           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Jacob, et al.       Nos. 03-3348/3351
        ELECTRONIC CITATION: 2004 FED App. 0240P (6th Cir.)
                    File Name: 04a0240p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: John B. Gibbons, Cleveland, Ohio, Amy B.
                  FOR THE SIXTH CIRCUIT                                  Cleary, FEDERAL PUBLIC DEFENDER’S OFFICE,
                    _________________                                    Cleveland, Ohio, for Appellants. Ronald B. Bakeman,
                                                                         ASSISTANT UNITED STATES ATTORNEY, Cleveland,
 UNITED STATES OF AMERICA , X                                            Ohio, for Appellee. ON BRIEF: John B. Gibbons,
             Plaintiff-Appellee, -                                       Cleveland, Ohio, Michael G. Dane, FEDERAL PUBLIC
                                    -                                    DEFENDER’S OFFICE, Cleveland, Ohio, for Appellants.
                                    -  Nos. 03-3348/3351                 Kenneth S. McHargh, ASSISTANT UNITED STATES
            v.                      -                                    ATTORNEY, Cleveland, Ohio, for Appellee.
                                     >
                                    ,                                                        _________________
 ANTHONY JACOB (03-3348);           -
 RAMON GALLARDO                     -                                                            OPINION
 (03-3351),                         -                                                        _________________
        Defendants-Appellants. -
                                    -                                       KENNEDY, Circuit Judge. Defendants Anthony Jacob and
                                   N                                     Ramon Gallardo were indicted for 1) conspiracy to distribute
       Appeal from the United States District Court                      more than five kilograms of cocaine in violation of 21 U.S.C.
      for the Northern District of Ohio at Cleveland.                    § 846 and 2) possession with intent to distribute more than
    No. 02-00408—David D. Dowd, Jr., District Judge.                     five kilograms of cocaine in violation of 21 U.S.C.
                                                                         § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. After both of their
                     Argued: June 18, 2004                               motions to suppress were denied, Jacob conditionally pled
                                                                         guilty, reserving the right to appeal the denial of his motion
               Decided and Filed: July 26, 2004                          to suppress. Following a jury trial, Gallardo was convicted on
                                                                         both counts.
    Before: KENNEDY and GILMAN, Circuit Judges;
              SHADUR, District Judge.*                                     The defendants Anthony Jacob and Ramon Gallardo appeal
                                                                         the district court’s denial of their respective motions to
                                                                         suppress on the ground that the evidence was obtained in
                                                                         violation of their Fourth Amendment rights. Jacob contends
                                                                         that investigators lacked reasonable suspicion to stop the
                                                                         vehicle he was driving. Gallardo, on the other hand, does not
                                                                         challenge the finding that reasonable suspicion existed to stop
                                                                         the vehicle in which he was a passenger. He does argue,
    *
     The Honorable Milton Shadur, United States District Judge for the   however, that his subsequent detention constituted an arrest
Northern District of Illinois, sitting by designation.

                                  1
Nos. 03-3348/3351              United States v. Jacob, et al.           3    4    United States v. Jacob, et al.       Nos. 03-3348/3351

without probable cause. Gallardo further appeals the district                knew it did not have any drugs in it, to test the dog; Alex did
court’s decision to permit the government to introduce an                    not alert. When Alex sniffed the Camry he gave a positive
audio recording containing statements made by Jacob in a                     indication to the trunk area of the vehicle and showed interest
conversation between them on the ground that the statements                  in the right wheel tire area. Trooper Helton believed, based
were inadmissible hearsay. Finally, Gallardo argues that the                 on the manner in which Alex alerted, that the Camry possibly
district court abused its discretion when it permitted the jury              had a hidden compartment.
to use a transcript of the audio recording as an aid while
listening to the recording. For the following reasons, we                      The next morning, on September 16th, Gallardo left his
AFFIRM.                                                                      room and entered the Camry that investigators had suspected
                                                                             was associated with him. From his hotel, he drove a short
                         BACKGROUND                                          distance to a Residence Inn and parked at a side door
                                                                             entrance.     Gallardo waited in the parking lot for
   On September 15th, 2002, members of a drug interdiction                   approximately 15 to 20 minutes before Jacob let him into the
task force received information from a confidential informant                hotel through a side door. While he was waiting in the
that Ramon Gallardo had checked into the Ramada Inn, room                    parking lot, Agent Kahler testified that Gallardo constantly
#217, in Beachwood, Ohio. The task force further learned                     scanned the driveway, street and parking lot, which he
from the informant that Gallardo was uncertain as to how                     interpreted as conducting counter surveillance.
