Government to prepare for use at trial 20 copies of an exhibit consisting of an accurate transcript of all conversations believed relevant with the speakers identified in accordance with the Government's contention. The Order also required the Government to prepare an accurate single tape for use at trial containing only those conversations which the Government would seek to have introduced at the trial.
At the pretrial hearings held on November 1, 1971, November 3, 1971, and November 4, 1971, prior to the formal commencement of the trial and attended by defendants and their counsel, I personally compared the tape recordings with the written transcripts prepared by the Government pursuant to my October 5, 1971 Order. Special Agent Cassidy, who supervised both the interceptions and the transcript preparation, testified extensively concerning the procedures that he and his staff followed in the transcript preparation. He conceded that in preparing the transcripts he listened to some of the tapes a dozen or more times before reaching his final conclusion as to the content of the conversations. Moreover, in some tapes he was unable to reach a conclusion as to the content of portions of the tapes. These inaudible portions were so indicated on the transcripts by the insertion of question marks where the apparently incomprehensible speech occurred. After careful consideration it was concluded, despite the contrary opinion of defense counsel, that the transcripts were an accurate depiction of the contents of the tape recordings except for some minor discrepancies which were considered immaterial.
The defendants were unquestionably correct that both the poor sound quality of some recordings and the frequently rapid and slurred speech of the speakers made certain tapes less than crystal clear. Although portions of the conversations were somewhat unintelligible, I was convinced, however, the significant parts were not. To paraphrase the words of the Court in Cape v. United States, 283 F.2d 430, 435 (9 Cir. 1960), the thread of the conversations, though thin in places, was never completely broken. For that reason the tapes were allowed to be played for the jury.
Secondly, defendants contended that even if the recordings were properly admitted into evidence, the Court committed serious error in allowing written transcripts of the recordings to be used at the trial. It should be noted that subsequent to defendants raising this point, the judges of this Court adopted virtually the same transcript procedure followed in this case.
Since the sound quality of the tapes admittedly was less than excellent and the speech patterns furthered the difficulty in understanding the tapes, I decided that the only fair and feasible way to have the jury effectively consider the recordings was to utilize the transcripts as a listening aid. Other methods of presenting the intercepted conversations to the jury would have been unduly prejudicial either to the prosecution or the defense. On the one hand, simply to play the recordings for the jury one time without the aid of the transcripts would have rendered some of the conversations ineffective as evidence under the circumstances of this case. On the other hand, to play each recording several times to the jury would have unduly prolonged the trial, and possibly caused prejudice to defendants by excessive repetition of Government evidence. Thus, since I was convinced that the transcripts were in all material respects accurate, I adopted a procedure which I deemed fair to both sides.
On direct examination, Special Agent Cassidy was permitted to read the prepared transcripts of the recorded conversations. He was also permitted to express his opinion as to the meaning of certain words and expressions from his experience as a narcotics investigator. The tapes were then played for the jury. As each tape was played, the jury had in their hands copies of the Government prepared transcript to follow the conversation. This was the only time during the entire trial that the jury was permitted to see the transcripts. Immediately prior to the playing of each conversation transcripts of a particular recording were distributed to the jury. As each conversation concluded, the transcripts were immediately collected from the jury. The transcripts were not sent out with the jury during deliberations.
Although I mentioned to the jury that I was satisfied with the accuracy of the transcripts except for some minor discrepancies which were considered immaterial, I repeatedly stressed to them that it was the sole province of the jury to determine whether there were any discrepancies. Furthermore, at the playing of virtually every conversation and again in the charge, the jury was instructed that if they perceived differences between what they read in the transcripts and what they heard on the tapes, it was what they heard on the tapes that governed entirely.
Defendants argued strenuously that the above outlined transcript procedure "programmed" the minds of the jury to hear exactly what the Government contended in its transcripts was said on the tapes. This possibility was considered and rejected for several reasons. Firstly, I was satisfied that the transcripts were accurate in all material respects. Secondly, the jury was continuously warned to be governed by what they heard if they perceived any discrepancies. Thirdly, defendants were free at all times to point out any transcript discrepancies through cross-examination of Special Agent Cassidy or additional tape plays. Finally, a more workable procedure, fair to both prosecution and defense, was unavailable.
Defendants cited the following sparse language of the Third Circuit in Schanerman, supra, 150 F.2d 941, 944 for the proposition that it was error to permit the use of transcripts at all:
"Transcribed notes, made by a stenotype operator from hearing the records repeatedly 'played', were properly excluded . . ."
Schanerman dealt with notes transcribed by a stenotype operator whereas the instant case involved transcripts prepared by the agent who had directed and participated in the interceptions and had personally familiarized himself with the voices of the defendants. In addition, Schanerman, handed down in 1945, was not decided with a view toward how best to implement a comprehensive electronic surveillance statute such as that involved in the instant case. In view of these differences, the single phrase in Schanerman hardly seemed dispositive.
Defendants argued that the cases allowing written transcripts justify the use of such transcripts only for the limited purpose of aiding in the identification of the speakers. See Fountain v. United States, 384 F.2d 624 (5 Cir.1967), cert. denied, sub nom. Marshall v. United States, 390 U.S. 1005, 88 S. Ct. 1246, 20 L. Ed. 2d 105 (1968); United States v. Hall, 342 F.2d 849 (4 Cir.1965). Defendants, however, overlooked two cases which approved the extensive use of written transcripts to facilitate the presentation of recorded testimony.
In United States v. Koska, 443 F.2d 1167 (2 Cir.1971), the jury was not only allowed to read a government prepared transcript while listening to five hours of tape, but also to use twelve copies of the transcript during deliberations. While in Koska the transcript was stipulated as accurate except in two immaterial respects and no such stipulation occurred here, I was satisfied as to the accuracy of the transcripts before permitting the jury to see them. Furthermore, to the extent that the Koska jury was permitted to use the transcripts during deliberations the use made of the transcripts in the instant case was more limited. Similarly, Lindsey v. United States, 332 F.2d 688 (9 Cir.1964) approved the reading of a transcript to the jury despite the defense objection that this procedure would give the Government a "second shot" at proving the contents of the conversations.
All the factors set forth above were considered in evaluating defendants' claim that the transcript procedure followed constituted prejudicial error. I remain convinced, however, that the procedure followed provided the most reasonable means of presenting telephonic interceptions to the jury.
Defendants' various other allegations of prejudicial trial error were also carefully considered and denied for lack of merit.