                           In the
 United States Court of Appeals
                For the Seventh Circuit
                        ____________

No. 01-2819
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

CHARLES WOODS,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
          No. 00-CR-10089—Michael M. Mihm, Judge.
                        ____________
     ARGUED JUNE 7, 2002—DECIDED AUGUST 20, 2002
                     ____________


  Before BAUER, POSNER, and RIPPLE, Circuit Judges.
  BAUER, Circuit Judge. Charles Woods was convicted of
distributing narcotics in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). Before sentencing he filed a motion for
a new trial based on newly discovered evidence. The dis-
trict court denied the motion and sentenced Woods to 360
months for each count, to run consecutively. Woods ap-
peals his conviction arguing: (1) the district court improp-
erly admitted certain tape recordings; (2) the admission of
the tape recordings violated his Sixth Amendment right
to confrontation; and (3) that the district court erred in
not granting his motion for a new trial based on newly
discovered evidence. Although a small portion of one of
2                                             No. 01-2819

the recordings was erroneously admitted, we conclude
this minor error does not justify reversal.


                    BACKGROUND
  Charles Woods was the ringleader of a crack distribu-
tion network in Peoria, Illinois. The crimes also involved
Towanda White (Woods’ girlfriend) and Melvin Rogers.
  Beginning in June 1999, the FBI made a series of con-
trolled drug buys from Woods and his associates. The FBI
used confidential informants, Orlando Davis and David
Roberson, to set up the transactions. The conversations
between the informants and the sellers were recorded
by the FBI. We will refer only to the recordings at issue
in this appeal.
  On July 26, 1999, David Roberson contacted Woods us-
ing a pager number. Woods then called Roberson and the
conversation between them was recorded. The FBI posi-
tively identified Woods as the caller. During the call,
Roberson set up a drug purchase at a fast food restau-
rant in Peoria. Roberson was then fitted with a recording
device, given $475 to buy drugs, and driven to the restau-
rant. While at the restaurant Roberson made addition-
al calls, and each time only Roberson’s side of the conver-
sation was recorded by the device on his person. A few
minutes later, Rogers met Roberson at the restaurant
and sold him 9.6 grams of crack for $465.
  On August 9, 1999, Orlando Davis contacted Woods us-
ing the same pager number as that used by Roberson.
Woods returned Davis’ page, and agreed to sell crack to
Davis. The entire conversation was recorded by the FBI.
Woods instructed Davis to page Towanda White and set up
a meeting place. Davis was outfitted with a recording
device and went to a pay phone to page White. White
did not return Davis’ page, so Davis again called Woods,
No. 01-2819                                             3

this time from the pay phone. Only Davis’ side of the
conversation was recorded. Davis then proceeded to a
fast food restaurant where he met with White. White
informed Davis that she did not have the drugs on her
and would need to go get them. White later returned
and sold crack to Davis. While waiting at the restaurant
for White, Davis made some narrative statements about
the surroundings and events (the defense refers to them
as “monologues”).
  On August 6, 1999, Rogers was shot nine times, and
while he was in the hospital on August 9, 1999, Woods
came to visit. Woods made a phone call while in Rogers’
hospital room. Rogers repeated to the jury what he heard
Woods say on the phone.
  Davis, White, and Rogers testified at trial, the govern-
ment was unable to locate Roberson. Davis was a paid
confidential informant; White and Rogers testified against
Woods as part of separate plea agreements.
  During a status call on February 16, 2001, it was dis-
closed that a news reporter had informed the govern-
ment that Rogers had denied, in state court proceedings,
that his shooting had anything to do with drugs. The
defense then began investigating Rogers’ testimony about
the August 9th phone call made by Woods from Rogers’
hospital room. The defense found that hospital policy
limited the total number of visitors for a person who is
a victim of a crime of violence for the entirety of his or
her hospital stay. (The limitation was one clergy member
and four other persons.) Prior to August 9, 2001, Rogers
stated that he was visited by four persons, none of
whom was a clergy member. Based on this information,
Woods argued that Rogers was lying about Woods ever
being in his hospital room.
4                                             No. 01-2819

