----, 115 S.Ct. 921, 130 L.Ed.2d 801...