                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                        Rodney CRAIG, Specialist
                          U.S. Army, Appellant

                               No. 03-0321

                         Crim. App. No. 9900815


       United States Court of Appeals for the Armed Forces

                        Argued December 10, 2003

                         Decided August 3, 2004

    GIERKE, J., delivered the opinion of the Court, in which
    CRAWFORD, C.J., EFFRON, BAKER, and ERDMANN, JJ., joined.

                                  Counsel

For Appellant: Captain Gregory M. Kelch (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major
Allyson G. Lambert (on brief); Lieutenant Colonel E. Allen
Chandler, Jr. and Major Imogene M. Jamison.

For Appellee: Captain Timothy D. Litka (argued); Colonel Lauren
B. Leeker, Lieutenant Colonel Margaret B. Baines, and Major
Theresa A. Gallagher (on brief); Captain Tami L. Dillahunt.




Military Judge:    T. E. Dixon




  This opinion is subject to editorial correction before final publication.
United States v. Craig, No. 03-0321/AR


       Judge GIERKE delivered the opinion of the Court.

       Appellant was involved in a drug distribution scheme.         A

law enforcement agent recorded a telephone conversation in which

Appellant made inculpatory statements to one of his co-

conspirators.    At trial, because of the recording’s poor

quality, the military judge allowed the Government to give the

members a transcript of the conversation.           This appeal concerns

whether the military judge properly admitted that transcript.

We conclude that the military judge did not abuse his discretion

when he permitted the members to receive a substantially

accurate transcript of the poor-quality recording.

                                 Background

       Appellant faced trial for two specifications of conspiracy

to possess and distribute marijuana and one specification of

possessing marijuana in violation of Articles 81 and 112a of the

Uniform Code of Military Justice.1           The members found him guilty

of one specification of conspiring to possess and distribute

marijuana and not guilty of the remaining two specifications.

The members sentenced Appellant to confinement for two years, a

bad-conduct discharge, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.           The convening authority

approved the sentence as adjudged.           The Army Court of Criminal




1
    10 U.S.C. §§ 881, 912a (2000).

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United States v. Craig, No. 03-0321/AR


Appeals summarily affirmed the findings and sentence and we

granted review.

                                    Facts

        Appellant was charged with involvement in two separate

conspiracies to possess and distribute drugs.          The first — of

which he was acquitted — allegedly occurred on February 13,

1999.    Private First Class (PFC) Roderick G. Pearsall testified

that Appellant asked him to accompany Appellant on a trip from

Fort Hood to El Paso, Texas, to “pick up marijuana.”          PFC

Pearsall agreed to do so for $200.           When the two arrived in El

Paso, they met Appellant’s connection, who went by the name of

“Bam.”     Once Appellant obtained marijuana from Bam, he and PFC

Pearsall drove back to Fort Hood, where Appellant left PFC

Pearsall before continuing to Louisiana with the marijuana.

        The second conspiracy — of which Appellant was convicted —

began on March 25, 1999.       Appellant was in an extra-duty status,

making it difficult for him to go on the 1,200-mile round trip

between Fort Hood and El Paso.           So he asked PFC Pearsall to

travel to El Paso on his behalf to pick up more marijuana from

Bam.    PFC Pearsall agreed and asked PFC Demetrius A. Austin to

go with him.    That night, the two soldiers drove to El Paso in

PFC Austin’s car, arriving there the next morning.          Once in El

Paso, PFC Pearsall called Appellant, who gave him Bam’s pager

number.    After PFC Pearsall and Bam made an initial telephone



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United States v. Craig, No. 03-0321/AR


contact, Bam met the two soldiers who followed him to a house

and waited outside.      When Bam left the house and returned to PFC

Austin’s car, he put two duffel bags in the trunk.

     During their return trip to Fort Hood, the two soldiers

were stopped at an immigration checkpoint in Sierra Blanca,

Texas.   After PFC Austin consented to a search of his car,

border patrol agents found approximately 51 pounds of marijuana

in the two duffel bags in his trunk.         The border patrol agents

arrested the two soldiers and notified the Drug Enforcement

Agency (DEA).    During each of their separate interrogations, the

two soldiers implicated Appellant in the drug-running scheme.

