FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 May 31, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12731

Non-Argument Calendar

________________________

D. C. Docket No. 05-60189-CR-PAS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

AUDY FACEY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 31, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Following a jury trial, Audy Facey was convicted of conspiracy to possess
2

with intent to distribute 100 kilograms or more of marijuana, in violation of 21

U.S.C. §§ 841(a)(1) and 846, and was sentenced to 75 months in prison. He

appeals, challenging the sufficiency of the evidence supporting his conviction. He

also argues that the district court erred in providing the jury with corroborative

transcripts of his recorded conversations, without proper safeguards, and that this

error caused him prejudice. Upon review, we AFFIRM. 

I. BACKGROUND

Facey’s conviction arises out of a conspiracy to import approximately 600

pounds of marijuana from Jamaica to the United States. In January 2004 the DEA

was informed by Rohan (“Ron”) Gordan, a paid confidential informant operating

in Jamaica, that two Jamaican smugglers, Patrick Thompson and Denton Hall,

were attempting to smuggle a large amount of marijuana into the United States by

boat. The DEA instructed Gordon to move forward with the operation, and to act

as the facilitator between the Jamaican smugglers and the recipients of the

marijuana here in the United States. Gordon was instructed to provide a boat and a

boat captain to the smugglers. He was also authorized by the DEA to travel to the

United States, in order to liaise with the recipient members of the trafficking

operation who were based in south Florida.

Upon arriving in the United States, the DEA provided Gordon with a
3

recording device, and he was instructed to record all of his telephone conversations

with the putative traffickers in south Florida. The Jamaican smugglers had given

Gordon phone numbers for two contacts in Florida. One of these contacts was

Lawton “Sturdy” Blackwood, who phoned Gordon from a Tampa area code and

asked about the marijuana being smuggled in from Jamaica. Gordon subsequently

arranged to meet Blackwood at the Coral Square shopping mall in Coral Springs,

Florida, on 3 May 2004. The 3 May meeting was recorded, via a hidden recording

device on Gordon’s person, and was also videotaped via a surveillance platform

that the DEA had assembled at the mall. Both the audio and the video recordings

of the meeting were later submitted into evidence at trial.

In the meeting, Gordon arrived at the Coral Springs Mall in a minivan, and

Blackwood arrived in a BMW, with the appellant, Facey, seated in the passenger

seat. Upon arrival, Blackwood exited the BMW and conversed with Gordon inside

the minivan for approximately twenty minutes, while Facey remained seated in the

BMW. The recording of the meeting, which was subsequently transcribed,

demonstrates that Gordon and Blackwood discussed the marijuana that Gordon

was seeking to smuggle into Florida. Blackwood stated that he had been advised

by his Jamaican contacts that Gordon had some “cheese,” and that the Jamaicans
 Gordon, the Jamaican informant, testified at trial that “cheese” referred to marijuana. 

1

See R4 at 188. He also testified that the Jamaican dealers used a number of slang words–such as

“Reggae Boys,” “bush” and “fish”–to refer to marijuana. Id. Clyde Parry, the DEA officer who

oversaw this investigation, confirmed that drug traffickers frequently speak in coded words in

discussing illicit drugs. 

 Gordon later testified that at the 3 May meeting Facey had been introduced to him as 2

Blackwood’s “driver.” See R5 at 35.

4

had asked Blackwood whether he could take it. R1-106, Exh. 1 at 7. Gordon 1

asked Blackwood “what kind of market” he had for such a product and Blackwood

advised that the market was very good. Id. at 7. Blackwood inquired whether

Gordon’s product was “high grade,” and Gordon stated that it was. Id. at 14. 

Blackwood stated that he was not prepared to “do anything today,” but that he just

wanted to “see” Gordon, to “talk to [him],” and to “let [him] meet [Blackwood’s]

driver,” Facey. Id. at 15. He advised that Facey was a “good friend,” and 2

indicated that when Gordon was ready to move forward with the transaction

Blackwood could instruct Facey to contact him and he would “know what to do.” 

