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July 9, 1998


The opinion of the court was delivered by: BLANCHE M. MANNING


 This matter is before the court on outstanding pre-trial motions by the government and the defendants. First, the court will address the motions related to the admissibility and use of the tape-recorded conversations regarding the alleged conspiracy to violate 15 U.S.C. § 1 by fixing the price and volume of global lysine sales.

 I. The Defendants' Motions

 A. Andreas' Motion to Exclude Inauthentic Audiotapes

 Defendant Andreas now moves to exclude three categories of audiotapes which allegedly contain the defendants' conversations at meetings held in furtherance of the conspiracy. The conversations were recorded by defendant Mark Whitacre while he was a cooperating witness for the FBI. Andreas contends that the government cannot lay the threshold evidentiary foundation for admitting the tapes because Whitacre is unable to testify as to the authenticity of the tapes.

 Whitacre is now under indictment and has invoked his Fifth Amendment privilege against self-incrimination. As such, he is unavailable to testify as to whether the so-called Whitacre tapes truly and accurately reflect the conversations contained on the tapes.

 Andreas' motion separates the Whitacre tapes into three categories: (1) tape recordings of Whitacre's conversations with Andreas and/or Wilson only; (2) all other tape recordings made by Whitacre, and; (3) tape recordings made by FBI agents, with Whitacre's consent, while the agents simultaneously monitored Whitacre's conversations.

 Andreas seeks to exclude group 1 as a matter of law, asserting that Whitacre is the only individual capable of authenticating the tapes. With respect to groups 2 and 3, Andreas argues that an evidentiary hearing is required to determine whether the government has sufficient evidence to authenticate them. The government has stated that it shall authenticate groups 2 and 3 with testimony of the FBI agents and co-conspirators who respectively participated or simultaneously observed the conversations. For the reasons set forth below, Andreas' motion is denied in its entirety.

 Sound recordings are admissible in evidence provided the proponent lays the proper evidentiary foundation by authenticating that the recordings are what the proponent claims. See Fed. R. Evid. 901 (a); Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996); 5 Weinstein & Berger, WEINSTEIN'S FEDERAL EVIDENCE § 901.01. In the Seventh Circuit, the proponent has the burden of showing that the tape is a "true, accurate, and authentic recording of the conversation, at a given time, between the parties involved." United States v. Faurote, 749 F.2d 40, 43 (7th Cir. 1984). Ultimately, the jury determines whether the Whitacre tapes are authentic, but only after the court initially finds that the tapes are conditionally relevant under Federal Rule of Evidence 104 (b). *fn1" See United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992).

 1. Group 1

 Andreas argues that the group 1 tapes are inadmissible because the government, without Whitacre's testimony, does not have clear and convincing evidence that the tapes accurately reflect the conversations which transpired between the defendants and their alleged co-conspirators. See generally Stringel, 89 F.3d at 420, quoting United States v. Welch, 945 F.2d 1378, 1383 (7th Cir. 1991) (holding authentication of real evidence must be demonstrated with clear and convincing evidence).

 In response, the government contends that the "rational juror" test governs the court's 104 (b) determination and requires the court to conditionally admit group 1 if it finds that any rational juror could possibly conclude that they are authentic. Ricketts v. City of Hartford, 74 F.3d 1397, 1411 (2d Cir. 1996). Moreover, the government proposes that Stringel relaxes its method of establishing authenticity by not requiring testimony of eyewitnesses who can attest to the events allegedly contained on the tapes. Under the given circumstances, the court agrees.

 After thoughtful reflection the court concludes that the clear and convincing standard for authentication is consistent with the rational juror test. The court construes 104 (b) to require the court to conditionally admit the tapes if, upon clear and convincing evidence, it concludes that a rational juror could find the tapes to be authentic. Whitacre's unavailability to corroborate the authenticity of the tapes is relevant as to their evidentiary weight, but does not bar admission.

 Granted, the consistent and prevailing Seventh Circuit trend for authenticating recorded conversations has been to have participants who observed and/or recorded the conversations testify as to whether the tapes accurately reflect the events as the tapes purport. See e.g., United States v. Welch, 945 F.2d 1378, 1383 (7th Cir. 1991) (conversation participant's testimony); United States v. Carrasco, 887 F.2d 794, 801 (7th Cir. 1989) (government informant's testimony); United States v. Briscoe, 896 F.2d 1476, 1490 (government agents' and co-defendants' testimony).

 Stringel renounced the use of rigid authentication formulae without, unfortunately, stating whether the proponents are limited to authenticating tapes exclusively through direct testimony. Of course, one could argue, as defendant Andreas does here, that Stringel imposes a direct evidence requirement because it relies in part on United States v. Blakely, 607 F.2d 779, 787 (7th Cir. 1979) which established the clear and convincing standard for authenticity which led to authentication being made in virtually all cases thereafter through direct testimony.