                       ANALYSIS
  On appeal, Woods claims three errors entitle him to a
new trial. First, Woods challenges the admission of the
recordings of the phone conversations in which only Davis’
and Roberson’s sides were recorded. Second, Woods chal-
lenges Davis’ “monologue” statements in which he de-
scribed the events surrounding the transaction to the
FBI agents listening. (The district court initially admit-
ted the statements on the basis that they provided con-
text. Subsequently, the district court changed that ruling,
admitting the statements as present sense impressions.)
Woods argues that the admission of the taped commen-
tary was erroneous because it violated his Sixth Amend-
ment right to confrontation and because the statements
were hearsay, qualifying under no recognized exception
to the rule. Finally, Woods argues that the newly discov-
ered evidence shows Rogers was lying, and that it could
have been used to impeach Rogers’ testimony. We shall ad-
dress each argument in turn.


A. Sixth Amendment Right to Confrontation
  The government argues that Woods waived or at least
forfeited his Sixth Amendment argument by failing to
make a specific objection to the admission of the tapes.
Waiver precludes review, whereas forfeiture permits re-
view under a plain error standard. United States v. Olano,
507 U.S. 725, 732-34 (1993). Waiver is “the ‘intentional
relinquishment or abandonment of a known right’ ”, while
forfeiture is “the failure to make the timely assertion of
a right”. Id. (citations omitted). Forfeiture occurs by
accident, neglect, or inadvertent failure to timely assert
a right. Id.; United States v. Cooper, 243 F.3d 411, 415-
16 (7th Cir. 2001). Wavier occurs when a defendant or
his attorney manifests an intention or expressly declines
to assert a right. Cooper, 243 F.3d at 415-16. We may
No. 01-2819                                                 5

correct a plain error if it meets three criteria ((1) there
is indeed an error, (2) it is plain, clear or obvious, and (3)
it affects substantial rights), although we still are not re-
quired to “notice” or “correct” it. Olano, 507 U.S. at 732-34;
see also FED. R. CRIM. P. 52(b). Regardless of whether
we find the argument waived or forfeited, there is an
overriding problem with Woods’ confrontation clause ar-
gument; no violation actually occurred.
   At trial, Woods argued that because Roberson did not
testify at trial, the audio tapes were hearsay. The record-
ings of Woods’ phone conversations were not hearsay
and were properly admitted as statements by a party-
opponent. FED. R. EVID. 801(d)(2)(A); United States v.
Hubbard, 22 F.3d 1410, 1417 (7th Cir. 1994). Roberson’s
side of the conversations were admissible either because
they provide context or because they were adopted by
Woods during the course of the conversation. FED. R. EVID.
801 (context); United States v. Gajo, 290 F.3d 922, 929-30
(7th Cir. 2002) (holding statements of an informant may
be admitted as non-hearsay to provide context to a con-
versation) (citing cases); FED. R. EVID. 801(d)(2)(B) (adop-
tive admissions); United States v. Rollins, 862 F.2d 1282,
1296 (7th Cir. 1988). During the discussion and negotia-
tion of the drug purchase, Woods either led or responded
to each of Roberson’s requests and questions about the
time, place, and terms of the transaction. At no time did
Woods contradict Roberson’s comments or questions re-
garding the purchase of drugs or tell Roberson that he
was mistaken or had the wrong number. The context
of the conversation between Woods and Roberson man-
ifested Woods’ intent to adopt Roberson’s statements.
United States v. Allen, 10 F.3d 405, 413-14 (7th Cir. 1993)
(“From the entire context of each conversation (includ-
ing the non-verbal cues the jury could see in the tapes),
along with Allen’s failure to contest any incriminating
statements, the district court and the jury could find that
Allen adopted Joiner’s statements.”). Moreover, the state-
6                                                No. 01-2819