Id. at 15-16. Blackwood also asked Gordon how soon he could have the product,

because he “need[ed] to move it by next weekend.” Id. at 18.

 Approximately 21 minutes into the meeting, Facey entered the minivan and

joined Gordon and Blackwood in conversation. After a short introduction, the

conversation shifted to the marijuana. Blackwood said “[i]f you give me a

container load or truck load then I’ll be responsible for that,” and Facey stated: “I
5

will take the green [unintelligible].” Id. at 29. Blackwood then reiterated the

purpose of the introduction: “I brought this man here. So when . . . [m]e send him

down here . . . [y]ou know exactly who you are going to see.” Id. at 35-36. 

Blackwood stated to Gordon that Facey was flexible, because he was in the area. 

Facey asked Gordon, “[w]hat gonna happen when [lengthy untelligible]?” Id. at

39-40. After Blackwood suggested that he would await Gordon’s getting back in

touch with them, Facey exited the van and left the meeting, while Gordon and

Blackwood remained in the van for further conversation. Id. at 40-41.

Subsequent to this meeting, Blackwood provided Gordon with the fuel

money for the boat trip. On 18 June 2004, Gordon transported by boat

approximately 668 pounds of marijuana from Jamaica to the United States. After

doing so, Gordon placed a phone call to Facey on 8 July 2004; this conversation

was also recorded and admitted into evidence. In that conversation Gordon

indicated that he had the “fish” and that he was going to “fix it up nice” prior to

giving it to Facey. R1-106, Exh. 2 at 2. Gordon indicated that the item was going

to be “separate[d]” into “big white sugar bags,” and that he was planning on

getting it out the next day. Id. In response, Facey stated: “Okay. I’m definitely

[going to] have to make preparations.” Id. They agreed to communicate the

following day, and Facey stated, “[j]ust give me time to go get the proper things,
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 3

6

the accommodations[,] and then get back in touch with you.” Id. at 3. 

The next day, the two again spoke by phone, and Facey indicated that he was

awaiting word on “what kind of big van to get.” R1, Doc. 130, Gov. Exh. 13B at

2. Facey stated that he also wanted to ascertain from Gordon “what time frame [he

was] looking for,” and Gordon indicated that he would call Tampa to find out. Id. 

After this conversation, Facey rented a cargo van under the name of Robert

Scarlette. The van was delivered to Gordon.

On 13 July 2004, Gordon, with the assistance of DEA Officer Parry and

other DEA agents, loaded the van with marijuana and drove it to an undercover

warehouse. Gordon arranged to meet Facey across the street. Once Gordon

arrived, Gordon and Facey walked across the street to the warehouse. Facey

observed the marijuana in the van, and was apparently upset at the way that

marijuana had been packaged; Facey stated, “[i]t can’t work like this now.” R5 at

38. Gordon had been instructed by the DEA to tell Facey that the van keys were

on a shelf in the warehouse. When Facey went to look for the keys, he was

arrested. After being read his Miranda rights, Facey waived his rights and stated 3

to DEA Officer Parry that he had been planning on transporting a van load of

marijuana. Subsequently, however, Facey modified that statement and indicated
7

that he had only been planning on picking up and transporting a load of fish. R4 at

78-79.

After his arrest, Facey was charged with one count of conspiracy to possess

with intent to distribute 100 kilograms or more of marijuana, in violation of 21

U.S.C. §§ 841(a)(1)(B) and 846, and one count of attempted possession with intent

to distribute 100 or more kilograms of marijuana, in violation of 21 U.S.C.

§§ 841(a)(1)(B) and 846. A jury trial was held in February 2006. The jury

convicted Facey of the drug conspiracy count, but acquitted him of the attempted

possession count. Facey then moved, pursuant to Rule 29(c) of the Federal Rules

of Criminal Procedure, for a judgment of acquittal on the drug conspiracy charge,

arguing that there was insufficient evidence to support his conviction on that count. 

