12-2873-cr
United States v. Mergen
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 1st day of
November, two thousand thirteen.

Present:

      ROBERT A. KATZMANN,
                        Chief Judge,
      DENNIS JACOBS,
                        Circuit Judge,
      KEVIN THOMAS DUFFY,
                        District Judge.*
_________________________________________

UNITED STATES OF AMERICA,

       Appellee,

              v.                                    No. 12-2873-cr

VOLKAN MERGEN,

      Defendant-Appellant.
__________________________________________




       *
         The Honorable Kevin Thomas Duffy, of the United States District Court for the
Southern District of New York, sitting by designation.
For Appellee:                 EVAN M. NORRIS (Emily Berger and John J. Dennehy on the
                              brief), Assistant United States Attorneys, for Loretta E. Lynch,
                              United States Attorney, Eastern District of New York, Brooklyn,
                              N.Y.

For Defendant-Appellant:ANDREW J. FRISCH, Jeremy B. Sporn, The Law Offices of Andrew
                        J. Frisch, New York, N.Y.
__________________________________________

        Appeal from the United States District Court for the Eastern District of New York

(Garaufis, J.).

        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction is REMANDED for further proceedings.

        Appellant Volkan Mergen worked for years as an FBI criminal informant, providing

information that aided in the conviction of members of the Gambino and Bonnano crime families

of La Cosa Nostra. After he participated in an arson—about which he had warned the FBI, and

during which he was wearing a wire—the United States Attorney’s Office for the Eastern

District of New York prosecuted him on a number of counts, including ones related to the arson.

He appeals his conviction following a jury trial in the United States District Court for the Eastern

District of New York. We presume the parties’ familiarity with the facts and procedural history

of this case.

        Mergen’s trial defense was that the FBI bungled its prevention of the arson and used

Mergen as its scapegoat. Among other things, Mergen argues that the district court erred by

excluding a recording that Mergen surreptitiously took after the arson while meeting with his

FBI handler, Agent George Wright. On cross, when asked, “[D]id you ever tell [Mergen] that

you felt he did nothing wrong?,” Agent Wright testified, “No, I did not.” Mergen’s counsel then

sought to impeach Agent Wright by playing a recording of Agent Wright telling Mergen that the

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agent did not think Mergen did anything wrong. Mergen’s counsel had not disclosed the

recording to the government prior to trial. The district court played the recording, identified as

Exhibit O, outside of the jury’s hearing, but it was not taken down by the court reporter or

included in the record on appeal. Ultimately, the district court did not permit Mergen’s counsel

to play the tape during Agent Wright’s cross-examination, and formally excluded it on the bases

of hearsay and lack of authentication when Mergen later took the stand in his own defense.

       Because the recording was not included as part of the record on appeal and its exclusion

raises some serious evidentiary issues, this panel requested a copy during oral argument on

September 12, 2013. A week later, on September 19, 2013, Mergen’s counsel sent a letter to the

court enclosing a compact disc containing an unintelligible recording. On September 22, 2013,

Mergen’s counsel sent the court a second letter and compact disc. The second letter indicated

that Mergen’s counsel “determined that the tape that was excluded at trial is different than the

one that [was] sent to the court last week,” and now enclosed copies of “what [he] now

believe[s] is the recording that the district court heard and precluded.”

       The government wrote the court on September 26, 2013, indicating that it did not believe

that the second recording provided by Mergen’s counsel was the recording played at trial. The

government argues that “[g]iven the questions of authenticity and intelligibility raised below by

the government and district court, which questions continue to be relevant on appeal, the

government believes it is inappropriate for the Court to consider anything other than the tape

recording trial counsel ‘identified as defense for identification O’ and sought to admit in

evidence.”




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       Prior to receiving the government’s letter, the panel reviewed the second recording. The

panel could make out the following colloquy around the 41:39 mark:

               Mergen:                Between you and me, do you think
                                      I did anything wrong that night?

               Agent Wright:          No, no.

If this indeed is the recording that was played at trial, it should not have been excluded on the

bases of either hearsay or lack of authentication.

       First, prior inconsistent statements offered for impeachment are, by definition, not

hearsay. Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted

in the statement.” Fed. R. Evid. 801(c)(2); see also United States v. Reyes, 18 F.3d 65, 69 (2d

Cir. 1994). Prior inconsistent statements are not offered for their truth, but rather to demonstrate

the witness’s lack of credibility. See Farrington v. Senkowski, 214 F.3d 237, 241 n.1 (2d Cir.

2000). Since Mergen’s counsel offered the recording to challenge Agent Wright’s credibility, it

should not have been excluded as hearsay.

       Second, the fact that some portions of a recording may be inaudible is not a proper basis

for exclusion under the authentication rule. “The authentication prerequisite simply requires the

proponent to submit ‘evidence sufficient to support a finding that the matter in question is what

its proponent claims.’” United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999) (quoting Fed. R.

Evid. 901(a)). So long as “sufficient proof has been introduced so that a reasonable juror could

find in favor of authenticity,” the authentication requirement is satisfied. United States v.

Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001). Mergen’s willingness to waive his Fifth Amendment

right and testify about the recording indicates that there was sufficient proof of the recording’s

authenticity. Moreover, when a district court considers the admissibility of a scratchy recording,

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the inquiry is typically one of relevance rather than authentication. The question is not whether

there are “ambiguous” or “inaudible” portions in the recordings, but whether the audible portions

of the recordings retain probative value. United States v. Arango-Correa, 851 F.2d 54, 58 (2d

Cir. 1988). “Unless the unintelligible portions are so substantial as to render the recording as a

whole untrustworthy[,] the recording is admissible.” United States v. Bryant, 480 F.2d 785, 790

(2d Cir. 1973); see also United States v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977). “Our

decisions in this area reveal a clear preference for the admission of recordings notwithstanding

some ambiguity or inaudibility, as long as the recordings are probative.” Arango-Correa, 851

F.2d at 58. While the second recording provided by Mergen’s counsel was not crystal clear, it

was sufficiently intelligible, and certainly probative of Agent Wright’s credibility.

       In a case like this that depends on whether the jury believes the word of the defendant

versus the word of an FBI agent, exclusion of such impeachment evidence is not harmless error.

See, e.g., Rosenfeld v. Basquiat, 78 F.3d 84, 92 (2d Cir. 1996); United States v. Lawson, 683

F.2d 688, 693 (2d Cir. 1982). However, the government’s letter, coupled with the multiple

recordings offered by Mergen’s counsel, raise a question as to whether the second recording

provided is the same recording that was played at trial. Accordingly, we believe a fuller

explanation and further findings are required. We therefore remand Mergen’s case in

accordance with the procedure of United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) for

further development of the record.

       A mandate shall issue forthwith remanding the case to the district court to determine and

clarify (1) which recording submitted by defense counsel on appeal was in fact played at trial;

(2) the relationship between those two recordings, if any (e.g., whether one recording is merely


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an altered version of the other); (3) when and how the recordings were created, stored, and

altered, if at all; and (4) what is said on the recording played at trial. After the district court

renders a decision on these issues, either party may restore jurisdiction to this Court without

need for a new notice of appeal by filing with the Clerk a letter (along with a copy of the relevant

order or transcript) advising the Clerk that jurisdiction should be restored. The reinstated appeal

will be assigned to this panel for disposition without further briefing or oral argument unless

otherwise ordered.

        Accordingly, for the foregoing reasons, the judgment of the district court is

REMANDED.

                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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