United States v. Theodore Hogan ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0679n.06
No. 08-6445
FILED
Nov 04, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
THEODORE A. HOGAN, EASTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: MARTIN, COLE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Theodore Arthur Hogan appeals from a judgment entered
on December 3, 2008, sentencing Defendant to a 262 month term of imprisonment and assessing
Defendant a criminal penalty of $400.00 for three counts of distributing heroin and one count of
possessing dihydrocodeine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B). For the reasons stated below, we AFFIRM the district court’s decision.
I. BACKGROUND
A. Factual Background
In November 2004 First Judicial District Drug Task Force agents Chris Pierce and Eric
Borchgrevink outfitted confidential informant Roger Greenwell with money and a listening device
No. 08-6445
and sent him to a residence in Carter County, Tennessee to purchase drugs from Kim Probst. Probst
was not home when Greenwell arrived at her house, but as Greenwell left Probst’s property
Defendant approached him and offered to sell him two bags of heroin. Providing Greenwell with
his phone number, Defendant added that in the future he could sell Greenwell a bundle of heroin for
$300. Greenwell returned to the agents, who searched Greenwell and took the heroin Greenwell had
just purchased from Defendant. (1 Tr. of Record at 28-30, 34-35.)
Agents arranged two additional transactions between Defendant and Greenwell. Before each
transaction, agents searched Greenwell, outfitted him with a listening device, and provided him with
recorded currency. After each transaction, agents searched Greenwell, and recovered the heroin.
During the November 5, 2004 transaction the agents surveilling the buy observed a blue Ford
Taurus registered to Defendant pull up alongside Greenwell’s vehicle. The agents watched and
listened as Defendant sold Greenwell a bundle of heroin. After the transaction’s completion, the
agents pulled into the gas station to get a closer look at Defendant. Agent Pierce made mental note
of Defendant’s appearance and the fact that he was wearing a blue Adidas jacket. (Id. at 39-43, 46-
50.)
The final transaction on November 10, 2004 was at Greenwell’s apartment. The primary
purpose of this transaction was to arrest Defendant while he possessed the recorded currency. The
transaction’s secondary purpose was to arrest Greenwell for Greenwell’s unrelated criminal activity
based on information provided to agents from another informant, known as “Slim.” (Br. of Appellee
at 6.)
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The agents observed Defendant’s blue Ford Taurus parked at Greenwell’s apartment complex.
They also observed Greenwell and Defendant enter the complex. Agent Pierce arrested Defendant
as he was leaving Greenwell’s apartment upon the transaction’s completion. Agents searched
Defendant’s pockets incident to his arrest, and found eight bags of heroin, fourteen Lortab tablets, and
$300 bearing the same serial numbers logged by the agents. Agents’ subsequent search of
Defendant’s car revealed a large knife, several sandwich baggies fastened with a rubber band, three
additional baggies containing heroin residue, and a blue Adidas jacket. (1 Tr. of Record at 58-63.)
Once Defendant was in custody, Agent Borchgrevink entered Greenwell’s apartment and
recovered the heroin Greenwell purchased from Defendant, removed the listening device from
Greenwell’s person, and arrested Greenwell on the unrelated charges. (Id. at 64.)
B. Procedural History
Defendant was indicted by a federal grand jury for three counts of distributing heroin and one
count of possessing dihydrocodeine with the intent to distribute in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B). Defendant pleaded not guilty and the case proceeded to trial.
On the first day of trial, during Agent Pierce’s testimony, the government learned that Agent
Borchgrevink, not Agent Pierce, recovered the heroin that Greenwell purchased from Defendant in
the final November 10, 2004 transaction. (1 Tr. of Record at 64, 2 Tr. of Record at 127.) As a result,
the government decided to have Agent Borchgrevink testify.
At the end of the first day, the government disclosed to Defendant a form Agent Borchgrevink
had filled out containing possible impeachment material. Agent Borchgrevink generated this form
when he received information from “Slim” regarding Greenwell’s criminal activity. The form was
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No. 08-6445
filed under the same investigation number used to reflect agents’ payments to Greenwell to purchase
drugs from Defendant. (Br. of Appellee at 9-10.)
