We review the district court's decision to admit the tape recording under the abuse of discretion standard. United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990); United States v. Santana, 898 F.2d 821, 823-24 (1st Cir. 1990). The trial court has broad discretion in ruling on the admissibility of tape recordings, even where portions of tapes are unintelligible.

The Carbone court “played all the tapes and [found] that none of them were so inaudible or unintelligible as to make them more misleading than helpful.” Id. at 25; see United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990) (“The fact that portions of the tapes are unintelligible is not necessarily an impediment to the admission of the tapes.”)

Circuit precedent holds that the admissibility of a partially inaudible audio recording – and "whether the inaudible parts are so substantial as to make the rest more misleading than helpful" – rests within the discretion of the district court. United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986) ; see also United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990). Having reviewed the recording, the court finds that the early portion of the tape clearly records Hayes's purported admission that at the time of the call he was confined in "the hole" because he fought with another inmate, as well as his denial that he was stabbed.

The law in the First Circuit is clear that an audiotape recording is not rendered inadmissible in a criminal case simply because it has been technically enhanced so as to eliminate background noise and to make the tape easier to understand by the jury. United States v. Panzardi-Lespier, 918 F.2d 313, 314, 318 (1st Cir. 1990); United States v. Chaudhry, 850 F.2d 851, 855 (1st Cir. 1988); Carbone, 798 F.2d at 24; United States v. Santos, 1993 WL 278557 *1 (D.P.R.); Arriaga Torres, 1993 WL 525651 at *2; United States v. Gambale, 610 F. Supp. 1515, 1526 (D.Mass. 1985), aff'd United States v. Angiulo, 847 F.2d 956, 977-78 (1st Cir. 1988). The Court fails to see how the enhancement process applied in this case to a videotape differs in any significant way from that applied to audio recordings.

We review the district court's decision to allow the use of the transcript for abuse of discretion. United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990); United States v. Campbell, 874 F.2d 838, 849 (1st Cir. 1989). The appellant makes two separate arguments about the transcript used by the jury at trial.

However, even if the objection was preserved (which the government disputes), the district judge certainly did not abuse his discretion in determining that the relevance outweighed potential confusion. United States v. Panzardi-Lespier, 918 F.2d 313, 318 (1st Cir. 1990). Since Crandall's statements were not admitted for their truth, there is nothing to the suggestion that the Confrontation Clause was implicated by the failure to call Crandall as a witness to explain what he meant in his own questions or comments.

See also Government of Virgin Islands v. Joseph, 964 F.2d 1380, 1387 (3d Cir. 1992) (equating the state-law residual hearsay exception at issue in Wright with Rule 804(b)(5), and applying to Rule 804(b)(5) Wright's holding that the residual hearsay exception is not firmly rooted and therefore requires a showing of particularized guarantees of trustworthiness); Trenkler, 61 F.3d at 64 n. 32 (explaining that the residual hearsay exception contained in Federal Rule of Evidence 803(24) is not a firmly rooted exception, citing Wright and Joseph). But see United States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990) (rejecting a Confrontation Clause challenge to testimony admitted under the residual hearsay exception of Rule 804(b)(5) on the ground that Rule 804(b)(5) is a firmly rooted exception to the hearsay rule). Second, Barone errs in equating the hearsay declarant, the reliability of whose testimony in prior proceedings was at issue in Mokol, with DiNunzio and Karpowicz-DiPietro, whose live in-court testimony contains the hearsay statements.

The Confrontation Clause exists to "advance a practical concern for the accuracy of 'the truth-determining process . . . by assuring that the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.'" United States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990). On that basis, we have held that when an out-of-court statement "falls within a firmly rooted exception to the hearsay principle," its admission does not violate the Confrontation Clause.

That catchall rule permits the introduction of hearsay evidence, not otherwise admissible, as long as the declarant is unavailable, the evidence possesses "circumstantial guarantees of trustworthiness," and the trial court finds that the evidence (i) is offered to prove a material facet, (ii) is more probative on the point than other available evidence, and (iii) the interests of justice will be served. See Fed.R.Evid. 804(b)(5); see also United States v. Panzardi-Lespier, 918 F.2d 313, 316 (1st Cir. 1990). A trial court's determinations under Evidence Rule 804(b)(5) are reviewed under an abuse of discretion standard.

As to the first of these arguments, it is established that "a transcript is not a prerequisite for the admission of recorded conversations." United States v. Panzardi-Lespier, 918 F.2d 313, 319 (1st Cir. 1990). As to the second argument, we agree with the Second Circuit that, once the government has established both authenticity and accuracy, sufficient foundation has been laid for the tape's admission without proof of chain-of-custody.