After being denied permission to arrange a controlled delivery

of the marijuana to Appellant, DEA Agent Rene R. Perez decided

to have PFC Pearsall make a recorded telephone call to Appellant

to confirm his involvement.       PFC Pearsall then made two

telephone calls to Appellant, during which PFC Pearsall told

Appellant that PFC Austin’s car had broken down during their

return to Fort Hood.

     The first conversation lasted approximately five minutes.

During this conversation, PFC Pearsall asked, “So you just want

me to bring the herb to your house?”         Appellant replied, “Yeah.”

The second conversation lasted approximately three minutes.

During this conversation, PFC Pearsall asked Appellant, “[W]hat

are we hauling anyway?”      Appellant replied, “I guess it’s weed.



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United States v. Craig, No. 03-0321/AR


It’s supposed to be weed.”       Appellant then estimated that the

two bags contained forty pounds of marijuana.

       At Appellant’s trial, the Government’s first witness was

DEA Agent Perez.     His testimony established that Prosecution

Exhibit 13 was the microcassette tape on which he recorded the

conversations.     The Government then called PFC Pearsall, whose

testimony included a description of his telephone conversations

with Appellant and the method by which they were taped.      During

PFC Pearsall’s testimony, the military judge called an Article

39(a)2 session at which he admitted the tape into evidence over

defense objection.     After the members returned to the courtroom,

the trial counsel began to play the tape.      At some point, the

military judge directed the trial counsel to stop the tape and

stated, “The court’s having difficulty understanding the tape.”

When the military judge asked whether the members could

understand the tape, the president replied, “Only partially.”

The military judge then called a recess to allow the Government

to obtain a better sound system over which to play the tape.

During the recess, a member of the legal office’s staff who was

attempting to help accidentally recorded over a portion of the

second telephone conversation.

       Another Article 39(a) session followed the recess, during

which the military judge commented, “The court cannot understand


2
    Uniform Code of Military Justice, 10 U.S.C. § 839(a) (2000).

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United States v. Craig, No. 03-0321/AR


the tape, it’s not audible, and although it’s been admitted at

this point in time I’ve determined that it would lead to

confusion of the members and would otherwise be unhelpful . . .

.”   The military judge concluded, “[T]herefore, I’m not going to

allow you to play the tape at this point in time.      So to the

extent that the defense has objected to the tape, I’m going to

sustain that objection based on that rationale.”      The military

judge and the parties nevertheless continued to refer to the

tape as Prosecution Exhibit 13 and continued to treat it as

evidence that had been admitted, indicating that the military

judge intended to sustain an objection to playing the tape in

open court rather than to the tape’s admissibility.

      During this Article 39(a) session, the trial counsel also

offered a transcript of the tape for admission into evidence.

At the military judge’s request, the trial counsel again played

the tape.    After the defense objected to the transcript’s

admissibility, the military judge declared another recess during

which he listened to the tape and reviewed the transcript.

Following the recess, the military judge ruled that the

Government had not presented an adequate foundation for the

transcript’s admissibility.       But the military judge allowed the

trial counsel to try to lay a proper foundation for the

transcript’s admission.




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United States v. Craig, No. 03-0321/AR


     The Government then called to the stand the court reporter

who prepared the transcript.       She testified that she listened to

the tape over headphones, which helped her to understand the

recorded conversation.      She also testified that the transcript

she prepared was a fair and accurate account of the tape.      Over

defense objection, the military judge admitted the transcript

into evidence.     He ruled that the transcript “would be helpful

to” the members “in understanding the tape.”      He then asked the

defense counsel to propose a limiting instruction and declared a

recess.   The record does not expressly indicate whether the

defense counsel drafted such an instruction.      But following the

recess, the military judge gave the members a limiting

instruction without defense objection.       This instruction stated

that the transcript was “prepared to assist, if at all, in your

understanding of the content of the tape.      The content of the

tape is the evidence.      The transcript is a tool that the court

has admitted for the limited purpose in assisting you to

understand the tape.”      The military judge also cautioned the

members that the transcript “is not a substitute for the tape.”

The military judge then instructed the members to “consider the

clarity of the tape in determining what the weight is that you

will give to the tape.”      He concluded by advising the members

that “the tape has been recorded over in at least one place” and




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United States v. Craig, No. 03-0321/AR


telling them to “take that into account in determining what

weight to give the tape.”