 Absent an explicit holding from the Seventh Circuit requiring that a foundation be laid by direct testimony of a first-hand observer, the court is not willing to blindly follow tradition and exclude arguably reliable evidence merely because Whitacre's direct testimony is unavailable.

 While tradition suggests direct testimony is necessary, the developing trend in the law has been to conditionally admit audiotapes if the proponent produces circumstantial evidence indicative of the tapes' authenticity. In United States v. Bright, 630 F.2d 804, 820 (1st Cir. 1980), the First Circuit affirmed authentication by a testifying agent who did not hear the conversations at issue but observed, from afar, the recording agent initiate the conversation with the defendant. The First Circuit reasoned that the tapes were sufficiently reliable since the testifying agent observed the parties conversing and immediately took custody of the tapes, thereby ensuring they were substantially the same as when made. See also United States v. Fuentes, 563 F.2d 527 (2d Cir. 1977) (holding testimony of an agent who did not observe the conversations in question was sufficient since he immediately took custody of the tapes after conversations ended).

 Indeed, evidence of chain of custody coupled with other independent corroborative evidence has been sufficient to submit the tapes to the jury which then makes the ultimate authentication determination. In United States v. Khorrami, 895 F.2d 1186, 1195 (7th Cir. 1990), the testimony of a victim, though not present during the recording, was deemed reliable enough to authenticate tapes of the defendant's threats because the victim could attest to the reliability of the recording device while the defendant's phone records indicated that the threatening phone calls were made from the defendant's residence. The victim's motive to testify falsely goes to credibility not admissibility.

 Here, the government proposes to introduce numerous forms of circumstantial evidence which it contends provide sufficient indicia of the tapes' reliability, including: (1) FBI agents who will testify regarding the recording devices used, the chain of custody of the tapes, and identify the defendants' voices on the tapes; (2) intrinsic evidence of authenticity because the group 1 tapes contain continuous conversations related to the conspiracy which is unlikely to be confused or misinterpreted for innocuous conversation; (3) testimony of co-conspirators whose voices are captured either in groups 2 and 3, who refer to conversations contained in group 1, and; (4) expert testimony which the government asserts will establish that all of the Whitacre tapes are genuine unaltered contemporaneous recordings of the conversations thereby ensuring their accuracy and reliability.

 The court is convinced that this circumstantial evidence taken as a whole is sufficiently reliable to submit the authenticity issue to the jury. The co-conspirators' statements in groups 2 and 3 are admissible under Federal Rule of Evidence 801 (d) (2) (E) and independently corroborate group 1 by referring to conversations contained in the group 1. See United States v. O'Connell, 841 F.2d 1408, 1420-21 (8th Cir. 1988) (using inculpatory co-conspirator statements in subset of tapes was enough to corroborate other tapes).

 Expert testimony can be equally persuasive. The government and defense experts can present their competing opinions as to whether the tapes were altered or manipulated as the defendants have previously alleged. The tape technology involved here is best left to the respective experts whose credibility can then be determined by the jury.

 Finally, the FBI agents can testify as to the chain of custody, identify the defendants' voices in the group 1 tapes, and describe the recording protocol used by Whitacre. Of course, the defendants will be given ample latitude in cross-examining the agents' handling of the tapes.

 Accordingly, the group 1 tapes are conditionally admitted provided the government produces authenticating evidence in a manner consistent with their representation, as outlined above.

 2. Groups 2 and 3

 The government proposes to authenticate groups 2 and 3 through the testimony of alleged co-conspirators. As previously stated and as defendant Andreas concedes, individuals who participated or observed the conversation have an adequate basis of knowledge to authenticate audiotapes. See United States v. Brown, 136 F.3d 1176, 1182 (7th Cir. 1998).

 The government's Santiago proffer makes it abundantly clear that the government has and will call co-conspirators to authenticate groups 2 and 3. There is no reason to convene an evidentiary hearing to authenticate groups 2 and 3. Accordingly, these tapes shall be conditionally admitted so long as the government produces authenticating evidence in a manner consistent with their representation, as outlined above.

 B. Andreas' Motion to Exclude From Evidence Any Video or Audiotapes of the October 25, 1993 Irvine, California Meeting

 Defendant Andreas moves to exclude tapes recorded by defendant Mark Whitacre, based upon the violation of the defendants' Sixth Amendment Confrontation Rights, and; to exclude defendant Mark Whitacre's statements made to the government pursuant to Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).

 For the reasons set forth below, defendant Andreas' motion to exclude the Irvine tapes is denied. The motion to exclude the Whitacre tapes for violation of the Sixth Amendment Confrontation Clause is denied. Defendants' motion pursuant to Bruton to exclude Whitacre's statements made to the government is taken under advisement. The government is directed to request a side bar prior to attempting to elicit such statement, at which time the court will rule after having considered the statement in its proper context.