long he would stay at the hotel, that he had paid in cash, and
that he had provided a State of Arizona identification. After                  Later that morning, the defendants traveled a short distance
receiving this information, Agent Kahler, a member of the                    to a gas station where they were not seen to have purchased
task force, ran a criminal history check on Gallardo, which                  anything. Within minutes, they returned to the Residence
revealed that he had previously been arrested in California for              Inn; upon entering the driveway entrance, the Camry stopped
transporting narcotics in 2001.1                                             abruptly and paused approximately 15 to 20 seconds. Based
                                                                             on this behavior, the members of the task force believed the
  That afternoon, members of the task force began                            defendants were conducting further counter surveillance.
surveillance of Ramada Inn room #217 and of a green 1999
Toyota Camry. The investigators believed that the Camry                         Around noon, the defendants and a female left the
was associated with Gallardo because it had State of                         Residence Inn with two luggage carts containing various
California license plates and because it was parked in the                   bags, including a green duffel bag later found to contain
parking lot near room #217. Due to their suspicion that the                  cocaine. Gallardo and the female loaded the luggage into the
vehicle was associated with Gallardo, the investigators                      trunk. Once the vehicle had been loaded, Gallardo handed the
requested Ohio Highway Patrol Trooper Terry Helton to bring                  keys to Jacob, who took over the driving of the vehicle.
Alex, a K-9 drug detection dog, to the Ramada Inn to check
the Camry. Before asking Alex to check the Camry, Trooper                      Investigators, in three or four vehicles, followed the Camry.
Helton walked Alex around Agent Kahler’s vehicle, as he                      Trooper Helton, with Alex, the K-9 drug detection dog, was
                                                                             a member of the caravan following the Camry. Agent Riolo,
                                                                             a member of the task force, testified that the investigators
    1
                                                                             planned to continue to surveil the Camry to see if the
      It was later learned that Gallardo had been acquitted of the charges   occupants were going to meet anybody. However, after
assoc iated with that arrest.
Nos. 03-3348/3351          United States v. Jacob, et al.     5    6     United States v. Jacob, et al.        Nos. 03-3348/3351

following the Camry on the interstate for a short while,             Subsequently, Agent Riolo prepared a transcript of the tape
investigators believed that their surveillance had been            recorded conversation between Gallardo and Jacob that
compromised based on the erratic manner in which Jacob was         occurred while they were detained in the patrol vehicle. Over
driving. For instance, at the intersection of Interstate 480 and   defense objection, the district court permitted the jury to use
271, investigators testified that the Camry appeared to be         the prepared transcript, which was not admitted as evidence,
heading toward 480, but rather abruptly changed lanes to           as an aid during trial. The district court also permitted the
remain on 271. It then took the first exit off the interstate.     jury to use the transcript when the jury requested to hear a
Once the Camry exited the interstate, it drove below the speed     portion of the tape again during deliberations. The jury,
limit in an attempt, the investigators believed, to get cars       however, was not given the transcript to take back into the
behind it to pass to determine if it was being followed.           jury room. Rather, after the request, the jurors were brought
Consequently, investigators decided to stop the Camry.             into the court room where they again received the transcript
Immediately before they attempted to do so, the Camry turned       as an aid while the tape was played.
into a karaoke club parking lot. It began to drive behind the
karaoke club when an officer engaged his lights and sirens on                               ANALYSIS
his vehicle in an attempt to stop it. At that point, Agent
Khaler testified, the Camry appeared to speed up and then          A. We first consider whether the district court erred in
stop. When other members of the surveillance pulled in front       denying Jacob’s motion to suppress on the ground that
of the Camry to block it in, the Camry was observed to lunge       specific and articulable facts existed which gave rise to
forward. Other officers then assisted in stopping the Camry        reasonable suspicion to justify the investigatory stop of the
by drawing their weapons and ordering the occupants from           Camry.
the vehicle.
                                                                      A district court’s factual findings concerning a motion to
  After exiting the vehicle, the defendants were placed on the     suppress are upheld unless clearly erroneous. United States
ground and patted down. While the officers were patting            v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992). The district
down Jacob, a small amount of marijuana and $1,000 was             court’s conclusions of law, such as a reasonable suspicion
found on his person. The defendants were handcuffed and            determination, are reviewed de novo. Id.
placed in the backseat of a patrol vehicle. (The patrol vehicle
contained written notice that an active recording device was          An investigatory stop of a vehicle is permissible under the
inside). While the defendants were detained in the vehicle,        Fourth Amendment if supported by reasonable suspicion.
