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United States v. Brown

February 22, 2008

UNITED STATES OF AMERICA
v.
FRANKLIN C. BROWN



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Defendant Franklin Brown was tried and convicted of multiple criminal counts stemming from the government investigation into fraud at Rite Aid, Defendant's former employer. During the United States' case against him, certain audiotapes and videotapes were presented to the jury as evidence of conversations that had taken place between Defendant and a confidential informant. During the trial, no objection was lodged as to the authenticity of the tapes. After trial, however, and after considerable expert research and expense, Defendant now moves for acquittal or for new trial because he believes that the government deliberately altered, edited, or modified these tapes. Defendant believes that the United States recorded these conversations on an analog audio recorder, digitized the sound recording, edited the recording on a computer, then relayed the digital sound file back on to the original tape used to make the recording in the first place. (See Hr'g Tr. vol. 1, 210-11.) Similarly, or in the alternative, he argues that the analog reels purported to be the original recordings of the conversations at issue that his expert was provided in 2003 are not the same purported original recordings he received in 2005. (See id. vol. 3, 613.) This misconduct, he argues, violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C. § 3500, because the government withheld exculpatory evidence. Because of this alleged government malfeasance, Defendant argues, he is entitled to dismissal of the indictment against him or a new trial. Applying the facts, as adduced at a four-day evidentiary hearing on this matter, to well-settled law, this court will deny Defendant's motion.

I. Background*fn1

Because of the complexity of the technology applicable in this matter, first the court will provide background information on audio tapes and recordings, and the method by which they are authenticated. Then the court will relate the testimony regarding the authenticity of the tapes and describe the facts applicable to the allegedly exculpatory statements and the challenge to the surveillance videotapes. Last, the court will provide its own conclusions of fact that will dictate the law applicable to the disposition of this motion.

A. Audio Recording and Authenticity: A Primer

At issue in this motion, at base, is whether certain recordings, made on an analog recorder and analog tape, are authentic or were edited by the government. Understanding the process of making such a recording and authenticating it is essential to understanding the evidence to follow.

First, a very brief description of "the old days." Before the computer age, analog tapes and reels were the stock in trade of covert surveillors. There was one and only one original tape -- the very tape upon which the voices of persons having a conversation was initially recorded. (See Hr'g Tr. vol. 1, 35.) Any duplicates of that original tape were deemed copies. (Id.) A copy of the original tape was a second generation copy; a copy of the second generation yielded a third generation copy, and so on. (Id.) At each stage of such generational copying, audio defects, anomalies, and artifacts might be included on, for example, a third generation copy that did not exist on the second generation copy. (See id.) The very process of recording analog tapes introduces these differences because of equipment noise and differences in recording environments.

The concept of "copying" has changed with the digital age. Now, an original analog tape may be "cloned" by making an exact, bit by bit duplicate of the analog tape on a digital audio file, with no loss of data from the analog to the digital. (Id. at 34; id. vol. 3, 668.) The resulting audio file is called a "clone" and is considered a first-generation version of the recording because it is an exact rendition of the recording on the analog tape. (Id. vol. 1, 34; vol. 3, 665.) It is not a second-generation "copy." (Id. vol. 1, 34.) The court will use "clone" to indicate the result of feeding an analog tape through a computer to result in an exact duplicate of the analog recording, and "copy" to indicate any recording not a clone.

The method of editing a recording, and recognizing that a recording has been edited, has undergone a similar sea change due to new technology available. In the analog world, an edit was highly visible and somewhat clumsy. The physical analog tape upon which a recording was made would be physically cut, then spliced together with adhesive. (Id. at 197.) Now, digital recordings are easily edited and reconstructed almost seamlessly. Edits are no longer visible to the naked eye. If they are to be found at all, it is only after extensive, highly technical, and painstaking digital analysis of the signature,*fn2 spectrum,*fn3 phase,*fn4 and waveform*fn5 of a sound recording. (See id. at 196.) As stated above, analog recordings can be made into digital audio files.