ments are material, probative, and reliable, hence they
would come in under the catchall exception. FED. R. EVID.
807.
  If statements are admissible because they are non-
hearsay, there is no confrontation clause problem. Martinez
v. McCaughtry, 951 F.2d 130, 133-34 (7th Cir. 1991); see
also Tennessee v. Street, 471 U.S. 409, 414 (1990). If
the statements are Woods’ own—either by virtue of the
fact he made or adopted them—there is no hearsay and
no confrontation problem because the witness against
the defendant is himself. See Allen, 10 F.3d at 413-14;
Rollins, 862 F.2d at 1297.
  In addition, the issues that Woods sought to cross-ex-
amine Roberson on (his motive and reasons for testifying)
were already before the jury. The jury knew Roberson
was a paid informant and cross-examination on this point
would have added nothing. Cf. United States v. Scott,
145 F.3d 878, 888 (7th Cir. 1998) (“So long as cross-exam-
ination elicits adequate information to allow a jury to as-
sess a witness’s credibility, motives, or possible bias, the
Sixth Amendment is not compromised.”). The tape record-
ings of Woods’ voice was the evidence against him, not
testimony by Roberson pointing the finger at Woods. Cf.
United States v. Martin, 287 F.3d 609, 621 (7th Cir.
2002), petitions for cert. filed (U.S. Jul 16, 17, & 18, 2002)
(Nos. 02-109, 02-5475, & 02-5442).
  Moreover, Woods did not dispute the substance of
the conversations. Rather, he disputed whether he partici-
pated in the conversations at all. At trial, an FBI agent
identified Woods’ voice on the tapes, and Woods had an
opportunity to cross-examine the agent.


B. Admission of Hearsay Statements
 Since the tape recordings of Woods’ conversations with
Roberson are not hearsay, that leaves only the narrative
No. 01-2819                                                7

statements by Davis to consider.1 (Davis’ side of the
phone conversations are not hearsay for the same rea-
sons Roberson’s are not; they are adoptive admissions
or come in under the catchall exception. FED. R. EVID.
801(d)(2)(B), 807.)
   Again, the government asserts that Woods has waived
or forfeited the hearsay argument. From the transcripts,
the motion in limine, and the motion for a new trial, it
appears that Woods made a series of hearsay objections
to the various recordings introduced by the government.
Therefore, we review for an abuse of discretion. Gajo,
290 F.3d at 926. However, a guilty verdict will only be
reversed if the evidentiary error had “a substantial and
injurious effect or influence on the jury’s verdict.” United
States v. Hanson, 994 F.2d 403, 407 (7th Cir. 1993) (quota-
tion omitted). The defendant bears the burden of estab-
lishing the error had a substantial and injurious effect on
the verdict. Id.
  The district court admitted Davis’ recorded narrative
under the present sense impression exception. Under
Federal Rule of Evidence 803, “[a] statement describing
or explaining an event or condition made while the
declarant was perceiving the event or condition, or immedi-
ately thereafter” is admissible regardless of whether
the declarant is available to testify at trial. In determin-
ing whether a statement meets the conditions of Rule
803, we have sought to determine, in addition to the
predicates listed in the rule, if the statement was made
without “calculated narration”. United States v. Ruiz,
249 F.3d 643, 646-47 (7th Cir. 2001). The calculated
narration consideration is based on the rule’s require-