 1. Irvine, California Meeting

 The government seeks to introduce covert audio and videotape surveillance of an October 25, 1993 Irvine, California meeting (Irvine tapes) held in furtherance of the alleged price-fixing conspiracy. Defendant Andreas moves to suppress the Irvine tapes, arguing that admitting only the conversations which the government selectively taped violates Federal Rule of Evidence 106 *fn2" because these selective portions distort the context of the meetings which in turn will mislead the jury. Defendant Andreas misconstrues Rule 106 and essentially rehashes his selective taping and destruction of evidence motion which the court previously denied.

 Federal Rule of Evidence 106 provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

 Andreas, as the proponent of the additional evidence, must show that the evidence sought to be introduced is relevant and will clarify or explain portions of the recording offered by the government. United States v. Glover, 101 F.3d 1183, 1189-90 (7th Cir. 1996), citing United States v. Walker, 652 F.2d 708, 710 (7th Cir. 1981). Andreas argues that the tapes must be suppressed because he is unable to show the context of the Irvine meetings because all of the conversations were not recorded. Here, the Irvine tapes, rather than the unrecorded conversations which transpired at the meeting, constitute the "recorded statement or part thereof" for Rule 106 purposes. There are no other written or recorded statements memorializing the Irvine meeting. Thus, if the government introduces a portion of the tapes, then defendant Andreas' remedy is to offer relevant additional portions of the existing tapes to show the context of the conversations and to avoid misleading or confusing the jury. United States v. Walker 652 F.2d 708 (7th Cir. 1981); United States v. Sweiss, 814 F.2d 1208 (7th Cir. 1986). Assuming relevance is established, the court must determine whether the additional portions of the statements: (1) explain the admitted evidence; (2) place the admitted evidence into context; (3) will avoid misleading the jury, and; (4) insure a fair and impartial understanding of the evidence. United States v. Haddad, 10 F.3d 1252, 1259 (7th Cir. 1993); United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992). If these requirements are satisfied, the court will permit additional portions of the Irvine tapes to be played before the jury.

 Andreas erroneously asserts that the unrecorded conversations fall within Rule 106 because they will present the complete context of the Irvine tapes. Rule 106 is inapplicable since the purported statements to which Andreas alludes were not written or recorded. Moreover, the relevance, if any, of the unrecorded portions of the Irvine meeting is based merely upon Andreas' self-serving conjecture and speculation of selective taping and destruction previously rejected by this court. As noted by the court in its April 16 order, the government was not obliged to record every conversation that transpired. The government's failure to record portions of such an important meeting, while conceivable, is relevant to credibility to be determined by a jury, but does not warrant suppression. The Irvine tapes are no different from the other tapes made by Whitacre. Accordingly, Andreas' motion to suppress the Irvine tapes is denied.

 2. Confrontation Clause

 The defendants move to suppress the Whitacre audiotapes, arguing that the tapes contain hearsay and Whitacre's unavailability to be cross-examined denies them the opportunity to challenge the circumstances in which they were created. The government argues that the tapes are admissible as to defendants Andreas and Wilson as co-conspirator statements under Federal Rule of Evidence 801 (d)(2)(E), and are nonhearsay as to Whitacre because his statements will be offered to show the defendants' responses to Whitacre's statements to place the defendants' co-conspirator statements into context.

 Neither the Confrontation Clause nor the hearsay rules preclude the admission of the tapes. The statements made by defendants Andreas and Wilson are admissible as co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E) because they were made during and in furtherance of the conspiracy. Bourjaily v. United States 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).

 Similarly, Whitacre's statements, as used against the defendants, do not violate the Confrontation Clause. The Confrontation Clause guarantees the defendants the right to cross-examine the credibility and reliability of witnesses who testify against them at trial. Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965); California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970).

 Defendants have no right to cross-examine Whitacre unless he testifies for the government at trial nor are his out of court statements being used against the defendants at trial to prove the truth of the matter asserted. Rather, assuming that Whitacre made incriminating statements to which the defendants responded, those statements are admissible as verbal acts or adoptive statements to show how the defendants responded to Whitacre, thus placing the conversations into context. See United States v. Davis, 890 F.2d 1373 (7th Cir. 1989); United States v. Nava-Salazar, 735 F. Supp. 274 (N.D. Ill. 1990); United States v. Finley, 708 F. Supp. 906, 911 (N.D. Ill. 1989) (Rovner, J.). Whitacre's statements are relevant only to show how the defendants responded to Whitacre regardless of their truth. Thus, they are not hearsay and do not implicate the defendants' rights guaranteed by the Sixth Amendment's Confrontation Clause. Davis, 890 F.2d at 1380, citing United States v. Rollins, 862 F.2d 1282, 1297 (7th Cir. 1988).

