U.S. v. Roach

Decision Date05 July 1994
Docket NumberNos. 93-3177,93-3197,s. 93-3177
Citation28 F.3d 729
Parties40 Fed. R. Evid. Serv. 1341 UNITED STATES of America, Appellee, v. John J. ROACH, Appellant. UNITED STATES of America, Appellee, v. Pamela HESTER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Robert E. Hough, Jr., Fort Smith, AR, for John J. Roach.

Fred Caddell, Fort Smith, AR, for Pamela Hester.

Matthew W. Fleming, Fort Smith, AR, for appellee.

Before BOWMAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

John J. Roach and Pamela B. Hester appeal their convictions and sentences for possession of ephedrine with intent to manufacture methamphetamine in violation of 21 U.S.C. Sec. 841(d)(1) (1988) and 18 U.S.C. Sec. 2 (1988). We affirm the judgments of the District Court. 1

I.

In November 1992, Drug Enforcement Administration (DEA) agents learned that Roach was attempting to purchase chemicals and equipment necessary for the manufacture of methamphetamine. The undercover agents 2 wired a room in a Fort Smith, Arkansas, motel and, on November 30, set up a meeting during which they videotaped Roach detailing the chemicals, glassware, and other equipment he would need for his methamphetamine lab. Hester did not accompany Roach to the meeting, but Roach mentioned that his "old lady" would be helping him "cook" the methamphetamine. The agent asked him to bring her to the next meeting.

On December 3, 1992, the undercover agents and a confidential informant had a second meeting with Roach in the wired motel room. Hester and codefendant Jack Allen Hall 3 accompanied Roach to the meeting. Two undercover agents were present at the meeting to make the controlled delivery of the glassware, ephedrine, and a C-4 plastic explosive brick to the defendants. Like the November 30 meeting, the December 3 meeting was videotaped. After the controlled delivery, DEA agents arrested Roach, Hester, and Hall as they left the motel in a car.

Roach and Hester were indicted and, after trial by jury, were convicted of possession of ephedrine with intent to manufacture methamphetamine. They were sentenced to 120 and 41 months, respectively. This appeal followed.

II.

We turn first to Roach's claims of error regarding his conviction and sentence for possession of ephedrine with intent to manufacture methamphetamine.

A.

Roach contends the District Court erred in admitting the videotapes of the November 30 and December 3 meetings between Roach and the undercover agents in the Fort Smith motel room. Roach alleges that they are unreliable due to an inconsistent chain of custody and other foundational problems.

No objection was made to the admission into evidence of the December 3 videotape; therefore, we examine the issue of the tape's admissibility only under the plain error standard of review. United States v. Roenigk, 810 F.2d 809, 815 (8th Cir.1987); see United States v. Watts, 950 F.2d 508, 513 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1276, 117 L.Ed.2d 502 (1991). We hold that the admission of this videotape was not plain error.

Roach raised a specific objection to the November 30 videotape, claiming that the government failed to lay a proper foundation for its admission pursuant to United States v. McMillan, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). We review the District Court's admission of evidence over objection for clear abuse of discretion. United States v. Pecina, 956 F.2d 186, 189 (8th Cir.1992); United States v. Johnson, 767 F.2d 1259, 1271 (8th Cir.1985). McMillan recites seven foundational guidelines for the admission of electronic tape recordings, these guidelines consisting of a showing by the government that: (1) the recording device was capable of recording the events offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions, or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement. McMillan, 508 F.2d at 104.

For his foundational objection, Roach claims that the McMillan guidelines were not met as the recording equipment was not shown to be effective and the custody and maintenance of the videotape prior to trial calls its reliability into question. In McMillan, we looked to the testimony of the investigating officer who made the tapes to determine whether the recordings were true and accurate. Id. at 105. Likewise, in United States v. Panas, 738 F.2d 278, 286 (8th Cir.1984), we found that tapes were properly admitted because testimony from investigators indicated that the tapes were "fair and accurate." 4 Further, we noted in Panas that when foundational objections are made regarding the pre-trial custody and maintenance of a tape, the District Court is entitled, absent proof to the contrary, to assume that the investigators properly maintained the tape and did not tamper with it. Id. at 287.

We recognize that the District Court admitted the November 30 videotape without requiring that the government establish each formal foundational element set forth in McMillan. However, we cannot say that the District Court abused its discretion. Roach's specific foundational challenges and the other McMillan guidelines are satisfied with regard to the November 30 tape. The recording on the videotape establishes that the recording equipment was functioning properly. United States v. McCowan, 706 F.2d 863, 865 (8th Cir.1983) (per curiam). The tape's existence also demonstrates that the individual who made the tape was sufficiently skilled in the operation of the recording equipment. Investigator Clemmons, who as an undercover agent was present at both meetings, testified to the process by which the tape was made and stated that it accurately reflected what transpired at the meeting in its entirety. Thus, there was testimony that the tape was authentic and correct. No evidence was presented suggesting that the tape had been altered, erased, or edited in any manner; the parties recorded on the tape were identified; and there is no suggestion, much less any evidence, that the statements and activities recorded on the tape were other than voluntary.

We are satisfied that Clemmons's testimony, along with a lack of any evidence indicating that the tape was mishandled or tampered with, laid an adequate foundation for the admission of the November 30 videotape. See McMillan, 508 F.2d at 104-5; Panas, 738 F.2d at 287. We will not find that the District Court abused its discretion in admitting the November 30 videotape simply because the McMillan guidelines were not explicitly addressed prior to the videotape's admission into evidence.

Roach contends that the lack of a clearly audible sound recording accompanying the video recording rendered the tape more prejudicial than probative, and that it should have been excluded on the basis of his Federal Rule of Evidence 403 objection. The District Court has wide discretion to determine the potential for prejudice presented by any item offered into evidence; the standard of review on appeal is abuse of discretion. United States v. Barrett, 937 F.2d 1346, 1348 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991). There is no indication that the poor audio recording rendered the tape unduly prejudicial or even that it rendered the tape more prejudicial than it would have been with a clear audio track. We cannot say that Rule 403 required the videotape's exclusion. We conclude that the District Court did not abuse its discretion in admitting the November 30 videotape.

B.

We now turn to Roach's contention that the government withheld exculpatory information from him and that the District Court erred in denying his motion, pursuant to Federal Rule of Criminal Procedure 16(a), to compel production of the allegedly exculpatory information. We review the denial of Roach's motion for discovery under Rule 16 for abuse of discretion. United States v. Cole, 453 F.2d 902, 904 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972), citing Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968). Roach asserts that he needed, and was entitled to, information regarding the government's confidential informant. He requested notes regarding the investigation of his case and all other investigations involving the informant, the informant's criminal history, the informant's address, and records of investigations in which Roach claims to have acted as an informant. 5

Roach argues that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), provides the legal underpinning for his Rule 16 motion. This argument is plainly wrong. As we have stated, "Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation." United States v. Krauth, 769 F.2d 473, 476 (8th Cir.1985) (quoting United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979)). Brady requires the government to furnish Roach with all exculpatory information in its possession or reasonably available to it. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Krauth, 769 F.2d at 476. However, Roach first must make a preliminary showing that the requested information is exculpatory. See Krauth, 769 F.2d at 476. Roach makes no colorable argument that the information he sought to compel was exculpatory.

The government is entitled to refuse discovery of reports or other memoranda prepared by government attorneys and agents in connection with an investigation or prosecution. Fed.R.Crim.P. 16(a)(2); United States v. Sileven, 985 F.2d...

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