           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 18, 2008

                                       No. 07-11197                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

LEE ROY CHANEY

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:07-CR-004-M


Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Lee Roy Chaney was convicted on two counts of
distributing methamphetamine. Chaney appeals his judgment and sentence,
arguing that the district court erred when it admitted both audio–video
recordings of the drug transactions and a government-made transcript of the
audio. For the following reasons, we affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-11197

             I. FACTUAL AND PROCEDURAL BACKGROUND
       In January 2006, Juan Hernandez was arrested for possession of
methamphetamine. Shortly thereafter, he agreed to act as a confidential
informant for law enforcement, specifically targeting narcotics, in exchange for
favorable treatment regarding his arrest for drug possession. On April 12, 2006,
Hernandez, equipped with an audio–video recording device, met with Chaney
and purchased methamphetamine from him. On April 18, 2006, Hernandez was
again equipped with a recording device and bought from Chaney over 100 grams
of methamphetamine for $3,000.               Chaney was indicted on two counts of
distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C), and the case went to trial in the United States District Court for the
Northern District of Texas.
       At a pre-trial hearing, Chaney’s counsel objected to the admission of the
audio–video recordings on grounds of “hearsay, authenticity, and 404(e).”1
Chaney’s counsel argued that the recordings were not probative because it was
not possible to view the drug sale. The court responded that the video probably
would not “be terribly prejudicial either.” Chaney’s counsel also argued both
that the recordings should not be admitted because the audio was “very difficult
to understand” and that she had objections to the transcript that the government
had prepared. The government responded that it was prepared to authenticate
the recordings with Hernandez’s testimony and the testimony of an agent
involved in downloading the recordings. The court stated that the intelligibility
of the audio and video would go to the weight, as opposed to the admissibility,
of the evidence. It did say, however, that it would not “allow the government to

       1
          Though Federal Rule of Evidence 404(e) does not exist, we assume that Chaney’s
attorney was referring to Rule 403. This rule excludes relevant evidence when “its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” FED. R. EVID. 403.


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                                         No. 07-11197

fill in the blanks for words” if the audio was unclear and there was a bona fide
objection to the accuracy of the transcript. The parties admitted that they had
not conferred about what words they thought were or were not accurate in the
transcript.     The court ultimately resolved to instruct the jury that the
government and its witnesses had prepared the transcript and that the jury
should determine its accuracy. Furthermore, the court agreed to listen to the
tapes “upon request of counsel” and, if necessary, instruct the jury as to any
section of the transcript that was wrong and as to the correct actual words. The
court also agreed to instruct the jury that the primary evidence was the
recordings, not the transcript. The court instructed Chaney’s counsel to “flag”
any inaccurate portions and present them to the court for verification.                       The
record does not show any instance where Chaney’s counsel subsequently
challenged a specific section of the transcript. Further, the defense did not
provide its own transcript to the court for comparison.
       On the first day of trial, Special Agent Todd Carter Yant testified about
the recordings and transcript.            His function, he stated, was to install the
recording equipment on Hernandez and then transfer the recordings to a
compact disk afterwards. Yant testified that both the April 12th and April 18th
recordings were accurate depictions of what transpired on those days.2 Yant also
testified that the transcripts were fair and accurate, and that any inaudible
portions were appropriately marked “inaudible.” Yant’s testimony included an
overview of how he monitored Hernandez on both April 12th and April 18th.
Before the transcripts were admitted into evidence, the trial judge gave the
following oral instruction to the jury:



       2
         During the direct examination of Special Agent Yant, Chaney’s counsel reurged her
“objection to 403, relevance, and authenticity.” The court overruled the objection, stating that
the defense should develop this on cross-examination. Chaney’s counsel again objected on
these grounds just before the judge’s first oral instruction to the jury regarding the transcripts.

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            Ladies and gentlemen, I’m going to say something to you
      about these transcripts.

            This is what the government contends is what is being said on
      these tapes. You will hear the tapes. You may not agree that these
      transcripts are accurate. That’s up to you to determine. The audio-
      visual recordings are the actual evidence of the transaction. So if
      you think there is a discrepancy, then you should go with what you
      hear on the tape. There may be a word there that you disagree
      with. The tape is the principal evidence of what the transactions
      were.

