U.S. v. McIntyre

• Citation: 836 F.2d 467
• Decision Date: 29 December 1987
• Docket Number: No. 86-2212,86-2212
• Parties: 24 Fed. R. Evid. Serv. 487 UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. McINTYRE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 467

836 F.2d 467

24 Fed. R. Evid. Serv. 487

UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. McINTYRE, Defendant-Appellant.

No. 86-2212.

United States Court of Appeals, Tenth Circuit.

Dec. 29, 1987.

Rehearing Denied March 10, 1988.

Warren Gotcher, of Gotcher, Brown and Bland, McAlester, Okl., for defendant-appellant.

Arlene Joplin, Asst. U.S. Atty. (William S. Price, U.S. Atty., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY and McWILLIAMS, Circuit Judges, and BROWN, District Judge. ^*

McKAY, Circuit Judge.

Defendant was indicted on twelve counts for his conduct in purchasing and distributing cocaine, ¹ and subsequently was found guilty on counts one, six, seven, eight, nine and ten. The remaining counts were dismissed on the Government's motion. Defendant filed a motion for new trial and a motion for judgment of acquittal. Both motions were denied. Defendant appeals his convictions and the denial of his post-trial motions.

I. Factual Background

"In setting forth the circumstances giving rise to this appeal, we view the evidence in the light most favorable to the jury's verdict." United States v. Kendall, 766 F.2d 1426, 1429 (10th Cir.1985), cert denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986).

Defendant became the focus of an FBI investigation in May of 1985 when Dorris Patillar, a friend of the defendant, made a plea agreement with the Government which required her cooperation in investigating the defendant. Between 1982 and 1985, before her plea agreement, Ms. Patillar, the defendant and others were allegedly involved with the possession and distribution of cocaine. Defendant purchased cocaine from certain individuals, and on one occasion purchased cocaine and shared it with the seller and Ms. Patillar. In the winter of 1983, Ms. Patillar purchased cocaine for the defendant, received $700 from him upon delivery which she, in turn, delivered to the seller. Additionally, an employee of one of defendant's friends testified that defendant offered cocaine to her in 1983. In April 1985, defendant met Ms. Patillar and a friend at a club in Oklahoma City. The three went to Ms. Patillar's apartment to share a "rock" (a form of cocaine) defendant had brought from Tulsa.

The defendant approached Ms. Patillar several times, allegedly to buy cocaine, after she agreed to cooperate with the Government. In June 1985, at the request of the FBI, Ms. Patillar recorded a telephone call from the defendant in which she asked him if he could get some cocaine. He replied that his sources in Tulsa were no longer available. Apparently Ms. Patillar and the defendant communicated after that but did not meet again for nine months.

On March 24, 1986, Ms. Patillar met the defendant at his office. She was wearing a concealed tape recorder and a body transmitter provided by the FBI. The two discussed defendant's unavailable sources in Tulsa. Defendant told Ms. Patillar he had $50; she told him she could get some money if he had a source for cocaine. The two then went to an apartment belonging to Edwynna Royal to buy cocaine, but no one was home. The couple separated, and Ms. Patillar went home. She called defendant later at a restaurant to see if he had contacted anyone. Defendant hung up, called her back and arranged to meet her at a Howard Johnson's. At Howard Johnson's defendant went inside to make a telephone call, and received a busy signal. When he came out, he and Ms. Patillar returned to Edwynna Royal's apartment.

Ms. Patillar gave defendant $300 she had obtained from the FBI. The couple entered the apartment, and defendant gave Ms. Royal $375. Ms. Royal left and returned about forty minutes later with three packages of cocaine. Defendant picked up the packages, left the apartment with Ms. Patillar, gave her two packages and kept one. Ms. Patillar dropped defendant off at Howard Johnson's, met an FBI agent, gave him the tape recording and one package of "a white powdery substance." She subsequently found another package that she also turned over to the FBI.

II. Counts 6 to 10--Admissibility of Tape Recordings

Defendant objects to all his convictions on the ground that the trial court erred in admitting the tape recordings secured by Ms. Patillar. Defendant raises four arguments with respect to the recordings: (1) the tapes should not have been admitted because they contained substantial inaudible portions which rendered the recording as a whole untrustworthy; (2) foundation requirements for admitting the tapes had not been satisfied; (3) defendant was denied his right to a public trial under the sixth amendment because the public's ability to hear the tapes was much worse than the jury's; and (4) the jury should not have been allowed to use the transcripts from the recordings during the playing of the tapes because the transcripts were inaccurate.