The district court denied his motion, and Facey was sentenced to 75 months of

imprisonment and five years of supervised release.

On appeal, Facey makes two arguments. First, he contends that there was

insufficient evidence to support his conviction on the drug conspiracy count, and

that, therefore, the district court erred in denying his Rule 29 motion for acquittal. 

Second, he argues that the transcripts of the recorded conversations that took place

during the course of this smuggling operation should not have been provided to the

jury without additional safeguards, and that the court’s doing so caused him
8

prejudice. We address each of these contentions in turn. 

II. DISCUSSION

A. Facey’s Motion For Judgment of Acquittal / Sufficiency of The Evidence

“We review the denial of a defendant’s motion for acquittal de novo.” 

United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994) (citations

omitted). In considering the sufficiency of the evidence, we view all of the

evidence “in the light most favorable to the government, with all inferences and

credibility choices drawn in the government’s favor. United States v. LeCroy, 441

F.3d 914, 924 (11th Cir. 2006). We “cannot reverse a conviction for insufficiency

of the evidence unless . . . we conclude that no reasonable jury could find proof

beyond a reasonable doubt.” United States v. Jones, 913 F.2d 1552, 1557 (11th

Cir. 1990) (citation omitted). We keep in mind that “[i]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except guilt, provided that a reasonable trier of

fact could find that the evidence established guilt beyond a reasonable doubt.” 

United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994) (citations omitted).

A conspiracy is “an agreement to commit an unlawful act.” United States v.

Toler, 144 F.3d 1423, 1425 (11th Cir. 1998) (citation and internal quotations

omitted). In order to support a conviction for a drug conspiracy pursuant to 21
9

U.S.C. §§ 841 and 846, the government must prove beyond a reasonable doubt: (1)

that an illegal agreement existed to possess with the intent to distribute illegal

drugs; (2) that the defendant knew of the agreement; and (3) that the defendant

knowingly and voluntarily joined in, or participated in, the agreement. United

States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002) (per curiam). Once the

drug conspiracy has been shown to exist, “a defendant can be convicted even if his

or her participation in the scheme is ‘slight’ by comparison to the actions of other

co-conspirators.” Toler, 144 F.3d at 1428. We have stated, however, that mere

presence at the scene of the crime will not support a drug conspiracy conviction;

the government must establish, by direct or circumstantial evidence, the

defendant’s “knowing participation” in the conspiracy. United States v. Villegas,

911 F.2d 623, 627-28 (11th Cir. 1990).

 In this case, it is undisputed that a conspiracy existed to import approximately

648 pounds of marijuana from Jamaica. Rather, Facey’s appeal hinges on the latter

requirements of a conspiracy charge, that is, his “knowing participation” in the

conspiracy. See id. First, Facey contends that his presence at the 3 May 2004

meeting between Blackwood and Gordon–in which the trafficking operation was

discussed at length–was not enough to prove beyond a reasonable doubt that he

“knowingly participated” in the drug conspiracy, because he said very little during
10

the meeting and was not present for a large portion of the discussion. Moreover,

Facey contends that none of the subsequent phone calls between Gordon and Facey

demonstrate his awareness of, or his knowing participation in, the drug conspiracy.

Facey maintains that he was wholly unaware of the contents of the van when he

coordinated the meeting with Gordon on 13 July, and that he thought he was

transporting fish in the rented cargo van. Accordingly, Facey contends that his

Rule 29 motion for acquittal should have been granted. 

We disagree. First, with respect to the 3 May meeting at the shopping mall,

evidence was presented that tended to establish Facey’s knowing participation in

the marijuana smuggling operation. Although Facey was not present for the

entirety of the conversation in the minivan, Blackwood made clear at the outset

that one of the purposes of the meeting was to “let you meet my driver,” that is,

Facey, so that when Gordon was ready to move forward with the transaction

Blackwood could instruct Facey to contact Gordon and Facey would “know what

to do.” R1-106, Exh.1 at 15-16. 

