United States v. Audy Facey , 244 F. App'x 251 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 31, 2007
No. 06-12731 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60189-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUDY FACEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 31, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Following a jury trial, Audy Facey was convicted of conspiracy to possess
with intent to distribute 100 kilograms or more of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and was sentenced to 75 months in prison. He
appeals, challenging the sufficiency of the evidence supporting his conviction. He
also argues that the district court erred in providing the jury with corroborative
transcripts of his recorded conversations, without proper safeguards, and that this
error caused him prejudice. Upon review, we AFFIRM.
I. BACKGROUND
Facey’s conviction arises out of a conspiracy to import approximately 600
pounds of marijuana from Jamaica to the United States. In January 2004 the DEA
was informed by Rohan (“Ron”) Gordan, a paid confidential informant operating
in Jamaica, that two Jamaican smugglers, Patrick Thompson and Denton Hall,
were attempting to smuggle a large amount of marijuana into the United States by
boat. The DEA instructed Gordon to move forward with the operation, and to act
as the facilitator between the Jamaican smugglers and the recipients of the
marijuana here in the United States. Gordon was instructed to provide a boat and a
boat captain to the smugglers. He was also authorized by the DEA to travel to the
United States, in order to liaise with the recipient members of the trafficking
operation who were based in south Florida.
Upon arriving in the United States, the DEA provided Gordon with a
2
recording device, and he was instructed to record all of his telephone conversations
with the putative traffickers in south Florida. The Jamaican smugglers had given
Gordon phone numbers for two contacts in Florida. One of these contacts was
Lawton “Sturdy” Blackwood, who phoned Gordon from a Tampa area code and
asked about the marijuana being smuggled in from Jamaica. Gordon subsequently
arranged to meet Blackwood at the Coral Square shopping mall in Coral Springs,
Florida, on 3 May 2004. The 3 May meeting was recorded, via a hidden recording
device on Gordon’s person, and was also videotaped via a surveillance platform
that the DEA had assembled at the mall. Both the audio and the video recordings
of the meeting were later submitted into evidence at trial.
In the meeting, Gordon arrived at the Coral Springs Mall in a minivan, and
Blackwood arrived in a BMW, with the appellant, Facey, seated in the passenger
seat. Upon arrival, Blackwood exited the BMW and conversed with Gordon inside
the minivan for approximately twenty minutes, while Facey remained seated in the
BMW. The recording of the meeting, which was subsequently transcribed,
demonstrates that Gordon and Blackwood discussed the marijuana that Gordon
was seeking to smuggle into Florida. Blackwood stated that he had been advised
by his Jamaican contacts that Gordon had some “cheese,” and that the Jamaicans
3
had asked Blackwood whether he could take it. R1-106, Exh. 1 at 7.1 Gordon
asked Blackwood “what kind of market” he had for such a product and Blackwood
advised that the market was very good. Id. at 7. Blackwood inquired whether
Gordon’s product was “high grade,” and Gordon stated that it was. Id. at 14.
Blackwood stated that he was not prepared to “do anything today,” but that he just
wanted to “see” Gordon, to “talk to [him],” and to “let [him] meet [Blackwood’s]
driver,” Facey.2 Id. at 15. He advised that Facey was a “good friend,” and
indicated that when Gordon was ready to move forward with the transaction
Blackwood could instruct Facey to contact him and he would “know what to do.”
Id. at 15-16. Blackwood also asked Gordon how soon he could have the product,
because he “need[ed] to move it by next weekend.” Id. at 18.
Approximately 21 minutes into the meeting, Facey entered the minivan and
joined Gordon and Blackwood in conversation. After a short introduction, the
conversation shifted to the marijuana. Blackwood said “[i]f you give me a
container load or truck load then I’ll be responsible for that,” and Facey stated: “I
1
Gordon, the Jamaican informant, testified at trial that “cheese” referred to marijuana.
See R4 at 188. He also testified that the Jamaican dealers used a number of slang words–such as
“Reggae Boys,” “bush” and “fish”–to refer to marijuana. Id. Clyde Parry, the DEA officer who
oversaw this investigation, confirmed that drug traffickers frequently speak in coded words in
discussing illicit drugs.
2
Gordon later testified that at the 3 May meeting Facey had been introduced to him as
Blackwood’s “driver.” See R5 at 35.
4
will take the green [unintelligible].” Id. at 29. Blackwood then reiterated the
purpose of the introduction: “I brought this man here. So when . . . [m]e send him
down here . . . [y]ou know exactly who you are going to see.” Id. at 35-36.
