TJOFLAT, Circuit Judge:
Appellant William David Lively brings this appeal from his conviction in federal district court for conspiring to distribute cocaine.
On March 24, 1985, law enforcement officers searched the home of David Richards pursuant to a search warrant. The officers seized from the premises twenty-five small bags, containing a total of twenty-four grams of cocaine. This cocaine was the balance of an ounce (twenty-eight grams) that Richards had purchased in bulk form from appellant six or seven days before the search for a price of $1,500, $800 of which Richards still owed appellant. Richards had used a small pair of scales borrowed from appellant to break the ounce of cocaine into one-gram packets.
Richards agreed to cooperate with Drug Enforcement Administration (DEA) officials in their investigation of appellant. On April 10, 1985, Richards delivered to appellant the $800 balance of the purchase price, which the DEA furnished him. Richards wore a transmitting device placed on him by DEA Agent Richard Hahner as he delivered the money to appellant.
Hahner remained in a car near appellant's home in order to operate a receiving and recording device. When Richards approached the house, another agent in the car activated the recorder and receiver. Hahner, unaware that the receiver had already been activated, inadvertently turned off the receiver when the conversation began. Hahner reactivated the equipment when he discovered his error, but approximately seven seconds of the conversation between Richards and appellant were not recorded. During the recorded portion of the conversation, Richards and appellant discussed their cocaine transaction, resale activity by Richards, and the possibility of future cocaine transactions.
Appellant's first claim of error is that the district court erred in refusing to instruct the jury, in accordance with his requested instruction, that a co-conspirator can no longer be a member of the alleged conspiracy once he becomes a government informer. We review appellant's claim with the recognition that a district court's refusal to deliver a requested instruction is reversible error if, and only if, the instruction "(1) is correct, (2) is not substantially covered by other instructions which were delivered, and (3) deals with some point in the trial so `vital' that the failure to give the requested instruction seriously impaired
At trial, appellant requested the following instruction:
The requested instruction comported with the law, for it is well-settled that a person cannot conspire with a government informer who secretly intends to frustrate the conspiracy. See United States v. Richardson, 764 F.2d 1514, 1529 (11th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985); Sears v. United States, 343 F.2d 139, 142 (5th Cir.1965).
In this case, the indictment alleged that appellant conspired with Richards
The trial court's failure to deliver a correct instruction that addressed this vital aspect of the defense's theory of the case and that was not substantially covered by other instructions is reversible error. See Stone, 702 F.2d at 1339. Accordingly, appellant is entitled to a new trial.
Although our disposition of appellant's first claim of error makes it unnecessary for us to dispose of his second and third claims, we address them briefly because the questions they pose are likely to arise at appellant's retrial.
Appellant's second claim of error is that the district court wrongly refused to deliver the following instruction:
Even if a requested jury instruction is proper, the trial court has some discretion in framing the instruction. If the charge to the jury adequately and correctly covers the substance of the requested instruction, there is no reversible error. See United States v. Stone, 702 F.2d 1333, 1339 (11th Cir.1983); United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984).
In United States v. Stephens, 492 F.2d 1367, 1372 (6th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 93, 42 L.Ed.2d 83 (1974), the defendants were convicted of conspiring to transport and distribute stolen goods in interstate commerce. The trial judge refused to instruct the jury that a simple buyer/seller relationship does not constitute a conspiracy to deal in stolen property. Id. The court of appeals found that the requested instruction was unnecessary:
In the instant case, the trial court properly recited the elements of the drug conspiracy offense. The jury was instructed
Appellant's final claim of error is that the district court abused its discretion by admitting the DEA's recording of the April 10, 1985 conversation between appellant and Richards. A trial judge has broad discretion in determining whether to admit such a recording into evidence. United States v. Richardson, 764 F.2d 1514, 1523-24 (11th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985); United States v. Hughes, 658 F.2d 317, 322 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).
Appellant contends, however, that the seven-second gap near the beginning of the tape recording rendered the entire recording inadmissible. Unless the inaudible portions of a tape recording were "so substantial as to render the recording as a whole untrustworthy," the tape may be admitted at trial. United States v. Nicoll, 664 F.2d 1308, 1314 (5th Cir. Unit B), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982) (citations omitted), overruled on other grounds, United States v. Henry, 749 F.2d 203 (5th Cir.1984).
The facts of Nicoll are similar to those in the case at hand. A one-minute gap in the tape recording in Nicoll was created when the tape reached the end of one side and was turned over to continue recording. Nicoll, 664 F.2d at 1314. The court found that the gap "hardly rendered the tape as a whole untrustworthy, and no error resulted from its admission." Id. We find that the admission of the tape in this case, which had a mere seven second gap, was not an abuse of the district court's discretion.
In light of our conclusion on the appellant's first claim of error, the judgment of the district court is REVERSED and the case is REMANDED for a new trial.
REVERSED and REMANDED.
On retrial, the trial judge might consider elaborating on the defense's requested instruction by advising the jury that Richards could have been appellant's co-conspirator during the time period before March 24, 1985, and that it could find appellant guilty of the charged conspiracy even though Richards subsequently became a government informer.