U.S. v. Smith

• Decision Date: 23 December 1980
• Docket Number: No. 80-1586,80-1586
• Citation: 635 F.2d 716
• Parties: 7 Fed. R. Evid. Serv. 777 UNITED STATES of America, Appellee, v. Clyde SMITH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 716

635 F.2d 716

7 Fed. R. Evid. Serv. 777

UNITED STATES of America, Appellee, v. Clyde SMITH, Appellant.

No. 80-1586.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1980.

Decided Dec. 23, 1980.

David H. Jones, Springfield, Mo., for appellant.

Robert G. Ulrich, Asst. U. S. Atty., Springfield, Mo., for appellee.

Before LAY, Chief Judge, BRIGHT and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Clyde Smith appeals from a judgment entered in the district court ¹ for the Western District of Missouri upon a jury verdict finding him guilty of one count of obstruction of justice in violation of 18 U.S.C. § 1503. Appellant was sentenced to five years imprisonment. For reversal appellant argues that the district court erred in (1) admitting certain tape recordings into evidence, (2) failing to adequately instruct the jury, and (3) giving a supplemental Allen charge. For the reasons discussed below, we affirm the judgment of the district court.

In early 1980, the federal grand jury for the Western District of Missouri was investigating an interstate cattle rustling operation allegedly involving appellant, Chuck Friend, Lonnie Hargis, Ms. Jerry Hargis, John Nunneley, and Frankie Dean Cooper, an informant working with the Dade County Sheriff's Office. On February 19, 1980, Ms. Hargis received a subpoena to appear before the federal grand jury in Kansas City, Missouri, on March 10, 1980. A day or two later, Ms. Hargis informed appellant that she had received a subpoena. On February 25, 1980, appellant, Friend and Nunneley had a telephone conversation during which they discussed killing Ms. Hargis in order to prevent her appearance before the federal grand jury. Several days later, Friend and Cooper discussed arranging the killing; Cooper was to contact people in St. Louis; the contemplated price was $4,000. Cooper relayed this information to the county sheriff's office, which in turn contacted the Springfield Police Department and the local Bureau of Alcohol, Tobacco and Firearms (ATF). Springfield police officer Chester Waterhouse and ATF special agent Robert Stumpenhaus assumed the roles of the "hit men."

On March 3, 1980, Friend met twice with the undercover officers. They discussed the contract, the location of Ms. Hargis' house and the method of payment. Friend paid the officers $2,000; he had received this money from appellant. On March 4, 1980, with her cooperation, the officers staged and photographed the killing of Ms. Hargis. On March 6, 1980, the officers had arranged to meet Friend in a motel parking lot. When Friend drove up accompanied by appellant, the officers left because officer Waterhouse feared that appellant would recognize him. On March 9, 1980, the officers finally met Friend and appellant. Agent Stumpenhaus, Friend and appellant discussed the killing. Stumpenhaus showed the photographs to Friend and appellant. Appellant directed Friend to pay the balance of the contract price. Unknown to appellant and Friend, agent Stumpenhaus was recording their conversation.

Ms. Hargis subsequently appeared before the federal grand jury on March 11, 1980, and testified about the cattle rustling operation.

I. Tape Recordings, Use of Transcripts

Appellant first argues the district court erred in admitting two tape recordings into evidence. The government introduced a tape recording of the March 9, 1980, conversation (Plaintiff's Exhibit # 7) and a processed version ² of the same tape (Plaintiff's Exhibit # 11). Copies of the transcript prepared by agent Stumpenhaus from the tape were passed to the jury at the time the tapes were played. Appellant argues that agent Stumpenhaus failed to properly identify the speakers on the tape and thus failed to establish a proper foundation ³ for the introduction of the tape. We disagree.

