Rehearing and Rehearing En Banc Denied January 23, 1991.
RALPH B. GUY, Jr., Circuit Judge.
Defendant, Dennis Martin, appeals from his jury trial conviction on one count of distributing cocaine, 21 U.S.C. § 841(a)(1). On appeal, Martin argues that: (1) the district judge improperly restricted his cross-examination of the government's key witness, (2) it was error to allow the jury to have two different transcripts of the same tape recording, (3) the FBI case agent should have been sequestered prior to testifying, (4) the government's key witness should not have been allowed to testify about and explain events that occurred during a tape recorded conversation between the witness and the defendant, and (5) the search warrant for defendant's home was defective and evidence seized should have been suppressed.
Upon a review of the record we find no errors requiring reversal and affirm.
On May 24, 1989, Floyd Graham, working as a paid informant for the FBI, bought an ounce of cocaine from the defendant. Graham was wearing a body recorder at the time of the purchase. On June 1, 1989, a similar purchase was made by Graham from the defendant. Although Graham was again wearing a recorder, this second transaction was not recorded due to a malfunction. Martin was subsequently indicted and charged with the two cocaine sales as well as using a telephone to facilitate the distribution of the cocaine involved in the June 1, 1989, sale. Martin was only found guilty of the May 24, 1989, sale.
The Cross-Examination Issue
The trial in this case was relatively short and revolved entirely around whether the jury believed Graham. Accordingly, the entire defense was built around destroying Graham's credibility. From defense counsel's opening statement to the closing argument, the entire focus was a relentless attack directed against Graham. All of the witnesses called by the defendant, which included Graham's wife, his mother-in-law, and his sister-in-law, were called for the express purpose of attempting to convince the jury that Graham was a person not worthy of belief. Even before the defendant's opening statement, the government, in anticipation of the defense, had alerted the jury to the fact that Graham was an unsavory character. On Graham's direct examination, the government brought out at some length Graham's background and his relationship with the government agents.
Among other things which the defense brought out relative to Graham was his use of narcotics for a number of years, his prior criminal history, his jealousy of the defendant whom he accused of having an affair with his wife, his poor reputation for honesty, the fact that he may have mental problems, the fact that he was on probation and facing other serious criminal charges at the time he sought out the FBI and offered his services, and the fact that he was getting room and board money from the FBI as well as certain lump-sum cost payments.
The primary areas of questioning in which the government's objections were sustained and the court limited cross-examination concerned arrests of Graham which did not result in convictions and matters that went so far back in time that the court found them to be of dubious relevancy.
It is clear that "trial judges retain wide latitude" in imposing "limits on ... cross-examination...." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Obviously a defendant cannot complain about correct evidentiary rulings even if they have the effect of limiting cross-examination, and we believe that covers the vast majority of
As the Supreme Court stated in Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985), "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Emphasis in original).
The Transcript Issue
The May 24, 1989, conversation between Graham and the defendant was the only one that was successfully recorded. During pretrial proceedings, Martin and his counsel were given a copy of the recorded conversation as well as a transcript of the recording prepared by the government. It was made clear to the defendant that this was only a preliminary transcript. Martin had no objection to the transcript. Shortly before trial, the government produced an expanded transcript which filled in some of the "inaudible" blanks that were contained in the first transcript. The defendant objected and the government and the defense could not agree on a version to be submitted to the jury.
The trial judge resolved the issue by submitting both transcripts to the jury and allowed the tape to be played twice so the jury could compare the transcripts, one at a time, to the tape as it was being played. The jury was told on several occasions that it was the tape and not the transcripts which was the evidence on which they must rely.
In United States v. Robinson, 707 F.2d 872 (6th Cir.1983), we set forth guidelines for the use of transcripts where recordings were being played for the jury. Adopting the analysis of the District of Columbia Circuit in United States v. Slade,
To begin with, and perhaps most obvious, by denominating the "two transcript" approach as the least preferred, we did not hold that it was error to proceed in this manner. Second, as to substantial portions of the two transcripts, the difference was negligible. Finally, the conversation was between a witness who testified, and was subject to cross-examination, and the defendant. Thus, the defendant was capable of ascertaining the accuracy of his own statements as represented in the transcript, and was present and heard the other end of the conversation which was directed at him.
We emphasize that the use of transcripts is a matter committed to the sound discretion of the trial judge and we reverse only for an abuse of discretion. United States v. Onori, 535 F.2d 938, 947 (5th Cir.1976). We find no abuse of discretion here.