            It may also be that the defense is able to develop that the
      transcripts are incorrect, and if persuaded to that effect, then you
      will be able to modify your understanding based on what you hear
      here in the courtroom.

             When the tapes are played I will strongly suggest that you
      focus on the tapes and that you don’t just read the transcript and
      not listen to what is heard on the taped calls.
When the government requested to provide the transcripts to the jury, the judge
gave another instruction:
            Ladies and gentlemen, I remind you of the admonition that I
      gave you before. The tapes reflect what occurred to the extent they
      record what occurred.

            The transcripts are another person’s interpretation of what
      occurred. You are best guided by your assessment of what actually
      transpired. You may look at the transcripts, they have been
      admitted, but when the tapes are played focus principally on the
      tape.
The judge also instructed the jury not to read the transcripts before they heard
the relevant audio.
      Hernandez then testified as to his activities on April 12th and confirmed
that the April 18th recording was fair and accurate. Hernandez also stated that
the transcript of the April 18th recording was a fair and accurate record of what
happened that evening. At the end of the first day of trial, the judge asked the


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government how it prepared the transcript. The government responded by
saying that the officers worked with Hernandez to reconstruct what was said.
The judge also expressed concern about the recording, stating that there were
“probably 20 words during the entire segment that [she] . . . could understand.”
The judge reiterated her willingness to listen to any specific section of the
recordings that Chaney contested. She also said that, while the jurors may be
able to hear the recordings better in a small, windowless room, the recordings
could still “sound like a bunch of gibberish” without a headset.3
       On the second day of trial, Hernandez continued his testimony and the
judge again instructed the jury about the disputed accuracy of the transcripts.4
Hernandez proceeded to testify extensively while the government played
different parts of the recordings. During this testimony, Hernandez identified
Chaney in the video, explained certain phrases, and described the drug
transactions that had transpired. On cross-examination, Hernandez confirmed
that he and law enforcement agents created the transcripts from the recordings.
He also acknowledged certain sections where the transcript said “U/I.”5
Additionally, Officer Richard Clark testified on this day as to his role in driving
Hernandez to Chaney’s apartment and being present at the transcription of the
recordings, and as to his opinion that the transcripts were a fair and accurate
depiction of what took place on April 12th and 18th.
       During a recess, the judge again expressed concern about the quality of the
court’s sound system, describing it as “not acceptable” because the jury either


       3
        The judge suggested that the courtroom itself was not conducive to listening to the
recordings because it was large with a high ceiling.
       4
        The judge stated in full: “Ladies and gentlemen, I will renew my instructions to you
with respect to the transcript. The government—it is the government’s position that the
transcripts are accurate reflections of what was said. The defense disputes that. That will be
up to you to determine.”
       5
           This notation means “unintelligible.”

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could not hear the recordings or was “getting blasted.” Though the judge
acknowledged that the sound quality was better than the previous day, she said
that the “collateral damage to the ears of the jury” was “not worth it.” At this
point, the government informed the judge that it would no longer show the video
and would instead use the transcript as a source for posing questions to
witnesses. Defense counsel said that it did not “have any further use of the
video” and did not object to use of the transcripts for the remainder of the trial.
      On the last day of trial, the judge issued a final written instruction to the
jury regarding the transcripts:
      You are specifically instructed that whether the transcripts
      correctly or incorrectly reflect the content of the conversations or the
      identity of the speakers is entirely for you to determine based upon
      your own evaluation of the testimony you have heard concerning the
      preparation of the transcripts, and from your own examination of
      the transcripts in relation to your hearing of the tape recordings
      themselves as the primary evidence of their own contents; and, if
      you should determine that the transcripts are in any respect
      incorrect or unreliable, you should disregard them to that extent.
Before deliberation, the court instructed the government to send the recordings
back to the jury to use “if they wish.”
      The jury found Chaney guilty on both counts of knowingly and
intentionally distributing a mixture and substance containing a detectable
amount of methamphetamine. He was sentenced to imprisonment for a total
term of 132 months, with a recommendation that he participate in the 500-hour
drug treatment program in the Bureau of Prisons.            Chaney appealed the
judgment and sentence.




