IN THE CASE OF
UNITED STATES, Appellee
v.
Rodney CRAIG, Specialist
No. 03-0321
Crim. App. No. 9900815
Argued
Decided
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
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
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
The
second conspiracy — of
which Appellant was convicted —
began on
During
their return trip to
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. 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 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.
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 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
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.”
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
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
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 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 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 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
[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 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.
1 10 U.S.C. §§ 881, 912a (2000).
2 Uniform Code
of Military Justice,
10 U.S.C. § 839(a) (2000).
3 United
States v. Jewson, 1 C.M.A. 652, 658, 5 C.M.R. 80, 86 (1952).
7
8 Turner, 528
F.2d at 167 (citation
omitted).
9 36 M.J. 150, 169
n.23 (C.M.A. 1992).
12 State v.
Coleman, 707 N.E.2d 476, 488
(
13
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)).
15
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”).
17
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
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).