     PFC Pearsall then returned to the stand.          The trial counsel

gave each member a copy of the transcript and then played the

entire tape.    PFC Pearsall testified that with the exception of

the short erasure, the tape was an accurate account of his

conversations with Appellant.        He then identified the voices —

which the transcript simply labels “V1” and “V2” — as

Appellant’s and his.      Following the direct examination, the

trial counsel collected the copies of the transcript from the

members.

     The Government later called to the stand a squad leader

from Appellant’s company who knew both Appellant and PFC

Pearsall.    The trial counsel then played approximately thirty to

forty-five seconds of the tape.          She asked the witness if he was

able to hear the tape.      He replied, “Yes I was.”     She asked,

“[C]ould you understand the voices that you heard?”         He replied,

“Yes I do.”    He then identified the voices as belonging to

Appellant and PFC Pearsall.

     The Government’s case in chief also included testimony from

an Army Criminal Investigation Command (CID) agent who

interrogated Appellant.      The agent testified that Appellant

initially denied any involvement with or knowledge of PFC

Pearsall’s and PFC Austin’s trip to El Paso.         But when



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United States v. Craig, No. 03-0321/AR


confronted with information about the recorded telephone calls,

Appellant admitted that either PFC Pearsall or PFC Austin had

called him.    The CID agent also testified that Appellant

admitted that he had transported drugs from El Paso to Baton

Rouge, Louisiana, and identified his El Paso drug connection as

Bam.   The Government also presented testimony from PFC

Pearsall’s sister that Appellant repeatedly called her and

admitted that he had asked PFC Pearsall to go to El Paso on his

behalf.   The Government’s final witness was PFC Austin, who also

testified about Appellant’s involvement in the drug distribution

scheme and the recorded telephone calls between PFC Pearsall and

Appellant.

       Appellant took the stand during the defense’s case in

chief.    In addition to denying any involvement in drug

distribution, he testified that the Government had earlier

produced a different version of the transcript of the telephone

conversations identifying him and PFC Pearsall as the two

speakers.    He also alleged that different versions of the

audiotapes existed and that the version played in court was

different from those he previously heard.    In response to a

government objection that Appellant was mischaracterizing the

evidence, the military judge told the members that the

transcript of the tape would be returned to them and “[y]ou will

make your own assessment of the tape and the transcript.”



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United States v. Craig, No. 03-0321/AR


      When the members retired to deliberate, the military judge

provided them with all of the admitted exhibits, including the

transcript and the tape, as well as a tape recorder on which to

play the tape.     The members then deliberated for approximately

one-and-a-half hours and found Appellant not guilty of the two

specifications alleging his involvement in the first trip to El

Paso, but guilty of conspiring with PFC Pearsall and PFC Austin

in connection with their trip to El Paso.

                                 Discussion

      During its first term, our Court addressed the

admissibility of a transcript of an audio recording.       Our

opinion in United States v. Jewson noted, “Historically, courts

have been hostile — unreasonably so, we believe — to the

admission of written recordings of testimony or conversations.”3

We stated that it would be irrational to exclude an “adequately

authenticated transcript.”4       In our view, such exclusion is

particularly “inappropriate in the military justice scene,”

where “exigencies of the service imperatively require extensive

resort to recordings of interviews held in the field, and to

subsequent typewritten transcriptions made at the interviewing




3
  United States v. Jewson, 1 C.M.A. 652, 658, 5 C.M.R. 80, 86
(1952).
4
    Id. at 659, 5 C.M.R. at 87.



                                     10
United States v. Craig, No. 03-0321/AR


officer’s headquarters.”5       The Court observed that “common sense

dictates the propriety and entire safety of the use of such

transcriptions in evidence.”6

      We continue to believe that, subject to foundational

requirements and appropriate procedural safeguards, a transcript

of an audio recording may be used at courts-martial.