Defense counsel objected to the delayed disclosure. In response to defense counsel’s concerns
over the delayed disclosure, the district court offered the defense an unrequested continuance to
consider the new evidence. The district court also suggested several witnesses that the defense could
question regarding the identity of the confidential informant and processing of the disclosed
paperwork. Shortly thereafter the district court adjourned trial to permit defense counsel to consider
how best to respond.
The following day, outside of the jury’s presence, defense counsel accused the prosecutor of
misconduct. However, the defense counsel failed to articulate a clear basis for the assertions.
Although it saw no violations, the court permitted the defense to cross-examine the officers or call
other witnesses. The defense did not accept the district court’s suggestions. (3 Tr. of Record at 209-
12.) The district court then resumed the trial.
Over objection, the government introduced into evidence two composite tapes containing
excerpts of the recorded transactions between Greenwell and Defendant. (1 Tr. of Record at 31, 42-
43.) Each recording was a short excerpt from the original thirty minute tapes. The district court
admitted the tapes although it found in an in camera hearing that no foundation was laid for Agent
Pierce’s identification of the voices on the tapes. (3 Tr. of Record at 212.) Indeed, one of the
recordings was made before Officer Pierce had even heard Defendant’s voice. (1 Tr. of Record at 31.)
The government selected portions of the tapes to play for the jury, and sought to furnish the
jury with a transcript of the excerpts as an aid. To that end the government prepared transcripts of
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the recordings, which a magistrate judge evaluated in supplemental hearings outside of the jury’s
presence. The magistrate judge compared the transcripts with the composite recordings and ordered
the preparation of new transcripts, which he approved for trial use. The composite tapes were thus
admitted as evidence and the court furnished the jurors with transcripts, admonishing the jury that the
transcripts were not evidence.
The jury deliberated, convicted Defendant on all counts, and the district court subsequently
sentenced Defendant to 262 months in prison. This timely appeal ensued.
II. DISCUSSION
A. Brady v. Maryland Violations
1. Standard of Review
This Circuit applies two standards in reviewing determinations regarding alleged
violations of Brady v. Maryland, 373 U.S. 83 (1963). The Court “reviews denial of a motion for a
new trial based on Brady violations under an abuse of discretion standard. However, the district
court’s determination as to the existence of a Brady violation is reviewed de novo.” United States
v. Graham, 484 F.3d 413, 416-17 (6th Cir. 2007) (internal citations omitted.); see also United
States v. Heriot, 496 F.3d 601, 605 (6th Cir. 2007).
2. Analysis
In this case Defendant claims that the delay in the prosecution’s disclosure of a form
completed by prosecution witness Agent Borchgrevink, containing possible impeachment material
at the end of the first day of trial, constituted a Brady violation. According to the government the
form was generated when Agent Borchgrevink paid “Slim” for information.
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No. 08-6445
Defendant contends that the government improperly delayed disclosure of information in
violation of Brady v. Maryland, 373 U.S. 83 (1963). In a criminal case the prosecution has a
constitutional obligation to disclose to the defendant all exculpatory and impeachment evidence.
Robinson v. Mills, 592 F.3d 730, 735 (6th Cir. 2010) (citing Strickler v. Greene, 527 U.S. 263,
280 (1999)). “Suppression by the prosecution of evidence favorable to an accused upon request
violates dues process where the evidence is material to either guilt or ro punishment.” Brady, 373
U.S. at 87.
To succeed on a Brady claim a defendant must show “(1) that the evidence in question [is]
favorable; (2) that the state suppressed the relevant evidence . . . ; (3) and that the state’s actions
resulted in prejudice.” Robinson, 592 F.3d at 735. In this case, Defendant failed to establish any
of the elements required to demonstrate a Brady violation.
Regarding the first requirement, Defendant states that “[t]he United States’ decision not to
disclose Mitch/Slim’s involvement prior to the trial precluded Mr. Hogan from furnishing the jury
accurate facts about the buy/bust operation from the beginning of trial.” ( Br. of Appellant, at 15.)
Although Defendant describes the form in question as “exculpatory,” Defendant nowhere explains
the basis for this description. As a result, “Defendant presents his argument on [the Brady] issue
in a perfunctory manner, providing no explanation of how the disclosed material would have
altered his defense.” United States v. Blackwell, 459 F.3d 739, 759 (6th Cir. 2006) (finding that
“[n]o Brady violation occurred in this case.”).