Due to these changes, the method of determining the authenticity of a sound recording has also evolved. To authenticate a recording, an examiner must determine whether the recording was made, that is, recorded, continuously and simultaneously with the conversation it purports to represent. (Id. vol. 4, 746.) In the past, with analog tapes, the examiner could look at the tape to determine whether it was whole and complete. Now, because analog recordings can be made into digital files, it appears that the following are best practices. First, the person conducting the examination must have access to the original recording device and the original recording. (Id. vol. 1, 35.) Various samples and exemplars are made from the recording device to determine the characteristics of the recording device. (See id. at 36.) Once the examiner knows the characteristics of the original recording device, the examiner has a baseline of what to expect to hear on the original recording and subsequently-made copies or clones. (Id. at 41-43.) Each time an original recording is copied or cloned, additional signatures may be recorded onto the copy or clone because of the sounds and frequencies given off by things like the electronic devices used to make the copies or clones, the room environment, and the lighting. (Id. at 36.)

After examining the recording device, one turns to the target analog recordings in a three-step approach. (Id. vol. 4, 746.) First, the analog tape and its casing is physically examined. (Id. at 747.) The examiner searches for visual clues about whether the tape appears as an original tape does. (Id.) Second, the examiner conducts critical listening and review using low distortion equipment. (Id.) The examiner listens to the recording multiple times to determine whether there are any irregularities about the recording that suggest the need for future study. (Id. at 747-48.) Third, the examiner feeds the recording into a computer, digitizing the signal, for extraordinarily close digital inspection. (Id. at 748.) The software interprets the digital signal and displays its various audio components in a visual representation. (See Def.'s Hr'g Exs. 23, 24.) Many of these audio components are inaudible to the human ear; the software flags places where these components signal a need for further study. (Hr'g Tr. Vol. 4, 772.)

At issue in this case are recordings made by a Nagra SNST ("SNST") analog tape recorder. (Id. at 746.) The recorder contains reels which house an analog tape. (Id.) It has two small microphones, attached to wires, which are taped to the informant's body. The presence of two microphones means that two audio channels contribute to the one recording on the analog tape; this means that the recording is made in stereo. To reproduce the entirety of information contained on a stereo recording, one must copy or clone both audio channels, left and right. Recording one channel provides only half of the audio information.

When the recorder is turned on to record, the tape travels from one reel to another, moving over record heads. (Id.) The magnetic field of the record head impresses a pattern upon the moving tape in the header region. (Id.) The pattern on the magnetic particles on the tape represent the input to the recorder. They are the recording itself. (Id.)

A recording made by a SNST may be played back only on the SNST itself. For this reason, the court will occasionally refer to the SNST recorder as the "SNST recorder/playback unit." Federal law prohibits a private person from possessing a Nagra SNST recording/playback unit. (Id. vol. 1, 41.) A recording made on SNST equipment may be copied or cloned onto other media by using proprietary cables to connect the recorder/playback unit to a digital signal processor, or "DSP unit." (Id. at 180-81.) The DSP unit acts as a converter for the signal from the recorder/playback unit. (Id. at 115-16.) By connecting cables coming out of the expander box to another machine, such as a computer or a different analog recorder, the signal from the SNST is duplicated on to new media. (Id.)

B. The Contested Tapes: A Chronology

1. Creating the Tapes

Tim Noonan, an executive at Rite Aid, cooperated with the government as it investigated other Rite Aid executives for numerous violations of the United States Code. Noonan agreed to wear a wire and record conversations between himself and others to assist the government's case. He recorded six conversations total ("Noonan conversations"). Three recorded conversations are germane to the instant motion: Noonan's conversations with Defendant on March 13, 2001, March 30, 2001, and May 21, 2001. During each of these conversations, Noonan wore a SNST taped to his body.*fn6 An FBI video surveillance team videotaped the conversations as they occurred.

FBI Special Agent Charles Williams met with Noonan before each conversation to outfit him with the SNST. (Id. vol. 2, 259.) He used new tapes for each conversation. (Id. at 260.) Before placing the tape in the recorder, Special Agent Williams wrote his initials and the date and/or the case number on the "leader" of the physical tape itself, the portion of tape at the very beginning of the reel. (Id.) To ensure that the machine was functioning properly, Special Agent Williams recorded a preamble on to each tape stating the date, time, and purpose of the recording. (Id. at 261.) Then he placed the recorder on to Noonan's body, and checked it again to determine whether it was still working. (Id.)

Noonan, thus equipped, left the staging area to meet Defendant. On some occasions, Noonan had a remote switch to activate the SNST recorder. (Id. at 262.) On other occasions, Special Agent Williams may have started the recorder before Noonan departed. (Id.) Noonan's instructions were to leave the SNST running at all times until Noonan met with Special Agent Williams to have the recorder removed from his body (id.) or once he returned to his vehicle after the conversation was over (id. at 414). Once the SNST was removed, Special Agent Williams wrote the date and time he received the machine back from Noonan at the end of the tape.*fn7 (Id. at 262-63.)

Special Agent Williams brought the recorder and analog reels to the Harrisburg FBI Office where he made an analog copy of the SNST recording on an audiocassette. (Id. at 263.) To do so, he rewound the SNST tape, then played it forward on the SNST recorder itself, which was connected to a separate audiocassette recorder. (Id.) The audiocassette became a working copy of the conversation. (Id.) The working copy went to the case agent for the Rite Aid matter, Special Agent George Delaney. (Id. at 275.) Special Agent Williams placed the SNST recordings of the March 13, March 30, and May 21 conversations into a "504 envelope," which is the FBI designation for envelopes containing the original recordings of electronic surveillance. (Id. at 302.) The 504 envelopes containing the SNST reels then went to Special Agent Delaney, who sent them to the FBI Electronic Surveillance Unit.

2. Producing the Tapes to Defense Counsel

In May 2001, Special Agent Delaney retired. Agent David Clark had joined the Harrisburg Office of the FBI at the beginning of that month, and assumed case agent responsibilities for the Rite Aid matter. (Id. at 293-94.) Agent Clark was responsible for assisting the government with producing the tapes of the Noonan conversations to defense counsel. (Id. at 294.) He used a high-speed recorder in the FBI office in Harrisburg to create three copies of each audiocassette tape containing a Noonan conversation. (Id. at 295.) Agent Clark did not note what he used as the source cassette for making these copies. (Id. at 296.) It may have been the working copy made directly from the SNST reel-to-reel tapes, but it may have been a later generation copy of that working copy. (Id.) When copies for each defendant had been made, Agent Clark marked their cassettes with the date of the conversation recorded thereon and gave them to Assistant United States Attorney Kim Daniel for production to the defendants. (Id.)

This reproduction process varied for the March 30 conversation. The recording on the SNST reels of that conversation had poor audibility. (Id. at 297.) The reels were sent to the FBI laboratory to be enhanced, to improve the recording's audibility. (Id. at 306.) It is unclear exactly how the audibility of the conversation on the reels was enhanced. (Id. at 373.) Once the enhancements were complete, the reels were sent back accompanied by the enhanced version of the recording on a separate audiocassette. (Id. at 298.) Agent Clark copied the enhanced recording for production to the defendants using the same high-speed duplicator he had used for the other conversations. (Id.)

Agent Clark attempted to have a transcript prepared from a work copy of the March 30 conversation. (Id. at 324.) He sent the work copy to the FBI stenography pool in Scranton for the first draft. (Id.) The draft that he received back was not satisfactory, so he tried to correct it himself. (Id. at 324-25.) He was unable to tell where to make corrections to the transcript due to the poor audibility of the version of the conversation. (Id. at 348.) Thus Agent Clark was "unable to approve" the resulting transcript because too much material was inaudible. (Id. at 325.) The transcript, such as it was, was provided to trial counsel as a rough draft. (Id. at 326.) The conversation was largely inaudible because of the setting in which it occurred. (Id. at 327.) Noonan and Defendant met at a bagel shop that was "full of little kids" with "constant noise from . . . the coffee shop itself, music playing in the coffee shop, [and] the kids screaming."*fn8 (Id.) At this time, Agent Clark determined that he would not go through the entire tape and attempt to have it transcribed again because "it was just going to be too much work." (Id. at 354.)

The government decided not to present an audio or video version of the March 30 conversation at trial, and ceased attempting to recover additional words, phrases, or information from the conversation. (Id. at 327.)

Agent Clark sent the surveillance videotapes of the March 13 and May 21 conversations to the FBI laboratory to have them synchronized with their audiotapes. (Id. at 299-300.) The tapes were enhanced before being synchronized with the videotapes. (Id. at 307.) Once the synchronized versions of the conversations were returned on videocassette, Agent Clark provided it to AUSA Daniel. (Id. at 300.) The Office of the U.S. Attorney digitized the contents of the synchronized videocassette for presentation to the jury using Sanction II software. (Id.; U.S. Hr'g Ex. 5.)

In July 2002, AUSA Daniel produced various recordings of these conversations to trial counsel. (U.S. Hr'g Ex. 1.) All of the audio recordings were produced, including the enhanced version of the March 30 conversation. (Id.) Transcripts of most conversations were provided. (Id.) Also included was a videocassette containing footage of the conversations on March 30 and May 21. (Id.) The video from May 21 was matched with its audio on the produced videocassette. (Id.) AUSA Daniel produced the surveillance video for the March 13 conversation on July 30, 2002 and a "rough transcript" of the March 30 conversation. (U.S. Hr'g Ex. 2.)

On February 3, 2003, AUSA Daniel informed trial counsel of the availability of digital files containing the audio-, video-, and transcript-matched conversations from March 13 and May 21. (U.S. Hr'g Ex. 5.) The March 30 conversation was not matched with its surveillance video because of the poor quality of the audio recording. (Id.) On March 21, 2003, AUSA Daniel sent the trial presentation of the May 21 conversation to trial counsel and promised the trial presentation of the March 13 conversation at a later date because of technical problems. (U.S. Hr'g Ex. 6.) It was produced on April 8, 2003. (U.S. Hr'g Ex. 8.)

Trial counsel requested the FBI chain of custody envelopes for the tapes and they were provided. AUSA Daniel also provided a copy of the chain of custody envelopes for the enhanced copy of the March 30 conversation and the versions of the March 13, March 30, and May 21 conversations that were enhanced and synchronized with their surveillance videos. (U.S. Hr'g Ex. 7.)

Upon receipt and review of the tapes and transcripts of the conversations, Defendant "immediately recognized that there were radical differences between what I observed and heard on the tapes and what I recollected of the actual conversations. I therefore asked my counsel how we could get the tapes examined." (Brown Affirmation ¶ 6, May 25, 2005.) "Counsel was unreceptive to my inquiries about examination of the tapes. He told me that in order to request a court order for inspection of the original tapes, we would have to show prima facie evidence of tampering." (Id. ¶ 7 (emphasis added).) In late August 2002, Defendant took three of the six tapes to an audio forensic expert who advised him not to pursue inquiry on the authenticity of the tapes. (Id. ¶ 8.)

3. Defendant's Pre-Trial Objection to the Admissibility of the Tapes

Defendant filed a pre-trial motion to suppress the tapes, contending that they were obtained in violation of the Pennsylvania Rules of Professional Conduct 4.2 and 8.4(a) because AUSA Daniel used a surrogate to communicate with Defendant, who he knew to be represented by counsel. (Doc. 104.) This court concluded that no violation of the Rules of Professional Conduct had occurred, and even if it had, suppression was not the appropriate remedy. (Docs. 216, 217.)

Defendant did not object to the authenticity of the tapes before trial.

4. The Tapes at Trial

On September 14, 2003, Defendant retained Stuart Allen to examine and authenticate the audiocassettes produced to trial counsel containing the Noonan conversations that occurred on March 13 and March 30. (Hr'g Tr. vol. 1, 30.) He was also to look for "any artifacts that would give the Court probable cause to obtain the original tapes." (Id. at 81.) Allen concluded that both audiocassettes contained several "artifacts that were suggestive of either a very poor duplication process . . . or they were also suggestive of manipulation or alteration." (Id. at 32.) He could not provide a conclusive result at that time because the tapes were copies of the original recording. (Id. at 31.)

Allen found the cassettes produced to trial counsel to be incomplete. (Id. at 32.) Each tape had been started and stopped multiple times when their opening headers were recorded. (Id.) The audio level of each tape dropped twenty decibels from Side A to Side B, which is inconsistent with what Allen had seen on other covert recordings made using most other kinds of body wires.*fn9 (Id. at 33) Further, the cassette tapes showed frequency variations not normally seen on such recordings. (Id.) Allen informed Defendant that he could not authenticate the copies in his possession; he required the original SNST recording to conduct a proper authentication analysis. (Id. at 32, 80-81.) Defendant asked Allen to go to Harrisburg to make clones and copy tapes of the SNST reels at the FBI Office. (Id. at 33.) Allen declined to do so because the conditions under which he would be working were inconsistent with his standards and practices in authenticating an audio recording. (Id. at 34.) He would make the copies and clones in his own laboratory, under controlled conditions, or not at all. The possibility of forensic error in making recordings outside of a controlled environment was too high. (Id. at 34, 113-14.)