      As the United States Court of Appeals for the Ninth Circuit

observed in its 1975 United States v. Turner opinion, “It is

well recognized that accurate typewritten transcripts of sound

recordings, used contemporaneously with the introduction of the

recordings into evidence, are admissible to assist the jury in

following the recordings while they are being played.”7       We agree

with the Ninth Circuit’s guidance that the “admission of such

transcripts as an aid in listening to tape recordings, like the

use of photographs, drawings, maps, and mechanical models which

assist understanding, is a matter committed to the sound

discretion of the trial court.”8



5
    Id.
6
    Id.
7
   United States v. Turner, 528 F.2d 143, 167 (9th Cir. 1975).
Accord United States v. Young, 105 F.3d 1, 10 (1st Cir. 1997)
(“In this circuit we have long approved the use of properly
authenticated transcripts of tape recordings for the purpose of
helping the jury listen to and understand the recordings
themselves.”).
8
    Turner, 528 F.2d at 167 (citation omitted).

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United States v. Craig, No. 03-0321/AR


       In our 1992 decision in United States v. Banks, we provided

guidance to trial judges dealing with audiovisual evidence.9        We

encouraged the use of transcripts “as an aid in presenting

evidence with audio dialogue” and suggested that “the military

judge indicate if he or she has viewed or listened to the

proffered evidence prior to ruling on its admissibility.”10    We

also noted that when such a tape’s “audio is poor, a transcript

could assist both the trier of fact and appellate courts.”11    The

admission of the transcript in this case was consistent with

Jewson, Turner, and Banks.

       The military judge properly admitted the tape itself.   We

generally agree with the Ohio Supreme Court that, once a proper

foundation is laid, “recorded tapes of actual events, such as

street drug sales, should be admissible despite audibility

problems, background noises, or the lack of crystal clear

conversations, since they directly portray what happened.”12

However, this rule is subject to the caveat that a recording is

not admissible if “the unintelligible portions are so

substantial as to render the recording as a whole




9
     36 M.J. 150, 169 n.23 (C.M.A. 1992).
10
     Id.
11
     Id.
12
     State v. Coleman, 707 N.E.2d 476, 488 (Ohio 1999).



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United States v. Craig, No. 03-0321/AR


untrustworthy.”13    If only a part of the tape is inaudible, the

military judge must determine whether those portions are so

substantial as to render the entire tape untrustworthy and thus

inadmissible.    The military judge should clearly state on the

record which portions of an audiotape are inaudible.

      In this case, at one point the military judge remarked that

the audio tape was “not audible.”         Unfortunately, the military

judge never revisited this comment after listening to the tape

several additional times both in court and in chambers.

Nevertheless, the record makes clear that the tape was not

entirely inaudible.      When the tape was first played in court,

the president indicated that he could “partially” understand it.

The tape was sufficiently clear for PFC Pearsall to identify the

voices on it and vouch for the tape’s accuracy.        Another witness

— a disinterested non-commissioned officer — also testified that

he could both understand and identify the voices on the tape.

      Because the tape itself was admissible, it was appropriate

to provide the members with a “substantially accurate”14


13
     Monroe v. United States, 234 F.2d 49, 55 (D.C. Cir. 1956).
14
   See United States v. Brandon, 363 F.3d 341, 344 (4th Cir.
2004) (holding that a “substantially accurate” transcript of a
recording of a drug transaction was admissible); United States
v. Watson, 594 F.2d 1330, 1336 (10th Cir. 1979) (holding that a
“substantially accurate” transcript of tapes of intercepted
telephone calls was admissible); cf. United States v. Arruza, 26
M.J. 234, 236 (C.M.A. 1988) (holding that a “substantially
verbatim” transcript of Article 32 testimony was admissible
under Military Rule of Evidence 804(b)(1)).

                                     13
United States v. Craig, No. 03-0321/AR


transcript of the tape.      The Ninth Circuit Court of Appeals

recently highlighted four important procedural protections when

the government offers a transcript in a criminal case:        (1) the

trial judge should “review[] the transcript for accuracy”; (2)

the defense counsel should be “allowed to highlight alleged

inaccuracies and to introduce alternative versions”; (3) the

jury should be “instructed that the tape, rather than the

transcript, was evidence”; and (4) the jury should be “allowed

to compare the transcript to the tape and hear counsel’s

arguments as to the meaning of the conversations.”15

     What occurred at Appellant’s trial was not a model for

executing this four-step process.         Nevertheless, we conclude

that each of these four steps, which should guide military

judges in ruling on the admissibility of transcripts, was

sufficiently satisfied to result in the transcript’s

admissibility.