Trooper Helton had drug detection dog Alex sniff the Camry;        Terry v. Ohio, 392 U.S. 1, 22 (1968). Since an investigatory
Alex gave a positive indication to the presence of narcotics.      stop is less intrusive to one’s personal security than an arrest,
Agent Kahler testified that approximately 10-15 minutes            the level of suspicion necessary for such a stop is thus
elapsed between the time of the stop and the time Alex sniffed     “considerably less than proof of wrongdoing by a
the Camry.        Following Alex’s positive indication,            preponderance of the evidence.” United States v. Sokolow,
investigators searched the Camry and discovered in the trunk       490 U.S. 1, 7 (1989). For purposes of determining whether
a green duffel bag that contained four large bricks and eight      reasonable suspicion exists, the Supreme Court has instructed
smaller bricks of cocaine.                                         that a reviewing court must consider the “totality of
                                                                   circumstances ... to see whether the detaining officer has a
                                                                   particularized and objective basis for suspecting legal
Nos. 03-3348/3351           United States v. Jacob, et al.       7    8       United States v. Jacob, et al.            Nos. 03-3348/3351

wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273                  We agree with the district court that these facts provided a
(2002) (quotation marks omitted). The Court further                   sufficient basis upon which the investigators conducted a
instructed that in considering all the circumstances, the             Terry stop. Based upon these facts, a well trained officer
question is not whether there is a possible innocent                  could reasonably conclude that criminal activity was possibly
explanation for each of the factors, but whether all of them          afoot. Therefore, the investigators were permitted to conduct
taken together give rise to reasonable suspicion that criminal        a stop to investigate their suspicion.
activity may be afoot. Id. at 274-75, 277 (holding that a court
may not discount each factor that is readily susceptible to           B. We next consider whether the investigatory stop ripened
innocent explanation and confirming that a series of                  into an unlawful arrest based upon the manner in which the
seemingly innocent acts can, taken together, give rise to             officers effectuated the stop and detained the suspects.
reasonable suspicion).
                                                                         “When establishing that a detention, which was not
  In arguing that reasonable suspicion did not exist to justify       supported by probable cause, was reasonable, the government
the stop, Jacob contends that the stop of the Camry was not           must demonstrate that ... ‘the detention and investigative
“supported by an objective manifestation that criminal                methods used were reasonable under the circumstances.’”
activity was afoot” since the “totality of circumstances relied       United States v. Heath, 259 F.3d 522, 529 (6th Cir. 2001)
upon by the District Court Judge were subjective conclusions          (quoting United States v. Winfrey, 915 F.2d 212, 216 (6th Cir.
arrived at by the observation of otherwise innocuous activity.”       1990)). “Moreover, the degree of force utilized by officers
                                                                      during a detention must be ‘reasonably related in scope to the
   The district court took into consideration a number of             situation at hand.’” Heath, 259 F.3d at 530 (quoting United
factors that, in their entirety, give rise to reasonable suspicion.   States v. Hardnett, 804 F.2d 353, 356-57 (6th Cir. 1986)).
Investigators learned from an informant that Gallardo had
checked into a hotel, paid cash, and displayed Arizona                   Gallardo argues that he was placed under arrest without
identification. The district court noted that Arizona is a            probable cause in violation of the Fourth Amendment after he
source state of narcotics that enter the Cleveland area.              was ordered out of the Camry at gunpoint, handcuffed, and
Investigators further learned that Gallardo had been                  placed in a patrol car.2 He cites our opinion in United States
previously arrested for transportation of narcotics. In               v. Richardson, 949 F.2d 851 (6th Cir. 1991), in support of this
addition, a drug detection dog gave a positive indication to          argument. In Richardson, four officers approached the
the Camry and showed interest in the right wheel tire area, an        defendant and an individual, Harris, who was with the
indication of the possible existence of a hidden compartment.         defendant, and informed them that they were the subject of a
Moreover, the district court found that it was reasonable for
an investigator to conclude that the defendants engaged in
counter surveillance. Investigators observed Gallardo                     2
                                                                            To the extent that Jacob seeks to join this argument, he may not, as
constantly scan the street, driveway, and parking lot as he           the officers had probable cause to arrest him when an officer discovered
waited at Jacob’s hotel. They further observed the defendants         marijuana on his person shortly after he was ordered out of the vehicle.
engage in counter surveillance after they drove to a gas              In his brief, Jacob argues that his “extend ed detention” was an unlawful
station for no apparent reason. Finally, the defendants               seizure. This argument is without merit as his detention in the po lice
appeared to engage in counter surveillance as they drove              vehicle was justified by probable cause. The marijuana was discovered on
                                                                      him within minutes after he was ordered out of the car and before he was
erratically on the freeway.                                           placed in the police car.
