United States v. Fults

639 F. App'x 366
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 30, 2016
DocketNo. 14-5654
StatusPublished
Cited by6 cases

This text of 639 F. App'x 366 (United States v. Fults) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fults, 639 F. App'x 366 (6th Cir. 2016).

Opinion

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

A federal jury convicted Timothy Fults of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). . Pursuant to 18 U.S.C. § 924(e)(1), the district court sentenced him, as an armed career criminal, to a term of 235 months. On appeal, Fults challenges the calculation of his sentence, and also contends that the district court made two reversible evidentiary errors.

For the reasons set forth below, we AFFIRM Timothy Fults’ conviction but REMAND the case to the district court for re-calculation of his sentence.

I.

On November 19, 2012, Jody Cavanaugh (“Cavanaugh”), a Sheriffs Department Investigator for Warren County, Tennessee, received a text message from a confidential informant, Dane Briest (“Briest”) stating that Briest had “set up a deal with [Timothy] Fults to purchase a Taurus .357 revolver.” (Appellant Br. 4.) According to Briest, he received a text message from Timothy Fults (“Fults”) that read, “Do you know anybody needing a gun.” (Page ID #261.) With Cavanaugh’s direction, Briest negotiated the terms of the firearm purchase with Fults via text message. (Page ID #261-62.) Briest instructed Fults to come by his apartment to consummate the purchase, an apartment that Briest shared with his mother and his girl[368]*368friend, Connie Moulton (“Moulton”). (Appellant Br. 4.)

Shortly thereafter, Cavanaugh and a fellow officer picked up Briest and took him to the parking lot of a local middle school to “search, wire, and prep” him. (Page ID # 189.) Briest was fitted with a digital recording device; which was placed underneath his clothes. (Appellee Br. 4). He was also provided with $250.00 so that he could purchase the firearm from Fults. (Page ID # 191.)

After meeting up with the officers, Bri-est returned to his apartment. (Page ID # 191.) A short time later, Fults and his girlfriend, Heather Poison (“Poison”), arrived. (Page ID # 191.) The firearm sale took place in the living room. (Page ID # 264.) Present in the room were Fults, Poison, Briest, and Moulton. Before finalizing the purchase, Briest asked Fults whether the gun was stolen. (Page ID #263.) Fults assuied him the gun was not stolen. (Page ID # 263-64.) Presumably to legitimize the transaction, Poison provided Briest with a bill of sale. (Page ID #264.) The bill of sale read, “I, Heat[h]er Poison, sell a .357 revolver Taurus Magnum to__” (Page ID #379.) Although Fults accepted the money and handed Briest the gun, he refused to sign the bill of sale. (Page ID # 263.)

After the sale was complete, Briest and Moulton left his apartment to meet up with Cavanaugh and couple of his fellow officers. (Page ID #266.) Briest handed over the gun and the bill of sale to the officers. (Page ID # 268.) The next day, Briest signed a standard confidential informant contract and provided a written statement. (Page ID # 188.) On May 29, 2013, the grand jury indicted Fults of knowingly possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Page ID # 1-2.)

Fults’ trial was brief. It commenced on January 14, 2014, and concluded on January 15, 2014. (Page ID # 72.) In its case in,chief, the government put on three witnesses: (1) Cavanaugh, (2) Briest, and (3) Moulton. (Appellee Br. 2.) Fults presented two witnesses: (1) Poison, and (2) Joe Chandler, one of Fults’ former probation officers. (Appellee Br. 9.) The jury found Fults guilty of being a, felon in possession of a firearm.

The Presentence Investigation Report (PSR) classified Fults as an armed career criminal under 18 U.S.C. § 924(e)(1) based on a prior aggravated robbery conviction and five aggravated burglary convictions under Tenn.Code Ann. § 39-14-403. (Page ID # 111.) The district court sentenced him to a within-the-guidelines sentence of 235 months of imprisonment. (Page ID # 152.) This timely appeal followed.

II. TRANSCRIPT ADMISSION ERROR

Fults contends that the district court reversibly erred when it admitted the transcript of the audio recording of the firearm purchase. (See Appellant Br. 23-31) For the reasons detailed below, we hold that the transcript was properly admitted and that, even if the district court erred in admitting the transcript, the error was harmless.

A. FACTS

With the aid of a recording device located on Briest’s person, Cavanaugh was able to record the transaction in its entirety. (Page ID # 199.) Sometime after the firearm purchase, Cavanaugh reviewed the audiotape and assisted in reducing its pertinent portion to a typed transcript. (Page ID # 200.)

[369]*369At trial, Cavanaugh testified that he was able to verify all the voices on the-transcript, and also affirmed that it was a true and accurate depiction of “what’s contained on the audio recording of the controlled buy.” (Page ID # 201.) The district court admitted the audio recording into evidence and, at that time, the transcript was accepted only as a demonstrative aid. (Page ID # 201-02.) Prior to doing this, however, the district court asked Fults’ counsel if she had been provided a copy of the transcript to compare to the audio recording. (Page ID #201.) She confirmed that she had. (Page ID # 201.) At that time, Fults did not object to the transcript being admitted as a demonstrative aid. (See Page ID # 201.)

The district court then instructed the jury as follows:

Okay. All right. Ladies and gentlemen, here’s what’s going to happen now, and you may recall, this came up in voir dire. In just a moment, you’re going to be played an audio recording, that’s Government’s Exhibit No. 4, that I have introduced into evidence. That is evidence. As you’ve heard Investigator Cavanaugh testify to, the government has prepared a transcript of what the government contends, you know, is heard on the audio that you’re going to listen to. The defense has had a chance to look at the transcript. It’s not the defense’s transcript. I’m going to let you see the transcript to follow along with the audio. I haven’t heard this audio myself, typically, or often times these audios are very poor quality.
I’m going to instruct you that the audio itself is evidence, the transcript is not evidence. This may put you in the position — I’m going to instruct you that it is your duty to listen carefully to the audio as you’re looking at the transcript and to believe your ears before your eyes, if your eyes and ears tell you the same thing, then, that’s fine. That’s up to you. However, if you hear something different on the audio than you believe is on the transcript, you are to believe your ears rather than your eyes. This will probably be the most difficult job that you have to do in the course of the trial. I mean, we ask jurors to do this often times, but that’s — the audio itself is the evidence. The transcript is not evidence. It will not go back to the jury room.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jeff Kean v. Brinker Int'l, Inc.
140 F.4th 759 (Sixth Circuit, 2025)
State v. Stephen Mulcahey
Supreme Court of Rhode Island, 2019
United States v. Shane Floyd
872 F.3d 760 (Sixth Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
639 F. App'x 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fults-ca6-2016.