After Facey entered the minivan, the three further discussed the marijuana

that was being brought in from Jamaica, referring to it as “Reggae Boy,” which

Gordon’s subsequent testimony established was a slang term for marijuana. 

Blackwood stated–in Facey’s presence–that if Gordon gave him “a container load
11

or truck load then [Blackwood would] be responsible for that,” to which Facey

interjected: “I will take the green [unintelligible].” R1-106, Exh.1 at 29. 

Blackwood also reiterated the purpose of the introduction, stating that he had

brought Facey to meet Gordon so that when the time came to move the marijuana,

Gordon would “know exactly who you are going to see.” Id. at 35-36. Before

leaving the meeting, Facey asked Gordon what was going to happen, and when.

This evidence suggests that Facey knowingly participated in the drug operation.

Although he was reticent at times during the discussion, Facey’s statements at the

meeting suggest that he knew the purpose of the 3 May meeting, and that he was

willing to take steps to effectuate its purposes.

Moreover, the evidence of the subsequent phone conversations between

Gordon and Facey established that Facey discussed how best to transport Gordon’s

contraband (after Gordon proposed separating it into large sugar bags). Facey also

agreed to make arrangements to secure a van of the appropriate size for Gordon. 

Finally, Gordon and DEA Officer Parry both testified– and the video surveillance

tapes confirmed–that at the July 13 rendezvous, when the marijuana-laden van was

ready, Facey arrived at the scheduled time and place, viewed the marijuana in the

van, rearranged it to his satisfaction, and was preparing to retrieve the key to the

van when he was arrested. This evidence certainly could have led a reasonable
12

jury to find that Facey knowingly participated in the plan to possess and distribute

marijuana. 

On appeal Facey attempts to analogize his case to our line of “innocent

bystander” or “mere presence” cases. In some of those cases, we have reversed

drug conspiracy convictions because the evidence failed to establish beyond a

reasonable doubt either that the defendant knew that drugs were involved in a

particular transaction, see Charles, 313 F.3d at 1284-85; United States v. Sullivan,

763 F.2d 1215, 1219 (11th Cir. 1985), or that the defendant took any steps to

participate in or to further the drug conspiracy. See Toler, 144 F.3d at 1433-34. 

We find, however, that Facey’s case is closer to United States v. Lyons, 53 F.3d

1198 (11th Cir. 1995). In Lyons, the defendant was present at an initial meeting in

which an undercover agent discussed purchasing crack cocaine from a coconspirator; the record reflected that the defendant “was well aware of the nature of

the transaction taking place,” and the co-conspirator made no effort to conceal the

nature of the exchange from her. Id. at 1200. Subsequent to that meeting, the

defendant in Lyons had traveled to the crack house with her co-conspirator to

procure the crack cocaine, and had been present when the crack cocaine was sold

to the agent on two separate occasions. Id. at 1200-01. The defendant argued that

she had merely been present; that she had not negotiated about the drug prices with
13

the agent; and that she had “contributed nothing to . . . [the] criminal venture.” 

Id. at 1201. 

We disagreed, and affirmed her conviction. First, we noted that while the

defendant had been present, and that “mere presence” was not enough, presence at

drug trafficking transactions “raise[d] a permissible inference of participation in

the drug conspiracy.” Id. at 1201; accord United States v. McDowell, 250 F.3d

1354, 1365 (11th Cir. 2001) (stating that “presence [] is a probative factor which

the jury may consider in determining whether a defendant was a knowing and

intentional participant in a criminal scheme”). Second, we noted that the defendant

had been repeatedly present at these crack-dealing transactions, and that the coconspirator had made no effort to hide the drugs from her, or to hide the fact that

she was dealing them. Thus, we stated that it “strain[ed] credulity” that the

defendant was nothing more than a hapless bystander observing these transactions. 

