878 F. 2d 387 - United States v. G McIntosh

MEMORANDUM**

We decide here if the district court erred by allowing the jury to use taped conversations as evidence and written transcripts as an aid to listening. We also consider if defense counsel's failure to make pre-trial objections constituted ineffective assistance of counsel. We affirm.

A jury convicted Dan McIntosh of possession and transfer of a destructive device and a silencer under 26 U.S.C. Secs. 5861(d)(e), 5845(a)(f), 5812(a) and 5841. As a member of the Hell's Angels motorcycle club, McIntosh contacted Anthony Tait, a paid government informant, and sold him explosives. Government agents taped the conversations.

The court allowed excerpts of those tapes to be used as evidence at trial. It also permitted the use of transcripts by the jury as a listening aid. McIntosh appeals these evidentiary rulings and also alleges that his previous counsel was ineffective because he should have suppressed the tapes and transcripts.

We review the evidentiary rulings for abuse of discretion. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987). We need not reverse, however, unless prejudice to McIntosh's case tainted the verdict. See Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986) (citing Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir.1983)).

McIntosh argues that the tapes should not have been admitted into evidence because the government did not establish their authenticity. Because McIntosh failed to object to the authenticity of the tape recordings, we review for plain error. United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986) (citing United States v. Rogers, 769 F.2d 1418, 1426 (9th Cir.1985)). The court found that the tapes reflected the words that were spoken. We agree.

The record indicates sufficient indicia of authenticity and trustworthiness. See United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982). A court may accept the testimony of an FBI agent to prove authenticity. United States v. Mouton, 617 F.2d 1379, 1383 (9th Cir.1980). Here, Marischen, the FBI agent responsible for the recordings, established the authenticity of the tapes by testifying to their accuracy, origin and completeness. See id. at 1384. Tait, in addition, corroborated the tapes' accuracy during his direct examination, identifying his and McIntosh's voices and statements.

McIntosh argues that the tapes should not have been admitted because of poor audio quality. The record has established that the tapes were audible. There was no abuse of discretion in admitting them in evidence. Nor was there abuse of discretion or error in allowing the jury to use transcripts to aid in understanding the tapes.

McIntosh's final contention is that he was deprived of his right to effective assistance of counsel at trial. In particular, he claims that defense counsel should have, through pre-trial objections, prevented the use of tapes as evidence and use of transcripts as a listening aid. We disagree.

The Sixth Amendment guarantees the assistance of a reasonably competent attorney. Strickland v. Washington, 466 U.S. 668, 687 (1984); Church v. Kincheloe, 767 F.2d 639, 643 (9th Cir.1985). The defendant must show (1) incompetent attorney conduct and (2) prejudice which altered the outcome of the trial. Church, 767 F.2d at 643.

McIntosh cannot show prejudice because defense counsel made several contemporaneous objections to the admissibility of the tapes and use of the transcripts, and the court overruled them. He has provided no evidence that the outcome of the trial would have been altered by earlier or more vigorous objection.

AFFIRMED.