Opinion
05 Cr. 1268 (GEL).
October 4, 2007
OPINION AND ORDER
In this prosecution for conspiracy to import heroin into the United States, defendant Andrews Sarpong moves to exclude certain audio and video recordings made by government agents that the Government maintains show Sarpong negotiating with a confidential informant ("CI") and an undercover officer ("UC") to provide more than a kilogram of heroin and a courier to transport the drugs to the United States, but that Sarpong argues are inaudible and difficult to see. The motion will be denied.
As the District of Columbia Circuit has pointed out, to exclude a recording simply because not all of it can be heard is no more valid than to exclude testimony from a live witness because the witness only heard part of a conversation. Monroe v. United States, 234 F.2d 49, 54-55 (2d Cir. 1956). Accordingly, our own circuit has held that there is a "clear preference for the admission of recordings notwithstanding some ambiguity or inaudibility." United States v. Arango-Correa, 851 F.2d 54, 58 (2d Cir. 1988). If there are portions of recordings that can be heard and that provide probative evidence, the recordings should be admitted, unless there is some showing that the inaudibility of some portions of the tapes "render[s] the remainder more misleading than probative." United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973).
The Court has reviewed a substantial portion of the many recordings that the Government has produced in discovery and might introduce at trial. The audio portions are indeed difficult, and often impossible, to decipher, at least on a first listening, and as defendant points out, often his words are the most difficult to hear. Nevertheless, portions can be made out, including conversations in which it is clear that drugs are the subject of conversation. The video portions are sometimes murky, though the participants, and especially defendant himself, are generally identifiable, and money and other objects can clearly be seen changing hands between Sarpong and the CI. To the extent that a viewer of the video cannot clearly identify an object that Sarpong hands to the CI as cocaine, the issue goes to the persuasiveness of the exhibit and not its admissibility; evidence does not have to be conclusive of guilt to be admissible.
The Government represents that the CI and UC will testify at trial to their conversations with Sarpong. The recordings thus will serve at most to corroborate (or refute) the witnesses' accounts of the conversations. Sarpong points to nothing suggesting that the portions of the recordings that can be seen or heard provide a misleading account of the conversations. Indeed, his objections are entirely unspecific, offering no analysis of particular recordings and amounting to nothing more than the general claim that the recordings should be excluded because large portions of some of them are unintelligible. The recordings, at a minimum, corroborate the CI's and UC's claims to have interacted with Sarpong. To the extent that Sarpong argues that they show little else, he is free to present that argument to the jury, to cross-examine the Government's witnesses about their failure to achieve clear recordings and/or about the contents of portions of the conversation that are unintelligible, and, if he chooses, to offer testimony himself about what was said during the inaudible exchanges. However fragmentary the recordings, clearly the search for truth is advanced rather than impeded if the tapes, such as they are, are available for the jury's consideration, and the jury is not left simply to evaluate the testimony of the witnesses.
On only one point does the Government's argument fail to persuade. The Government maintains that Sarpong is wrong to object to the Government's plan to offer only the video, and not the audio, portion of certain recordings. The Government is correct, as far as it goes, that it is not required to offer all of the evidence in its possession, and that that principle suggests that the Government can offer only the video, or only the audio, of its recordings, if it so chooses. However, the principle of completeness requires the Government to introduce any portion of a recording "which ought in fairness to be considered contemporaneously with it." Fed.R.Evid. 106. It would be the unusual case in which a defendant's insistence that the video and audio portions of a recording should not be separated would not satisfy this standard. In any event, even if Rule 106 did not apply, the defendant would be entitled to introduce the recording with audio in his own case. To require recordings to be played twice, once on the prosecution's case without audio, and again on the defense case with, would be wasteful and inefficient. The Court's general power to control the order of presentation of evidence is more than sufficient to require the entire tape to be played at once, if defendant so requests.
Accordingly, defendant's motion to exclude the recordings as inaudible is denied.
SO ORDERED.