United States of America, Appellee. v. David Frank Bagguley, Appellant.united States of America, Appellee v. George Evans Harp, Appellant, 838 F.2d 468 (4th Cir. 1987)

David Frank Bagguley and George Evans Harp appeal from their convictions by a jury of conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 841(a) (1) and Sec. 846 and for possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Appellants claim error in several of the trial judge's evidentiary rulings; in the laying of venue in the Western District of North Carolina; in the district court's refusal to grant defendants their requested number of additional peremptory challenges; in the court's admonishing and questioning defense witnesses; and in its refusal to issue two writs of habeas corpus ad testificandum. Appellants also complain that a DEA agent's pre-trial warnings to defense witnesses not to perjure themselves violated Harp's due process rights. We find no prejudicial error and affirm.

* The activities out of which the convictions for conspiracy and possession in this case arose occurred while appellants, along with seven co-defendants, were prisoners in the Federal Correctional Institution in Terre Haute, Indiana. The subject matter of the conspiracy was heroin that originated in California with the family of co-conspirato Ciopat Siripan, who entered a guilty plea during trial. From California, the heroin followed a route to Granite falls, North Carolina, the home of the parents of William Merle Wright, another co-conspirator, who cooperated with the government after pleading guilty in this case. Wright's mother was to give the package containing the heroin to Wright's girlfriend, Sandra Edmisten. From Edmisten the package was to go to indiana and ultimately to Barbara Harp, appellant Harp's wife. Part of the heroin then was to have been smuggled into the prison in Terre Haute and the remainder sold through a severed co-defendant, Billy Youngworth, in Boston.

Because Wright's father, in Granite Falls, became suspicious about the package he had been told contained "legal papers," he gave it to the local sheriff's department, which in turn gave it to the DEA. Finding heroin in the package, the DEA foiled the scheme by replacing the heroin with flour and then, as the conspirators had planned, delivering the "heroin" to an address where Barbara Harp later came to retrieve it. She was arrested, along with her two companions, and all three pleaded guilty

The government's evidence that Bagguley and Harp were involved in the conspiracy to possess and distribute this heroin consisted of the testimony of three co-defendants who pleaded guilty and cooperated with the government. Other evidence was in the form of tapes of telephone conversations placed by different conspirators from the prison. These calls included ones placed by William Wright to Sandra Edmisten in the Western District of North Carolina.

Telephone conversations of prisoners at the Terre Haute correctional facility are routinely monitored and taped and the tapes stored in a locked room at the prison. Prisoners are made aware of the monitoring by posted signs and by acknowledgment forms they sign. The tapes admitted into evidence in this case were enhanced copies of the originals. The originals had been removed from the locked prison room by an investigator who turned them over to a DEA agent. That agent stored them in a DEA storage room in Indiana and later sent them to another agent in Greensboro, North Carolina. The DEA agent in Greensboro listened to the thirty tapes sent to him. The tapes next were sent to the FBI in Washington, D.C., and later returned to Greensboro, where they remained until trial. While the tapes were in Washington, officials there made the enhanced copies, which were compared with the originals by the agent back in Greensboro and introduced at trial.

II

On this appeal, appellants raise best evidence rule and authenticity questions about the Terre Haute tapes in addition to challenging the validity of regular interception of prisoner calls under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.

They also challenge two other evidentiary rulings by the district court. Both contend that the admission of evidence regarding a second package of heroin weighing forty-five ounces was improper, contending that was evidence of a transaction occurring after the indicted conspiracy. Bagguley also challenges the court's determination that evidence of his indigence was irrelevant.

Another issue raised on appeal is that the court abused its discretion in denying the six co-defendants, who stood trial together, more than two additional peremptory challenges. Prior to the beginning of trial, attorneys for all defendants filed motions requesting that they be allotted more than the ten peremptory challenges given them as a group by Fed. R. Crim. P. 24(b). The district court, exercising the discretion given by Rule 24(b), denied these motions. During voir dire, defense attorneys informed the court that they were in conflict regarding how to exercise the ten peremptories and renewed the request for additional challenges. The court granted the defendants only two additional challenges. The defendants eventually exercised only nine of the twelve challenges allocated to them.

Appellants also complain that they were denied a fair trial when the judge admonished defense witnesses George Drinkwine and William Slipka to confine their testimony to the questions put to them and when he examined appellant Bagguley concerning how Bagguley had received certain letters that defendants wanted admitted into evidence. Appellants argue on appeal that this intervention by the trial judge signaled to the jury that the judge was biased against defendants.

Appellants also assert that they were denied a fair trial because DEA Agent John Ingram spoke with defense witness William Slipka before trial and warned him that he should testify truthfully. Simultaneously, a charge against Slipka that previously had been dropped was reopened.