Blackwood stated to Gordon that Facey was flexible, because he was in the area.
Facey asked Gordon, “[w]hat gonna happen when [lengthy untelligible]?” Id. at
39-40. After Blackwood suggested that he would await Gordon’s getting back in
touch with them, Facey exited the van and left the meeting, while Gordon and
Blackwood remained in the van for further conversation. Id. at 40-41.
Subsequent to this meeting, Blackwood provided Gordon with the fuel
money for the boat trip. On 18 June 2004, Gordon transported by boat
approximately 668 pounds of marijuana from Jamaica to the United States. After
doing so, Gordon placed a phone call to Facey on 8 July 2004; this conversation
was also recorded and admitted into evidence. In that conversation Gordon
indicated that he had the “fish” and that he was going to “fix it up nice” prior to
giving it to Facey. R1-106, Exh. 2 at 2. Gordon indicated that the item was going
to be “separate[d]” into “big white sugar bags,” and that he was planning on
getting it out the next day. Id. In response, Facey stated: “Okay. I’m definitely
[going to] have to make preparations.” Id. They agreed to communicate the
following day, and Facey stated, “[j]ust give me time to go get the proper things,
5
the accommodations[,] and then get back in touch with you.” Id. at 3.
The next day, the two again spoke by phone, and Facey indicated that he was
awaiting word on “what kind of big van to get.” R1, Doc. 130, Gov. Exh. 13B at
2. Facey stated that he also wanted to ascertain from Gordon “what time frame [he
was] looking for,” and Gordon indicated that he would call Tampa to find out. Id.After this conversation, Facey rented a cargo van under the name of Robert
Scarlette. The van was delivered to Gordon.
On 13 July 2004, Gordon, with the assistance of DEA Officer Parry and
other DEA agents, loaded the van with marijuana and drove it to an undercover
warehouse. Gordon arranged to meet Facey across the street. Once Gordon
arrived, Gordon and Facey walked across the street to the warehouse. Facey
observed the marijuana in the van, and was apparently upset at the way that
marijuana had been packaged; Facey stated, “[i]t can’t work like this now.” R5 at
38. Gordon had been instructed by the DEA to tell Facey that the van keys were
on a shelf in the warehouse. When Facey went to look for the keys, he was
arrested. After being read his Miranda3 rights, Facey waived his rights and stated
to DEA Officer Parry that he had been planning on transporting a van load of
marijuana. Subsequently, however, Facey modified that statement and indicated
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
6
that he had only been planning on picking up and transporting a load of fish. R4 at
78-79.
After his arrest, Facey was charged with one count of conspiracy to possess
with intent to distribute 100 kilograms or more of marijuana, in violation of 21
U.S.C. §§ 841(a)(1)(B) and 846, and one count of attempted possession with intent
to distribute 100 or more kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1)(B) and 846. A jury trial was held in February 2006. The jury
convicted Facey of the drug conspiracy count, but acquitted him of the attempted
possession count. Facey then moved, pursuant to Rule 29(c) of the Federal Rules
of Criminal Procedure, for a judgment of acquittal on the drug conspiracy charge,
arguing that there was insufficient evidence to support his conviction on that count.
The district court denied his motion, and Facey was sentenced to 75 months of
imprisonment and five years of supervised release.
On appeal, Facey makes two arguments. First, he contends that there was
insufficient evidence to support his conviction on the drug conspiracy count, and
that, therefore, the district court erred in denying his Rule 29 motion for acquittal.
Second, he argues that the transcripts of the recorded conversations that took place
during the course of this smuggling operation should not have been provided to the
jury without additional safeguards, and that the court’s doing so caused him
7
prejudice. We address each of these contentions in turn.
II. DISCUSSION
A. Facey’s Motion For Judgment of Acquittal / Sufficiency of The Evidence
“We review the denial of a defendant’s motion for acquittal de novo.”
United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994) (citations
omitted). In considering the sufficiency of the evidence, we view all of the
evidence “in the light most favorable to the government, with all inferences and
credibility choices drawn in the government’s favor. United States v. LeCroy, 441
F.3d 914, 924 (11th Cir. 2006). We “cannot reverse a conviction for insufficiency
of the evidence unless . . . we conclude that no reasonable jury could find proof
beyond a reasonable doubt.” United States v. Jones, 913 F.2d 1552, 1557 (11th
Cir. 1990) (citation omitted). We keep in mind that “[i]t is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except guilt, provided that a reasonable trier of
fact could find that the evidence established guilt beyond a reasonable doubt.”
