UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4440
COLYN JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Robert Earl Maxwell, Senior District Judge.
(CR-95-18)
Submitted: May 15, 1997
Decided: June 4, 1997
Before RUSSELL, HALL, and HAMILTON, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Thomas O.
Mucklow, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Colyn Jones was convicted by a jury of two counts of possession
with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 841(a)(1) (1994). On appeal Jones alleges that the district court
abused its discretion by (1) improperly admitting audiotape evidence
of telephone conversations between a confidential informant and
Jones in violation of Fed. R. Evid. 404(b), 402, and 403 and (2) by
denying Jones' motion to exclude all audiotape evidence because the
copies supplied to the defense were of poor quality. For the reasons
that follow, we affirm.
At trial, the Government presented audiotape evidence of two tele-
phone conversations1 occurring on April 21, 1995, allegedly between
Jones and a confidential informant, and a later drug transaction occur-
ring on May 8. Jones objected to the April 21 audiotapes being admit-
ted into evidence on the grounds that the telephone conversations
were not connected to the later May 8 drug deal and that the tapes
were only admitted for the purpose of showing Jones' bad character
under Fed. R. Evid. 404(b). The district court denied the objection.
After the tapes were played for the jury, Jones objected to all of the
tapes because the quality of the tapes played for the jury was better
than the tapes he had received from the Government. Jones character-
ized the Government's conduct as a discovery violation under Fed. R.
Crim. P. 16. The court took the matter under advisement and then at
the close of the Government's evidence denied Jones' motion for a
mistrial.2
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1 In the first call, the confidential informant inquired into whether he
could purchase cocaine from Jones. In the second call, the parties dis-
cussed the price of cocaine base.
2 Both Jones and the Government made arguments regarding whether
the tapes should have been allowed into evidence at the conclusion of the
Government's evidence. The court then denied Jones' motion for acquit-
tal under Fed. R. Crim. P. 29. The Government characterizes this denial
of the Rule 29 motion as denying Jones' "motion for mistrial" based
upon the quality of the tapes. Jones does not object to this characteriza-
tion on appeal.
2
Evidence is admissible only if it is relevant. Fed. R. Evid. 402. Evi-
dence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Fed.
R. Evid. 401. A district court may exclude evidence if "its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. . .." Fed. R. Evid. 403.
"Evidence of other crimes, wrongs' or acts is not admissible to prove
the character of a person in order to show action in conformity there-
with. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, [or]
identity. . . ." Fed. R. Evid. 404(b). This Court reviews a district
court's decision to admit evidence under Rules 404(b) and 403 for an
abuse of discretion. See United States v. Chin , 83 F.3d 83, 87 (4th Cir.
1996). Rule 404(b) does not apply to evidence of crimes or acts aris-
ing out the same transaction or that are "necessary to complete story
of the charged crime." Id. at 88 (citation omitted). Rule 16(a)(1)(A)
of the Rules of Criminal Procedure requires the Government "[u]pon
request of a defendant to disclose to the defendant and make available
for inspection, copying, or photographing: any relevant written or
recorded statements made by the defendant, or copies thereof." Deci-
sions regarding whether a party has complied with Rule 16 are left to
"the sound discretion of the trial court" and thus we review such
orders only "for an abuse of discretion." United States v. Fletcher, 74
F.3d 49, 54 (4th Cir.), cert. denied, 65 U.S.L.W. 3260 (U.S. Oct. 7,
1996) (No. 95-9447).
With respect to the April 21 telephone conversations, the confiden-
tial informant testified that the purpose of the calls was "to set up a
deal to buy cocaine." A Government witness testified that based upon
the April 21 calls, he set up the May 8 purchase of cocaine from
Jones. Thus, we do not find that the district court abused its discretion
by allowing the tapes into evidence. The evidence was relevant,
showed Jones' intent and preparation, and gave the jury a complete
story of the drug transaction as a whole. See Fed. R. Evid. 404(b);
Chin, 83 F.3d at 87. Nor do we find that the tapes should have been
excluded under Rules 402 and 403. With respect to Jones' contention
that the tapes given to the defense were of poor quality, it is undis-
puted that Jones' defense counsel did not object to the quality of the
tapes or request permission to listen to the originals prior to trial.
3
Accordingly, we do not find that the district court abused its discre-
tion in finding that the Government complied with Rule 16.3 Fletcher,
74 F.3d at 54. Thus, because we do not find that the district court
clearly erred with regard to the evidentiary issues presented on
appeal, we affirm Jones' convictions.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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3 Despite defense counsel's remarks to the contrary, there is no indica-
tion in the record that the Government intended to mislead the defense
by purposely providing poor quality tapes.
4