United States v. Gallagher

57 F. App'x 622
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 24, 2003
DocketNo. 01-3078
StatusPublished
Cited by10 cases

This text of 57 F. App'x 622 (United States v. Gallagher) 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. Gallagher, 57 F. App'x 622 (6th Cir. 2003).

Opinions

PER CURIAM.

Defendant-appellant. Terry Francis Gallagher (“Gallagher”) has charged the district court with five trial errors that resulted in his jury conviction for felonious possession of a firearm, in violation of 18 U.S.C. § 922. First, Gallagher has asserted that the district court abused its discretion by permitting the jury to track a written transcript of the defendant’s conversations while listening to corresponding audio and video tapes of those recordings. [624]*624Next, Gallagher has argued that the district court violated his Sixth Amendment right of confrontation when it decided the appellant’s presence was unnecessary at an audibility hearing involving tape transcription. Third, Gallagher has urged this court to find the district court in error for refusing to admit the entirety of his statement to law enforcement subsequent to his arrest. Further, the defendant has asserted that the district court abused its discretion by admitting into evidence his prior kidnaping and escape convictions. Finally, Gallagher has contended that the district court erred by enhancing his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) by virtue of his prior convictions. For the reasons explained below, the district court’s decision is affirmed.

In 1975 and 1976, Gallagher was convicted of four counts of armed bank robbery in Indiana and Ohio, for which he received a 95 year prison sentence. In 1977, Gallagher had an additional 15 years added to his sentence when he kidnaped a prison guard, stole a government vehicle, and escaped from the federal penitentiary in Leavenworth, Kansas. After serving 23 years of his sentence. Gallagher was remanded to a halfway-house to serve his final months, where he solicited help for a proposed armed bank robbery from Martin Schmid, a childhood friend. Schmid contacted the FBI, for whom he had previously served as a paid informant, and agreed to act as a paid informant in the investigation of Gallagher. Schmid then contacted the appellant on numerous occasions between July 2 and August 19, 1999, to record Gallagher’s discussions concerning his plans to commit a bank robbery.

On August 19, 1999, Gallagher met with Schmid in a motel room in Dayton, Ohio where Schmid furnished appellant with a semi-automatic weapon. In addition to the audio recording, this meeting was videotaped by the FBI. During the meeting Gallagher outlined his plans to commit a bank robbery and requested a second weapon from Schmid. After Gallagher left the motel room federal agents arrested him for felonious possession of a firearm. The government brought an indictment under 18 U.S.C. § 922(g) against Gallagher and, relying on defendant’s earlier bank robbery convictions, filed notice for a sentencing enhancement pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The district court engaged in two pretrial in camera hearings on the admissibility of the transcript of the audio and video tapes made during meetings between the defendant and Schmid. The parties stipulated to a majority of the recorded conversation. Two disputed sections of the transcript were submitted to the court for consideration and resolution. The district court determined that the government’s version, as it related to the first disputed language, accurately reflected the defendant’s statement. The trial court rejected both parties interpretations of the second controversial recorded conversation and interlineated the transcript with the notation. “unintelligible,” as it related to the appellant’s disputed statement. The transcript permitted the jury to track the video and audio tapes during trial, thus permitting it to arrive at an independent conclusion. The district court over-ruled Gallagher’s objection to the jury’s request to rehear parts of the recorded conversations during deliberation.

During the trial, Gallagher also objected to the testimony of a federal agent who tracked sections of defendant’s post-arrest statement. Gallagher urged the court to admit his entire post-arrest statement into evidence, including his self-serving excul[625]*625patory comments. The court overruled his efforts.

Additionally, during direct examination, Gallagher testified to having served his 23 years “straight” from his previous bank robbery convictions. The government sought to impeach Gallagher’s credibility by introducing his prior escape and kid-naping convictions. The district court found that Gallagher’s testimony opened the door to be cross examined on these prior convictions.

Subsequent to a five day jury trial, Gallagher was found guilty and sentenced to 210 months of incarceration, 5 years of supervised release and a $1000 special assessment penalty. Gallagher then filed this appeal.

A. Admissibility of the transcript

This court reviews decisions concerning the admissibility of a transcript from video and audio tapes under an abuse of discretion standard. United States v. Elder, 90 F.3d 1110,1129 (6th Cir.1996).

The decision to admit into evidence the transcript of taped recordings is within the discretion of the court and is permissible “unless the incomprehensible portions of the tapes are so substantial as to render the recordings as a whole untrustworthy.” United States v. West, 948 F.2d 1042, 1044 (6th Cir.1991). This court has approved several procedures for gauging the accuracy of a transcript of recorded conversations. Preferably, the parties may stipulate to the accuracy of the transcript. Secondly, the court may review the transcript while listening to the tapes, with the transcriber attesting to the accuracy of the transcript. Id. Lastly, each party may proffer their respective interpretations of the transcript for jury consideration. Id. In all instances, the court’s concern remains with the fidelity of the evidence when a tape contains inaudible lapses, as “the jury’s reliance on the transcript, in effect, transforms it into evidence.” even though the transcript is not admitted as evidence. United States v. Wilkinson, 53 F.3d 757, 761-62 (6th Cir.1995).

The appellant has maintained that the district court abused its discretion by failing to have the transcriber attest to the accuracy of the transcript. Gallagher’s contention fails to persuade this court where the joint appendix reflects that the district court carefully parsed the tapes and transcript, at length, prior to its ruling and its conclusion that the disputed components of the transcript contained no pivotal material. Indeed, the parties stipulated to all but two sections of the audio tapes, two sentences in a thirty page transcript. In the first disputed part, the district court determined the tapes matched the government’s interpretation of the proposed transcript.1 The court marked the other disputed track of the transcript as ‘unintelligible.’2

The district court complied with this circuit’s stated procedures for determining the accuracy of a transcript.

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Bluebook (online)
57 F. App'x 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gallagher-ca6-2003.