United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994) (citations omitted).
A conspiracy is “an agreement to commit an unlawful act.” United States v.
Toler, 144 F.3d 1423, 1425 (11th Cir. 1998) (citation and internal quotations
omitted). In order to support a conviction for a drug conspiracy pursuant to 21
8
U.S.C. §§ 841 and 846, the government must prove beyond a reasonable doubt: (1)
that an illegal agreement existed to possess with the intent to distribute illegal
drugs; (2) that the defendant knew of the agreement; and (3) that the defendant
knowingly and voluntarily joined in, or participated in, the agreement. United
States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002) (per curiam). Once the
drug conspiracy has been shown to exist, “a defendant can be convicted even if his
or her participation in the scheme is ‘slight’ by comparison to the actions of other
co-conspirators.” Toler, 144 F.3d at 1428. We have stated, however, that mere
presence at the scene of the crime will not support a drug conspiracy conviction;
the government must establish, by direct or circumstantial evidence, the
defendant’s “knowing participation” in the conspiracy. United States v. Villegas,
911 F.2d 623, 627-28 (11th Cir. 1990).
In this case, it is undisputed that a conspiracy existed to import approximately
648 pounds of marijuana from Jamaica. Rather, Facey’s appeal hinges on the latter
requirements of a conspiracy charge, that is, his “knowing participation” in the
conspiracy. See id. First, Facey contends that his presence at the 3 May 2004
meeting between Blackwood and Gordon–in which the trafficking operation was
discussed at length–was not enough to prove beyond a reasonable doubt that he
“knowingly participated” in the drug conspiracy, because he said very little during
9
the meeting and was not present for a large portion of the discussion. Moreover,
Facey contends that none of the subsequent phone calls between Gordon and Facey
demonstrate his awareness of, or his knowing participation in, the drug conspiracy.
Facey maintains that he was wholly unaware of the contents of the van when he
coordinated the meeting with Gordon on 13 July, and that he thought he was
transporting fish in the rented cargo van. Accordingly, Facey contends that his
Rule 29 motion for acquittal should have been granted.
We disagree. First, with respect to the 3 May meeting at the shopping mall,
evidence was presented that tended to establish Facey’s knowing participation in
the marijuana smuggling operation. Although Facey was not present for the
entirety of the conversation in the minivan, Blackwood made clear at the outset
that one of the purposes of the meeting was to “let you meet my driver,” that is,
Facey, so that when Gordon was ready to move forward with the transaction
Blackwood could instruct Facey to contact Gordon and Facey would “know what
to do.” R1-106, Exh.1 at 15-16.
After Facey entered the minivan, the three further discussed the marijuana
that was being brought in from Jamaica, referring to it as “Reggae Boy,” which
Gordon’s subsequent testimony established was a slang term for marijuana.
Blackwood stated–in Facey’s presence–that if Gordon gave him “a container load
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or truck load then [Blackwood would] be responsible for that,” to which Facey
interjected: “I will take the green [unintelligible].” R1-106, Exh.1 at 29.
Blackwood also reiterated the purpose of the introduction, stating that he had
brought Facey to meet Gordon so that when the time came to move the marijuana,
Gordon would “know exactly who you are going to see.” Id. at 35-36. Before
leaving the meeting, Facey asked Gordon what was going to happen, and when.
This evidence suggests that Facey knowingly participated in the drug operation.
Although he was reticent at times during the discussion, Facey’s statements at the
meeting suggest that he knew the purpose of the 3 May meeting, and that he was
willing to take steps to effectuate its purposes.
Moreover, the evidence of the subsequent phone conversations between
Gordon and Facey established that Facey discussed how best to transport Gordon’s
contraband (after Gordon proposed separating it into large sugar bags). Facey also
agreed to make arrangements to secure a van of the appropriate size for Gordon.
Finally, Gordon and DEA Officer Parry both testified– and the video surveillance
tapes confirmed–that at the July 13 rendezvous, when the marijuana-laden van was
ready, Facey arrived at the scheduled time and place, viewed the marijuana in the
van, rearranged it to his satisfaction, and was preparing to retrieve the key to the
van when he was arrested. This evidence certainly could have led a reasonable
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jury to find that Facey knowingly participated in the plan to possess and distribute
marijuana.