The Sequestration Issue
Martin argues that by allowing the FBI case agent, Clyde Merryman, to remain
Even before the Federal Rules of Evidence were adopted, the law in this circuit was settled that the case agent may remain in the courtroom even when other witnesses were being sequestered. United States v. Wells, 437 F.2d 1144 (6th Cir.1971). Federal Rule of Evidence 615, which deals with the exclusion of witnesses, provides that the court may not exclude "an officer or employee of a party which is not a natural person designated as its representative by its attorney...." The comments to the rules have made clear from the beginning that case agents are intended to be included within this exception. Although we can conceive of a situation in which it would be within the discretion of the trial judge to require a non-sequestered witness to testify first, it is difficult to conceive of a situation in which the failure to do so would be reversible error. The case agent is the prosecutor's information source and even if the agent were excluded, the prosecutor would still have to reveal to him what other witnesses had said and done in order to map out strategy. This would defeat the whole purpose of sequestration. Also, the case agent is frequently not the most important or knowledgeable government witness and to require him to testify first may well make no sense at all.
The trial court acted consistent with the mandate of Fed.R.Evid. 615 in refusing to order the sequestration of the case agent.
Graham's Testimony Relative to the Taped Conversation
After the jury heard the tape of the May 24, 1989, conversation between Graham and Martin, Graham was asked certain questions about the transaction that was the subject of the conversation. Martin claims that Graham was improperly asked about some of Graham's statements which were heard on the tape. Apparently attempting to invoke some kind of aural best evidence rule, Martin argues that the tape speaks for itself. The government counters by citing our decision in United States v. Graham, 856 F.2d 756, 759 (6th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989), which held that "[a] government agent may, like any other witness, testify in the form of an opinion as to his understanding of a defendant's statement." Both contentions somewhat miss the mark.
First, the conversation on the tape was between the defendant and a testifying witness and was introduced while the witness was on direct examination. Under such circumstances the witness, if the prosecutor asks, is free to first describe the conversation in his own words and indicate what was said and what occurred. The tape may then be played as corroboration. If the tape is played first, however, it does not mean that a party to that conversation is thereby prohibited from testifying relative to the event.
Furthermore, the opinion testimony we are dealing with here is not the same as the testimony at issue in Graham. In Graham, an FBI agent was permitted to testify that when in an undercover capacity he was asked to make a campaign contribution, what was really intended was a bribe. Graham was not asked here to characterize Martin's words in a manner different than their apparent plain meaning. Rather he was asked what was meant by phrases that would have been clear in context to the person hearing them, but may not be clear to one merely hearing the words. For example, when Martin said on the tape,
We find no error in Graham's elaboration on the events that were occurring during the conversation that was taped and played for the jury.
The Search Warrant
Contemporaneous with the arrest of the defendant on the indictment, a search warrant was executed at his home. The only item admitted into evidence as a result of that search was a roll of money amounting to $2,900 held together by a yellow rubberband. The yellow rubberband was similar to those used to wrap the one-ounce packages of cocaine which Graham had purchased and which were introduced into evidence. Prior to trial, Martin had filed a motion to suppress, and certain items seized were suppressed as being irrelevant.
Although the items seized do not appear to be very incriminating, the defendant nonetheless argues that they should have been suppressed because the affidavit on the basis of which the search warrant was issued was defective, was overly general, and did not provide probable cause for the issuance of a warrant.
Defendant's argument that the affidavit was defective is predicated on what defendant perceives as certain omissions from the affidavit of agent Merryman. Specifically, defendant contends that the agent never told the magistrate that his principal informant (Graham) was a person whose veracity was open to serious question.
First, the affidavit recited that the information the confidential informant had provided in this case had been verified and indeed had resulted in two purchases of cocaine from the defendant. The fact that the informant may have been of general bad character is really not relevant under the circumstances here where the information provided by the informant has already lead to the indictment of the defendant.
Second, there is no allegation that false information was contained in the affidavit. As was stated in United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990):
Third, it is often people involved in criminal activities themselves that have the most
United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1170, 103 L.Ed.2d 228 (1989).
Martin's contention that there was no reason to search the defendant's house is equally without merit.
A search of the residence was further justified by the fact that one of the narcotics sales took place very near the residence and the confidential informant had been inside the residence and provided some information as to what was kept there.
We can find no defects in the warrant nor in the affidavit on which it was based.