Nos. 03-3348/3351          United States v. Jacob, et al.      9    10   United States v. Jacob, et al.        Nos. 03-3348/3351

drug investigation. The officers then asked the defendant for       States v. Sharpe, 470 U.S. 675, 683 (1985). The issue is,
consent to search his vehicle and his nearby storage locker.        therefore, whether the investigators’ conduct in detaining the
Id. at 854. When he refused to consent, the police removed          defendants and in pursuing a means of investigation that was
him from his vehicle and detained him in the back seat of a         likely to confirm or dispel their suspicions quickly was
police car. Id. The officers then proceeded to question Harris      reasonable under the circumstances. Sharpe, 470 U.S. at 683,
out of the defendant’s earshot. Id. After obtaining a               686. We believe that it was.
confession from Harris, the officers then proceeded to
question Richardson and again requested that he consent to a           When the investigators attempted to stop the defendants
search. Id. at 854. This Court, as Gallardo points out,             who were suspected of drug trafficking, the defendants’
concluded that the agents exceeded the bounds of Terry when         vehicle lunged forward as if they were attempting to escape.
they placed him in the patrol car because, at that point, the       Under these circumstances, the investigators’ decision to
seizure “crossed the line into an arrest,” which was                draw their weapons to prevent an escape was reasonable. See
unsupported by probable cause. Id. at 857. Similarly,               United States v. Dotson, 49 F.3d 227, 230-31 (6th Cir. 1995)
Gallardo argues, a court must find that he was placed under         (finding that officer’s use of physical force to restrain
arrest without probable cause when the officers placed him in       defendant who attempted to flee from traffic stop was
the back seat of a locked police car.                               reasonable); See also United States v. Haye, 825 F.2d 32, 35
                                                                    (4th Cir. 1987) (finding that, as a Terry stop is involuntary,
  Gallardo also relies upon Florida v. Royer, 460 U.S. 491          use of force to stop a suspect from fleeing is reasonable).
(1983), in arguing that his detention ripened into an arrest. In
Royer, Gallardo notes, the Supreme Court held that the limits          The investigators’ decision to order the defendants out of
of a Terry stop had been exceeded when the detectives asked         the vehicle as they approached the car and to handcuff them
the defendant to accompany them to a small room at an               was also reasonable, as concern for the investigators’ safety
airport, gave him no indication that he was free to leave, and      was at its height under those circumstances. This Court has
retained his flight ticket and driver’s license. Since the limits   concluded that officers who stop a person who is “reasonably
of a Terry stop were exceeded in Royer, a court must find,          suspected of carrying drugs” are “entitled to rely on their
Gallardo concludes, that the limits of a Terry stop were            experience and training in concluding that weapons are
exceeded in the instant case where he was not only secured in       frequently used in drug transactions,” and to take reasonable
the backseat of a patrol car, but had also been ordered out of      measures to protect themselves. Heath, 259 F.3d at 530
the Camry at gunpoint and handcuffed.                               (finding it reasonable for agents, after stopping a person
                                                                    suspected of drug trafficking, to draw their weapons to order
  Although the plurality in Royer did hold that the police          a suspect out of his car and to frisk and handcuff the suspect);
conduct in that case had exceeded the limits of a Terry stop,       Houston v. Clark County Sheriff Deputy John Does 1-5, 174
460 U.S. at 507, the plurality also noted that the “scope of the    F.3d 809, 815 (6th Cir. 1999) (finding that the use of
intrusion permitted” in a Terry stop “will vary ... with the        handcuffs does not exceed the bounds of a Terry stop).
