United States v. Parkins , 7 F. App'x 287 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4478
DOUGLAS PARKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Joseph Robert Goodwin, District Judge.
(CR-99-210)
Submitted: March 9, 2001
Decided: April 23, 2001
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
George J. Cosenza, COSENZA, UNDERWOOD & MERRIMAN,
Parkersburg, West Virginia, for Appellant. Rebecca B. Betts, United
States Attorney, Miller A. Bushong III, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PARKINS
OPINION
PER CURIAM:
Douglas Parkins appeals his conviction for conspiracy to distribute
cocaine in violation of 21 U.S.C.A. § 846 (West 1999) and possession
of cocaine with intent to distribute, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999). Finding no error, we affirm.
Law enforcement officers seized from a Federal Express facility a
package containing cocaine addressed to Ray Schneider. After a suc-
cessful controlled delivery of the cocaine to Schneider and his subse-
quent arrest, he agreed to cooperate, consenting to monitoring and
recording of conversations between himself and Parkins.
During one recorded telephone conversation, Parkins agreed to
meet Schneider at a designated area, where authorities conducted
visual and auditory surveillance. Surveillance officers monitored and
attempted to record a conversation that occurred during the meeting
between Parkins and Schneider. However, an equipment malfunction
failed to produce an audible tape of the conversation. Parkins was
arrested and indicted for conspiracy to distribute cocaine and posses-
sion of cocaine with intent to distribute.
During the jury trial, the district court sustained defense counsel’s
objection to the admission into evidence of the inaudible tape of the
conversation between Schneider and Parkins. However, without
objection by defense counsel, the Government presented evidence of
the contents of the conversation through the testimony of Detective
Rick Woodyard and Sargent Steve Verdow, both of whom had moni-
tored and overheard the conversation.
The jury convicted Parkins on both counts. Parkins timely appealed
his conviction, contending the district court’s admission into evidence
of the officers’ testimony as to the content of the conversation they
monitored and recorded between Parkins and Schneider constitutes
plain error, in violation of Rules 801 and 1002 of the Federal Rules
of Evidence.
UNITED STATES v. PARKINS 3
Because defense counsel did not object to the officers’ testimony
regarding the taped conversation at trial, this Court reviews the matter
for plain error. United States v. Olano, 507 U.S. 725, 732-37 (1993);
United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993).
We find the district court did not err in admitting the detectives’
testimony. The best evidence rule does not apply because the testi-
mony of the detectives was offered to prove the content of the conver-
sations rather than the content of the tapes. Fed. R. Evid. 1002; see
United States v. Howard, 953 F.2d 610, 612-13 (11th Cir. 1992)
(holding officer’s testimonial recollection of conversation properly
admitted when no audible recording ever existed); United States v.
Fagan, 821 F.2d 1002, 1008 n.1 (5th Cir. 1987); United States v.
Bourne, 743 F.2d 1026, 1032 (4th Cir. 1984).
Furthermore, given the wealth of other evidence implicating
Parkins, even if admission of the disputed testimony constituted plain
error, we find any such error did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings or Parkins’ sub-
stantial rights.
Accordingly, we affirm Parkins’ conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED