ANTHONY P. BRUNO, PETITIONER V. UNITED STATES OF AMERICA No. 90-7500 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINIONS BELOW The memorandum opinion of the court of appeals (Pet. App. 14-16) is not reported, but the judgment is noted at 923 F.2d 858 (Table). The district court's order denying petitioner's motion for a mistrial (Pet. App. 8-9) is not reported. JURISDICTION The judgment of the court of appeals was entered on November 26, 1990. The petition for a writ of certiorari was filed on February 23, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's failure to hold a hearing before deciding that it was harmless error for the jury to have access during deliberations to transcripts of taped conversations violated petitioner's rights under the Fifth and Sixth Amendments. 2. Whether the district court abused its discretion in finding that the government provided a sufficient foundation for the admission into evidence of three tape recorded conversations. STATEMENT After a jury trial in the United States District Court for the Northern District of Iowa, petitioner was convicted of distributing methamphetamine, in violation of 21 U.S.C. 841(a)(1), and conspiring to commit that offense in violation of 21 U.S.C. 846. He was sentenced to 212 months' imprisonment, to be followed by six years' supervised release. The court of appeals affirmed in a memorandum opinion. Pet. App. 14-16. 1. The evidence at trial showed that petitioner conspired with his girlfriend, Melinda Viers, and Charles Murphy to distribute methamphetamine to Merle Cook, who agreed to cooperate with law-enforcement authorities in their investigation of petitioner. On August 9, 1988, Cook telephoned Viers and made arrangements to meet with petitioner and Viers later that same day. That conversation (Gov't Exhibit 4) was recorded. Cook kept his August 9 appointment with petitioner and Viers; that conversation (Gov't Exhibit 5) was also recorded by means of equipment that Cook concealed on his person. Cook wore the same equipment and recorded the conversation (Gov't Exhibit 6) that took place the next day when he met with petitioner, Viers, and Murphy and purchased a quarter pound of methamphetamine from them. Gov't C.A. Br. 3. 2. During trial, the government offered the three tape recorded conversations into evidence. After Cook authenticated the tapes (Gov't C.A. Br. 10-11), they were played for the jury. The government also provided transcripts of the conversations for the jury, but those transcripts were not admitted into evidence. Instead, the district court instructed the jurors that they could use the transcripts as an aid to their understanding of the recordings, but that if the jurors detected any differences between the tape recordings and the transcriptions of the conversations, the jurors should rely on what they heard rather than on the content of the transcripts. Pet. App. 9, 15. The court gave a similar instruction during its final charge to the jury. Id. at 2. The district court granted the jury's request to replay the recordings during deliberations, but unbeknownst to the court or counsel, the jury again used the transcripts to aid their understanding of the tapes. Ibid. Petitioner moved after trial for a mistrial on this ground, but the district court found that any error was harmless in light of the court's cautionary instructions on the use of the transcripts. Pet. App. 8-9. The court of appeals likewise rejected petitioner's claim, finding that "(n)o harm was done by allowing the jury to look again at transcripts which they had already been properly exposed to(.)" Id. at 15. The court also held that the recorded conversations were properly admitted into evidence because they had been adequately authenticated by Cook's testimony that the tapes were accurate representations of the conversations in which he had participated. Id. at 15-16. ARGUMENT 1. Petitioner argues (Pet. 5-10) that it was error for the district court to permit the jury to use the transcripts of recorded conversations during deliberations, and that he was deprived of his Fifth and Sixth Amendment rights by the court's failure to hold an evidentiary hearing to determine whether the error was harmless. There is no merit to this claim. In using the transcripts during deliberations, the jury was not exposed to new material; rather, the jury simply reread the transcripts as an aid to listening to the taped conversations--the same purpose for which the jury had used the same transcripts earlier in the trial. Petitioner did not object to the jury's use of the transcripts when the tapes were played during Cook's testimony. It is difficult to see how the jury's subsequent use of the transcripts could have caused any prejudice to petitioner over and above the first use of the transcripts for the very same purpose. Moreover, the trial judge had twice instructed the jury that the tapes were evidence while the transcripts were only aids for the jury. Given these instructions, there is no reason to believe that the jury based its verdict on the transcripts and not on the recordings themselves. Petitioner's reliance on this Court's decisions in Remmer v. United States, 347 U.S. 227 (1954) and 350 U.S. 377 (1956), and Smith v. Phillips, 455 U.S. 209 (1982), is unavailing, since those cases concerned the need for an evidentiary hearing to determine the effects of extraneous contacts on jurors. In Remmer someone attempted to bribe a juror, and in Phillips one of the jurors had applied for employment in the District Attorney's Office. Those cases are inapposite because there is nothing extraneous about the transcripts in this case, and the jury was exposed to nothing new by reading them a second time. The jury had properly used the transcripts earlier in the trial and simply went ahead and used them again when the tapes were later replayed. In these circumstances, there plainly was no reason for the district court to hold an evidentiary hearing before deciding that the second use of the transcripts could not possibly have prejudiced petitioner. 2. Petitioner also renews his argument (Pet. 11-15) that Cook did not adequately authenticate the tapes of the recorded conversations. /1/ Both courts below rejected this fact-bound assertion and there is no reason for this Court to review it further. Cook testified at trial that he had reviewed the recordings before he testified, and that the tapes accurately reflected his conversations. He identified the speakers on the recordings and also stated that he had reviewed the transcripts and had made corrections on them by, among other things, replacing some portions listed as "unintelligible" with his recollection of what had been said. Pet. App. 17-18, 24-26, 31-39. Cook further pointed out that there was no recording of approximately 20 minutes of the beginning of the August 10 conversation because the agents had had problems with the transmitter. He asserted, however, that the portions of the conversations that could be heard on the tapes were accurate. Id. at 26-27. Petitioner argues that this foundational testimony was insufficient, because the agents who placed the recording devices on Cook did not testify that the devices were in working order. But the fact that recordings were made was sufficient to show that the recorder worked, and Cook testified that the recordings accurately reflected his conversations with the various parties. Under those circumstances, the district court clearly did not abuse its discretion by admitting the recordings into evidence. See United States v. Lively, 803 F.2d 1124, 1129 (11th Cir. 1986); United States v. Hughes, 658 F.2d 317, 322 (5th Cir. Unit B 1981). /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney MAY 1991 /1/ Petitioner also appears to claim that the methamphetamine itself (Gov't Exhibit 7) should not have been admitted into evidence. This objection is focussed on the trial court's decision to admit the exhibit a second time, after additional foundational evidence had been received (see Pet. App. 15-16; Gov't C.A. Br. 11-12) even though the government had made no motion to have it admitted on that second occasion. The government's oversight was understandable, however, since the court had already admitted the exhibit. See Pet. 14-15. In any case, Exhibit 7 was properly made part of the record, and there plainly is no warrant for petitioner's suggestion (Pet. 15) that, in deciding to admit it into evidence, the court showed favoritism towards the government. Cook first identified the exhibit as the methamphetamine he purchased from petitioner. A government agent later testified both about his delivery of the drug to a laboratory for analysis and the lab's report. As the court made clear when it "readmitted" the exhibit, the agent's chain of custody testimony reinforced Cook's identification of the exhibit. The court thus clearly based its decision to receive the evidence on its judgment that a sound basis for admitting the evidence had been established. Pet. App. 50; Tr. 204. /2/ Petitioner argues that there is a conflict between the court of appeals decision and decisions of the Eighth and Eleventh Circuits concerning the standards for authenticating recorded conversations. Insofar as he claims an intra-circuit conflict with prior Eighth Circuit rulings, it is settled that such conflicts do not warrant review by this Court. Wisniewski v. United States, 353 U.S. 901, 902 (1957). Nor is there merit to petitioner's claim that the decision below is at odds with United States v. Lively, 803 F.2d 1124, 1129 (11th Cir. 1986). The standards for authentication set forth in Lively are no more stringent than those adopted by the Eighth Circuit, see United States v. McMillan, 508 F.2d 101, 104-105 (8th Cir. 1974), and applied by the court here. The instant case merely represents the application of settled law to particular facts, and petitioner's only real quarrel is with the result, not with the test employed.