Lyons at 1203. In light of these facts, we stated that a jury could have inferred

“not only [that she] knew she was present at a drug deal, but that she intended to

contribute to the conspiratorial objective.” Id. at 1202; see also United States v.

Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc) (“A jury may find

knowledgeable, voluntary participation from presence when the presence is such

that it would be unreasonable for anyone other than a knowledgeable participant to
14

be present.”).

Similarly, here we find that Facey’s reliance on the “mere presence” cases is

misplaced. As in Lyons, Facey was not just present at the 3 May meeting between

Blackwood and Gordon, but was “presen[t] under a particular set of

circumstances,” that is, a lengthy discussion about purchasing Gordon’s marijuana

shipment. See Lyons, 53 F.3d at 1201 (quoting Cruz-Valdez, 773 F.2d at 1546). 

In addition, as in Lyons, Facey was repeatedly present as the conspiracy moved

forward–coordinating with Gordon not just at the 3 May meeting but also in

subsequent phone calls and at the 13 July rendezvous. And Facey’s coconspirators made no effort to hide the nature of the transaction from him; in fact,

they entrusted him with the responsibility of driving a van that had been loaded

with 600 pounds of marijuana. See, e.g., Cruz-Valdez, 773 F.2d at 1547 (noting

that it is unlikely that “in the course of transporting or distributing millions of

dollars of readily marketable marijuana” a smuggler would use “unaffiliated

bystanders”). Under Lyons, the evidence adduced at Facey’s trial was sufficient to

support his conviction for conspiracy beyond a reasonable doubt.

The “mere presence” cases are also inapposite because, as noted previously,

Facey did far more than be “merely present”; in fact, he volunteered to help “take

the green,” R1-106, Exh.1 at 29, he arranged to pick it up in a cargo van (rented in
 As to Facey’s argument that he honestly believed that the van only contained a large 4

shipment of fish, in similar drug conspiracy cases we have stated that a jury is entitled to

disbelieve such protestations of innocence in light of other evidence that would support the

opposite conclusion. Toler, 144 F.3d at 1430. Such evidence was presented here, and thus a

reasonable jury could have found Facey guilty despite Facey’s “fish” defense. 

15

someone else’s name), and he seemed comfortable with the contents of the van

when he saw that the van was loaded with marijuana. This evidence was more

than sufficient, taken together, for a jury to infer that he was a knowing participant

in the operation. See, e.g., United States v. Carrazana, 921 F.2d 1557, 1566 (11th

Cir. 1991) (stating, where the defendant “plann[ed] the pickup of a large quantity

of cocaine,” and “execut[ed] the delivery,” that a “jury could presume that [the

defendant] was familiar with [the illegal acts], and infer his knowledge of the

broader, ongoing conspiracy”). 

In summary, in light of the evidence presented, a reasonable jury could have

concluded beyond a reasonable doubt that Facey was aware of the nature of the

conspiracy, and that he knowingly participated in it by his conduct. Thus the 4

district court did not err in denying his motion for acquittal.

B. Transcripts of Facey’s Recorded Conversations

Facey also argues that the district court erred in allowing into evidence

transcripts of the taped audio recordings of his conversations concerning the

smuggling operation. Facey’s argument on appeal is not, apparently, that the
16

district court erred in admitting the transcripts into evidence, but, rather, that once

the transcripts had been admitted, “some safeguards” were needed to ensure that

the jury did not use the transcripts improperly during deliberations. Br. of

Appellant at 27. Specifically, Facey argues that the district court needed to give a

limiting instruction–immediately prior to jury deliberations–to remind the jury that

the transcripts were not to be overly relied upon, and that the transcripts were

intended to be only corroborative of the audio recordings. 

