                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               DEC 17 1998
                                TENTH CIRCUIT
                      ____________________________________                PATRICK FISHER
                                                                                    Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

       v.                                               No. 97-8101
                                                        (D. Wyoming)
ANTHONY J. CARTA,                                       (D.C. No. CIV 96-CR-28-B)

              Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before PORFILIO and ANDERSON, Circuit Judges, and CAMPBELL,** District
Judge.


       Following a trial by jury, Anthony J. Carta was convicted of four counts of witness

tampering and acquitted of one count of obstruction of justice. On appeal, Mr. Carta

challenges the admission of a tape recording. We conclude that the district court did not

err in admitting the tape recording and we affirm the convictions.




       *
           This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of the court’s General Order filed November 29, 1993. 151
F.R.D. 470.
       **
          The Honorable Tena Campbell, District Judge, for the U.S. District Court for
the District of Utah, sitting by designation.
                                     BACKGROUND

       Mr. Carta was convicted of attempting to persuade four witnesses who appeared

before a federal grand jury to withhold testimony and documents from the grand jury and

to destroy written communications they had received from Mr. Carta. The grand jury was

investigating Mr. Carta and others on charges arising out of an investment scheme. Dr.

Peter Pranckun was one of the witnesses.

       In 1994, Dr. Pranckun, who had invested approximately $200,000 in the

investment scheme, met Mr. Carta for the first time. During this meeting, Dr. Pranckun

and Mr. Carta discussed problems that had arisen with the investment. The two men met

a second time, approximately nine months later. They also spoke several times by

telephone. When Mr. Carta received information that Dr. Pranckun was cooperating with

the F.B.I., he confronted Dr. Pranckun who denied the charge; a dispute arose. Sometime

later, Dr. Pranckun believed it was around Christmas of that year, he received a letter of

apology from Mr. Carta. After their dispute, but before Dr. Pranckun received the letter

of apology, he and Mr. Carta spoke by telephone. Dr. Pranckun recalled that Mr. Carta

mentioned that he was recording the conversation. Approximately one month after

receiving the letter of apology, Dr. Pranckun was subpoenaed to appear before the grand

jury. He appeared in January 1996.

       Mr. Carta was arrested in February 1996 on the federal fraud charges. Following

his arrest, the F.B.I. searched the motor home Mr. Carta had been driving. A tape


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recording of a conversation between Dr. Pranckun and Mr. Carta was found during the

search. It is the admission of this tape recording that Mr. Carta now raises on appeal.



                                       DISCUSSION

       A.     Foundation for the Tape Recording

       Mr. Carta contends that the foundation laid by the government did not meet the

requirements of Fed. R. Evid. 901 and, therefore, the tape recording should not have been

admitted. He points to a number of claimed deficiencies in the foundation, particularly

the inability of the government to fix the exact date when the recorded conversation

occurred.

       In reviewing the sufficiency of the foundation needed for admission of a recorded

conversation, this court has “specifically rejected the adoption of ‘inflexible criteria

applicable to all cases.’” United States v. Jones, 730 F.2d 593, 597 (10th Cir. 1984)

(quoting United States v. Smith, 692 F.2d 693, 698 (10th Cir. 1982)); see also United

States v. Rodriguez-Garcia, 983 F.2d 1563, 1569 (10th Cir. 1993). “[W]e will not upset

the judge’s admission of a recording unless the foundation was clearly insufficient to

insure the accuracy of the recording.” Jones, 730 F.2d at 597 (citations omitted). Here

we are convinced that the government’s foundation was sufficient.

       Dr. Pranckun testified that he recognized the first two voices on the tape as his and




                                              -3-
Mr. Carta’s.1 Dr. Pranckun testified initially that the conversation took place in the

summer or fall of 1995, but on cross-examination, he stated that he had no idea when the

conversation took place. However, Dr. Pranckun testified that in the conversation, he and

Mr. Carta were discussing the problem that had arisen between them concerning the

allegation that Dr. Pranckun was cooperating with the F.B.I. Dr. Pranckun testified that

this problem had occurred in the summer of 1995. In addition, Dr. Pranckun testified that

the conversation had taken place before he received the letter of apology from Mr. Carta

near Christmas of 1995. By reference to the dispute between Mr. Carta and Dr. Pranckun

and the receipt by Dr. Pranckun of the letter of apology, the government established a

sufficient foundation as to the time when the recorded conversation occurred.

       The tape recording was found in the search of a motor home in which Mr. Carta

had been living; the defense stipulated to the chain of custody of the tape recording. Dr.

Pranckun testified that he recalled that Mr. Carta told him that he was recording the

conversation and, on the tape, Mr. Carta states that he is recording the conversation.

       Given the above indicia of authenticity, it is clear that the district court did not

abuse its discretion in admitting the tape recording.

       B.     Rule 403

       Mr. Carta argues that nothing discussed in the recorded conversation related to the



       On the original tape, another conversation had been recorded over the
       1

conversation between Dr. Pranckun and Mr. Carta. This second conversation was
redacted.

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grand jury investigation or witness tampering and, therefore, the tape recording had little

or no probative value. He also contends that because Mr. Carta is heard on the tape

raising his voice in an angry conversation with Dr. Pranckun, there was substantial danger

of prejudice resulting from the admission of the tape recording. It is Mr. Carta’s position

that under Fed. R. Evid. 403, the district court committed error in admitting the tape

recording. The government argues that the conversation was probative in that it made

reference to the investment that was the subject of the grand jury investigation (although

no mention is made of the investigation or of the grand jury), and that it was relevant to

show Dr. Pranckun’s state of mind, that is, that he was told that if he continued to cause

problems, he would lose the money he had invested.

       Although the conversation is of marginal relevance, it also does not appear that the

danger of unfair prejudice resulting from the tape is significant. We therefore conclude

that the district court did not abuse its discretion under Rule 403 in admitting the tape

recording.

                                      CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.



                                                   ENTERED FOR THE COURT

                                                   Tena Campbell
                                                   United States District Judge



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