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United States v. Hogan

May 14, 2008

UNITED STATES OF AMERICA
v.
THEODORE ARTHUR HOGAN



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

ORDER

This criminal matter is before the Court to address the defendant's appeal of the United States Magistrate Judge's order filed on April 22, 2008, [Doc. 47].*fn1 The defendant has appealed the Magistrate Judge's ruling regarding the use of transcripts to aid the jury while listening to the audio recordings. The defendant argues that the transcripts would become the evidence instead of being a mere aid. In addition the defendant argues that the transcripts reflect the "[g]overnment's interpretation of what is said on the audio recordings." The defendant does not appeal the Magistrate Judge's decision to submit to the jury the portions of the transcripts which he found "accurately representing what was said on the recordings."*fn2

The Magistrate Judge found that certain "portions . . . are so clear that no transcript is needed," other portions "can be understood by reading the accompanying transcript," and that the remaining portions are incomprehensible and must be designated as such on the transcripts submitted to aid the jury. The Magistrate Judge correctly and accurately cited United States v. Segines in support of his ruling. 17 F.3d 847, 854 (6th Cir. 1994) (stating that the use of transcripts as an aid to the jury is within the discretion of the trial court and a cautionary instruction should be given in the absence of a stipulation to the transcripts' accuracy). Moreover, this Court will instruct the jury as to the limited use of the transcripts, as the transcripts are not the evidence but the audio recordings are the actual evidence.

Thus, after careful consideration of the record as a whole, it is hereby ORDERED that the appeal of the defendant is OVERRULED because the Court FINDS that the Magistrate Judge's order is not clearly erroneous, an abuse of discretion, or contrary to law. Accordingly, it is hereby ORDERED that the Magistrate Judge's order is ADOPTED and AFFIRMED.

The defendant also raises for the first time that the transcripts are hearsay pursuant to Federal Rule of Evidence 802 and that the transcripts are not the best evidence pursuant to Federal Rule of Evidence 1002. As stated earlier, the transcripts are not the evidence. Thus, the transcripts are not hearsay, and the best evidence rule is satisfied as the original recordings are the actual evidence to be admitted. Again, this Court will give an instruction informing the jury that the actual evidence is not the transcripts but the audio recordings themselves. In addition, the jury will not be allowed to use the transcripts during deliberations; they will only have ...


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