Appeal from the United States District Court for the Central District of Illinois. No. 00-CR-10089--Michael M. Mihm, Judge.
Before Bauer, Posner, and Ripple, Circuit Judges.
The opinion of the court was delivered by: Bauer, Circuit Judge
Charles Woods was convicted of distributing narcotics in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Before sentencing he filed a motion for a new trial based on newly discovered evidence. The district court denied the motion and sentenced Woods to 360 months for each count, to run consecutively. Woods appeals his conviction arguing: (1) the district court improperly admitted certain tape recordings; (2) the admission of the tape recordings violated his Sixth Amendment right to confrontation; and (3) that the district court erred in not granting his motion for a new trial based on newly discovered evidence. Although a small portion of one of the recordings was erroneously admitted, we conclude this minor error does not justify reversal.
Charles Woods was the ringleader of a crack distribution network in Peoria, Illinois. The crimes also involved Towanda White (Woods' girlfriend) and Melvin Rogers.
Beginning in June 1999, the FBI made a series of controlled drug buys from Woods and his associates. The FBI used confidential informants, Orlando Davis and David Roberson, to set up the transactions. The conversations between the informants and the sellers were recorded by the FBI. We will refer only to the recordings at issue in this appeal.
On July 26, 1999, David Roberson contacted Woods using a pager number. Woods then called Roberson and the conversation between them was recorded. The FBI positively identified Woods as the caller. During the call, Roberson set up a drug purchase at a fast food restaurant in Peoria. Roberson was then fitted with a recording device, given $475 to buy drugs, and driven to the restaurant. While at the restaurant Roberson made additional calls, and each time only Roberson's side of the conversation was recorded by the device on his person. A few minutes later, Rogers met Roberson at the restaurant and sold him 9.6 grams of crack for $465.
On August 9, 1999, Orlando Davis contacted Woods using the same pager number as that used by Roberson. Woods returned Davis' page, and agreed to sell crack to Davis. The entire conversation was recorded by the FBI. Woods instructed Davis to page Towanda White and set up a meeting place. Davis was outfitted with a recording device and went to a pay phone to page White. White did not return Davis' page, so Davis again called Woods, this time from the pay phone. Only Davis' side of the conversation was recorded. Davis then proceeded to a fast food restaurant where he met with White. White informed Davis that she did not have the drugs on her and would need to go get them. White later returned and sold crack to Davis. While waiting at the restaurant for White, Davis made some narrative statements about the surroundings and events (the defense refers to them as "monologues").
On August 6, 1999, Rogers was shot nine times, and while he was in the hospital on August 9, 1999, Woods came to visit. Woods made a phone call while in Rogers' hospital room. Rogers repeated to the jury what he heard Woods say on the phone.
Davis, White, and Rogers testified at trial, the government was unable to locate Roberson. Davis was a paid confidential informant; White and Rogers testified against Woods as part of separate plea agreements.
During a status call on February 16, 2001, it was disclosed that a news reporter had informed the government that Rogers had denied, in state court proceedings, that his shooting had anything to do with drugs. The defense then began investigating Rogers' testimony about the August 9th phone call made by Woods from Rogers' hospital room. The defense found that hospital policy limited the total number of visitors for a person who is a victim of a crime of violence for the entirety of his or her hospital stay. (The limitation was one clergy member and four other persons.) Prior to August 9, 2001, Rogers stated that he was visited by four persons, none of whom was a clergy member. Based on this information, Woods argued that Rogers was lying about Woods ever being in his hospital room.
On appeal, Woods claims three errors entitle him to a new trial. First, Woods challenges the admission of the recordings of the phone conversations in which only Davis' and Roberson's sides were recorded. Second, Woods challenges Davis' "monologue" statements in which he described the events surrounding the transaction to the FBI agents listening. (The district court initially admitted the statements on the basis that they provided context. Subsequently, the district court changed that ruling, admitting the statements as present sense impressions.) Woods argues that the admission of the taped commentary was erroneous because it violated his Sixth Amendment right to confrontation and because the statements were hearsay, qualifying under no recognized exception ...