United States v. Francis

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4519

EDGHILL LEO FRANCIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4520

KEITH ANDRE HOWARD,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-503-A)

Argued: December 5, 1997

Decided: March 30, 1998

Before NIEMEYER and BUTZNER, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Milton Gordon Widenhouse, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant Howard; Edward
Henry Weis, Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant Francis. William Neil Hammerstrom, Jr.,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant Francis; William A. Webb, Federal Pub-
lic Defender, Raleigh, North Carolina, for Appellant Howard. Helen
F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this case we consider appeals from criminal convictions for drug
crimes involving sales of cocaine base (a.k.a. "crack" cocaine) to an
undercover police officer wearing a recording device. The defendants
primarily allege "structural error" by the district court in its decision
to allow jurors to listen to a properly authenticated tape recording of
a controlled drug buy which was admitted into evidence but never
played in open court in the presence of the defendants. For the rea-
sons below, we affirm the court below.

I.

The United States offered the challenged tape recording into evi-
dence to prove the charges alleged in COUNT IV of the Indictment--
that on June 8, 1995, the defendants Edghill Leo Francis ("Francis")
and Keith Andre Howard ("Howard"), distributed a quantity of crack
to an undercover police officer posing as a purchaser. A confidential

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informant had brought the undercover officer to meet the informant's
drug suppliers, Francis and Howard.

Although Howard and Francis timely objected to the introduction
of the tape recording on the grounds that it was inaudible, inaccurate,
and improperly authenticated,1 they never raised separate objections
to the jury receiving it without its having been played in open court.
While the assigned "structural error," therefore, was not preserved
properly for appeal, we will address, perhaps in an exercise of super-
erogation, the merits of this tape recording issue now raised by the
defendants.

First, the government provided both defendants copies of the later-
authenticated2 tape and tape transcript long before trial. The fact that
the tape was not played in the courtroom in the defendants' presence,
thus, resulted in no eleventh hour mystery to them as to the tape's
contents. At trial, each defendant had ample opportunity to cross-
examine the undercover officer who wore the wire recording device
about the tape's contents and the accuracy of the transcript; neither
defendant chose to do so. Moreover, the court below gave the jury a
limiting instruction that it should disregard any unclear portion of the
tape recording and any part of the transcript not reflective of the
recorded conversation. Ultimately, however, once the district court
admitted the tape recording and transcript into evidence and sent it to
the jury at the close of trial, the jury was free to decide whether or
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1 The abuse of discretion standard governs a district court's rulings
about the authentication and admissibility of tape recordings and tape
transcripts. See United States v. Capers, 61 F.3d 1100, 1106 (4th Cir.
1995) (citing United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993)),
cert. denied, ___ U.S. ___, 116 S.Ct. 1830 (1996).
2 As to the authentication process, the undercover officer testified at
trial that he had worn a wireless transmitter on June 8, 1995, the date of
one of the controlled drug buys, and that his conversations with Howard
were monitored and recorded. The officer then identified the tape record-
ing as a true and accurate recording of the conversation he had with
Howard. The officer further testified that the tape recording was accurate
and that he knew it was so because he had listened to it prior to trial.
Finally, the officer testified that the tape recording's transcript accurately
reflected the recorded conversations during the drug buys.

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not the tape recording and transcript were what the government
claimed. United States v. Branch, 970 F.2d 1368, 1370-71 (4th Cir.
1992) ("Although the district court is charged with making this pre-
liminary [authentication] determination, because authentication is
essentially a question of conditional relevancy, the jury ultimately
resolves whether evidence admitted for its consideration is that which
the proponent claims.") (citations omitted). This court declines to pry
open the jury room door to second guess a jury's conclusions about
items or exhibits properly admitted into evidence; jury deliberation is
far too sacred a process to be subjected to such an searching inquiry.
We hold, therefore, that the district court did not err when it received
the properly authenticated tape recording and tape transcript into evi-
dence even though the recording was not played in open court in the
defendants' presence.

II.

The defendants' remaining grounds of appeal are of no moment.
First, Francis asserts that the government failed to present sufficient
evidence to sustain the jury's finding that he aided and abetted How-
ard in distributing crack on May 12 and June 8, 1995. We review suf-
ficiency of the evidence challenges by viewing that evidence in the
light most favorable to the government and asking whether any ratio-
nal trier of fact could have found the essential elements of the crime
alleged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979). Applying that standard to the evidence in the record leads
us ineluctably to the conclusion that sufficient evidence existed from
which the jury could have found Francis guilty of aiding and abetting
Howard.

