United States v. Craig ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Rodney CRAIG, Specialist
U.S. Army, Appellant
No. 03-0321
Crim. App. No. 9900815
United States Court of Appeals for the Armed Forces
Argued December 10, 2003
Decided August 3, 2004
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Gregory M. Kelch (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen
Chandler, Jr. and Major Imogene M. Jamison.
For Appellee: Captain Timothy D. Litka (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Major
Theresa A. Gallagher (on brief); Captain Tami L. Dillahunt.
Military Judge: T. E. Dixon
This opinion is subject to editorial correction before final publication.
United States v. Craig, No. 03-0321/AR
Judge GIERKE delivered the opinion of the Court.
Appellant was involved in a drug distribution scheme. A
law enforcement agent recorded a telephone conversation in which
Appellant made inculpatory statements to one of his co-
conspirators. At trial, because of the recording’s poor
quality, the military judge allowed the Government to give the
members a transcript of the conversation. This appeal concerns
whether the military judge properly admitted that transcript.
We conclude that the military judge did not abuse his discretion
when he permitted the members to receive a substantially
accurate transcript of the poor-quality recording.
Background
Appellant faced trial for two specifications of conspiracy
to possess and distribute marijuana and one specification of
possessing marijuana in violation of Articles 81 and 112a of the
Uniform Code of Military Justice.1 The members found him guilty
of one specification of conspiring to possess and distribute
marijuana and not guilty of the remaining two specifications.
The members sentenced Appellant to confinement for two years, a
bad-conduct discharge, forfeiture of all pay and allowances, and
reduction to the lowest enlisted grade. The convening authority
approved the sentence as adjudged. The Army Court of Criminal
1
10 U.S.C. §§ 881, 912a (2000).
2
United States v. Craig, No. 03-0321/AR
Appeals summarily affirmed the findings and sentence and we
granted review.
Facts
Appellant was charged with involvement in two separate
conspiracies to possess and distribute drugs. The first — of
which he was acquitted — allegedly occurred on February 13,
1999. Private First Class (PFC) Roderick G. Pearsall testified
that Appellant asked him to accompany Appellant on a trip from
Fort Hood to El Paso, Texas, to “pick up marijuana.” PFC
Pearsall agreed to do so for $200. When the two arrived in El
Paso, they met Appellant’s connection, who went by the name of
“Bam.” Once Appellant obtained marijuana from Bam, he and PFC
Pearsall drove back to Fort Hood, where Appellant left PFC
Pearsall before continuing to Louisiana with the marijuana.
The second conspiracy — of which Appellant was convicted —
began on March 25, 1999. Appellant was in an extra-duty status,
making it difficult for him to go on the 1,200-mile round trip
between Fort Hood and El Paso. So he asked PFC Pearsall to
travel to El Paso on his behalf to pick up more marijuana from
Bam. PFC Pearsall agreed and asked PFC Demetrius A. Austin to
go with him. That night, the two soldiers drove to El Paso in
PFC Austin’s car, arriving there the next morning. Once in El
Paso, PFC Pearsall called Appellant, who gave him Bam’s pager
number. After PFC Pearsall and Bam made an initial telephone
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contact, Bam met the two soldiers who followed him to a house
and waited outside. When Bam left the house and returned to PFC
Austin’s car, he put two duffel bags in the trunk.
During their return trip to Fort Hood, the two soldiers
were stopped at an immigration checkpoint in Sierra Blanca,
Texas. After PFC Austin consented to a search of his car,
border patrol agents found approximately 51 pounds of marijuana
in the two duffel bags in his trunk. The border patrol agents
arrested the two soldiers and notified the Drug Enforcement
Agency (DEA). During each of their separate interrogations, the
two soldiers implicated Appellant in the drug-running scheme.
After being denied permission to arrange a controlled delivery
of the marijuana to Appellant, DEA Agent Rene R. Perez decided
to have PFC Pearsall make a recorded telephone call to Appellant
to confirm his involvement. PFC Pearsall then made two
telephone calls to Appellant, during which PFC Pearsall told
Appellant that PFC Austin’s car had broken down during their
return to Fort Hood.