Regarding the second element, prosecution’s disclosure of the form in question at the close
of the first day of trial does not constitute suppression. “Brady generally does not apply to
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No. 08-6445
delayed disclosure of exculpatory information, but only to a complete failure to disclose.” United
States v. Kuehne, 547 F.3d 667, 698 (6th Cir. 2008). Brady requires “only the production of
material for its effective use at trial.” United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994).
Only when “the delay itself causes prejudice” does the delay violate Brady. Kuehne, 547 F.3d at
698.
Although Defendant states that the delayed disclosure “precluded Mr. Hogan from
furnishing the jury accurate facts about the buy/bust operation from the beginning of trial,” (Br. of
Appellant at 15), this bare statement is insufficient to support the contention that the delay itself
prejudiced Defendant. Moreover, it is undisputed that to cure Defendant’s complaints of
prejudice subsequent to the government’s disclosure of the form, the district court provided
Defendant with the opportunity to call any additional witnesses or re-cross examine any witnesses,
and also offered Defendant a continuance to prepare for trial in light of the disclosure. (2 Tr. of
Record at 127.) However, Defendant failed to avail himself of any of these opportunities. This
Court has consistently held that when the district court allows defendant to cure any prejudice due
to delayed disclosure by calling or re-cross examining witnesses, “Defendant’s failure to do so is
not attributable to the government’s violation of the principles set forth in Brady.” See, e.g.,
Blackwell, 459 F.3d at 759; United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002); Bencs, 28
F.3d at 561.
Finally, Defendant’s bare allegation that disclosure of Agent Borchgrevink’s impeachment
form “was prejudicial, and a violation of Brady,” does not satisfy Brady’s materiality requirement.
Brady stated that the prosecution’s suppression of favorable evidence “violates due process where
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No. 08-6445
the evidence is material to guilt or punishment.” Brady, 373 U.S. at 87. Under the Brady standard,
“favorable evidence is material, and constitutional error results from its suppression by the
government if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(internal citations omitted).
Although Defendant alleges that the delayed disclosure resulted in prejudice, Defendant does
not describe the nature of the prejudice. Moreover, the disclosed evidence was relatively
inconsequential. The district court did not abuse its discretion in finding no Brady violation, nor did
it err in refusing to grant Defendant a new trial for the alleged Brady violations. Defendant has not
demonstrated the form’s materiality for Brady purposes, nor did Defendant avail himself of the
remedies offered by the district court.
B. Introduction of Recordings
1. Standard of Review
This Court reviews the district court’s decision to admit portions of tape recordings “for an
abuse of discretion.” United States v. Branham, 97 F.3d 835, 850 (6th Cir. 1996).
2. Analysis
Defendant argues that the trial court abused its discretion by admitting into evidence
composite audiotapes of Defendant’s transaction with informant Greenwell. Defendant challenges
the tapes’ admission on several grounds: that the tapes were too unintelligible to be admissible, that
“no foundation was laid whatsoever for the identification of the voices on those tapes,” (Br. of
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No. 08-6445
Appellant at 17) and that the trial court erred in permitting the prosecution to play only excerpts rather
than the entire recordings.
“It is well settled that the admission of tape recordings at trial rests within the sound discretion
of the trial court. That discretion presumes, as a prerequisite to admission, that the tapes be authentic,
accurate and trustworthy . . . . Recordings will be deemed inadmissible if the unintelligible portions
are so substantial as to render the recordings as a whole untrustworthy.” United States v. Robinson,
707 F.2d 872, 876 (6th Cir. 1983) (internal citations and quotations omitted.).
On appeal the parties furnished the Court only with the excerpts played for the jury in the
district court, and we find that the tapes are largely intelligible. See United States v. Scarborough,
43 F.3d 1021, 1024 (6th Cir. 1994) (affirming the district court’s admission of a disputed tape, stating
“we have reviewed the tape and also found it to be audible.”).
Defendant also objects to the tapes on the basis of their authenticity. During the prosecution’s
direct examination of Agent Pierce he identified the two voices on the admitted recordings as the
informant’s and Defendant’s. (1 Tr. of Record at 31, 42-43.) Although Agent Pierce admitted that
he had never heard Defendant’s voice when the first recording was taken, it is not disputed that Agent
Pierce had an opportunity to familiarize himself with Defendant’s voice after the first transaction was
recorded.
