U.S. v. Lucero, 78-1094

• Decision Date: 17 August 1979
• Docket Number: No. 78-1094,78-1094
• Parties: 4 Fed. R. Evid. Serv. 548 UNITED STATES of America, Plaintiff-Appellee, v. Anthony E. LUCERO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1147

601 F.2d 1147

4 Fed. R. Evid. Serv. 548

UNITED STATES of America, Plaintiff-Appellee, v. Anthony E. LUCERO, Jr., Defendant-Appellant.

No. 78-1094.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 26, 1979.

Decided July 20, 1979.

Rehearing Denied Aug. 17, 1979.

Narciso Garcia, Jr., Albuquerque, N. M. (with James R. Toulouse of Toulouse, Krehbiel & DeLayo, Albuquerque, N. M., on the brief), for appellant.

Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M. (with Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.

Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Anthony E. Lucero appeals from his jury trial conviction on thirteen counts of transporting forged securities in interstate commerce in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2. He was sentenced to twelve concurrent imprisonment terms of five years as well as one five year term of probation following imprisonment. Lucero points to numerous alleged errors as mandating reversal. Four of his allegations require comment.

Viewing the facts in the light most favorable to the jury's verdict, we glean the following broad outline of events. In April of 1975, approximately 900 blank money orders drawn on the Central Bank of Oakland, California, were stolen together with a machine for stamping dollar values onto blank checks. The government's two chief witnesses, John and Theresa Claudio, testified that Lucero came to their Albuquerque home in mid-1976 seeking their assistance in negotiating the stolen money orders which had come into his possession. The money orders had by this time been stamped with dollar values in excess of $93,000. The plan for negotiating the securities included successive trips to El Paso, Texas, and Juarez, Mexico, in the fall of 1976. Lucero and the Claudios ultimately transferred a quantity of money orders to a Mexican drug dealer in exchange for drugs and a $10,000 downpayment. Lucero was charged and convicted, however, of participating in the negotiation of only thirteen money orders, none of which were involved in the Juarez transactions. The Claudios claim they concealed the thirteen from Lucero before turning the bulk of them over to the Juarez drug dealer. Eleven of these money orders were forged and passed directly by the Claudios. Two were supposedly stolen from the Claudios and passed by a third party. Mrs. Claudio was arrested in December 1976 while attempting to negotiate one of the money orders. She and her husband subsequently cooperated in the government's case against Lucero by participating in surreptitiously recorded conversations with him as well as by testifying against him at trial.

One claim of reversible error is that the jury was unduly prejudiced by the introduction into evidence of tape recorded conversations between Theresa Claudio and Lucero which referred to narcotics transactions as well as the forgery operation. It is contended these conversations constituted impermissible evidence of unrelated crimes.

Lucero correctly cites Morgan v. United States, 355 F.2d 43 (10th Cir.), Cert. denied, 384 U.S. 1025, 86 S.Ct. 1976, 16 L.Ed.2d 1029 (1966), for the proposition that evidence of other crimes is admissible only for such purposes as establishing common scheme, design, motive or intent when its probative value outweighs the prejudice to a defendant resulting from its admission. See Fed.R.Evid. 404(b). While trial courts have discretion to strike the balance between probative value and prejudice, they must be sensitive to the potential prejudice that is always inherent in evidence of a defendant's prior uncharged crimes or wrongs. United States v. Carleo, 576 F.2d 846, 849 (10th Cir.), Cert. denied, 439 U.S. 850, 99 S.Ct. 153, 58 L.Ed.2d 152 (1978). Trial courts therefore have a duty to excise evidence of other uncharged wrongs if they can do so without destroying the relevancy of the evidence that addresses itself to the charges.

In this case, the court concluded that the discussion of drug transactions was so intertwined with the money order discussion that it could not reasonably have been excised. In addition, the taped conversations were relevant to the jury's need to evaluate the credibility of Lucero's claim that his connection with the Juarez drug dealer arose out of legitimate currency speculation transactions. Admitting the tape recordings enabled the jury to consider the nature of the relationship between Lucero, the Claudios, and the drug dealer. The trial court cautioned the jury that Lucero was "not on trial before you on any charge relating to the purchase or sale of narcotics." Record, vol. 7, at 907. The evidence regarding narcotics transactions, said the court, was to be strictly limited in the jury's consideration to the issues of the parties' relationship and intent. Under the circumstances described, the tape recordings were properly admitted. See Chase v. Crisp, 523 F.2d 595, 600 n.4 (10th Cir. 1975), Cert. denied, 424 U.S. 947, 96 S.Ct. 1418, 47 L.Ed.2d 354 (1976); United States v. Roe, 495 F.2d 600, 604 (10th Cir.), Cert. denied, 419 U.S. 858, 95 S.Ct. 107, 42 L.Ed.2d 92 (1974); Collins v. United States, 383 F.2d 296, 301 (10th Cir. 1967).

Lucero next complains that it was reversible error to allow the jury to use government prepared transcripts of the tape recordings. He concedes that it is appropriate to employ supplemental transcripts in some circumstances to assist a jury in following recorded conversations. However, Lucero contends that the transcripts in question contained serious errors and that he did not stipulate to their accuracy. Lucero suggests that the jury should have been provided with a defense version ¹ of the tape recordings under the authority of United States v. Onori, 535 F.2d 938, 948-49 (5th Cir. 1976) and United States v. Rochan, 563 F.2d 1246, 1251-52 (5th Cir. 1977). ² Although the Fifth Circuit's approach is an eminently sound one, we are persuaded that the safeguards employed by the trial court here were adequate.

Out of the jury's presence, the trial court heard testimony from the transcriber of the tapes as to the accuracy of the transcripts. In addition, the trial court reviewed the transcripts and indicated that "appropriate action" would be taken if substantial variances were detected. Record, vol. 4, at 316. No such variances were found, but the court did give vigorous cautionary instructions to the jury regarding utilization of the transcripts:

Now, by the use of this transcript, I don't think the Government represents that it's a hundred percent accurate, and the defense does not agree that it is accurate, and the Court does not represent it to be accurate. It is just an aid to you for whatever aid it may be.

You listen to the tape and the tape is the evidence and whatever you think the tape says, that's what it says, not what the transcript says.

Record, vol. 4, at 345-46. At the close of all the evidence the court further instructed the jury as follows:

Transcripts were furnished to you for such assistance as they might be to you in following the tapes. As I instructed you before, and I repeat again, the tapes, however, are evidence in this case and the transcripts are not evidence. If you perceive any variation, you will be guided solely by the tapes and not by the transcripts.

Record, vol. 7, at 906. We have carefully compared the transcripts with the actual recordings and find only insignificant variations. Although the Fifth Circuit procedures are preferable to those used...