The first conversation lasted approximately five minutes.
During this conversation, PFC Pearsall asked, “So you just want
me to bring the herb to your house?” Appellant replied, “Yeah.”
The second conversation lasted approximately three minutes.
During this conversation, PFC Pearsall asked Appellant, “[W]hat
are we hauling anyway?” Appellant replied, “I guess it’s weed.
4
United States v. Craig, No. 03-0321/AR
It’s supposed to be weed.” Appellant then estimated that the
two bags contained forty pounds of marijuana.
At Appellant’s trial, the Government’s first witness was
DEA Agent Perez. His testimony established that Prosecution
Exhibit 13 was the microcassette tape on which he recorded the
conversations. The Government then called PFC Pearsall, whose
testimony included a description of his telephone conversations
with Appellant and the method by which they were taped. During
PFC Pearsall’s testimony, the military judge called an Article
39(a)2 session at which he admitted the tape into evidence over
defense objection. After the members returned to the courtroom,
the trial counsel began to play the tape. At some point, the
military judge directed the trial counsel to stop the tape and
stated, “The court’s having difficulty understanding the tape.”
When the military judge asked whether the members could
understand the tape, the president replied, “Only partially.”
The military judge then called a recess to allow the Government
to obtain a better sound system over which to play the tape.
During the recess, a member of the legal office’s staff who was
attempting to help accidentally recorded over a portion of the
second telephone conversation.
Another Article 39(a) session followed the recess, during
which the military judge commented, “The court cannot understand
2
Uniform Code of Military Justice, 10 U.S.C. § 839(a) (2000).
5
United States v. Craig, No. 03-0321/AR
the tape, it’s not audible, and although it’s been admitted at
this point in time I’ve determined that it would lead to
confusion of the members and would otherwise be unhelpful . . .
.” The military judge concluded, “[T]herefore, I’m not going to
allow you to play the tape at this point in time. So to the
extent that the defense has objected to the tape, I’m going to
sustain that objection based on that rationale.” The military
judge and the parties nevertheless continued to refer to the
tape as Prosecution Exhibit 13 and continued to treat it as
evidence that had been admitted, indicating that the military
judge intended to sustain an objection to playing the tape in
open court rather than to the tape’s admissibility.
During this Article 39(a) session, the trial counsel also
offered a transcript of the tape for admission into evidence.
At the military judge’s request, the trial counsel again played
the tape. After the defense objected to the transcript’s
admissibility, the military judge declared another recess during
which he listened to the tape and reviewed the transcript.
Following the recess, the military judge ruled that the
Government had not presented an adequate foundation for the
transcript’s admissibility. But the military judge allowed the
trial counsel to try to lay a proper foundation for the
transcript’s admission.
6
United States v. Craig, No. 03-0321/AR
The Government then called to the stand the court reporter
who prepared the transcript. She testified that she listened to
the tape over headphones, which helped her to understand the
recorded conversation. She also testified that the transcript
she prepared was a fair and accurate account of the tape. Over
defense objection, the military judge admitted the transcript
into evidence. He ruled that the transcript “would be helpful
to” the members “in understanding the tape.” He then asked the
defense counsel to propose a limiting instruction and declared a
recess. The record does not expressly indicate whether the
defense counsel drafted such an instruction. But following the
recess, the military judge gave the members a limiting
instruction without defense objection. This instruction stated
that the transcript was “prepared to assist, if at all, in your
understanding of the content of the tape. The content of the
tape is the evidence. The transcript is a tool that the court
has admitted for the limited purpose in assisting you to
understand the tape.” The military judge also cautioned the
members that the transcript “is not a substitute for the tape.”
The military judge then instructed the members to “consider the
clarity of the tape in determining what the weight is that you
will give to the tape.” He concluded by advising the members
that “the tape has been recorded over in at least one place” and
7
United States v. Craig, No. 03-0321/AR
telling them to “take that into account in determining what
weight to give the tape.”