The Federal Rules of Evidence require “authentication or identification as a condition
precedent to admissibility.” Fed. R. Evid 901(a). This requirement is satisfied “by evidence
sufficient to support a finding that the matter in question is what its proponent claims,” including
voice. Id. Voice identification is admissible opinion testimony for the purpose of authenticating a
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No. 08-6445
recording even if the witness became familiar with the identified voice subsequent to the time of the
recording. See United States v. Cooper, 868 F.2d 1505, 1519 (6th Cir. 1989). Agent Pierce’s
familiarization with Defendant’s voice subsequent to the date of the recording is an adequate basis
for voice identification under Federal Rule of Evidence 901.
Finally, Defendant appeals admission of the composite tapes, as opposed to the entire
recordings made during the transactions. Like the decision to admit recordings generally, the
decision to admit “a composite tape, is within the sound discretion of the trial judge. A composite
tape is admissible . . . when it saves the trial court much time and inconvenience.” United States
v. Segines, 17 F.3d 847, 854 (6th Cir. 1994).
As Defendant noted, the full recordings ran approximately 30 minutes. The composite
tapes in evidence ran only about five minutes. In his order, the magistrate judge stated that the
fact that “portions of the recording [are] indecipherable . . . does not necessarily render the entire
recording inadmissible,” Order at 3, United States v. Hogan, No. 06-0010 (E.D. Tenn. Dec. 3,
2008) (order denying use of transcripts), as “there are a few statements in the recording which
potentially are incriminating.” Id. at 4. However, the “isolated snippets of conversation” that can
be understood are insufficient reason to expend half an hour of the court’s time playing the largely
incomprehensible remainder of the tape. Id. at 3. This interest in judicial economy is not clearly
an abuse of discretion by the lower court. Segines, 17 F.3d at 854.
Furthermore, although the district judge did not admit the entirety of the recordings into
evidence, Defendant had copies of the entire recordings, and was given express permission by the
district court to play the tapes for the jury. (1 Tr. of Record at 6.) Defendant failed to avail himself
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No. 08-6445
of that opportunity. See United States v. Spearman,186 F.3d 743, 755-56 (6th Cir. 1999) (quoting
United States v. Branham, 97 F.3d 835, 850 (6th Cir. 1996)) (“Defendants had the opportunity to
introduce the remaining tape recordings during the presentation of their evidence” but “chose not to
take advantage of that opportunity . . . [a]ny prejudicial effect by the court’s exclusion was neutralized
by this fact.”) As Defendant had the opportunity to play any portion or the entirety of the tape, “any
prejudicial effect caused by the court’s exclusion was neutralized.” Id. at 756. Therefore, the trial
court did not abuse its discretion in allowing the government to play only portions of the tape.
C. Use of Transcripts
1. Standard of Review
This Court reviews a jury’s use of a transcript “under an abuse of discretion standard.”
United States v. Jacob, 377 F.3d 573, 581 (6th Cir. 2004).
2. Analysis
Whether to use transcripts as an aid to the jury in deciphering a recording is “a matter
committed to the trial court’s discretion.” Robinson, 707 F.2d at 876. “[A] defendant challenging
the use of a transcript at trial must show prejudice.” Jacob, 377 F.3d at 581.
In this case, Defendant argues that he was prejudiced by the transcripts furnished to the jury
for three principal reasons: (1) because “the tapes were so incomprehensible that the transcripts
themselves would become evidence,” (Br. of Appellant at 18); (2) because the transcripts “contained
additional testimonial information” such as “names for purported speakers;” and (3) because “the
transcripts used reinforced the inaccurate nature of the composite tapes . . . by failing to include any
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No. 08-6445
time markers, note gaps . . . all of which change the context of the live event purportedly recorded.”
Id.“The preferred method” of approving a transcript for use as an aid to a jury “is stipulation to
its accuracy by all parties. The next best alternative is for the transcriber to attest to its accuracy and
for the court to test its accuracy, outside of the jury’s presence, by reading the transcripts while
listening to the tapes.” Segines, 17 F.3d at 854.