                         II. STANDARD OF REVIEW




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      This court reviews a district court’s evidentiary rulings for abuse of
discretion. Unites States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). If we
find abuse of discretion, such error is reviewed for harmlessness. Id.
                               III. DISCUSSION
      Chaney sets out five main arguments on appeal: (1) the recordings were
not properly authenticated; (2) the recordings were more misleading than
helpful; (3) the recordings contained hearsay; (4) the jury should not have been
allowed to use the transcripts; and (5) the transcripts violated the best evidence
rule. We consider each of these arguments in turn.
A. Whether the Recordings Were Properly Authenticated
      Authentication is a condition precedent to admission of evidence that is
satisfied when a party presents “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” FED. R. EVID. 901. This court
finds a sound recording admitted into evidence to have been properly
authenticated only when the party introducing it demonstrates “that the
recording as played is an accurate reproduction of relevant sounds previously
audited by a witness.” United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977).
The burden falls on the prosecution to present: (1) “the competency of the
operator”; (2) “the fidelity of the recording equipment”; (3) “the absence of
material deletions, additions, or alterations in the relevant portions of the
recording”; and (4) “the identification of the relevant speakers.” Id. Though
strict compliance with these requirements is preferred, a judge’s “discretion to
admit the evidence is not to be sacrificed to a formalistic adherence” to the
standard. Id. at 67; see also United States v. Stone, 960 F.2d 426, 436 (5th Cir.
1992) (“[T]he Biggins decision indicates that the list is not meant to command
formalistic adherence at the expense of the district court’s discretion.” (internal
quotation marks omitted)).



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      In the present case, the district court did not abuse its discretion when it
admitted the recordings as properly authenticated. Agent Yant, informant
Hernandez, and Officer Clark authenticated the recordings. Yant testified to the
competency of the agents responsible for the April 12th and 18th recordings and
the fidelity of the audio–video recording equipment. Hernandez testified to the
accuracy of the recordings, including identification of the relevant speakers.
Clark described his role in the operation with Hernandez and testified that the
recordings and transcripts were fair and accurate depictions of the April 12th
and 18th drug transactions.
B. Whether the Recordings Were More Misleading Than Helpful
      This court reverses the admission of recordings on grounds of inaudibility
only “if the inaudible parts are so substantial as to make the rest more
misleading than helpful.” United States v. Thompson, 130 F.3d 676, 683 (5th
Cir. 1997) (internal quotation marks omitted); see also FED. R. EVID. 403 (stating
that relevant evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.”). We have “consistently held” that “poor quality and
partial unintelligibility do not render tapes inadmissible unless the
unintelligible portions are so substantial as to render the recording as a whole
untrustworthy.”     Stone, 960 F.2d at 436.       This court regularly finds that
recordings should not be excluded on these grounds. For example, in United
States v. Polk, this court “carefully listen[ed] to the four tape recordings at issue”
and found no abuse of discretion. 56 F.3d 613, 632 (5th Cir. 1995). In that case,
we reasoned that “[w]hile some portions of the recordings are inaudible or
unintelligible as the appellants claim, much of the conversations can be heard
clearly and may be followed on the government’s transcripts.” Id.
      In the present case, the district court did not abuse its discretion when it
determined that the recordings were more helpful than misleading. We have