"The standard for the admissibility of an opinion as to the identity of a speaker is merely that the identifier has heard the voice of the alleged speaker at any time." United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.), cert. denied, 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974); accord, United States v. Kirk, 534 F.2d 1262, 1277 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975). Here, agent Stumpenhaus testified in great detail about the conversation of March 9, 1980, and about the circumstances surrounding the tape recording and expressly testified that he was able to identify the speakers on the tape. Agent Stumpenhaus also testified that he had heard Friend's voice several times and appellant's voice twice before he prepared the transcript from the March 9, 1980, tape recording. Agent Stumpenhaus was the undercover officer who directly participated in the March 9, 1980, conversation. We conclude that the record in the present case clearly meets the standard for voice identification and thus a proper foundation for the introduction of the tape recordings was established.

Appellant stresses that agent Stumpenhaus was not an expert in voice identification and that the audio quality of the tape recording, even after processing, was poor. We note, however, that the accuracy of the agent's voice identification is a question for the jury. See United States v. Kirk, supra, 534 F.2d at 1277. Appellant did testify in the present case and the jury thus had ample opportunity to compare appellant's voice with the tape recording and to evaluate the accuracy of the agent's voice identification.

Appellant further argues that the district court failed to instruct the jury that "differences in meaning may be caused by such factors as the inflection in a speaker's voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference," citing to United States v. McMillan, supra, 508 F.2d at 106. Appellant did not object to the cautionary instruction given by the district court or request a more specific instruction at the time the transcripts were distributed and the tape recordings were played. Appellant thus failed to properly preserve this question for review. Had appellant properly preserved the question for review, however, we would have found appellant's argument to be without merit. The record indicates that the district court repeatedly admonished the jury that the transcripts were not evidence, ⁴ that only the tape recordings constituted the evidence, and that what was heard and understood from the tape recordings was the only evidence they were to consider. See, e. g., United States v. John, 508 F.2d 1134, 1141 (8th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975). In the final instructions to the jury, the district court expressly stated that any differences were to be resolved solely by consideration of the tape recordings.

II. Jury Instructions

Appellant next argues that the district court failed to adequately instruct the jury on the definition of the word "knowledge." The word "knowledge" appears several times in the instructions. Appellant argues that "knowledge" is not a word of common usage or self-explanatory and therefore should have been defined for the jury. We disagree.

Appellant has not properly preserved this question for review. The government submitted an instruction (Plaintiff's Requested Instruction # 5) which evidently defined "knowingly." ⁵ The district court declined to give this instruction. Appellant did not object to the district court's refusal or offer a proposed instruction defining "knowledge." Appellant did object to the government's requested instruction on the elements of the offense (Plaintiff's Requested Instruction # 12), but that objection was satisfied by the amendment (as underlined) of the instruction to read in part: "That the defendant then had knowledge that Jerry Hargis was then under subpoena to appear before a Federal Grand Jury ...." Appellant did not raise the district court's failure to define "knowledge" in his post-trial motions.

In any event, considering the question on the merits, the district court's failure to define "knowledge" was not error, much less plain error. The word "knowledge" as used in the instruction on the elements of the offense is a word of common usage and thus within the ordinary understanding of a juror. The district court was under no obligation to define words within the ordinary understanding of the jury. E. g., Bohn v. United States, 260 F.2d 773, 778 (8th Cir. 1958), cert. denied, 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959).

III. Allen Charge

Appellant finally argues that the district court erred in giving a supplemental Allen ⁶ charge. Appellant does not challenge the giving of the Allen charge as error per se, ⁷ but argues the district court gave the Allen charge prematurely and thus improperly coerced the jury into returning a guilty verdict.

Here, the jury began deliberating late in the afternoon (about 4:20 p. m.). About Although we agree that the Allen charge was given prematurely, ⁸ we conclude that the instruction had no coercive effect under the circumstances and therefore find no reversible error. See United States v. Stover, 565 F.2d 1010, 1016-17 (8th Cir. 1977); accord, United States v. Beattie, 613 F.2d 762, 765-66 (9th Cir.), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980) ("Thus, an examination of the instruction under all the circumstances reveals no coercion. Any prematurity of the instruction, therefore could not be sufficient to warrant reversal."); United States v. Smith, 521 F.2d 374, 376-77 (10th Cir. 1975); United States v. Martinez, 446 F.2d 118, 119-20 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971). "The primary reason for judicial disfavor of an Allen charge ... is its potentially coercive effect upon those members of a...