                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                          NOVEMBER 28, 2005
                                 No. 04-15705              THOMAS K. KAHN
                            Non-Argument Calendar              CLERK
                           ________________________

                       D. C. Docket No. 03-60182-CR-KAM

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                     versus

WILSON JOSEPH,
a.k.a. Wilson Petit Frere-Joseph,

                                                          Defendant-Appellant.


                           ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                         _________________________

                                (November 28, 2005)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Wilson Joseph appeals his conviction and sentence for conspiracy to possess

cocaine with intent to distribute and attempt to possess cocaine with intent to

distribute. See 21 U.S.C. §§ 841, 846. Joseph raises three arguments on appeal:

(1) the district court abused its discretion by admitting into evidence transcripts of

recorded statements; (2) the district court abused its discretion by limiting Joseph’s

cross-examination of a government witness; and (3) the district court sentenced

Joseph in violation of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738

(2005). Because the district court did not abuse its discretion either by admitting

the transcripts or by limiting cross-examination, we affirm Joseph’s convictions.

Because any statutory Booker error committed by the district court was harmless,

we affirm Joseph’s sentence.

                                 I. BACKGROUND

      On July 26, 2003, William Sampsel, a confidential informant working for

the Drug Enforcement Administration, met with drug traffickers off the coast of

the Bahamas to arrange the transport of cocaine and marijuana into the United

States. Several men, possibly including Joseph, loaded Sampsel’s boat with the

drugs, and Sampsel was advised how to contact Joseph to drop off the drugs once

they were inside the United States. Sampsel turned over the drugs to the DEA, but

arranged the meeting with Joseph at the instruction of the DEA.



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      Several days later, Sampsel met with Joseph at a restaurant in Hollywood,

Florida. The DEA taped their conversation, during which Sampsel and Joseph

arranged to exchange the drugs at a warehouse the following day. The DEA also

videotaped the meeting in the warehouse, and after Joseph began to load the

cocaine in his vehicle, the DEA arrested him. Joseph and Michele Jean Francois,

who was also present at the warehouse, were indicted on charges of conspiracy to

possess cocaine with intent to distribute, attempt to possess cocaine with intent to

distribute, and conspiracy to import cocaine into the United States.

      At trial, the defendants moved to exclude from evidence transcripts of the

conversation at the restaurant and the meeting in the warehouse. They argued that

the transcripts were inaccurate and that they erroneously identified one speaker to

be Joseph. The district court denied the motion, but agreed to provide the

following jury instruction:

             Ladies and gentlemen, in conjunction with any transcripts that
      are admitted during the course of this trial, I’m going to read you an
      instruction that I’ll ask you to follow with respect to any such
      transcripts.
             As you have heard, this particular transcript has been identified
      as a typewritten transcript of the oral conversation that can be heard
      on a tape which I presume is going to be later admitted into evidence.
             ....
             This transcript also purports to identify the speakers engaged in
      the conversation. When the transcript is actually offered into
      evidence, I will admit it for the limited and secondary purpose of
      aiding you in following the content of the conversation as you listen to

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      the tape recording when it is played, and also to aid you in identifying
      the speakers. However, you are specifically instructed that whether
      the transcript correctly or incorrectly reflects the content of the
      conversation or the identity of the speakers is entirely for you to
      determine based upon your own evaluation of the testimony . . . you
      will hear concerning the preparation of the transcript and from your
      own examination of the transcript once it’s presented to you in
      relation to your hearing the tape recording itself as the primary
      evidence of its own contents. And, if you should determine that the
      transcript is in any respect incorrect or unreliable, you should
      disregard it to that extent.
             Now, this is somewhat premature, because the tape hasn’t been
      played yet and you don’t have the transcripts to review yet, but, in
      anticipation of hearing them and seeing them and there is some
      reference being made to them, you should consider all of the
      testimony relating to the transcripts in conjunction with this
      instruction.

Joseph objected to the phrasing of the jury instruction, but the district court

overruled the objection.

      The defendants presented evidence relating to the methods of transcription

and the bias of the transcribers. Other speakers on the recordings testified that it

was Joseph’s voice on the tape, and Joseph cross-examined these witnesses.

Francois introduced into evidence an alternate transcript of the recording, but

Joseph chose not to offer his own. The district court repeated the jury instruction

on several occasions. Joseph testified that it was not his voice on the recordings.