Finally, appellant Harp assigns as error the court's refusal to issue writs of habeas corpus ad testificandum for his wife, Barbara Harp, and Billy Youngworth, both of whom were in prison at the time of trial. Youngworth was in the Mecklenburg County, North Carolina, jail, and Barbara Harp was in prison in Kentucky.

The only issues warranting discussion on appeal are those regarding admission of the copies of the taped telephone conversations and the challenge to the trial judge's refusal to issue the writs of habeas corpus ad testificandum. We have considered the other issues and find them without merit.

III

Appellants advance several reasons that the copied tape recordings of the telephone calls placed from the Terre Haute prison should have been excluded. They assert that the tapes were inadmissible because all speakers were not identified, because there was not a sufficient showing of chain of custody, because the best evidence rule precluded admission of the enhanced copies rather than the originals, and because inaudible portions of the tapes rendered them untrustworthy. Appellants also argue that the district court should have suppressed the tapes on the grounds that prison officials illegally monitored the prisoners' calls, in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.

While these contentions raise seemingly disparate concerns, at least the first four of them converge insofar as they challenge the authenticity and reliability of the tapes. The first contention, that identification of all speakers is necessary before tapes are admitted, refers to one of seven requirements often enunciated by courts for the admission of tape recordings.^*  The primary aim of these requirements is to give assurance that tapes are accurate. United States v. Biggins, 551 F.2d 64, 66-67 (5th Cir. 1977). This goal of accuracy is sufficiently satisfied even when all speakers are not identified, as long as relevant speakers are. In the challenged recordings in this case, the more relevant party was the caller, who in each case was an identified member of the conspiracy. Insofar as the conversations may be deciphered to involve the heroin scheme, the names of the recipients of the calls are not critical to the tapes' accuracy or their relevance. There was therefore no error in admitting them despite the failure to identify every party.

The contention that chain of custody of the tapes was not sufficiently established refers to the requirement of Fed.R.Evid. 901 that real evidence be proven authentic. One way of proving authenticity of tape recordings is by chain of custody. See United States v. Ellis, 493 F. Supp. 1092, 1104 (M.D. Tenn. 1978). Evidence of chain of custody also ensures that the condition of real evidence, such as these tapes, has not been substantially altered. See G. Lilly, An Introduction to the Law of Evidence Sec. 10.9 (1978). As does identification of relevant speakers, chain of custody thus tends to insure accuracy.

All that is required of chain of custody evidence is that it "render it reasonably certain that the original evidence has been traced accurately." G. Lilly, supra Sec. 109; see also United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982). The evidence in this case sufficiently establishes that the tapes were handled with care throughout their journey from Terre Haute to Greensboro, to Washington, and back to trial in the Western District of north Carolina. Moreover, the DEA agent in Greensboro testified that he compared the copies of the tapes made in Washington and introduced at trial with the originals. The appellants' focus on the failure of each custodian of the tapes to testify that the tapes remained in substantially the same condition is unduly rigid. The lower court did not abuse its discretion in finding the tapes to be authentic.

Appellant raises Fed.R.Evid. 1002, the best evidence rule, in arguing on appeal that the district court improperly admitted copies of the tapes rather than the originals. Rule 1002 requires use of an original recording when a proponent of the recording seeks to prove the recording's content. Appellants are correct that the copies of the tape recordings in evidence in this case did not meet Rule 1002's call for "originals." The copies do, however, meet the definition of "duplicates" under Rule 1001(4) and therefore are admissible under Rule 1003, which makes a duplicate "admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Neither of the two exceptions in Rule 1003 applies in this case: appellants raise no issue about the authenticity of the original tapes, and there is no allegation of unfairness in admitting the duplicates.

Other courts have readily sustained admission of rerecordings over best evidence rule objections. See United States v. Denton, 556 F.2d 811, 814-16 (6th Cir. 1977). In United States v. Madda, 345 F.2d 400 (7th Cir. 1965), the Seventh Circuit admitted copies of tapes when the copies were more audible than the originals, as in the instant case. See also Fountain v. United States, 384 F.2d 624, 631 (5th Cir. 1968) (background noise on originals justifies use of copy). The original tapes were made available to appellants in this case, and there is no serious contention that the copies were inaccurate. Therefore, the copies were properly admitted. See, e.g., Johns v. United States, 323 F.2d 421, 421 (5th Cir. 1963).

