The Brief Writer

In United States v. Garcia, No. 07-50455, Richard Garcia was convicted of importing with the intent to distribute a large quantity of cocaine. He appealed his conviction on the ground that the trial court erred in excluding a transcript of his recorded interview with an ICE agent. The Fifth Circuit affirmed the conviction.

At trial, the government produced ICE agent, Frank Ayoub, who testified from his "independent recollection" about Garcia's statements made during a custodial interview. Though the interview had been recorded, the government never sought to introduce the recording into evidence. On cross-examination, defense counsel requested to read portions of the recorded transcript aloud, but the government objected on the basis that the transcript was not in evidence. Defense counsel argued that the transcript was admissible under Rule 106 or, in the alternative, the rule of completeness. The district court ruled that both were inapplicable since the government had not introduced any recording into evidence.

Garcia appealed his conviction based upon the district court's exclusion of the transcript.

The court held that the district court did not err in excluding the transcript. It held that Rule 106 did not apply to a witness's testimony at trial and the government did not quote or read from the interview transcripts so no "tantamount" transcript was offered.

The court also held that the common law rule of completeness did not trump its Rule 106 ruling. Defense counsel had not attempted to introduce the transcript into evidence nor lay a proper foundation for admission. He just handed Ayoub a copy of the transcript and asked him to read aloud from it. The district court sustained the government's objection that a witness could not read aloud a document not admitted into evidence.

Defense counsel did have Ayoub refresh his recollection by reading the transcript, but Ayoub stuck to his original testimony (the transcript appeared to contain material differences). Ayoub explained that his testimony regarding Garcia's statements pertained to another portion of the interview and remained correct and truthful.

The district court advised defense counsel of different ways to go about impeaching the witness, but apparently he did not too fare well in executing them.

In affirming the conviction, the court explained:

Garcia was given ample opportunity to explain his side of the conversation; that defense counsel did not exercise the variety of means available is not error we attribute to the district court.