      Sampsel, the confidential informant, testified against the defendants. Joseph

and Francois sought to introduce seventeen civil judgments that had been entered



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against Sampsel during the 1990s on the ground that they were evidence of

fraudulent activity. The district court conducted voir dire to determine whether the

judgments were admissible under Federal Rule of Evidence 608(b) and ruled that

the judgments were inadmissible. During the hearing, Sampsel testified that he

entered bankruptcy in “the late nineties;” the defendants produced the bankruptcy

judgment, and it was dated in 1993. The defendants sought to cross-examine

Sampsel on this inconsistency in open trial. The district court ruled this line of

questioning inadmissible.

      The jury acquitted Francois of all charges but convicted Joseph on the first

and second counts of the indictment. The PSI calculated an offense level of 38 and

an applicable guidelines range of 235-293 months. Joseph raised no factual

objection to the PSI but argued that the sentencing guidelines were unconstitutional

under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district

court overruled the objection and said it considered the guidelines to be mandatory.

The district court said it “believe[d] that a sentence at the upper end of the

guideline range is necessary in this case in view of what [it] consider[ed] the

defendant’s having perjured himself during the trial” but, “because of the high

guideline range, an [enhancement for] obstruction [of justice] wasn’t necessary in

order to punish the defendant for having engaged in that conduct during the trial.”



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                          II. STANDARD OF REVIEW

      This Court reviews the admission into evidence of transcripts of tape

recordings for abuse of discretion. United States v. Wilson, 578 F.2d 67, 69-70

(5th Cir. 1978); see also United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir.

1993). We review limitations on the scope of cross-examination for abuse of

discretion. United States v. Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999). We

review preserved statutory Booker error for harmless error. United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005).

                                III. DISCUSSION

      Joseph raised three arguments on appeal. First, he argues that the district

court abused its discretion in admitting into evidence transcripts of tape recorded

and videotaped meetings. Second, Joseph argues that the district court abused its

discretion in limiting his cross-examination of Sampsel, the confidential

government informant. Third, Joseph argues that the district court committed

statutory Booker error. We address each argument in turn.

               A. The District Court Did Not Abuse Its Discretion By
                     Admitting the Transcripts into Evidence.

      Joseph argues that the district court abused its discretion by admitting into

evidence transcripts of the conversation at the restaurant and the meeting in the




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warehouse. The procedure for challenging the accuracy of a transcript is well-

established in this Circuit:

              Initially, the district court and the parties should make an effort
      to produce an “official” or “stipulated” transcript, one which satisfies
      all sides. If such an “official” transcript cannot be produced, then
      each side should produce its own version of a transcript or its own
      version of the disputed portions. In addition, each side may put on
      evidence supporting the accuracy of its version or challenging the
      accuracy of the other side’s version. Since the jury must always
      reconcile the discrepancies in the transcript(s) against the recording
      itself, the district court need not listen to the tape or decide whether a
      transcript is accurate before the transcript is given to the jury and the
      recording is played.

United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993) (quoting United

States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). In the light of the

precedents, Joseph’s argument fails.

      The district court made available to the defendants each of the remedial

procedures described in Hogan and Wilson. Francois proffered his own version of

the transcript. Joseph presented testimony that purported to undermine the

accuracy of the transcript. Both defendants cross-examined witnesses present

during the taped meetings. Joseph even testified on his own behalf and denied his

presence during the meetings. Moreover, the district court repeatedly instructed

the jury, “[S]hould [you] determine that the transcript is in any respect incorrect or




                                           7
unreliable, you should disregard it to that extent.” The district court did not abuse

its discretion by admitting the transcripts into evidence.

                B. The District Court Did Not Abuse Its Discretion By
                      Limiting Cross-Examination of Sampsel.

       Joseph argues that the district court abused its discretion in limiting cross-

examination of Sampsel. Joseph contends that he should have been permitted to

question Sampsel about false statements Sampsel made regarding the date of his

bankruptcy during voir dire, but this argument fails. Federal Rule of Evidence

608(b) provides, “Specific instances of the conduct of a witness, for the purpose of

attacking or supporting the witness’[s] character for truthfulness, other than

conviction of crime as provided in rule 609, may not be proved by extrinsic

evidence.” Fed. R. Evid. 608(b). “They may, however, in the discretion of the

court, if probative of truthfulness or untruthfulness, be inquired into on

cross-examination of the witness [] concerning the witness’[s] character for

truthfulness or untruthfulness . . . .” Id. It is within the discretion of the district

court to “permit questioning about a witness’[s] prior bad acts on

cross-examination, if the acts bear on the witness’[s] character for truthfulness.”