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carefully listened to the five disks at issue and recognize that there are some
inaudible portions. However, the recordings contained not only significant
portions of intelligible audio, but also corresponding video of Hernandez and
Chaney discussing drugs, counting money, and going to a place where a drug
transaction allegedly occurred. The April 18th recording even includes footage
of Hernandez holding two bags of methamphetamine. The helpfulness of these
recordings thus far outweighs the potentially misleading nature of certain
unintelligible sections of the audio.
C. Whether the Recordings Contained Hearsay
      Hearsay is “any out-of-court statement introduced in evidence for the
purpose of proving the truth of the matter contained in the statement.” United
States v. Williamson, 450 F.2d 585, 589 (5th Cir. 1971). A statement is not
hearsay if it is offered against a party and is the party’s own statement. FED. R.
EVID. 801(d)(2); Thompson, 130 F.3d at 683 n.7 (“Hearsay problems are not a
concern if the jury believes that the defendant was one of the participants in the
conversation; any statements he made would be admissible as a statement of a
party opponent.”). An informant’s statements are not hearsay and may be
admissible when they are “part of a reciprocal and integrated conversation” with
the defendant. United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995). In
Cheramie, an informant’s statements to the defendant in a recording were
admitted as nonhearsay when the jury was instructed that the informant’s
statements were admitted for the purpose of providing context for the
defendant’s statements and not for the truth of what the informant asserted. Id.
Finally, hearsay, even when admitted, may be harmless error. See, e.g., United
States v. Allie, 978 F.2d 1401, 1408–09 (5th Cir. 1992) (holding that admission
of hearsay in a video recording was harmless error when the government also
introduced deposition testimony to establish facts in the video); Williamson, 450
F.2d at 591–92 (holding that admission of an undercover police officer’s

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statements was harmless error when the officer testified, was subjected to cross-
examination, and another investigator provided almost identical testimony).
         In the present case, three categories of statements are at issue: Chaney’s
statements, Hernandez’s statements to Chaney, and Hernandez’s statements to
law enforcement. Chaney’s recorded statements are admissible nonhearsay
because they are statements of a party-opponent. Hernandez’s statements to
Chaney are admissible nonhearsay because they are part of the larger context
of interaction regarding the sale and purchase of methamphetamine.6
Hernandez’s statements to law enforcement agents, however, do constitute
hearsay if offered for the purpose of proving that certain events transpired with
Chaney.7 For example, Hernandez, in recorded asides, specifically updates law
enforcement officers on Chaney’s travel plans, the specifics of the drug
transactions, and even his own assessment of whether the transactions will take
place.       Even if such statements do constitute hearsay, their admission is
harmless error. Hernandez’s statements in the video recording describe the
events that occurred between him and Chaney. Such events were not only
largely captured in the video and audio of the recordings that he created, but
also brought before the jury during Chaney’s testimony and cross-examination.
Hence, it is unlikely that these summarizing statements in the video alone
affected the jury’s ultimate decision.




         6
        Chaney argues that some of Hernandez’s statements are inadmissible hearsay because
Hernandez “habitually repeat[ed] the thrust” of Chaney’s prior statements in order to inform
law enforcement of what was transpiring. Chaney claims that, at such times, the informant
was not “genuinely intending to communicate to the defendant.” We find it unlikely that
Hernandez’s comments were in no way meant to communicate with Chaney as the two were
clearly conversing when such statements took place. Thus, these statements fall under
Cheramie.
         7
             In its brief, the government essentially accepts that these statements constitute
hearsay.

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D. Whether the Jury’s Use of the Transcripts was Reversible Error
      Transcripts may be admitted into evidence in situations where portions of
a recording are somewhat inaudible. United States v. Onori, 535 F.2d 938, 947
(5th Cir. 1976). It is within a court’s discretion to admit a transcript to assist a
jury that listens to a recording. Id. A transcript is substantive evidence that
aids the jury in determining a recording’s content and meaning. United States
v. Valencia, 957 F.2d 1189, 1194 (5th Cir. 1992). In Onori, this court outlined
the preferred procedure for the introduction of transcripts. 535 F.2d at 948–49.
We prefer that the two sides devise a stipulated transcript. Id. at 948. If the
parties do not create such a joint transcript, then the jury may consider as a
matter of fact the accuracy of two different transcripts. Id. at 948–49. “[O]nce
we have concluded that the defendants could have challenged specific portions
of the government’s transcript or prepared an alternative version, it follows that
they cannot be heard to complain on appeal because they failed to take
advantage of their trial opportunity.” United States v. Wilson, 578 F.2d 67, 70
(5th Cir. 1978). In Wilson, the defendants “chose to attack the entirety of the
government’s transcript based on their contention that the tape was wholly
unintelligible” instead of challenging specific portions of the government’s
transcript or preparing their own version. Id. We held that the issue of
unintelligibility was effectively “reserved for the jurors when the district court
instructed them that their own understanding of the tape would control over the
government’s transcript.” Id.
      Chaney relies on the Sixth Circuit’s decision, United States v. Robinson,
707 F.2d 872, 879 (6th Cir. 1983), to generally object to admission of the
transcript. Robinson held that transcripts should not be presented to a jury
when the recordings are “so inaudible as to preclude transcription.” 707 F.2d at
879. The court reasoned that, in the absence of a stipulation, the trial court
should “make an independent determination of accuracy by reading the