Regarding appellants' claim that inaudible portions of the tapes rendered them inadmissible because untrustworthy, we note preliminarily that the decision of untrustworthiness is committed to the sound discretion of the trial judge. E.g., United States v. Watson, 594 F.2d 1330, 1335 (10th Cir. 1979); Madda, 345 F.2d at 403. The district court in this case did not abuse its discretion in admitting the tapes, notwithstanding an admittedly significant amount of inaudibility. The court's closeness to the entire course of proceedings gave it a better vantage point than could be ours from which to judge the significance of unintelligible portions of the tapes. The trial judge could evaluate the audible portions in light of other evidence adduced and thereby determine whether the inaudible portions were critical to assurance of trustworthiness. Finally, it bears emphasis that the relevant standard is trustworthiness. We have no concern here about the integrity of the admitted tapes. The court did not err in admitting the tapes despite inaudibility of some portions.

Appellant Harp's final argument that the tapes were inadmissible is that the interception of prisoners' communications was illegal under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. and that the Act makes illegally intercepted communications inadmissible in evidence, see 18 U.S.C. § 2515. To the extent Harp seeks to challenge the admissibility of conversations to which he was not a party, he lacks standing. The statute provides that only an "aggrieved person" may challenge introduction of illegally monitored conversations. See, e.g.., United States v. Lavin, 604 F. Supp. 350, 356 (E.D. Pa. 1985). An "aggrieved person" is defined by Sec. 2510(11) to include only those persons whose conversations were overheard or those persons who had some rights in the premises where the conversations took place. See United States v. Giacalone, 455 F. Supp. 26, 41 (E.D. Mich. 1977). Thus Harp may contest admission only of those calls placed by him.

Even the calls placed by Harp are admissible under the exception in the statute for interception of calls by an investigative or law enforcement officer in the ordinary course of his duties, 18 U.S.C. § 2510(5) (a) (ii). For purposes of this exception, a law enforcement officer is defined as one "who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter." 18 U.S.C. § 2510(7). Prison officials' plenary authority to safeguard the security of prisons includes the authority to conduct investigations of potential criminal activity, making them "law enforcement officers" under the statute. Crooker v. United States Department of Justice, 497 F. Supp. 500, 503 (D. Conn. 1980); see also United States v. Paul, 614 F.2d 115, 117 (6th Cir. 1980). Even as "law enforcement officers," the prison officials' monitoring of the phone calls must be in the ordinary course of their duties in order for the calls to be admissible. See 18 U.S.C. § 2510(5) (a) (ii). Because the monitoring here was part of a regular routine rather than a sporadic, random investigative tool, it was sufficiently "within the ordinary course." Compare Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir. 1979) (interception of prisoner calls illegal where monitoring not routine but rather "an exceptional course of conduct") and Paul, 614 F.2d at 117 (interception legal where monitoring was routine, known to the prisoners, and pursuant fo federal and local prison policies). Moreover, the Terre Haute officials complied with relevant federal regulations in establishing their monitoring policy. See 28 C.F.R. Sec. 540.100-.101 (1986).

Having considered the various arguments for excluding the tape recordings from evidence, we conclude that the district court's admission of the tapes was without error.

III

We turn now to the district court's discretionary determination, pursuant to 28 U.S.C. § 2242(c) (5), not to issue writs of habeas corpus ad testificandum for Barbara Harp and Billy Youngworth. In deciding whether to issue such writs, a court must weigh the costs, inconvenience, and safety concerns in transporting an inmate from prison to court against the party's interest in having the inmate present. The court also may consider the prisoner's anticipated testimony and the other evidence adduced on behalf of the requesting party. See, e.g., Jerry v. Francisco, 632 F.2d 252, 255-56 (3d Cir. 1980).

The decision to refuse the writ for Harp's wife was not an abuse of discretion. No proffer of her expected testimony was made, nor was any representation made to the court that she would give generally favorable testimony for Harp. Under those circumstances the court was perfectly entitled to make the obvious assumption that because of her admitted role in the conspiracy and her relationship with Harp, any testimony she might offer would be at best unhelpful to Harp. Weighing these considerations against Barbara Harp's distance from the location of the trial (she was in a Kentucky prison), the court properly exercised its discretion in declining to issue a writ for her.

The court's decision whether to issue a writ for co-conspirator Youngworth properly included as a consideration that Youngworth, who had yet to stand trial as a co-conspirator, would presumably invoke his fifth amendment privilege not to testify. See Murdock v. United States, 283 F.2d 585, 587 (10th Cir. 1960). No representation to the contrary was made to the court. Although the district court considered Youngworth's testimony at a time before severance of Youngworth's case from that of appellants, the conclusion that Youngworth might not testify because of the fifth amendment was and remains a valid reason for denying the writ given the fact that no representation to the contrary was before the court.

IV

We affirm the district court's decision to admit the tape recorded telephone conversations and to refuse issuance of writs of habeas corpus ad testificandum for Barbara Harp and Billy Youngworth. On a review of the record, we find no prejudicial error with regard to the other errors assigned on appeal.

AFFIRMED.