Defendant's jury was empaneled on September 25, 2003 and trial began the following day. Defendant retained Tom Owen in or around October 2003. (Id. at 154.) Owen's understanding was that Defendant sought good copies of the SNST tapes to create and review transcripts of the conversations. (Id. vol. 3, 616.) According to Owen, "[t]here was never any intention to do a full forensic examination at that time." (Id. at 616.) Defense counsel agreed to admit into evidence, provisionally, all of the tapes pending Owen's inspection of the originals. (Trial Tr. vol. 3, 485.) Specifically, trial counsel stated that he had "some nagging concerns about the technical aspects of the tapes" and noted that if he could substantiate those concerns, he would lodge a more concrete objection to the tapes on technical grounds. (Id.) He noted that the defense had "discussed these [concerns] with the government. The government has been completely cooperative in terms of providing us with what we need." (Id.; see also id. at 486 (AUSA Daniel "agreed to make everything available to them.").

Defense counsel informed this court that if Owen found anomalies, he would take the stand. With trial ongoing, on October 7, 2003, Owen visually inspected and copied the SNST tapes and recorder at the Harrisburg Field Office of the FBI. Agent Clark provided Owen with the SNST reels of the March 13, March 30, and May 21 conversations. (Hr'g Tr. vol. 2, 309.) Agent Clark noted Special Agent Williams' initials on each reel. (Id. at 310.) Agent Clark also provided Owen with the SNST recorder/playback unit, a DSP unit, and the necessary cables to connect his equipment. (Id. vol. 1, 154.) Agent Clark left Owen alone with the reels and Owen's own recording equipment. (Id. vol. 2, 309.) At the end of the day, Agent Clark took the reels back from Owen, put them in their respective evidence envelopes, and stored them in the Harrisburg FBI Office. (Id. at 309-10.)

Owen examined the SNST recorder/playback unit and the three SNST recordings labeled March 13, March 30, and May 21.*fn10 (Id. vol. 1, 154.) His method of duplicating each reel was as follows. The SNST, as the playback unit, was connected to the DSP unit via a special Nagra cable. (Id.) Two cables issued from the DSP unit, for the stereo right and stereo left signals respectively. (Id.) Both cables were plugged in to his laptop to create a stereo digital clone of the March 13 conversation. (Id. vol. 3, 616.) He changed the configuration of the cords to record the March 30 and May 21 conversations, however. He plugged into his laptop only one cord, conveying one channel of the stereo recording, to create a mono digital recording of both the March 30 and May 21 conversations. He opted for mono versions of these conversations because memory on his computer was nearing capacity.*fn11 (Id. at 502, 617.)

The United States presented to the jury the synchronized, electronic versions of the Noonan conversations held on March 13 and May 21. It did not submit any audio material from the March 30 conversation because there were five other tapes presented to the jury covering substantially the same subjects and witnesses who testified to the content of the March 30 conversation. (Id. vol. 2, 327.) It would not have served the government's case to play an audiotape that was largely inaudible. (Id.)

On October 10, 2007, the government formally moved for admission into evidence of the recordings of the March 13 and May 21 conversations. (Trial Tr. vol. 9, 1941.) Defense counsel did not object to the admissibility of these recordings. (Id.) Moreover, defense counsel noted that his team "had an opportunity to review in the course of this case those original tapes or copies thereof with the digital computer version of the tapes [that was ultimately presented to the jury]. And we agree that they are accurate representations." (Id. at 1942.)

Owen produced a report on October 12, 2003, stating that the SNST tapes for the March 13 and March 30 conversations were original recordings and that the segment of the tapes containing the conversations between Noonan and Defendant were authentic.*fn12 (Hr'g Tr. vol. 1, 156.)

Trial counsel never called Owen to the stand to testify. Defendant lodged no objection to the admissibility of the tapes, nor did he level any accusations against the government of tampering with the tapes or withholding of exculpatory evidence.

On October 17, 2003, a jury convicted Defendant on ten counts of criminal acts.*fn13 (Doc. 615.) Defendant filed a motion for judgment of acquittal and for new trial*fn14 on February 4, 2004 (Doc. 646), which was denied (Doc. 675).