In this case, the preferred method of approval was not used. Order at 5, Hogan, No. 06-0010
(order denying use of transcripts). The secondary alternative for transcript approval was generally
followed. “[T]he magistrate judge listened to the original recording while simultaneously reading a
transcript of those recordings as each was played.” Id. Moreover, the magistrate judge determined
that “[s]ince the magistrate judge listened to the recordings while reading the transcripts, the
testimony of the transcriber would have been superfluous.” Id.Defendant also contests the use of the transcripts based on the tapes’ unintelligibility. “When
the tapes are unintelligible . . . a transcript intended as an aid to the jury inevitably becomes, in the
minds of the jurors, the evidence itself.” Segines, 17 F.3d at 854. At the second in camera review
in which the magistrate judge ultimately permitted transcripts to be used, “[a]s the recordings were
played in court, the magistrate judge attempted to compare the transcripts with what he was hearing
on the record.” Order at 6, United States v. Hogan, No. 06-0010 (order approving use of transcripts).
At the hearing the magistrate judge determined that
portions of the recording are so clear that no transcript is needed to understand what was
said. Some portions of the recordings that are somewhat unclear and garbled . . . the spoken
words on the recordings become easily understood while reading the transcript, and there
is no doubt that the corresponding portion of the transcript reflects accurately what was said
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No. 08-6445
in the recording itself. Unfortunately, in other instances, incomprehensible and inaudible
portions of the recordings remain incomprehensible even though the transcript was being
simultaneously read.
Id. at 5. The magistrate judge recognized that using the transcript for the inaudible portion was
improper. Therefore, the magistrate judge underlined the portions of the transcript corresponding to
audible parts of the recording, and ordered that the inaudible portions that were not underlined be
excised from the transcript, and referred to as “unintelligible.” Id. at 6.
When it provided the transcripts for use as an aid to the jury the district court instructed the
jury that the transcripts themselves were only an aid for understanding the recordings, and were not
themselves evidence. (1 Tr. of Record at 32, 43.) See Segines, 17 F.3d at 854. “Such an instruction
does not suffice, however, to erase the prejudice created by shepherding hearsay to the jury via the
transcripts.” Id. Even “the directives” of an adequate jury instruction “are only viable when the tape
is clear enough for a juror to detect that the tape is at variance with the transcript. But where . . . the
tapes are partially inaudible, the juror is precluded from making an intelligent comparison. Hence
the likely result is that the transcripts become evidence.” Robinson, 707 F.3d at 878. By striking out
the unintelligible portions of the recording from the transcript the magistrate judge avoided
impermissibly “shepherding hearsay to the jury.” The jury instruction plus the magistrate judge’s
diligence in approving the transcripts for the jury’s use safeguarded Defendant from being prejudiced
by the jury’s use of the transcripts. The district court did not abuse its discretion and prejudice
Defendant by permitting the jury to use the transcripts under these circumstances.
Neither did Defendant suffer prejudice from the transcript’s identification of Defendant as one
of the speakers. Agent Pierce identified Defendant’s voice as a speaker on the recording, and Agent
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Pierce was available for cross-examination on this point. See United States v. Crane, 632 F.2d 663,
664-65 (6th Cir. 1980) (When the “agent . . . who identified [defendant’s] voice as the party on the
tapes . . . was available for cross-examination, defendant should not be heard to complain.”). Cf.
United States v. Ford, 187 Fed. App’x 496, 501 (6th Cir. 2006) (“[Witnesses] both testified regarding
their knowledge that [defendant] was, in fact, one of the speakers. Their availability for cross-
examination negates any prejudice to [defendant].”).
Finally, Defendant’s contention that “the transcripts used reinforced the inaccurate nature of
the composite tapes . . . by failing to include any time markers, note gaps . . . all of which change the
context of the live event purportedly recorded,” (Br. of Appellant at 18), does not demonstrate
prejudice. Defendant’s contention is a bare assertion, unsupported by fact or law. Moreover, this
contention is simply a recasting of Defendant’s assertion that he was prejudiced by the admission of
composite, rather than full, tapes. As discussed above, that the district court permitted Defendant to
play any and all sections of the tape for the jury neutralizes any prejudice Defendant may have
suffered from the composite tapes’ admission. The district court did not abuse its discretion in
furnishing the jury with transcripts of the admitted recordings.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s decision.
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