particular facts and circumstances of each case.” 460 U.S. at
500. Ultimately, the Court has instructed that for a temporary         We further find that it was reasonable under the
detention on less than probable cause to be legitimate, it must     circumstances for the investigators to place Gallardo in a
satisfy the test of reasonableness. Royer, 460 U.S. at 499; See     police car while the officers pursued their investigation in an
also Michigan v. Summers, 452 U.S. 692, 699 (1981); United          attempt to confirm or dispel their suspicions. Gallardo’s
Nos. 03-3348/3351                United States v. Jacob, et al.          11     12       United States v. Jacob, et al.             Nos. 03-3348/3351

reliance upon Richardson in arguing that the temporary                          means of investigation that was likely to confirm or dispel
detention ripened into an unlawful arrest when he was placed                    their suspicions was reasonable under the circumstances, we
in the back of a patrol car is unavailing. The investigatory                    conclude that the detention did not ripen into an unlawful
detention ripened into an arrest in Richardson, not merely                      arrest.5
because the defendant was placed in a police car, but rather
because placing him in the police car was unreasonable under                    C. We next consider whether the district court erred in
the circumstances. Richardson, 949 F.2d at 857; See also,                       permitting the government to admit an audio recording that
United States v. Hood, Nos. 92-5112, 92-5113, 1992 WL                           contained a conversation between Jacob and Gallardo over
322373 at *4 (6th Cir. Nov. 5, 1992) (unpublished opinion)                      Gallardo’s objection that Jacob’s statements were
(finding that placing defendants in the back of a locked patrol                 inadmissible hearsay. We review evidentiary decisions such
car does not, per se, require probable cause). After                            as exclusion of hearsay for abuse of discretion. United States
Richardson refused to consent to a search of his storage                        v. Wright, 343 F3d 849, 865 (6th Cir. 2003). However, the
locker and vehicle, the agents placed him in the back of a                      court’s legal conclusion concerning whether the statement is
police car and thereafter continued to question him. Id. As                     hearsay is reviewed de novo. Maliszewski v. United States,
in Royer, what had begun as an inquiry in a public place had                    161 F.3d 992, 1007 (6th Cir. 1998).
escalated into a custodial interrogation in what was in essence
a police interrogation room. Royer, 460 U.S. at 503. Unlike                       On the apparent assumption that Jacob’s statements would
Richardson, the investigators’ conduct here was not                             be admissible only through the “co-conspirator statement”
unreasonable where 1) the defendants had attempted to flee as                   exception to the hearsay rule, Gallardo addresses only this
investigators initiated the stop;3 2) the investigators needed to               exception. Gallardo argues that the exception does not apply
control the stop environment;4 3) the police did not question                   because Jacob’s statements did not further the ends of the
the defendants; and 4) the defendants were placed in a patrol                   conspiracy since no overt acts of concealment followed
car merely to secure the scene as Trooper Helton, who had                       Jacob’s statements designed to conceal the conspiracy.
been following the Camry, began using the drug detection                        Fiswick v. United States, 329 U.S. 211, 216-17 (1946).
dog to investigate the investigators’ suspicions.                               Additionally, the exception does not apply, he argues, because
                                                                                the statements were not made during the conspiracy since the
  Since the investigators’ conduct in effectuating the stop and                 defendants were apprehended when the statements were
in detaining the suspects while they diligently pursued a                       made.
                                                                                   The defendant does not address, however, whether the
    3                                                                           statements would be admissible on the ground that they are
      Gallardo argues that the investigators cannot use the fact that the car   not being offered for their truth, but are rather being offered
lunged forward in justifying his detention since he was not driving the
Cam ry. The Suprem e Court, however, has no ted that “a car p asseng er ...
                                                                                to provide context to Gallardo’s party admissions. See United
will often be engag ed in a com mon enterp rise with the driver,” and that      States v. Zizzo, 120 F.3d 1338, 1338 (7th Cir. 1997) (finding
it is reasonable for an officer to infer such a common enterprise.
Wyoming v. Houghton, 526 U.S. 295 , 304 -5 (19 99); Ma rylan d v. P ringle,
124 S.Ct. 795, 80 1 (2003 )                                                          5
                                                                                       Once the drug detection d og alerted to the pre sence of drugs shortly
    4
                                                                                after the stop, the investigators had probab le cause to search the vehicle.
     Agent Kahler testified that sometime after the investigators stopped       Upon searching the vehicle, the investigators discovered cocaine. At this
the Camry, news media began gathering at the scene.                             point, there wa s probab le cause to place the defendants under arrest.