1
  Woods conceded that the other statements by Roberson and
Davis were admissible under various exceptions to the hearsay
rule.
8                                             No. 01-2819

ment that the statement be “made while the declarant
was perceiving the event”. FED. R. EVID. 803(1) (em-
phasis added). The exception is based on the theory that
it is less likely for a declarant to “deliberate or con-
scious[ly] misrepresent” the event if there is “substantial
contemporaneity” between the statement and the event.
FED. R. EVID. 803, Advisory Committee Notes (1972);
United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991).
A declarant who deliberates about what to say or pro-
vides statements for a particular reason creates the possi-
bility that the statements are not contemporaneous, and,
more likely, are calculated interpretations of events rath-
er than near simultaneous perceptions.
  Parts of Davis’ narratives are simple descriptions of
events as they occurred, which meet the requirements of
the rule. See Ruiz, 249 at 646-47. However, some of
the narrative statements are clearly addressed to the
FBI agents listening in via the microphone. These state-
ments were made for the benefit of the agents—i.e., were
calculated and provided for a reason—and are not ad-
missible under the present sense impression exception.
  Nevertheless, the improper admission of these few
short lines of commentary could not have had a substan-
tial influence on the jury’s verdict. Davis’ comments,
which are not part of any phone conversation, consist
of somewhat less than one hundred words, most of it
irrelevant rambling. In sum, he described a car, who he
thought was driving and owned it, and, as the car drove
away, he rattled off the license plate number. These few
remarks were harmless, especially when considered
against the mountain of incriminating evidence, includ-
ing taped conversations of drug transactions and cocon-
spirator testimony. Cf. United States v. Jarrett, 133 F.3d
519, 528-29 (7th Cir. 1998).
No. 01-2819                                                     9

C. Motion for a New Trial
  We review the district court’s denial of a motion for a new
trial for an abuse of discretion. United States v. Pigee,
197 F.3d 879, 888 (7th Cir. 1999); United States v. Payne,
102 F.3d 289, 291-92 (7th Cir. 1996). As Woods claims
he was convicted by false testimony, he must show the
new evidence meets four requirements in order to obtain
a new trial.2 United States v. Austin, 103 F.3d 606, 608-
09 (7th Cir. 1997); see also FED. R. CRIM. P. 33. Woods
need demonstrate that the new evidence: (1) was dis-
covered after the trial; (2) could not have been discovered
earlier with due diligence; (3) is material, not simply
cumulative or impeaching; and (4) would probably lead
to a verdict of acquittal. Austin, 103 F.3d at 608-09. Al-
though the evidence was brought to light by the prosecu-
tion after trial, Woods cannot satisfy the other three
parts of the test.
  Woods was aware of Rogers’ testimony regarding the
phone call made from his room prior to trial and could
have, but chose not to investigate further.
  In addition, Woods’ claim that Rogers’ testimony was
false rests on several assumptions fatal to his claim. There
is nothing in the record as to whether or not Rogers
was classified by the hospital as a victim of violence
(common sense would say he should have been), but, more
importantly, there is nothing to show that the general
hospital policy limiting the number of visitors to a victim
of a violent crime was followed on the day in question.
(If Rogers was not classified as a victim of violence, he


2
  We apply the “general” rather than the specific “false testi-
mony” test because the threshold requirement for the applicability
of the latter test—that the district court was “reasonably well
satisfied” the “testimony was, in all likelihood, false”—was not
met. United States v. Fruth, 36 F.3d 649, 652 (7th Cir. 1994).
10                                            No. 01-2819

would have been entitled to an unlimited number of visi-
tors.) Further, the hospital does not keep records pertain-
ing to who visited a particular patient.
  Finally, Woods asserts that Rogers’ testimony in the
state proceeding shows his later federal testimony was
false because Rogers did not state that Woods was a visi-
tor when testifying in the state proceeding. The prob-
lem with this hypothesis is that Rogers’ state testimony
regarding visitors pertained only to August 7, 1999, and
Woods visited on August 9, 1999.
  The evidence presented by Woods as newly discov-
ered evidence is, at best, cumulative impeachment evi-
dence that could have been obtained before trial with
minimal investigation. See Fruth, 36 F.3d at 653.


                     CONCLUSION
 The defendant’s conviction is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-97-C-006—8-20-02
