United States v. Wilkerson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4712
DONALD WILKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-98-31)
Submitted: June 15, 1999
Decided: June 30, 1999
Before HAMILTON and WILLIAMS, Circuit Judges,
and HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jane Moran, Williamson, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, John C. Parr, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Donald Wilkerson was charged with four counts of dis-
tributing cocaine base, 21 U.S.C. § 841(a)(1) (1994). According to the
Government, Wilkerson sold cocaine base on four occasions to a con-
fidential informant. A jury acquitted Wilkerson of three counts and
found him guilty of one count of distribution. The Government relied
on the confidential informant's testimony and audio tape recordings
of the transactions. On appeal, Wilkerson contends that: (1) the dis-
trict court erred by admitting the tape recordings because of their poor
quality; (2) the district court erred by permitting the jury to look at
Government prepared transcripts during the playing of the tape
recordings; (3) the district court prevented Wilkerson from presenting
a defense; and (4) the district court improperly attributed for sentenc-
ing purposes the crack cocaine involved in the acquitted conduct.
Finding no reversible error, we affirm.
The court did not abuse its discretion in admitting the tape record-
ings. See United States v. Hall, 342 F.2d 849, 852 (4th Cir. 1965).
The Government established a sufficient foundation and the inaudible
portions of the tape recordings did not render the tape recordings
untrustworthy. See United States v. Pope, 132 F.3d 684, 688 (11th
Cir. 1998); United States v. McMillan, 508 F.2d 101, 104-05 (8th Cir.
1974) (discussing criteria for establishing a proper foundation). The
audible portions of the tape recordings had probative value. See
United States v. Arango-Correa, 851 F.2d 54, 58-59 (2d Cir. 1988).
Similarly, the court did not abuse its discretion in permitting the jury
to use transcripts of the tape recordings as guides. See United States
v. Arango-Correa, 851 F.2d 54, 58-59 (2d Cir. 1988). The court gave
a proper limiting instruction to the jury and Wilkerson was able to
cross-examine witnesses regarding any discrepancies. See United
States v. Capers, 61 F.3d 1100, 1107 (4th Cir. 1995).
The district court did not abuse its discretion in finding Wilker-
son's proffered defense to be irrelevant and inadmissible. See United
States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996), cert. denied,
519 U.S. 1120 (1997).
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Finally, the district court did not clearly err in its factual finding
that a preponderance of the evidence established Wilkerson's involve-
ment in three crack cocaine transactions other than the one for which
he was convicted. See United States v. Watts, 519 U.S. 148, 157
(1997); United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998), cert.
denied, ___ U.S. ___, 66 U.S.L.W. 3790 (U.S. June 15, 1998) (No.
97-9085).
Accordingly, we affirm Wilkerson's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.
AFFIRMED
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