On appeal Facey attempts to analogize his case to our line of “innocent
bystander” or “mere presence” cases. In some of those cases, we have reversed
drug conspiracy convictions because the evidence failed to establish beyond a
reasonable doubt either that the defendant knew that drugs were involved in a
particular transaction, see Charles, 313 F.3d at 1284-85; United States v. Sullivan,
763 F.2d 1215, 1219 (11th Cir. 1985), or that the defendant took any steps to
participate in or to further the drug conspiracy. See Toler, 144 F.3d at 1433-34.
We find, however, that Facey’s case is closer to United States v. Lyons, 53 F.3d
1198 (11th Cir. 1995). In Lyons, the defendant was present at an initial meeting in
which an undercover agent discussed purchasing crack cocaine from a co-
conspirator; the record reflected that the defendant “was well aware of the nature of
the transaction taking place,” and the co-conspirator made no effort to conceal the
nature of the exchange from her. Id. at 1200. Subsequent to that meeting, the
defendant in Lyons had traveled to the crack house with her co-conspirator to
procure the crack cocaine, and had been present when the crack cocaine was sold
to the agent on two separate occasions. Id. at 1200-01. The defendant argued that
she had merely been present; that she had not negotiated about the drug prices with
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the agent; and that she had “contributed nothing to . . . [the] criminal venture.”
Id. at 1201.
We disagreed, and affirmed her conviction. First, we noted that while the
defendant had been present, and that “mere presence” was not enough, presence at
drug trafficking transactions “raise[d] a permissible inference of participation in
the drug conspiracy.” Id. at 1201; accord United States v. McDowell, 250 F.3d
1354, 1365 (11th Cir. 2001) (stating that “presence [] is a probative factor which
the jury may consider in determining whether a defendant was a knowing and
intentional participant in a criminal scheme”). Second, we noted that the defendant
had been repeatedly present at these crack-dealing transactions, and that the co-
conspirator had made no effort to hide the drugs from her, or to hide the fact that
she was dealing them. Thus, we stated that it “strain[ed] credulity” that the
defendant was nothing more than a hapless bystander observing these transactions.
Lyons at 1203. In light of these facts, we stated that a jury could have inferred
“not only [that she] knew she was present at a drug deal, but that she intended to
contribute to the conspiratorial objective.” Id. at 1202; see also United States v.
Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc) (“A jury may find
knowledgeable, voluntary participation from presence when the presence is such
that it would be unreasonable for anyone other than a knowledgeable participant to
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be present.”).
Similarly, here we find that Facey’s reliance on the “mere presence” cases is
misplaced. As in Lyons, Facey was not just present at the 3 May meeting between
Blackwood and Gordon, but was “presen[t] under a particular set of
circumstances,” that is, a lengthy discussion about purchasing Gordon’s marijuana
shipment. See Lyons, 53 F.3d at 1201 (quoting Cruz-Valdez, 773 F.2d at 1546).
In addition, as in Lyons, Facey was repeatedly present as the conspiracy moved
forward–coordinating with Gordon not just at the 3 May meeting but also in
subsequent phone calls and at the 13 July rendezvous. And Facey’s co-
conspirators made no effort to hide the nature of the transaction from him; in fact,
they entrusted him with the responsibility of driving a van that had been loaded
with 600 pounds of marijuana. See, e.g., Cruz-Valdez, 773 F.2d at 1547 (noting
that it is unlikely that “in the course of transporting or distributing millions of
dollars of readily marketable marijuana” a smuggler would use “unaffiliated
bystanders”). Under Lyons, the evidence adduced at Facey’s trial was sufficient to
support his conviction for conspiracy beyond a reasonable doubt.
The “mere presence” cases are also inapposite because, as noted previously,
Facey did far more than be “merely present”; in fact, he volunteered to help “take
the green,” R1-106, Exh.1 at 29, he arranged to pick it up in a cargo van (rented in
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someone else’s name), and he seemed comfortable with the contents of the van
when he saw that the van was loaded with marijuana. This evidence was more
than sufficient, taken together, for a jury to infer that he was a knowing participant
in the operation. See, e.g., United States v. Carrazana, 921 F.2d 1557, 1566 (11th
Cir. 1991) (stating, where the defendant “plann[ed] the pickup of a large quantity
of cocaine,” and “execut[ed] the delivery,” that a “jury could presume that [the
defendant] was familiar with [the illegal acts], and infer his knowledge of the
broader, ongoing conspiracy”).
