                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0336n.06

                                           No. 11-1101                                     FILED
                          UNITED STATES COURT OF APPEALS                              Mar 28, 2012
                               FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                          ON APPEAL FROM THE
                                                                    UNITED STATES DISTRICT
v.                                                                  COURT FOR THE EASTERN
                                                                    DISTRICT OF MICHIGAN
WILLIAM KING,

       Defendant-Appellant.


                                                      /

BEFORE:        MARTIN, SUTTON, and BALDOCK, Circuit Judges.*

       BOYCE F. MARTIN, JR., Circuit Judge. This appeal concerns a district court’s decision

to allow a jury to use transcripts of audio recordings at trial. William King appeals his conviction

after trial for one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 and one

count of bank fraud in violation of 18 U.S.C. § 1344. During the trial, the United States relied on

audio recordings of conversations as evidence and provided the jury with written transcripts of the

recordings. King argues that the district court abused its discretion in allowing the jury to use the

transcripts. For the following reasons, the judgment of the district court and King’s conviction are

AFFIRMED.




       *
          The Honorable Bobby R. Baldock, United States Court of Appeals for the Tenth Circuit,
sitting by designation.
No. 11-1101
United States v. King
Page 2

                                                   I.

        Prior to trial, the United States notified the district court and King of its intention to seek

admission of recorded conversations as evidence and to use transcripts of those recorded

conversations to aid the jury. King filed a motion in limine seeking to exclude the transcripts. King

argued that the transcripts would distract the jury from the evidence, i.e., the recordings, and that the

jury would improperly treat the transcripts as evidence. The United States argued that the transcripts

would allow the jury to follow along more easily with the recorded conversations. At a pretrial

hearing on the motion, the district court listened to a sample of the United States’ recorded evidence

to determine whether the recording would be an appropriate aid to the jury. After listening to the

exhibit, the Court stated:

        The transcript is an aid. If you have the transcript, as long as it’s accurate, and I
        know in the written document certainly there was no question that there was accurate
        transcription, with the transcript you could make out what is said on the tape, without
        the transcript you could not, so it is an important aid, I agree. The tapes still are the
        evidence, but I think the jury—it would just be a waste of time to play that without
        the transcripts.

        King did not, and does not now, contest the accuracy of the transcripts. The district court

gave a pretrial limiting instruction informing the jury that the recordings, and not the transcripts,

were evidence in the case. The district court also read to the jury Sixth Circuit Pattern Jury

Instruction 7.17 which instructs the jury that transcripts are:

        Keep in mind that the transcripts are not evidence. They were given to you only as
        a guide to help you follow what was being said. The tapes themselves are the
        evidence. If you noticed any differences between what you heard on the tapes and
        what you read in the transcripts, you must rely on what you heard, not what you read.
        And if you could not hear or understand certain parts of the tapes, you must ignore
        the transcripts as far as those parts are concerned.
No. 11-1101
United States v. King
Page 3



At trial, King preserved his objection to the transcripts. He did not object to the admission of the

recordings. The United States introduced excerpts from nineteen different recordings and provided

the jury with a transcript of each. The jury did not use the transcripts during deliberations.

       On appeal, King argues that it was error to allow the jury to use the transcripts and that the

improper use of the transcripts prejudiced his right to a fair trial because (1) the presence of the

transcripts distracted the jury from the vocal intonations, pauses, and inflections in the recordings;

and (2) the transcript identified each speaker in the recording by name thereby improperly relieving

the United States of its burden of proving the identity of each speaker. King asks this Court to set

aside his conviction and remand the case for a new trial.

                                                  II.

       We review for abuse of discretion a district court’s decision to allow the use of recording

transcripts at trial. United States v. Jacob, 377 F.3d 573, 581 (6th Cir. 2004); United States v. West,

948 F.2d 1042, 1044 (6th Cir. 1991). “A district court abuses its discretion when it applies the

incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous

findings of fact.” United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005) (internal quotation marks

omitted).

       To prevail on appeal, King must show error and prejudice. A court does not err by allowing

the use of transcripts not in evidence where “the tape is in evidence, the defendant has not questioned

the accuracy of the transcript, and the defendant has shown no prejudice.” United States v.

Scarborough, 43 F.3d 1021, 1025 (6th Cir. 1994). “A defendant challenging the use of a transcript
No. 11-1101
United States v. King
Page 4

at trial must show prejudice.” Jacob, 377 F.3d at 581. “The admission of written transcripts of

recorded conversations is not prejudicial error unless an inaccuracy exists in the transcript.” United

States v. King, 272 F.3d 366, 372 (6th Cir. 2001).

        King argues that the district court erred in allowing the use of the transcripts because the

recordings were either unintelligible, and so should not have been allowed at all, or were so clear that

the transcripts were unnecessary. King concedes that the transcripts are accurate. Even to the extent

that it was error to allow the use of sections of the transcript that may have been unintelligible or

unnecessary—a finding that we need not make—King has not demonstrated prejudice. Though King

argues that the transcripts distracted the jury from specific features of the recorded dialogue that

could only be found in the recordings themselves, i.e., verbal intonations and inflections of the

speaker, the use of “written transcripts of recorded conversations is not prejudicial error unless an

inaccuracy exists in the transcript.” King, 272 F.3d at 372; United States v. Crane, 632 F.2d 663,

664 (6th Cir. 1980) (per curiam). Further, the district court instructed the jury with both a limiting

instruction and Sixth Circuit Pattern Jury Instruction 7.17 that the recordings, and not the transcripts,

formed the evidence in this case. King does not challenge the accuracy of the transcripts, the district

court cautioned the jury that the transcripts were not evidence, and the jury did not access the

transcripts during deliberations. King has failed to show that he was prejudiced by the use of the

transcripts.

        King separately argues that the use of the transcripts relieved the United States of its burden

to prove the identity of each speaker in the recording beyond a reasonable doubt. King argues, under

United States v. Cooper, 868 F.2d 1505, 1519 (6th Cir. 1989), that the transcripts—which identified
No. 11-1101
United States v. King
Page 5

speakers heard on the recording by name—served as improperly admitted evidence of each speaker’s

identity. But King did not challenge the identification of the speakers during trial and does not now

object to the accuracy of the transcripts, including the speaker identifications contained in them.

Moreover, King does not explain how the identification of any speaker was significant to his case.

King argues that two individuals who appear on the recordings and were identified by name in the

transcripts were never identified in the testimony of a United States witness. The witness, however,

was available for cross-examination on this point but King’s counsel did not question this witness

about the two individuals’ identities. See Crane, 632 F.2d at 664-65 (finding that when the “agent

. . . who identified [defendant’s] voice as the party on the tapes . . . was available for

cross-examination, defendant should not be heard to complain”). King has not demonstrated any

prejudice in this regard and the district court did not abuse its discretion by allowing the use of the

transcripts.

                                                     III.

        The judgment of the district court and King’s conviction are AFFIRMED.