The "admissibility of tape recordings that are partially inaudible" as evidence is within the "discretion of the trial judge." United States v. Devous, 764 F.2d 1349, 1353 (10th Cir.1985). See also United States v. Watson, 594 F.2d 1330, 1335 (10th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). Recordings are usually admissible unless "the inaudible portions are so substantial as to render untrustworthy the recording as a whole. Admission is especially appropriate 'where a witness who heard the statements also testifies and the recording gives independent support to his testimony.' " United States v. Davis, 780 F.2d 838, 846 (10th Cir.1985) (citations omitted). In upholding the admissibility of the tapes, the Davis court noted that the trial court listened to the tapes in camera before ruling on their admissibility, that a party to the conversation testified as to its accuracy, that the unintelligible portions did not seem to have been altered, and that an agent testified as to the chain of custody. Id.

In this case the trial court conducted a hearing on the admissibility of the tapes and discussed its concerns regarding their audibility. Record, vol. 4, at 1-59. The court listened to the tapes prior to trial and found them to be sufficiently audible. Record, vol. 6, at 433-36. The trial court also gave counsel two extra days to work with the sound enhancing equipment to be used at trial. Record, vol. 4, at 1-59. Ms. Patillar's testimony that the recorded conversations were as she remembered, record, vol. 6, at 358, and the FBI's testimony establishing the chain of custody, record, vol. 5, at 173-74, also support admissibility of the tapes. In light of the evidence, we conclude that the trial court did not abuse its discretion in admitting the tapes because they contained some inaudible portions.

Second, defendant claims the tapes should not have been admitted because the Government failed to satisfy two parts of the seven-part test for laying the foundation of sound recordings announced in McMillan v. United States, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). Both parties erroneously conclude that the seven elements enumerated in McMillan are binding precedent in this court. The McMillan criteria were originally set out in United States v. McKeever, 169 F.Supp. 426 (S.D.N.Y.1958), a case which, in 1979, this court cited with approval. United States v. Carter, 613 F.2d 256, 261-62 (10th Cir.1979), cert. denied, 449 U.S. 822, 101 S.Ct. 81, 66 L.Ed.2d 24 (1980). However, since Carter, we have "specifically rejected the adoption of 'inflexible [foundation] criteria applicable to all cases.' " United States v. Jones, 730 F.2d 593, 597 (10th Cir.1984) (citations omitted; brackets in original text) (quoting United States v. Smith, 692 F.2d 693, 698 (10th Cir.1982)). "We recognize that the factors set out in McKeever ... may assist a trial judge in ruling upon foundation questions, but we will not upset the judge's admission of a recording unless the foundation was clearly insufficient to insure the accuracy of the recording." Jones, 730 F.2d at 597.

Defendant's arguments that there is no testimony as to the accuracy of the tape and that Ms. Patillar was induced to secure the recorded conversations are not supported in the record. Thus, on its face, the record does not indicate that the trial court abused its discretion by admitting the tapes without first establishing adequate foundation.

Third, defendant claims that he was denied his sixth amendment right to a public trial. The Government notes that defendant did not make this objection at trial. Defendant was both able to raise the objection and had ample opportunity to do so when the court addressed the issue of the difference in the ability of the public and the jury to hear the tapes in a hearing. At the hearing defendant opposed releasing the tapes and transcripts to representatives of the media, but did not object to the public's inability to hear the tapes. Record, vol. 6, at 462-69. Defendant is therefore precluded from raising this claim on appeal. United States v. Mitchell, 783 F.2d 971, 976 (10th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986).

Finally, defendant claims that transcripts of the recordings should not have been provided to the jury because Ms. Patillar testified the transcripts were inaccurate. Defendant argues that the tapes only confused the jury and resulted in prejudice. As it was for the tapes, the standard of review for the use of transcripts is abuse of discretion. Devous, 764 F.2d at 1354. The court in Devous commented that, when the parties had not stipulated to use the transcript, the best procedure for testing its accuracy is for "the trial court to make a pretrial determination of accuracy by reading the transcript against the tape...." Id. at 1355 (quoting United States v. Slade, 627 F.2d 293, 302 (D.C.Cir.1980)).

The trial court examined the transcripts in a pretrial hearing on the admissibility of the tapes. At that...