## Facts

- Jonathan Branch was tried and convicted in federal district court for heroin and cocaine conspiracy and distribution offenses and for tax evasion.
- The government’s proof included excerpts from court-authorized wiretap recordings of conversations between Branch and alleged coconspirators, including Earlous Tripp.
- Before admitting the recordings, the district court conducted an in camera hearing where the government played tapes and presented testimony from 26 agents who operated or monitored the wiretap.
- The district court ruled that the government made a sufficient showing of authenticity to permit the recordings to be submitted to the jury, while requiring that foundation also be laid in the jury’s presence.
- At trial, the government authenticated the recordings through: (1) an FBI wiretap supervisor who explained the recording and excerpt-preparation process, (2) another agent who identified voices and spoke to accuracy, and (3) Tripp, who identified his and Branch’s voices and confirmed the recordings accurately reflected their conversations.
- Branch objected that the government did not present the same extensive agent testimony to the jury and argued that some portions were unintelligible and that the use of excerpts was misleading.
- On the tax counts, the government introduced IRS-prepared summary charts reflecting financial transactions and alleged unreported income, based on underlying records made available to the defense.
- The government introduced out-of-court statements by alleged coconspirators under Federal Rule of Evidence 801(d)(2)(E).
- The district court imposed certain limits on Branch’s cross-examination of government witnesses.
- Branch appealed, challenging evidentiary rulings, limits on cross-examination, and the sufficiency of the evidence.

## Issues

1. Whether wiretap recordings were improperly admitted because authentication evidence was largely presented in camera and only partially repeated before the jury, and because portions were unintelligible or presented as excerpts.
2. Whether summary charts were improperly admitted under Federal Rule of Evidence 1006.
3. Whether alleged coconspirator statements were improperly admitted under Federal Rule of Evidence 801(d)(2)(E).
4. Whether limits on cross-examination violated the Confrontation Clause or constituted an abuse of discretion.
5. Whether the evidence was sufficient to support the drug and tax-evasion convictions.

## Decision

- The Fourth Circuit affirmed the convictions and judgment.
- The court held the recordings were properly authenticated under Rule 901 because the jury had a sufficient basis to find they were genuine through testimony about the recording process and voice identification by a participant.
- The court held in camera proof of authenticity was permissible for the judge’s admissibility determination, and the government was not required to present all of that preliminary evidence to the jury.
- The court held inaudible portions did not require exclusion because they were not so substantial as to render the recordings untrustworthy, and the use of excerpts did not violate fairness principles absent a showing that omitted portions were necessary for context.
- The court upheld admission of the IRS summary charts under Rule 1006, relying on the availability of underlying materials, explanatory testimony, and limiting instructions.
- The court held coconspirator statements were admissible because the government proved by a preponderance of the evidence that a conspiracy existed, Branch and declarants were members, and the statements were made during and in furtherance of the conspiracy.
- The court held restrictions on cross-examination did not violate the Sixth Amendment and were within the district court’s discretion to control trial presentation.
- The court held the evidence, viewed in the light most favorable to the government, was sufficient to sustain the convictions.

## Legal Principles

- Federal Rule of Evidence 901 requires only evidence sufficient to support a finding that the item is what the proponent claims; the proponent’s authenticity burden is a prima facie showing, with the ultimate determination left to the jury.
- Under Federal Rule of Evidence 104(a), a trial court may resolve preliminary admissibility questions using evidence outside the jury’s presence; authentication evidence considered for admissibility need not be fully duplicated before the jury if the jury still receives enough foundation to find authenticity.
- Audio recordings are not excluded merely because some portions are inaudible; exclusion is warranted only if unintelligible segments are so substantial that the recording as a whole becomes untrustworthy.
- When only excerpts are offered, the objecting party must invoke the rule of completeness and show that additional portions are necessary to avoid misleading context.
- Federal Rule of Evidence 1006 permits summaries of voluminous records if underlying materials are available to the opposing party and the summary is supported by an adequate foundation; limiting instructions may be used to prevent the jury from treating summaries as independent proof.
- Under Federal Rule of Evidence 801(d)(2)(E), coconspirator statements are admissible if the government proves by a preponderance of the evidence that a conspiracy existed, the defendant and declarant were members, and the statement was made during and in furtherance of the conspiracy; the court may consider the statements along with independent evidence.
- The Confrontation Clause guarantees an opportunity for effective cross-examination, not unlimited cross-examination; trial courts retain discretion under Rule 611 to control interrogation and avoid delay or harassment.

## Conclusion

The Fourth Circuit affirmed Branch’s drug and tax-evasion convictions, holding that the wiretap excerpts were adequately authenticated for jury consideration, financial summary charts were properly admitted to present voluminous records, coconspirator statements met Rule 801(d)(2)(E)’s requirements, cross-examination limits were within the trial court’s discretion, and the evidence was sufficient to sustain the verdicts.


United States v. Branch, 970 F.2d 1368 (4th Cir. 1992)