PFC Pearsall then returned to the stand. The trial counsel
gave each member a copy of the transcript and then played the
entire tape. PFC Pearsall testified that with the exception of
the short erasure, the tape was an accurate account of his
conversations with Appellant. He then identified the voices —
which the transcript simply labels “V1” and “V2” — as
Appellant’s and his. Following the direct examination, the
trial counsel collected the copies of the transcript from the
members.
The Government later called to the stand a squad leader
from Appellant’s company who knew both Appellant and PFC
Pearsall. The trial counsel then played approximately thirty to
forty-five seconds of the tape. She asked the witness if he was
able to hear the tape. He replied, “Yes I was.” She asked,
“[C]ould you understand the voices that you heard?” He replied,
“Yes I do.” He then identified the voices as belonging to
Appellant and PFC Pearsall.
The Government’s case in chief also included testimony from
an Army Criminal Investigation Command (CID) agent who
interrogated Appellant. The agent testified that Appellant
initially denied any involvement with or knowledge of PFC
Pearsall’s and PFC Austin’s trip to El Paso. But when
8
United States v. Craig, No. 03-0321/AR
confronted with information about the recorded telephone calls,
Appellant admitted that either PFC Pearsall or PFC Austin had
called him. The CID agent also testified that Appellant
admitted that he had transported drugs from El Paso to Baton
Rouge, Louisiana, and identified his El Paso drug connection as
Bam. The Government also presented testimony from PFC
Pearsall’s sister that Appellant repeatedly called her and
admitted that he had asked PFC Pearsall to go to El Paso on his
behalf. The Government’s final witness was PFC Austin, who also
testified about Appellant’s involvement in the drug distribution
scheme and the recorded telephone calls between PFC Pearsall and
Appellant.
Appellant took the stand during the defense’s case in
chief. In addition to denying any involvement in drug
distribution, he testified that the Government had earlier
produced a different version of the transcript of the telephone
conversations identifying him and PFC Pearsall as the two
speakers. He also alleged that different versions of the
audiotapes existed and that the version played in court was
different from those he previously heard. In response to a
government objection that Appellant was mischaracterizing the
evidence, the military judge told the members that the
transcript of the tape would be returned to them and “[y]ou will
make your own assessment of the tape and the transcript.”
9
United States v. Craig, No. 03-0321/AR
When the members retired to deliberate, the military judge
provided them with all of the admitted exhibits, including the
transcript and the tape, as well as a tape recorder on which to
play the tape. The members then deliberated for approximately
one-and-a-half hours and found Appellant not guilty of the two
specifications alleging his involvement in the first trip to El
Paso, but guilty of conspiring with PFC Pearsall and PFC Austin
in connection with their trip to El Paso.
Discussion
During its first term, our Court addressed the
admissibility of a transcript of an audio recording. Our
opinion in United States v. Jewson noted, “Historically, courts
have been hostile — unreasonably so, we believe — to the
admission of written recordings of testimony or conversations.”3
We stated that it would be irrational to exclude an “adequately
authenticated transcript.”4 In our view, such exclusion is
particularly “inappropriate in the military justice scene,”
where “exigencies of the service imperatively require extensive
resort to recordings of interviews held in the field, and to
subsequent typewritten transcriptions made at the interviewing
3
United States v. Jewson, 1 C.M.A. 652, 658, 5 C.M.R. 80, 86
(1952).
4
Id. at 659, 5 C.M.R. at 87.
10
United States v. Craig, No. 03-0321/AR
officer’s headquarters.”5 The Court observed that “common sense
dictates the propriety and entire safety of the use of such
transcriptions in evidence.”6
We continue to believe that, subject to foundational
requirements and appropriate procedural safeguards, a transcript
of an audio recording may be used at courts-martial.
As the United States Court of Appeals for the Ninth Circuit
observed in its 1975 United States v. Turner opinion, “It is
well recognized that accurate typewritten transcripts of sound
recordings, used contemporaneously with the introduction of the
recordings into evidence, are admissible to assist the jury in
following the recordings while they are being played.”7 We agree
with the Ninth Circuit’s guidance that the “admission of such
transcripts as an aid in listening to tape recordings, like the
use of photographs, drawings, maps, and mechanical models which
assist understanding, is a matter committed to the sound
discretion of the trial court.”8
5
Id.