United States v. Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999). But, “[i]f the

witness denies the conduct, such acts may not be proved by extrinsic evidence and

the questioning party must take the witness’[s] answer, unless the evidence would

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be otherwise admissible as bearing on a material issue of the case.” Id. (citations

omitted).

      On appeal, Joseph contends that it was an abuse of discretion for the district

court to bar Joseph from questioning Sampsel on his testimony during voir dire.

We disagree. Although Joseph correctly asserts that cross-examination on matters

“concerning the witness’[s] character for truthfulness or untruthfulness” is

permissible, Fed. R. Evid. 608(b), this does not end our inquiry. Federal Rule of

Evidence 403 permits the district court to exclude relevant evidence “if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury . . . .” Fed. R. Evid. 403. The

district court observed that it was not clear Sampsel “intentionally made a false

statement or whether he was mistaken.” Joseph could not introduce extrinsic

evidence, i.e., Sampsel’s voir dire testimony or the bankruptcy judgment, to prove

the inconsistency, and the district court concluded that questioning on that matter

would be of low probative value. Moreover, the district court permitted Joseph to

impeach Sampsel on other grounds, including a pending charge of driving under

the influence in Nevada. Because the discretion of the district court is “especially

broad when it comes to controlling cross-examination for impeachment purposes,”




                                          9
United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir. 1991), we cannot say

limiting cross-examination on this issue was an abuse of discretion.

                    C. Any Statutory Booker Error Was Harmless.

       Joseph argues that the district court committed statutory Booker error by

sentencing him under a mandatory guidelines scheme. The government concedes

that the district court committed statutory Booker error but argues that the error

was harmless. We agree with the government.

       Statutory Booker error arises “when the district court misapplies the

Guidelines by considering them as binding as opposed to advisory.” United States

v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). When the defendant has

preserved his objection to the constitutionality of the sentencing guidelines, we

review for harmless error. United States v. Mejia-Giovani, 416 F.3d 1323, 1326-

27 (11th Cir. 2005). The burden is on the government to show that the statutory

error was harmless, and that burden is to prove “that viewing the proceedings in

their entirety, . . . the error did not affect the sentence, or had but very slight effect.

If one can say with fair assurance that the sentence was not substantially swayed by

the error, the sentence is due to be affirmed even though there was error.” Id.

(citing United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005)).




                                             10
      The government has established harmless error. At the sentencing hearing,

the district court expressed its opinion that “[Joseph] obviously perjured himself

during trial,” and the district court described Joseph’s testimony as “incredible.”

The district court explained, “I didn’t seek an enhancement for obstruction [of

justice] when I saw the guidelines range, which I would have otherwise done since

your client obviously perjured himself during the trial.” The court concluded “a

sentence at the upper end of the guideline range is necessary in this case . . . and,

because of the high guideline range, an [enhancement for] obstruction [of justice]

wasn’t necessary in order to punish the defendant for having engaged in [perjury]

during the course of the trial.” Although the government only requested a mid-

range sentence of 247 months of imprisonment, the district court imposed a term of

276 months. Based on the statements made by the district court, see Mejia-

Giovani, 416 F.3d at 1326, and the sentence at the upper end of the guidelines

range, we conclude that any statutory Booker error was harmless.

                                 IV. CONCLUSION

      We affirm Joseph’s convictions and sentence.

      AFFIRMED.




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TJOFLAT, Circuit Judge, dissenting:

      The district court sentenced Joseph under a sentencing model that differs

materially from the model Booker creates. See United States v. Rodriguez, 406

F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, J., dissenting from denial of rehearing

en banc) (explaining the difference between sentencing pre-Booker and post-

Booker.) The difference in the two models is so fundamental, and so striking, that

the district judge in this case could not possibly have imagined what it would have

been like to sentence Joseph using the new, Booker model. Among other things,

the judge would have had to weigh, take appropriately into account, and make

findings regarding the four sentencing objectives set out in 18 U.S.C. § 3553(a)(2).

What evidence the parties, especially the defendant, may have presented touching

on these objectives we can hardly surmise, much less know. Finding harmless error

under these circumstances is, in my view, purely arbitrary.

      I would vacate Joseph’s sentence and remand the case for resentencing.




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