In Facey’s case, DEA Officer Parry had prepared a corresponding transcript

of each recorded conversation between the confidential informant Gordon, Facey,

and the other drug traffickers involved this case. At trial, Officer Parry testified

about his method of preparing the transcripts from the audio recordings. He

indicated he had transcribed the recordings himself, and that if there were portions

that were not understandable, he would put the word “unintelligible” in brackets in

the transcription. He also testified that the transcripts were accurate to the best of

his ability, and that they accurately captured both the content and the identification

of the speakers. When the government sought to introduce the transcript of the 3

May meeting into evidence, Facey’s counsel objected. The district court indicated,

consistent with its pre-trial ruling on this issue, that it would overrule Facey’s

objection to the transcripts, subject to a motion to strike the transcripts if the court
 The district court had advised, “We will introduce them into evidence subject to a 5

motion to strike if when I listen to the tapes I find that they are not accurate enough to be

evidence and that they are only demonstrative. But we will introduce them into evidence at least

as demonstrative exhibits for the jury to be able to follow along with. And then if you think that

they are not accurate enough for the jury to take them back into the jury room, then you can

move to strike them . . . as exhibits. They would still be demonstrative but they wouldn’t go

back into the jury room.” R3 at 9.

17

subsequently determined (in listening to the audio recordings) that they were not

sufficiently accurate. The court then gave this limiting instruction to the jury: 5

I have admitted the transcript for the limited and secondary purpose of

aiding you in following the content of the conversation as you listen to

the tape recording and also aid you in identifying the speakers. 

However, you are specifically instructed that whether the transcript

correctly or incorrectly reflects the content of the conversation or the

identity of the speakers is entirely for you to determine based upon

your own evaluation of the testimony you have heard concerning the

preparation of the transcript and from your own examination of the

transcript in relation to your hearing of the tape recording itself as the

primary evidence of its own contents. And, if you should determine

that the transcript is in any respect incorrect or unreliable, you should

disregard it to that extent. 

R3 at 78-79. 

On the second day of trial, before direct examination of Officer Parry was to

resume, Facey’s counsel renewed–outside of the presence of the jury–his objection

to the government’s transcripts. The court reiterated that the transcripts of Facey’s

conversations could be admitted:

I am going to listen along when the tapes are played in front of the

jury, and if I am satisfied that the transcripts are sufficiently

accurate–they are not going to be a hundred percent. I have never

seen one that’s a hundred percent–but if I am convinced that they are
18

sufficiently accurate and authenticated, then I will let them go back to

the jury room. If not, then they were just demonstrative aids. And I

have already instructed the jury as to their use in that regard.

R4 at 10. The court also advised Facey’s counsel that he was free to cross-examine

Officer Parry about the transcripts and his methods of preparation, in order to cast

doubt on the accuracy of the transcripts. Facey’s counsel did, in fact, crossexamine Officer Parry, attempting to cast doubt on his methods of transcribing the

tape and his familiarity with Jamaican slang. 

Direct examination of Officer Parry then re-commenced. When the

government offered into evidence an audio tape and its accompanying transcript of

a July 2004 telephone conversation between Gordon and Facey, Facey again

objected to the authenticity of the transcript. The court received the transcript with

the same limiting instruction that it had given the jury regarding the earlier

transcripts. This same process repeated itself a number of times, with Facey’s

counsel objecting to the transcripts being admitted and the court permitting them to

be admitted, subject to its earlier limiting instruction to the jury. 

Towards the conclusion of the government’s case in chief, the court

observed: “[s]o far, I don’t see any problem with any of the transcripts. I think the

transcripts are among the more accurate transcripts I have ever seen.” R4 at 193.

The jury was subsequently permitted to take the transcripts of the phone
19

conversations into the deliberations room, along with the audio recordings. 

Although the district court gave the same limiting instruction to the jury prior to its

receiving each individual transcript, no such limiting instruction was given prior to

deliberations. 