Nos. 03-3348/3351           United States v. Jacob, et al.     13    14   United States v. Jacob, et al.        Nos. 03-3348/3351

that statements were not admitted for their truth but rather to      determination of accuracy by reading the transcript against
give context to the conspirators’ ends of the conversations).        the tape.” Id. at 879.
Since we conclude that most of Jacob’s statements would be
admissible on this ground, we need not address whether they             This Court has noted that the goal of a procedure as in
would have alternatively been admissible under the “co-              Robinson, “is to provide the jury with transcripts which bear
conspirator statement” exception. Any statements that may            a ‘semblance of reliability.’” United States v. Burke, No. 97-
have been admitted that did not provide context to Gallardo’s        5889, 1999 WL 617972 at *3 (6th Cir. Aug. 12, 1999)
side of the conversation would still not warrant reversal, as        (unpublished opinion) (quoting Robinson, 707 F.2d at 879).
Gallardo has failed to point to any prejudice resulting from         In Burke, the district court judge did not make an independent
the admission of those statements. United States v.                  determination of the transcript’s accuracy by reading it while
Breitkreutz, 977 F.2d 214, 221 (6th Cir. 1992) (finding that         listening to the tape. Id. Nonetheless, this Court held that the
the defendant failed to establish any prejudice affecting his        transcripts contained a ‘semblance of reliability’ because the
substantial rights, and therefore declining to reverse the           transcriber was familiar with the materials he transcribed
judgment or order a new trial).                                      since he had listened to the conversation between the
                                                                     conspirators while it was initially being recorded. Id. at 4.
D. Finally, we consider whether the district court abused its        Moreover, the Burke court concluded that any error by the
discretion when it permitted the jurors to use a transcript as an    district judge was harmless as the defendant was unable to
aid when listening to the tape recorded conversation between         point to even one error in the transcript. Id.
Jacob and Gallardo during the trial and, after they had
requested to hear a portion of it again, during deliberations.          In this case, the district court judge did listen to the tape
                                                                     while reading the transcript, but did not make any explicit
   We review a district court’s rulings as to a jury’s use of        findings as to the transcript’s accuracy. Nonetheless, the
transcripts under an abuse of discretion standard. United            transcriber, Agent Riolo, testified concerning how he listened
States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983). A             to the tape and prepared the transcript. In particular, he
defendant challenging the use of a transcript at trial must          testified that he had spoken with both of the defendants and
show prejudice. United States v. King, 272 F.3d 366 (6th Cir.        was thus able to determine who each speaker was on the tape.
2002).                                                               He also explained that he listened to the tape repeatedly, each
                                                                     time adding to the content of the transcript. This record
   Gallardo appears to argue that it was prejudicial per se for      provides a sufficient basis for a court to conclude that the
the district court to permit the jury to use the transcript of the   transcripts bore a semblance of reliability.
audio conversation during the trial and deliberations without
precisely following the procedures set forth in Robinson. In           Even if the judge erred in failing to make explicit findings
Robinson, we noted that the ideal procedure for assuring the         concerning the accuracy of the transcript, any error was
transcript’s accuracy is to have both sides stipulate to a           harmless. Not only did the district court repeatedly instruct
transcript’s accuracy. 707 F.2d at 878. In the absence of a          the jurors that the transcript was not evidence, but it also
stipulation, we advised, “the transcriber should verify that he      emphasized to the jurors that if they did not hear what Agent
or she has listened to the tape and accurately transcribed its       Riolo said he heard, then they should disregard what he
content. The [district] court should also make an independent        wrote. In addition, this case is unlike Robinson where a
                                                                     substantial portion of the tape was inaudible so that the
Nos. 03-3348/3351           United States v. Jacob, et al.     15

transcripts, regardless of the judge’s instructions to the
contrary, became, in essence, the evidence. Here, in contrast,
Gallardo did not allege that the tape was substantially
inaudible. Id. at 878. Rather, Gallardo only points to one
alleged discrepancy in the transcript: he argued that the tape
reveals Gallardo saying, “ah oh, they found a bag,” not, as the
government contends, “oh, oh, they found it man.” Not only
did Gallardo point to only one alleged discrepancy, but he
also raised his alternative interpretation both during his cross-
examination of Agent Riolo and during his closing argument.
   We find, therefore, that Gallardo has not demonstrated
prejudice and that the district court did not abuse its discretion
in permitting the jury to use a transcript as an aid during the
trial and deliberations.
  For the foregoing reasons, we AFFIRM.