Second, Francis and Howard contend that the district court erred in
excluding certain of the defendants' proffered evidence in support of
their defenses to the crimes charged. We review a district court's
exclusion of evidence for abuse of discretion. United States v. Ellis,
121 F.3d 908, 926 (4th Cir. 1997) (citing United States v. Loayza, 107
F.3d 257, 263 (4th Cir. 1997)). At trial, part of the defendants' strat-
egy was to attempt to characterize the confidential informant as the
actual source of the crack cocaine and as the primary drug dealer in
each controlled buy. Francis and Howard sought to establish both
through their direct evidence and their cross-examinations of govern-

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ment agents that: (1) the informant had a history as a drug dealer, (2)
the informant had a motive to implicate the defendants, (3) the infor-
mant had opportunity to entrap Howard, an admitted crack addict
taken advantage of by the informant, and (4) the informant was the
source of the drugs. Although neither the United States nor the defen-
dants called the informant himself to testify, the district court gener-
ally permitted Francis and Howard to attempt to establish an
entrapment defense. Given that the government never called the infor-
mant to testify, however, the district court acted within its province
when it ruled the defendants could not call witnesses directly to
attempt to discredit the informant. Thus, we conclude that the district
court did not abuse its discretion so as to prevent wholesale the defen-
dants' presentation of their entrapment defense theory.

The defendants next assert that the district court erred by admitting
Howard's out-of-court statements which, they say, tended to implicate
Francis.3 During Howard's testimony, the United States attempted to
cross-examine him about statements he made to Detective Warren
McGee at the Fairfax Detention Center. When the government asked
whether, during his interrogation at the detention center, Howard had
told the detective "a little bit about [Francis]," Joint Appendix ("JA")
at 304, Francis' counsel objected to Howard answering on grounds of
Bruton v. United States, 391 U.S. 123 (1968) (holding that, under cer-
tain circumstances, Amendment VI's Confrontation Clause is violated
when a non-testifying codefendant's statement implicating the
accused is admitted into evidence during their joint trial). A Bruton
problem arises, however, only when a non-testifying codefendant's
confession or statement inculpating the accused comes into evidence.
Bruton, 391 U.S. at 128. Here, as the district court recognized, "He
[Howard] is on the stand; no Bruton problem. Objection overruled."
JA at 304. The district court properly overruled the Bruton objection
because Howard, like Francis later did, testified at trial.4 The district
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3 We review the admission of such evidence for plain error. United
States v. Brewer, 1 F.3d 1430, 1434-35 (4th Cir. 1993).
4 Even assuming, arguendo, that Bruton applied here, subsequent Con-
frontation Clause decisional law makes clear that when a codefendant,
like Howard, "takes the stand in his own defense, denies making an
alleged out-of-court statement implicating the defendant [i.e., Francis],

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court, therefore, did not err in permitting Howard's cross-examination
testimony to proceed over defense counsel's objection.

Finally, the defendants argue that the district court erred in refusing
to grant them a downward departure based on their entrapment
defense theory and their belief that the United States attempted to
manipulate their sentence by inflating the amount of crack cocaine
attributable to the two controlled drug buys. We find this last conten-
tion meritless because a district court's refusal to grant a downward
departure on such grounds is not reviewable, unless that decision was
based on the district court's mistaken belief that it was prohibited
legally from making such a departure. United States v. Jones, 71 F.3d
1143, 1145 (4th Cir. 1995) (citing United States v. Bayerle, 890 F.2d
28, 30-31 (4th Cir. 1990)). Here, the district court determined that the
downward departure was not warranted; no evidence in the record
suggests the court labored under the misapprehension that it was
barred legally from departing downward had the circumstances of the
case supported such a ruling.5

III.

For the foregoing reasons, we hold that the district court did not err
in allowing jurors to listen to the tape recording of a controlled drug
buy when that recording never was played in open court in the pres-
ence of the defendants. Likewise, the district court did not err in its
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and proceeds to testify favorably to the defendant concerning the under-
lying facts, the defendant has been denied no [Confrontation Clause]
rights protected by the Sixth ... Amendment[ ]." Nelson v. O'Neil, 402
U.S. 622, 629-30 (1971). In this case, Howard denied--no fewer than
five times--that he made any alleged out-of-court statement implicating
Francis as a dealer or supplier of drugs, thereby testifying favorably to
Francis concerning the underlying facts. JA at 304-05.

5 Francis and Howard contend that the district court never "considered"
the entrapment defense issue at sentencing. App's Brief at 34-36. At sen-
tencing, however, the district court stated that it would not "revisit" the
entrapment issue. JA at 435. Such a statement presupposes, as a matter
of logic and semantics, that the trier of fact had"visited" the issue previ-
ously at trial--the appropriate time to have done so.

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other rulings identified by Francis and Howard. Accordingly, the con-
victions and sentences in this case hereby are

AFFIRMED.

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