U.S. v. Wilson

• Decision Date: 15 June 1978
• Docket Number: No. 77-5416,77-5416
• Parties: 3 Fed. R. Evid. Serv. 44 UNITED STATES of America, Plaintiff-Appellee, v. Franklin D. WILSON and Gary Wayne Bugbee, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 67

578 F.2d 67

3 Fed. R. Evid. Serv. 44

UNITED STATES of America, Plaintiff-Appellee, v. Franklin D. WILSON and Gary Wayne Bugbee, Defendants-Appellants.

No. 77-5416.

United States Court of Appeals, Fifth Circuit.

June 15, 1978.

Rehearing and Rehearing En Banc Denied Aug. 10, 1978.

Ralph J. Hunstein, Atlanta, Ga. (Court-appointed), for Wilson.

Robert E. Whitley, Gregory T. Presmanes, Atlanta, Ga., for Bugbee.

William L. Harper, U. S. Atty., Robert A. Boas, Julie Carnes, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before HILL, RUBIN, and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Gary Wayne Bugbee was convicted as the principal and Franklin D. Wilson was convicted as an aider and abettor for selling Dilaudid (hydromorphone hydrochloride), a schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. Bugbee and Wilson argue that the district court twice committed reversible error: first, by allowing the jury's use of a written transcript and tape recording of a drug related conversation between Bugbee and the government's confidential informant and second, by allowing the government's confidential informant to testify concerning a drug transaction extraneous to the crime charged in the indictment. Finding no harmful error in the district court's evidentiary rulings, we affirm. ¹

I.

Viewed most favorably to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence showed the following sequence of events.

The government's chief witness at trial, Gaskin, was a confidential informant with the Drug Enforcement Administration. Gaskin testified that he met with DEA agents in Atlanta, Georgia, and agreed to wear a radio transmitter during a planned meeting with Bugbee. On October 20, 1976, Gaskin went to Bugbee's apartment to discuss the possible sale by Bugbee to Gaskin of Dilaudid. A tape recording was made of this meeting, and the tape was introduced into evidence at trial.

On October 22, 1977, Gaskin returned to Bugbee's apartment, under government surveillance. Shortly after Gaskin arrived, Bugbee left his apartment to make a telephone call; and then he met Wilson in a parked car. Bugbee returned to the apartment and told Gaskin that he would be able to supply the Dilaudid. When Bugbee refused to deal directly with Gaskin's "buyer," who was, in fact, a DEA agent waiting outside the apartment, Gaskin briefly left the apartment to get money with which to make the purchase himself.

After obtaining two hundred dollars in cash from the DEA agent, Gaskin began to walk back toward Bugbee's apartment. As he approached the apartment, Gaskin became aware of someone walking near him who apparently was going to Bugbee's apartment. He had never seen the individual before. When they reached the apartment, both knocked, and the individual introduced himself as "Tommy." Once inside, Tommy told Bugbee that he wished to purchase some Dilaudid. After a brief discussion, Bugbee left the apartment for the second time and returned a few minutes later. Upon Bugbee's return, Tommy took out some money and Bugbee asked him to go into the back room. A few minutes later, Bugbee and Tommy came out of the back room. Bugbee then handed Gaskin a cellophane bag containing ten tablets of Dilaudid, from Wilson's lawful prescription for a total of forty tablets which had been filled the day before.

II.

Defendants urge that the district court erred in allowing the jury to listen to the tape while reading the government's transcript of the October 20th meeting between Bugbee and Gaskin. They contend that the government's transcript improperly supplied otherwise unintelligible portions of the taped conversation and the tape itself was so inaudible and unintelligible that no accurate transcript could have been prepared. Thus, their assertion of error encompasses both the quality of the recording and the quality of the transcript.