     Regarding the first step, the military judge did review the

transcript for accuracy.       However, he never clearly stated for

the record the results of that review.        He should have stated

what portions of the tape were audible and described the results

of his comparison of those audible portions with the transcript.

In the future, military judges should explicitly announce this

determination for the record.        Nevertheless, we are satisfied

15
   United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir.
2004).

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United States v. Craig, No. 03-0321/AR


that in this case the military judge implicitly made this

determination which he should have explicitly announced.      A

review of the tape and transcript reveals that when the military

judge compared the two, he would have found that while the

transcript is not perfectly verbatim, it is substantially

accurate.16   Additionally, neither at trial nor on appeal has

Appellant identified any substantial inaccuracy in the

transcript.

     The second procedural protection was also satisfied.         The

trial defense counsel had repeated opportunities to challenge

the accuracy of the transcript, and did so at one point — though

his attack was limited to challenging an inconsequential

appearance of the word “where” in the transcript.

     The military judge also solicited from the defense, and

delivered, a cautionary instruction concerning how the members

should use the transcript.       Appellant complains on appeal about

the contents of this instruction, even though it was delivered

without defense objection at trial.

     The military judge’s limiting instruction could have been

more artfully crafted.      As the United States Court of Appeals

for the District of Columbia Circuit has observed:



16
   See Watson, 594 F.2d at 1336 (noting that the appellate
court’s own review of a tape revealed “that the transcripts are
substantially accurate”).



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United States v. Craig, No. 03-0321/AR


      [T]he jury should be instructed that the tape
      recording constitutes evidence of the recorded
      conversations and the transcript is an interpretation
      of the tape. The jury must be instructed that they
      should disregard anything in the transcript that they
      do not hear on the recording itself. Moreover, the
      court must ensure that the transcript is used only in
      conjunction with the tape recording.17

While the military judge’s instruction in this case did not

include all of that guidance, it was sufficient to withstand the

appellate attack in light of the defense’s failure to object at

trial.18

     Finally, the military judge gave the members an opportunity

to compare the tape and the transcript when they deliberated.

Appellate courts have differed over whether transcripts should

be used only as demonstrative exhibits within the courtroom or

should accompany the jurors to the deliberation room.19   We join

the majority of federal courts of appeals in holding that trial

judges have considerable discretion in determining whether to

allow the fact finder to consider such transcripts during




17
   United States v. Holton, 116 F.3d 1536, 1543 (D.C. Cir.
1997).
18
   See United States v. Simpson, 58 M.J. 368, 378 (C.A.A.F.
2003) (holding that any deficiency in instructions “is waived by
defense counsel’s failure to object unless the instructions were
so incomplete as to constitute plain error”); see also Rule for
Courts-Martial 920(f).
19
   See generally State v. Rogan, 640 N.E.2d 535, 545-50 (Ohio
Ct. App. 1994) (and cases cited therein); see also United States
v. Breland, 356 F.3d 787, 794-95 (7th Cir. 2004).

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United States v. Craig, No. 03-0321/AR


deliberations.20    That determination will not be reversed on

appeal absent an abuse of discretion.

      In this case, the military judge properly exercised his

discretion to allow the members to take the transcript to the

deliberation room.     He made clear that he wanted to give the

members an opportunity to compare the tape with the transcript.

Allowing the members to take the tape to the deliberation room

was a reasonable means to accomplish that goal.

                                  Decision

     We affirm the decision of the United States Army Court of

Criminal Appeals.




20
   See, e.g., United States v. Placensia, 352 F.3d 1157, 1165
(8th Cir. 2003); United States v. Ademaj, 170 F.3d 58, 65 (1st
Cir. 1999); Holton, 116 F.3d at 1541-43; United States v. Elder,
90 F.3d 1110, 1130 (6th Cir. 1996); United States v. Crowder, 36
F.3d 691, 697 (7th Cir. 1994); United States v. Rosa, 17 F.3d
1531, 1548 (2d Cir. 1994); United States v. Taghipour, 964 F.2d
908, 910 (9th Cir. 1992); United States v. Costa, 691 F.2d 1358,
1362-63 (11th Cir. 1982).

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