noting that district court did not abuse its discretion in admitting a recording with inaudible portions because “much of [the tape] can be heard clearly”
How later courts described this case
- noting that district court did not abuse its discretion in admitting a recording with inaudible portions because “much of [the tape] can be heard clearly”
- arguing that "the government's transcript improperly supplied otherwise unintelligible portions of the taped conversation”
- "Once we have concluded that the defendants could have challenged specific portions of the government's transcript or prepared an alternative version, it follows that they cannot be heard to complain on appeal because they failed to take advantage of their trial opportunity.”
- “Courts and treatise writers have come to recognize an exception to the general rule of inadmissibility, by allowing the introduction of evidence of other criminal activity in order to complete the story of the crime on trial”
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing on behalf of appellant Wilson, only, is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED.
As a postscript to this denial of rehearing, we add the following observation to our prior opinion, on our own motion.
In Part III. A. of our opinion, we used this case as a platform for expressing our concern about a recurring phenomenon. As we there noted, we have observed, all too often, overzealous advocacy by the prosecutor resulting in the “seeding” of a record with unnecessary rulings upon which reviewable claims of error are based. Simply because we make these observations in this case is not meant to unduly chastise the prosecutor here. We do not wish to “visit the sins” of all overzealous prosecutors on government counsel in this case. Indeed, as we are careful to point out in our opinion, this is not the prototypic example of this phenomenon. Our holding shows as much: our ultimate treatment of the evidence of the “Tommy transaction” demonstrates that the prosecutor’s (not counsel who argued the appeal) success in injecting the matter was of no harmful moment. Yet, we believe that this case was an appropriate platform for our observations: objection was made to somewhat extraneous evidence; the trial judge was required to rule; error was predicated on that ruling. And, all this resulted from the prosecutor’s having won a point of so little value to the prosecution that, as we have held, it did not harm the defense.