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                                  No. 07-11197

transcript against the tape.” Id. at 878–79. This court, however, has taken a
different approach, ruling that “it is unnecessary for the trial court to decide
whether a transcript is accurate before that transcript is given to the jury, so
long as each side to the dispute is given an opportunity to submit a transcript
containing its version of a conversation.” Onori, 535 F.2d at 948. Furthermore,
this court explicitly addressed Robinson in United States v. Howard, 961 F.2d
1571 (5th Cir. 1992) (unpublished table decision), reprinted in United States v.
Murray, 988 F.2d 518, 523 (5th Cir. 1993) (including the full text of Howard in
an appendix). We stated:
      While the Robinson court is certainly correct that the transcripts
      would tend to become the evidence in a case where the tapes were
      too inaudible to allow the jurors to evaluate the accuracy of the
      transcripts, the point here is that the tapes in this case were not so
      inaudible. The tapes here, while not ideal, were clear enough to
      allow the jurors in this case to determine whether the transcript
      was faithful to the words being spoken. Accordingly, the concerns
      raised by the Sixth Circuit, while valid, have no application here.
Id. at 526 n.3 (contained in the appendix to Murray).
      In the present case, the transcripts are admissible despite the partial
unintelligibility of the recordings. As we have already stated, the recordings are
sufficiently intelligible to be admitted into evidence and are thus capable of
yielding a meaningful transcript. In Wilson, we reasoned that “[o]nce we have
held the tape admissible, defendants’ argument falls under its own weight since
it necessarily follows that the tape was sufficiently intelligible for challenging
specific portions of the government’s transcript or preparing a defense version.”
578 F.2d at 70. Similarly, Chaney cannot now challenge the government’s
transcript generally if the recordings were sufficiently intelligible and Chaney
did not take advantage of his trial opportunity. Despite the district court’s
willingness to listen to specific portions of recordings when Chaney disputed the




                                       12
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corresponding parts of the transcript, there is no evidence in the record that
Chaney availed himself of such an opportunity to challenge specific portions.
      Finally, we consider Chaney’s argument that the jury should not have
used the transcripts because the recordings as actually presented at trial were
unintelligible and therefore the jury could not meaningfully compare the audio
to the transcripts. First, regardless of what transpired at trial, Chaney still had
a valid opportunity to prepare a counter-transcript. Furthermore, it is difficult
for this court to determine precisely the degree of interference that the court’s
sound system presented to the jury. The record only tells us that on the first day
the judge could understand about twenty words but on the next day the
audibility improved. We also do not know how audible the recordings were when
they were sent back to the jury room for deliberation. Because the record is not
clear regarding this matter and the defendant has offered no alternative method
to make this assessment, we thus defer to the discretion of the trial court in
making the assessment.
E. Whether the Transcripts Violated the Best Evidence Rule
      Finally, we disagree with Chaney that the best evidence rule bars
admission of the transcripts. The best evidence rule states that, “[i]n proving the
content of a writing, recording or photograph, where the terms of the content are
material to the case, the original document must be produced unless it is shown
to be unavailable for some reason other than the serious fault of the proponent,
or unless secondary evidence is otherwise permitted by rule or statute.”
KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE 87 (6th ed. 2006) (footnotes
omitted); see also United States v. Duffy, 454 F.2d 809, 811 (5th Cir. 1972).
Regarding transcripts and recordings specifically, the United States Court of
Appeals for the District of Columbia has noted, “When the original tape is
available and presented to the jury and the accuracy of the transcript has been
stipulated or is made an issue for the jury to decide, concerns addressed by the

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best evidence rule are not at issue.” United States v. Holton, 116 F.3d 1536,
1545 (D.C. Cir. 1997). We agree with this reasoning for the purpose of the
present case.
                            IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment and sentence of
the district court.




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