On appeal, Facey argues that “some safeguards” should have been imposed

prior to giving the transcripts to the jury, such as a limiting instruction

“immediately prior to deliberations.” Br. of Appellant at 27-29. He contends that

the district court’s failure to do so created the risk that the jury overly relied on the

corroborative transcripts rather than the (more accurate) audio recordings, thereby

causing him prejudice. As to the admission of evidence, “[w]e review on an abuse

of discretion standard.” United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.

1990); see also United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976). 

We have stated that it is a “well-established” rule that a district court may

permit a corroborative transcript of an audio recording to be admitted and provided

to a jury during deliberations, so as to assist the jury in understanding the original

recording. United States v. Reed, 887 F.2d 1398, 1407 (11th Cir. 1989). In Onori,

our predecessor circuit explained the purpose behind this rule:

The need or desire for transcripts arises generally from two

circumstances. First, portions of a tape may be relatively inaudible.

Second, without the aid of a transcript, it may be difficult to identify

the speakers. In either of these cases, it has been said that it is within
20

the discretion of the trial court to allow a transcript to be used by the

jury to assist the jury as it listens to the tape.

We believe that the use of a transcript as a guide is analogous to the

use of expert testimony as a device aiding a jury in understanding

other types of real evidence . . . . They are evidence and, like other

evidence, may be admitted for a limited purpose . . . . 

 

535 F.2d 938, 947-48 (citation and internal quotations omitted). We have further

indicated that when there is a dispute over the accuracy of a transcript, the proper

protocol is for “each side [to] produce its own version of a transcript or its own

version of the disputed portions. In addition, each side may put on evidence

supporting the accuracy of its own version or challenging the accuracy of the other

side’s version.” United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir. 1993).

In this case, Facey did not produce his own version of the disputed

transcripts, nor did he cast significant doubt on the accuracy of the government’s

version, other than through a brief cross-examination of Officer Parry. In fact, the

record suggests that the transcripts were accurate reproductions of the recorded

conversations; Officer Parry testified that they were accurate both as to the content

and the identity of the speakers, and the district court found them to be 

“among the more accurate transcripts [it] [had] ever seen.” R4 at 193. In addition,

as noted, the district court gave a limiting instruction to the jury–carefully

delineating the limited purpose for which the transcripts were to be used–before
21

admitting each one into evidence. That instruction was wholly congruent with the

reasoning of Onori. 

Moreover, on appeal Facey has failed to show how, if at all, the transcripts

were inaccurate; rather, his argument is that the failure to take proper safeguards

with the transcripts could hypothetically have led the jury to misuse them, thereby

causing him prejudice. This contention is not sufficient to warrant a reversal of his

conviction. See, e.g., Reed, 887 F.2d at 1407 (affirming conviction where

defendant “has not questioned the accuracy of the transcripts” but “has asserted

only a general claim that he was prejudiced by the jury’s alleged use of the

transcripts”). In summary, Facey has failed to establish that the district court

abused its discretion in admitting the transcripts and providing them to the jury. 

III. CONCLUSION

Facey appealed his drug conspiracy conviction pursuant to 21 U.S.C. §§ 846

and 848, contending: (1) that there was insufficient evidence to support his drug

conspiracy conviction and that therefore the district court erred in denying his

motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure

29(c); and (2) that the district court erred in submitting transcripts of recorded

conversations to the jury without using additional safeguards to ensure that they

were used for a limited purpose. Upon careful review of the record, we conclude
22

that there was ample evidence from which a reasonable jury could have found

Facey guilty beyond a reasonable doubt on the drug conspiracy conviction, and

that therefore the district court acted properly in denying Facey’s Rule 29 motion. 

We also find no evidence that the district court abused its discretion in admitting

the transcripts of Facey’s recorded conversations and in providing them to the jury

with a limiting instruction. Accordingly, Facey’s conviction is AFFIRMED.