United States v. Omoro Crusoe , 282 F. App'x 506 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 07-2804
__________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Omoro S. Crusoe, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: March 11, 2008
Filed: June 30, 2008
___________
Before MURPHY, ARNOLD and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
A jury convicted Omoro S. Crusoe on two counts of distributing heroin in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(c). He appeals, alleging insufficient
evidence and the erroneous admission of partially inaudible tape recordings. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
In November 2003, Crusoe was living in a halfway house where he met C.J.
Morgan. C.J. walked away from the house; he was arrested and sent to jail for 60
days. While in jail and at the house, C.J. allowed his younger brother, Levi, to use his
cell phone.
Crusoe was released from the halfway house before C.J. returned from his
walk-away. Shortly after his release, Crusoe called C.J.’s cell phone but reached Levi.
Crusoe and Levi engaged in numerous transactions involving marijuana, cocaine and
heroin, until July 7, 2004.
In late February 2004, C.J. offered to cooperate with law enforcement, for
money and because Levi was becoming more heavily involved with heroin. Greg
Brugman of the Iowa Department of Narcotics Enforcement was assigned to work
with a federal Drug Enforcement Agency (DEA) task force. Brugman worked with
C.J. to make controlled buys from Crusoe.
On March 22, 2004, C.J. and Crusoe agreed to meet. Brugman, working
undercover, picked up C.J. at the halfway house. Other agents were providing
surveillance. C.J. was searched for contraband and provided cash for the buy. A
transmitter was placed in his pocket. Crusoe and C.J. later met at a mall, then moved
into a restroom. The transmitter did not work through the restroom walls during the
actual exchange of drugs for money. After C.J. left the mall, he returned to
Brugman’s car, handing over unused money and the heroin he purchased. He was
searched for contraband; none was found.
On March 30, 2004, in a similar transaction, Crusoe sold C.J. drugs. Brugman
drove C.J. to the same mall to meet Crusoe. Again, the transmitter did not work from
the restroom where the exchange occurred. This time C.J. gave all the DEA money
to Crusoe. After the buy, C.J. gave Brugman the drugs he had purchased and was
searched for other contraband. None was found.
Crusoe alleges there was insufficient evidence to support his convictions. The
standard of review is de novo when determining the sufficiency of the evidence for
a jury verdict. United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir. 2007). The
evidence is viewed in the light most favorable to the government. Id. A jury verdict
-2-
will be affirmed if there is evidence to convince a reasonable jury of guilt beyond a
reasonable doubt. Id.
First, Crusoe maintains that Brugman, at trial, failed to characterize C.J. as a
drug dealer. Brugman testified he would characterize C.J. not as a “drug dealer,” but
only as one who “dealt drugs to support his habit.” Crusoe says this distinction was
crucial to his defense because it would show C.J.’s true status to the jury. Crusoe
asserts that both Brugman and the federal prosecutor kept this fact from the jury.
Crusoe alleges the prosecutor knew this testimony to be untrue but “stood by
passively” while the case agent gave misleading or false testimony. To the contrary,
the prosecutor called C.J. a “drug dealer” in his opening statement and closing
argument. C.J. admitted at Crusoe’s trial that he had sold heroin in the past. There
was no prosecutorial misconduct simply because the DEA agent would not “agree”
to an unqualified characterization of C.J. as a drug dealer. Furthermore, Brugman’s
opinion was not false testimony, only an opinion for the jury to evaluate. See United
States v. Kirkie, 261 F.3d 761, 768 (8th Cir. 2001) (witness credibility is within the
province of the jury).
Second, over Crusoe’s objection, the district court1 admitted the partially
inaudible tapes of the controlled buys. Various parts of C.J.’s testimony were
corroborated by audio tapes, photographs, and testimony of agents who watched the
transactions before and after the two entered the restroom.
The admission of a tape recording is reviewed for an abuse of discretion.
United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996) (quoting United States
v. Martinez, 951 F.2d 887, 888 (8th Cir. 1991). The case of United States v.
1
The Honorable Linda Reade, Chief United States District Judge for the
Northern District of Iowa.
-3-
McMillan, 508 F.2d 101, 104 (8th Cir. 1974), governs the admissibility of tape
recordings. It lists seven foundational requirements:
(1) The recording device was capable of taking the conversation
now offered in evidence.
(2) The operator of the device was competent to operate the
device.
(3) The recording is authentic and correct.
(4) Changes, additions or deletions have not been made in the
recording.
(5) The recording has been preserved in a manner that is shown to
the court.
(6) That the speakers are identified.
(7) The conversation elicited was made voluntarily and in good
faith, without any kind of inducement.
Crusoe challenges the recordings on the basis of requirements (1) and (6). The
fact that the conversation was recorded satisfies requirement (1). See United States
v. McGowan, 706 F.2d 863, 865 (8th Cir. 1983). As for requirement (6), C.J.
identified his own voice and Crusoe’s voice. See United States v. Wells, 347 F.3d
280, 288 (8th Cir. 2003).
Finally, Crusoe challenges the recordings because they were partially inaudible.
The key is to determine, whether in light of the purposes for which the tapes are
offered, they are so inaudible as to make the whole recording untrustworthy. Webster,
84 F.3d at 1064. If a listener can understand essential parts of the conversations, the
tapes may be admitted. United States v. Bell, 651 F.2d 1255, 1259 (8th Cir. 1981).
The government claims the tapes were admitted for three purposes: (1) to rebut
Crusoe’s position that C.J. tampered with them, (2) to corroborate C.J.’s testimony
about the second purchase, and (3) to rebut Crusoe’s claim that C.J. sold heroin to
-4-
him. The portions of the recordings during the actual exchanges of money for drugs
are inaudible. However, the conversations before and after the exchanges provide
insight into the relationship between Crusoe and C.J. The court did not abuse its
discretion in admitting the audio tapes.
The judgment is affirmed.
_____________________________
-5-