6
Id.
7
United States v. Turner, 528 F.2d 143, 167 (9th Cir. 1975).
Accord United States v. Young, 105 F.3d 1, 10 (1st Cir. 1997)
(“In this circuit we have long approved the use of properly
authenticated transcripts of tape recordings for the purpose of
helping the jury listen to and understand the recordings
themselves.”).
8
Turner, 528 F.2d at 167 (citation omitted).
11
United States v. Craig, No. 03-0321/AR
In our 1992 decision in United States v. Banks, we provided
guidance to trial judges dealing with audiovisual evidence.9 We
encouraged the use of transcripts “as an aid in presenting
evidence with audio dialogue” and suggested that “the military
judge indicate if he or she has viewed or listened to the
proffered evidence prior to ruling on its admissibility.”10 We
also noted that when such a tape’s “audio is poor, a transcript
could assist both the trier of fact and appellate courts.”11 The
admission of the transcript in this case was consistent with
Jewson, Turner, and Banks.
The military judge properly admitted the tape itself. We
generally agree with the Ohio Supreme Court that, once a proper
foundation is laid, “recorded tapes of actual events, such as
street drug sales, should be admissible despite audibility
problems, background noises, or the lack of crystal clear
conversations, since they directly portray what happened.”12
However, this rule is subject to the caveat that a recording is
not admissible if “the unintelligible portions are so
substantial as to render the recording as a whole
9
36 M.J. 150, 169 n.23 (C.M.A. 1992).
10
Id.11
Id.12
State v. Coleman, 707 N.E.2d 476, 488 (Ohio 1999).
12
United States v. Craig, No. 03-0321/AR
untrustworthy.”13 If only a part of the tape is inaudible, the
military judge must determine whether those portions are so
substantial as to render the entire tape untrustworthy and thus
inadmissible. The military judge should clearly state on the
record which portions of an audiotape are inaudible.
In this case, at one point the military judge remarked that
the audio tape was “not audible.” Unfortunately, the military
judge never revisited this comment after listening to the tape
several additional times both in court and in chambers.
Nevertheless, the record makes clear that the tape was not
entirely inaudible. When the tape was first played in court,
the president indicated that he could “partially” understand it.
The tape was sufficiently clear for PFC Pearsall to identify the
voices on it and vouch for the tape’s accuracy. Another witness
— a disinterested non-commissioned officer — also testified that
he could both understand and identify the voices on the tape.
Because the tape itself was admissible, it was appropriate
to provide the members with a “substantially accurate”14
13
Monroe v. United States, 234 F.2d 49, 55 (D.C. Cir. 1956).
14
See United States v. Brandon, 363 F.3d 341, 344 (4th Cir.
2004) (holding that a “substantially accurate” transcript of a
recording of a drug transaction was admissible); United States
v. Watson, 594 F.2d 1330, 1336 (10th Cir. 1979) (holding that a
“substantially accurate” transcript of tapes of intercepted
telephone calls was admissible); cf. United States v. Arruza, 26
M.J. 234, 236 (C.M.A. 1988) (holding that a “substantially
verbatim” transcript of Article 32 testimony was admissible
under Military Rule of Evidence 804(b)(1)).
13
United States v. Craig, No. 03-0321/AR
transcript of the tape. The Ninth Circuit Court of Appeals
recently highlighted four important procedural protections when
the government offers a transcript in a criminal case: (1) the
trial judge should “review[] the transcript for accuracy”; (2)
the defense counsel should be “allowed to highlight alleged
inaccuracies and to introduce alternative versions”; (3) the
jury should be “instructed that the tape, rather than the
transcript, was evidence”; and (4) the jury should be “allowed
to compare the transcript to the tape and hear counsel’s
arguments as to the meaning of the conversations.”15
What occurred at Appellant’s trial was not a model for
executing this four-step process. Nevertheless, we conclude
that each of these four steps, which should guide military
judges in ruling on the admissibility of transcripts, was
sufficiently satisfied to result in the transcript’s
admissibility.
Regarding the first step, the military judge did review the
transcript for accuracy. However, he never clearly stated for
the record the results of that review. He should have stated
what portions of the tape were audible and described the results
of his comparison of those audible portions with the transcript.
In the future, military judges should explicitly announce this
determination for the record. Nevertheless, we are satisfied
15
United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir.
2004).
14
United States v. Craig, No. 03-0321/AR
that in this case the military judge implicitly made this
determination which he should have explicitly announced. A
review of the tape and transcript reveals that when the military
judge compared the two, he would have found that while the
transcript is not perfectly verbatim, it is substantially
accurate.16 Additionally, neither at trial nor on appeal has
Appellant identified any substantial inaccuracy in the
transcript.
The second procedural protection was also satisfied. The
trial defense counsel had repeated opportunities to challenge
the accuracy of the transcript, and did so at one point — though
his attack was limited to challenging an inconsequential
appearance of the word “where” in the transcript.
The military judge also solicited from the defense, and
delivered, a cautionary instruction concerning how the members
should use the transcript. Appellant complains on appeal about
the contents of this instruction, even though it was delivered
without defense objection at trial.
The military judge’s limiting instruction could have been
more artfully crafted. As the United States Court of Appeals
for the District of Columbia Circuit has observed:
16
See Watson, 594 F.2d at 1336 (noting that the appellate
court’s own review of a tape revealed “that the transcripts are
substantially accurate”).
15
United States v. Craig, No. 03-0321/AR
[T]he jury should be instructed that the tape
recording constitutes evidence of the recorded
conversations and the transcript is an interpretation
of the tape. The jury must be instructed that they
should disregard anything in the transcript that they
do not hear on the recording itself. Moreover, the
court must ensure that the transcript is used only in
conjunction with the tape recording.17
While the military judge’s instruction in this case did not
include all of that guidance, it was sufficient to withstand the
appellate attack in light of the defense’s failure to object at
trial.18
Finally, the military judge gave the members an opportunity
to compare the tape and the transcript when they deliberated.
Appellate courts have differed over whether transcripts should
be used only as demonstrative exhibits within the courtroom or
should accompany the jurors to the deliberation room.19 We join
the majority of federal courts of appeals in holding that trial
judges have considerable discretion in determining whether to
allow the fact finder to consider such transcripts during
17
United States v. Holton, 116 F.3d 1536, 1543 (D.C. Cir.
1997).
18
See United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F.
2003) (holding that any deficiency in instructions “is waived by
defense counsel’s failure to object unless the instructions were
so incomplete as to constitute plain error”); see also Rule for
Courts-Martial 920(f).
19
See generally State v. Rogan, 640 N.E.2d 535, 545-50 (Ohio
Ct. App. 1994) (and cases cited therein); see also United States
v. Breland, 356 F.3d 787, 794-95 (7th Cir. 2004).
16
United States v. Craig, No. 03-0321/AR
deliberations.20 That determination will not be reversed on
appeal absent an abuse of discretion.
In this case, the military judge properly exercised his
discretion to allow the members to take the transcript to the
deliberation room. He made clear that he wanted to give the
members an opportunity to compare the tape with the transcript.
Allowing the members to take the tape to the deliberation room
was a reasonable means to accomplish that goal.
Decision
We affirm the decision of the United States Army Court of
Criminal Appeals.
20
See, e.g., United States v. Placensia, 352 F.3d 1157, 1165
(8th Cir. 2003); United States v. Ademaj, 170 F.3d 58, 65 (1st
Cir. 1999); Holton, 116 F.3d at 1541-43; United States v. Elder,
90 F.3d 1110, 1130 (6th Cir. 1996); United States v. Crowder, 36
F.3d 691, 697 (7th Cir. 1994); United States v. Rosa, 17 F.3d
1531, 1548 (2d Cir. 1994); United States v. Taghipour, 964 F.2d
908, 910 (9th Cir. 1992); United States v. Costa, 691 F.2d 1358,
1362-63 (11th Cir. 1982).
17