5. Post-Trial Developments Implicating the Tapes

On January 29, 2004, new counsel entered appearances on Defendant's behalf. (Doc. 640.) They asked Tom Owen to re-examine his versions of the three conversations and their associated videotapes. (Hr'g Tr. vol. 1, 157.) Owen "prepared some notes for them, stating that the original tapes contained anomalies and dropouts and were not in sync with the video and some other factors as well." (Id.)

On July 7, 2004, Defendant filed a motion to place under seal the original reel-to-reel tapes and video recordings of all conversations between himself and Noonan. (Doc. 724.) He sought the SNST reels and the videotapes for testing and review, to compare them with the copies he had been provided by the government and those that Owen had made. He stated that Owen and Allen had examined the recordings made by Owen in October 2003 and found "suspicious acoustic events" which called into question the authenticity of the recordings and suggested that the tapes were "altered, edited or otherwise manipulated." (Id. ¶¶ 13, 18.) Authenticity could be conclusively established only by testing and further examination, by both Allen and Owen, of the original reel-to-reel tapes. The court denied this motion on August 16, 2004 (Doc. 750), in large part because Defendant's expert was permitted to examine the originals during trial and subsequent to that inspection, defense counsel voiced no objection to the authenticity of the tapes. Further, there was no suggestion that the jury was exposed to an allegedly altered tape.*fn15

6. The Instant Motion for New Trial or for Dismissal of the Indictment

Defendant filed the instant renewed motion for dismissal of the indictment or for new trial on September 28, 2006.*fn16 (Doc. 859.) He claims that his experts have, since the time of trial and sentencing, discovered certain anomalies in both the purported original reel-to-reel recordings of the conversations and the copies made therefrom that lead them to conclude that the original reel-to-reel recordings may have been altered or edited by the government. The matter has been fully briefed. The court ordered an evidentiary hearing on the subject. The hearing occurred on four days, May 14-15, 2007 and August 13-14, 2007. Among the witnesses for Defendant were Stuart Allen, admitted as an expert forensic examiner of audio recordings, and Tom Owen, admitted as an expert in the area of audio enhancements and audio authentication. Testifying for the government were Paul Ginsberg, admitted as an expert in the field of forensic examination, enhancement, duplication, and presentation of audio and videotape recorded evidence, particularly as it relates to the authenticity of Nagra tape recordings, and Dave Snyder, admitted as an expert in forensic audio authenticity. Testimony from these experts follows.

The SNST reels of the disputed conversations were located in the electronic surveillance office in Philadelphia. Because the analog tapes were to be produced to Defendant, the FBI created an archival recording of each of the tapes. In August 2005, the FBI sent them to its laboratory to where David Snyder made digital copies of the analog tapes. (Hr'g Tr. vol 2 311, 458, 461.) Snyder noticed a slit in the edge of the evidence envelope for the reel of the March 30 conversation.

(Id. vol. 3, 702.) He did not note the broken seal on the chain of evidence envelope, but he did write it down in his own notes. (Id.) Upon creation of these "FBI archive copies,"*fn17 Agent Clark hand-delivered the SNST reels to defense experts on November 10, 2005. (Id. vol. 2, 311.) The court will occasionally refer to these tapes as the November 2005 SNST tapes.

The hub for one of the reels of the 2005 March 30 SNST tape was broken such that it spun freely, not connected to the tape itself. (Id. vol. 1, 213.) The tape was unplayable. (Id.) Agent Clark allowed the defense experts to repair the hub to enable the tape to function properly. (Id.) Agent Clark testified that he was not aware that the spool was damaged or how it came to be damaged. (Id. vol. 2, 344.) The reels were occasionally shipped from one site to another via Federal Express and may have been damaged in that process. (Id.)

As related supra, SNST reels may be played only on the SNST recorder/playback unit. The government did not provide the SNST recorder/playback unit along with the 2005 reels. Defendant's experts did not have one because federal law prohibits private persons from possessing a Nagra SNST.