In summary, in light of the evidence presented, a reasonable jury could have
concluded beyond a reasonable doubt that Facey was aware of the nature of the
conspiracy, and that he knowingly participated in it by his conduct.4 Thus the
district court did not err in denying his motion for acquittal.
B. Transcripts of Facey’s Recorded Conversations
Facey also argues that the district court erred in allowing into evidence
transcripts of the taped audio recordings of his conversations concerning the
smuggling operation. Facey’s argument on appeal is not, apparently, that the
4
As to Facey’s argument that he honestly believed that the van only contained a large
shipment of fish, in similar drug conspiracy cases we have stated that a jury is entitled to
disbelieve such protestations of innocence in light of other evidence that would support the
opposite conclusion. Toler, 144 F.3d at 1430. Such evidence was presented here, and thus a
reasonable jury could have found Facey guilty despite Facey’s “fish” defense.
15
district court erred in admitting the transcripts into evidence, but, rather, that once
the transcripts had been admitted, “some safeguards” were needed to ensure that
the jury did not use the transcripts improperly during deliberations. Br. of
Appellant at 27. Specifically, Facey argues that the district court needed to give a
limiting instruction–immediately prior to jury deliberations–to remind the jury that
the transcripts were not to be overly relied upon, and that the transcripts were
intended to be only corroborative of the audio recordings.
In Facey’s case, DEA Officer Parry had prepared a corresponding transcript
of each recorded conversation between the confidential informant Gordon, Facey,
and the other drug traffickers involved this case. At trial, Officer Parry testified
about his method of preparing the transcripts from the audio recordings. He
indicated he had transcribed the recordings himself, and that if there were portions
that were not understandable, he would put the word “unintelligible” in brackets in
the transcription. He also testified that the transcripts were accurate to the best of
his ability, and that they accurately captured both the content and the identification
of the speakers. When the government sought to introduce the transcript of the 3
May meeting into evidence, Facey’s counsel objected. The district court indicated,
consistent with its pre-trial ruling on this issue, that it would overrule Facey’s
objection to the transcripts, subject to a motion to strike the transcripts if the court
16
subsequently determined (in listening to the audio recordings) that they were not
sufficiently accurate.5 The court then gave this limiting instruction to the jury:
I have admitted the transcript for the limited and secondary purpose of
aiding you in following the content of the conversation as you listen to
the tape recording and also aid you in identifying the speakers.
However, you are specifically instructed that whether the transcript
correctly or incorrectly reflects the content of the conversation or the
identity of the speakers is entirely for you to determine based upon
your own evaluation of the testimony you have heard concerning the
preparation of the transcript and from your own examination of the
transcript in relation to your hearing of the tape recording itself as the
primary evidence of its own contents. And, if you should determine
that the transcript is in any respect incorrect or unreliable, you should
disregard it to that extent.
R3 at 78-79.
On the second day of trial, before direct examination of Officer Parry was to
resume, Facey’s counsel renewed–outside of the presence of the jury–his objection
to the government’s transcripts. The court reiterated that the transcripts of Facey’s
conversations could be admitted:
I am going to listen along when the tapes are played in front of the
jury, and if I am satisfied that the transcripts are sufficiently
accurate–they are not going to be a hundred percent. I have never
seen one that’s a hundred percent–but if I am convinced that they are
5
The district court had advised, “We will introduce them into evidence subject to a
motion to strike if when I listen to the tapes I find that they are not accurate enough to be
evidence and that they are only demonstrative. But we will introduce them into evidence at least
as demonstrative exhibits for the jury to be able to follow along with. And then if you think that
they are not accurate enough for the jury to take them back into the jury room, then you can
move to strike them . . . as exhibits. They would still be demonstrative but they wouldn’t go
back into the jury room.” R3 at 9.
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sufficiently accurate and authenticated, then I will let them go back to
the jury room. If not, then they were just demonstrative aids. And I
have already instructed the jury as to their use in that regard.
R4 at 10. The court also advised Facey’s counsel that he was free to cross-examine
Officer Parry about the transcripts and his methods of preparation, in order to cast
doubt on the accuracy of the transcripts. Facey’s counsel did, in fact, cross-
examine Officer Parry, attempting to cast doubt on his methods of transcribing the
tape and his familiarity with Jamaican slang.
Direct examination of Officer Parry then re-commenced. When the
government offered into evidence an audio tape and its accompanying transcript of
a July 2004 telephone conversation between Gordon and Facey, Facey again
objected to the authenticity of the transcript. The court received the transcript with
the same limiting instruction that it had given the jury regarding the earlier
transcripts. This same process repeated itself a number of times, with Facey’s
counsel objecting to the transcripts being admitted and the court permitting them to
be admitted, subject to its earlier limiting instruction to the jury.