Tape recordings which are only partially unintelligible are admissible unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy. The initial decision whether to admit into evidence a recording containing inaudible or unintelligible portions is committed to the sound discretion of the district court. United States v. Clements, 484 F.2d 928 (5th Cir. 1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974); United States v. Avila, 443 F.2d 792 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); Johns v. United States, 323 F.2d 421 (5th Cir. 1963); Addison v. United States, 317 F.2d 808 (5th Cir. 1963), cert. denied, 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605 (1964). Here, the district court listened to the tape and recognized that some of the conversation was not intelligible, but found that a sufficient portion was understandable and had enough probative value to warrant its admission. After carefully listening to the tape, we agree with the district court's decision to admit the tape. While some portions of the recording are inaudible and unintelligible, much of it can be heard clearly. Certainly, defendants have not shown an abuse of the district court's discretion.

The propriety of the use of a transcript when playing a recording for the jury is an issue somewhat distinct from the issue of the admissibility of the tape itself. In United States v. Onori, 535 F.2d 938 (5th Cir. 1976), this Court clearly approved the admission of an authenticated transcript of a tape recording for the limited purpose of aiding the jury in understanding the recording. Such a transcript may be helpful either to identify the speakers or to understand portions which are difficult to hear. Recognizing the value of a transcript, in Onori this Court established a procedure for accommodating the potential for variance in adversaries' transcripts. See generally United States v. Rochan, 563 F.2d 1246 (5th Cir. 1977); United States v. Onori, supra. Initially, the district court and the parties should make an effort to produce an "official" or "stipulated" transcript, one which satisfies all sides. If such an "official" transcript cannot be produced, then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side's version. Since the jury must always reconcile the discrepancies in the transcript(s) against the recording itself, the district court need not listen to the tape or decide whether a transcript is accurate before the transcript is given to the jury and the recording is played.

Wilson and Bugbee do not take issue with the propriety of these procedures. Instead, they argue that the tape recording of the Gaskin-Bugbee conversation was so unintelligible that neither the government nor the defense could prepare an accurate transcript. They further argue that because the tape was so substantially unintelligible they could not even effectively challenge the accuracy of the government's transcript, let alone prepare a competing defense version. Therefore, they would have us conclude that the recently established Onori principles do not apply and prior judicial standards for the use of transcripts of recordings control this case.

We do not follow defendants' logic to their argued conclusion for two reasons. First, we conclude that the quality of this recording was not so poor as to render the Onori principles inapplicable. Second, even assuming that Onori does not apply, the district court adequately complied with the pre-Onori procedure for the use of transcripts of recordings.

The district court determined that the tape was not so substantially unintelligible to render it entirely untrustworthy. Once we have held the tape admissible, defendants' argument falls under its own weight since it necessarily follows that the tape was sufficiently intelligible for challenging specific portions of the government's transcript or preparing a defense version. Once we have concluded that the defendants could have challenged specific portions of the government's transcript or prepared an alternative version, it follows that they cannot be heard to complain on appeal because they failed to take advantage of their trial opportunity. See United States v. Chiarizio, 525 F.2d 289 (2d Cir. 1975), cited in United States v. Onori, supra at 948-49. Rather than challenge specific portions of the government's transcript or prepare a defense version, the defendants chose to attack the entirety of the government's transcript based on their contention that the tape was wholly unintelligible. This issue, in effect, was ultimately reserved for the jurors when the district court instructed them that their own understanding of the tape would control over the government's transcript.

Defendants' efforts to distinguish Onori and to establish reversible error under the pre-Onori case law must, likewise, fail. Even though they have not been successful in distinguishing Onori, had they been successful in their attempt, we would affirm under our pre-Onori precedent. Defendants are correct to point out that this Court, in Onori, recognized a distinction between specific and general challenges to the accuracy of a transcript. However, defendants overlook another point made in Onori. This Court recognized only a previous suggestion that a prior judicial determination of accuracy was desirable before the jury uses a transcript, in the face of general attacks on its accuracy, citing Fountain v. United States, 384 F.2d 624 (5th Cir. 1967), cert. denied sub nom., Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). And, this Court went on to...