a. The Experts' Testing Methods

(i) Defense

Tom Owen went to the FBI offices in Harrisburg in March and May 2006, to recreate the recordings he had made in October 2003. (Def.'s Hr'g Ex. 4 at 3; Hr'g Tr. vol. 3, 500.) He recognized that the conditions under which he copied the SNST tapes in October 2003 could have created some anomalies in the recordings. (Hr'g Tr. vol. 1, 157.) In March 2006, he brought with him the same analog recorder and the same laptop he had used to create the recordings of the SNST tapes in October 2003. (Id. at 158; vol. 3, 500.) He used a different DSP unit than he had in October 2003 because the original unit was not working. (Id. vol. 3, 509; vol. 1, 158.) He also used different cables. (Id. vol. 1, 118.) Using a different DSP unit and different cables can affect the quality of a downloaded recording and may create differences in versions of recordings. (Id. at 117-18; vol. 3, 510.) He made control tapes for the Nagra device using pre-recorded and blank tapes. (Def.'s Hr'g Ex. 4 at 2.) He created exemplars of the signatures of the computer he used to make the downloads. (Id.) Then he downloaded the recordings from the SNST reels onto his computer at a sample rate of 16 bits per 44.1kHz, just as he had done for the 2003 downloads. (Id. at 3.) He downloaded the recordings again at 44.1kHz and 92kHz. (Id.)

Owen returned to the Harrisburg FBI office in May 2006, again to duplicate the recordings he had made in October 2003, this time with a different laptop computer. (Id.; Hr'g Tr. vol. 1, 158.) He used the same DSP unit he had used in March 2006 because the original DSP unit was still broken. (Def.'s Hr'g Ex. 4 at 3.) Owen created control recordings and exemplars from the SNST recorder and from his new laptop. (Id.) He then captured the three reel recordings at sample rates of 16 bits per 44.1kHz, 48kHz, 92kHz, and 196kHz. (Id. at 3-4.) He recorded stereo and mono versions of the SNST tapes. (Hr'g Tr. vol. 3, 503.)

In August 2006, Agent Clark brought the SNST recorder to Owen's laboratory. (Def.'s Hr'g Ex. 10 at 2.) The SNST reels remained in Owen's possession. The August 2006 testing included the following steps: physical inspection of the recorder and analog tapes; downloading control and test recordings for all recording devices used to create any version of the Noonan conversations; downloading numerous stereo and mono versions of the analog tapes into digital audio files; and examining all versions of each conversation in specialized software packages.

Allen examined the tapes and reels visually and microscopically. At an ordinary level, he noted writing on the tapes and reels consistent with Special Agent Williams' testimony about how he marked the tapes. (Def.'s Hr'g Ex. 4 at 5; Hr'g Tr. vol. 1, 111-112.) The experts conducted acoustical testing on the SNST microphones, the remote on/off switch, and all functions of the recorder. (Def.'s Hr'g Ex. 10 at 2.) Allen physically examined the 2005 SNST tapes on the microscopic level using ferrofluid development. (Hr'g Tr. Vol. 3, 668.) He discovered no physical breaks in the tape. (See id.)

All of the samples that Owen had recorded at the FBI Office were duplicated in the laboratory. (Def.'s Hr'g Ex. 4 at 2.) Allen created control recordings from the SNST recorder and ran a series of Nagra test tapes on the recorder, to determine the recorder's signatures, frequency response, wow*fn18 and flutter.*fn19 (Hr'g Tr. vol. 1, 42.) Allen and Owen "created specific tones and frequency ranges of tones" on the recorder to compare to the tones on all of the recordings. (Id.) Allen and Owen created similar exemplars of the signatures and frequency responses of the two laptops that were used to download the recordings in October 2003 and May 2006, the same laptops used to examine the acoustic characteristics of the recordings. (Id. at 42-43.) All of these indicators provided a "baseline" of noise and frequencies they expected to be on both the original recording on the SNST tapes and on all copies or clones made subsequently. (See id. at 43.) The control recordings identify all the possible signatures that may have been made by the recording devices, external sound cards and computers before examining the audio from the proffered original Nagra tapes. By eliminating the control signatures from the equation, it was reasonable for us to conclude that the remaining wave forms and signatures were recorded on the Nagra tape that was captured. (Def.'s Hr'g Ex. 19 ¶ 16; see Hr'g Tr. vol. 1, 43.)

Allen also tested any subsequent recording equipment used to make copies or clones of the SNST recordings. (Hr'g Tr. vol. 1, 42-43.) Any copies or clones made using the subsequent recording equipment would be expected to have their own noise and frequencies, in addition to the noise and frequencies created by the SNST recorder. (Id. at 43.) Recognizing that the differences between the recording equipment and environment used to make the October 2003 downloads and the August 2006 downloads, Allen sought to eliminate the possibility that any anomalies on the ...


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