Towards the conclusion of the government’s case in chief, the court
observed: “[s]o far, I don’t see any problem with any of the transcripts. I think the
transcripts are among the more accurate transcripts I have ever seen.” R4 at 193.
The jury was subsequently permitted to take the transcripts of the phone
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conversations into the deliberations room, along with the audio recordings.
Although the district court gave the same limiting instruction to the jury prior to its
receiving each individual transcript, no such limiting instruction was given prior to
deliberations.
On appeal, Facey argues that “some safeguards” should have been imposed
prior to giving the transcripts to the jury, such as a limiting instruction
“immediately prior to deliberations.” Br. of Appellant at 27-29. He contends that
the district court’s failure to do so created the risk that the jury overly relied on the
corroborative transcripts rather than the (more accurate) audio recordings, thereby
causing him prejudice. As to the admission of evidence, “[w]e review on an abuse
of discretion standard.” United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.
1990); see also United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976).
We have stated that it is a “well-established” rule that a district court may
permit a corroborative transcript of an audio recording to be admitted and provided
to a jury during deliberations, so as to assist the jury in understanding the original
recording. United States v. Reed, 887 F.2d 1398, 1407 (11th Cir. 1989). In Onori,
our predecessor circuit explained the purpose behind this rule:
The need or desire for transcripts arises generally from two
circumstances. First, portions of a tape may be relatively inaudible.
Second, without the aid of a transcript, it may be difficult to identify
the speakers. In either of these cases, it has been said that it is within
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the discretion of the trial court to allow a transcript to be used by the
jury to assist the jury as it listens to the tape.
We believe that the use of a transcript as a guide is analogous to the
use of expert testimony as a device aiding a jury in understanding
other types of real evidence . . . . They are evidence and, like other
evidence, may be admitted for a limited purpose . . . .
535 F.2d 938, 947-48 (citation and internal quotations omitted). We have further
indicated that when there is a dispute over the accuracy of a transcript, the proper
protocol is for “each side [to] produce its own version of a transcript or its own
version of the disputed portions. In addition, each side may put on evidence
supporting the accuracy of its own version or challenging the accuracy of the other
side’s version.” United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993).
In this case, Facey did not produce his own version of the disputed
transcripts, nor did he cast significant doubt on the accuracy of the government’s
version, other than through a brief cross-examination of Officer Parry. In fact, the
record suggests that the transcripts were accurate reproductions of the recorded
conversations; Officer Parry testified that they were accurate both as to the content
and the identity of the speakers, and the district court found them to be
“among the more accurate transcripts [it] [had] ever seen.” R4 at 193. In addition,
as noted, the district court gave a limiting instruction to the jury–carefully
delineating the limited purpose for which the transcripts were to be used–before
20
admitting each one into evidence. That instruction was wholly congruent with the
reasoning of Onori.
Moreover, on appeal Facey has failed to show how, if at all, the transcripts
were inaccurate; rather, his argument is that the failure to take proper safeguards
with the transcripts could hypothetically have led the jury to misuse them, thereby
causing him prejudice. This contention is not sufficient to warrant a reversal of his
conviction. See, e.g., Reed, 887 F.2d at 1407 (affirming conviction where
defendant “has not questioned the accuracy of the transcripts” but “has asserted
only a general claim that he was prejudiced by the jury’s alleged use of the
transcripts”). In summary, Facey has failed to establish that the district court
abused its discretion in admitting the transcripts and providing them to the jury.
III. CONCLUSION
Facey appealed his drug conspiracy conviction pursuant to 21 U.S.C. §§ 846and 848, contending: (1) that there was insufficient evidence to support his drug
conspiracy conviction and that therefore the district court erred in denying his
motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure
29(c); and (2) that the district court erred in submitting transcripts of recorded
conversations to the jury without using additional safeguards to ensure that they
were used for a limited purpose. Upon careful review of the record, we conclude
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that there was ample evidence from which a reasonable jury could have found
Facey guilty beyond a reasonable doubt on the drug conspiracy conviction, and
that therefore the district court acted properly in denying Facey’s Rule 29 motion.
We also find no evidence that the district court abused its discretion in admitting
the transcripts of Facey’s recorded conversations and in providing them to the jury
with a limiting instruction. Accordingly, Facey’s conviction is AFFIRMED.
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