 The defendants creatively argue that the audiotapes themselves, rather than the statements they contain, constitute Whitacre's out of court statements, and thus implicate the defendants' confrontation rights. The defendants argue that, by selectively taping conversations to manipulate the defendants' statements, Whitacre nonverbally asserted to the government that the defendants and their co-conspirators are guilty and that the tapes are being offered to prove this purported assertion.

 In United States v. Hensel, 699 F.2d 18, 35 (1st Cir. 1983), the First Circuit held that nonverbal conduct by an individual qualifies as hearsay if the declarant intended the conduct to be accepted for its truth. The court reasoned that if the defendant could show that the declarant had "staged an elaborate charade to implicate the defendant . . ." then the nonverbal conduct could qualify as an assertion. Id. at 35. The defendants, however, bear the burden of establishing the existence of that charade. Id. As previously addressed in the April 16 order, there is no conclusive evidence that Whitacre altered or destroyed tapes in order to manipulate the alleged conspiratorial conversations. Again, the circumstantial evidence supporting those allegations is relevant as to credibility, but does not bar admission of the tapes. Accordingly, the motion to suppress the Whitacre tapes for violation of the Confrontation Clause is denied.

 3. Defendants' Motion to Exclude Whitacre's Hearsay Statements

 Andreas and Wilson move to suppress Mark Whitacre's statements to the government made during the 2 1/2 year investigation of the alleged price-fixing conspiracy, arguing that the statements violate the Bruton doctrine. The government contends that Whitacre's statements do not violate Bruton because they will not be offered to prove the truth of the matter asserted, i.e., that the defendants were engaging in price-fixing. To the extent that Andreas and Wilson seek to suppress Whitacre's statements contained on the Whitacre tapes, the motion is denied, see supra § I P B,2.

 In addition to his taped statements, Whitacre made approximately 103 statements to the FBI during the covert investigation. The government contends that the statements are admissible to provide background or to explain the conduct of the investigation, and not to prove that the defendants were involved in the alleged conspiracy.

 In Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), the Supreme Court held that confessions which, on their face, incriminate a co-defendant are inadmissible in a joint criminal trial unless the co-defendant has the opportunity to cross-examine the defendant who confessed. Bruton is inapplicable to nonhearsay statements being offered to show that the statement was made and not for its truth. Evans v. Dutton, 400 U.S. 74, 87-88, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970). The government avoids Bruton by purportedly offering Whitacre's statements to explain the context of the covert criminal investigation.

 Generally, informant statements are not hearsay if they are used to explain why the government investigation was undertaken. United States v. Mancillas, 580 F.2d 1301, 1309 (7th Cir. 1978); United States v. Lazcano, 881 F.2d 402, 407 (7th Cir. 1989). Notwithstanding a legitimate nonhearsay use, informant statements are inadmissible if their prejudicial effect outweighs their probative value under Federal Rule of Evidence 403. Mancillas, 580 F.2d at 1310. When making the Rule 403 determination, the court must consider whether the repetition, substance, and context of the statements when admitted at trial would create a prejudicial effect that outweighs their probative value. United States v. Lovelace, 123 F.2d 650, 652 (7th Cir. 1997).

 In United States v. Martinez, 939 F.2d 412, 414-15 (7th Cir. 1991), the Seventh Circuit held that informant tips which specifically identified the defendant as an individual who engages in criminal activity created too great a risk of unfair prejudice to the defendant and warranted exclusion under Rule 403. Most recently, in United States v. Williams, 133 F.2d 1048, 1052 (7th Cir. 1998), the Seventh Circuit held that the government can introduce evidence that it spoke with informants to show the context of the investigation, but disclosing the contents of the informant's statement that incriminates the defendant will prejudice the jury and is inadmissible hearsay. In Williams, the confidential informant directly identified the defendant as a bank robber to directly implicate him in the crime. The Seventh Circuit concluded that the risk that the jury would use the testimony as substantive evidence outweighed its use to explain how the government conducted its investigation.

 Here, the government seeks to introduce 103 informant statements; a number which far exceeds a single tip or isolated pieces of information which trial courts usually permit to establish the context and nature of conspiracy investigations. See e.g., United States v. Sanchez, 32 F.3d 1002 (7th Cir. 1995) (discussing a single informant tip to police regarding cocaine conspiracy); United States v. Martinez, 939 F.2d 412 (7th Cir. 1991) (discussing informant tip implicating defendant's involvement in cocaine conspiracy). Thus, the repetitive nature of the evidence could unduly prejudice Andreas and Wilson.

 Ultimately, however, the relevance of any of the particular Whitacre statements is unknown until offered at trial. As such, the admissibility of these statements is an evidentiary matter best resolved on a question-by-question basis because the court can conceive of instances where some statements are admissible while others are not. Accordingly the court takes ...

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