United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 07-2804

__________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Omoro S. Crusoe, *

* [UNPUBLISHED] 

Appellant. *

___________

Submitted: March 11, 2008

Filed: June 30, 2008

___________

Before MURPHY, ARNOLD and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

 A jury convicted Omoro S. Crusoe on two counts of distributing heroin in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(c). He appeals, alleging insufficient

evidence and the erroneous admission of partially inaudible tape recordings. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms.

In November 2003, Crusoe was living in a halfway house where he met C.J.

Morgan. C.J. walked away from the house; he was arrested and sent to jail for 60

days. While in jail and at the house, C.J. allowed his younger brother, Levi, to use his

cell phone. 
-2-

Crusoe was released from the halfway house before C.J. returned from his

walk-away. Shortly after his release, Crusoe called C.J.’s cell phone but reached Levi.

Crusoe and Levi engaged in numerous transactions involving marijuana, cocaine and

heroin, until July 7, 2004. 

In late February 2004, C.J. offered to cooperate with law enforcement, for

money and because Levi was becoming more heavily involved with heroin. Greg

Brugman of the Iowa Department of Narcotics Enforcement was assigned to work

with a federal Drug Enforcement Agency (DEA) task force. Brugman worked with

C.J. to make controlled buys from Crusoe. 

On March 22, 2004, C.J. and Crusoe agreed to meet. Brugman, working

undercover, picked up C.J. at the halfway house. Other agents were providing

surveillance. C.J. was searched for contraband and provided cash for the buy. A

transmitter was placed in his pocket. Crusoe and C.J. later met at a mall, then moved

into a restroom. The transmitter did not work through the restroom walls during the

actual exchange of drugs for money. After C.J. left the mall, he returned to

Brugman’s car, handing over unused money and the heroin he purchased. He was

searched for contraband; none was found.

On March 30, 2004, in a similar transaction, Crusoe sold C.J. drugs. Brugman

drove C.J. to the same mall to meet Crusoe. Again, the transmitter did not work from

the restroom where the exchange occurred. This time C.J. gave all the DEA money

to Crusoe. After the buy, C.J. gave Brugman the drugs he had purchased and was

searched for other contraband. None was found. 

 Crusoe alleges there was insufficient evidence to support his convictions. The

standard of review is de novo when determining the sufficiency of the evidence for

a jury verdict. United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir. 2007). The

evidence is viewed in the light most favorable to the government. Id. A jury verdict
1

The Honorable Linda Reade, Chief United States District Judge for the

Northern District of Iowa.

-3-

will be affirmed if there is evidence to convince a reasonable jury of guilt beyond a

reasonable doubt. Id. 

First, Crusoe maintains that Brugman, at trial, failed to characterize C.J. as a

drug dealer. Brugman testified he would characterize C.J. not as a “drug dealer,” but

only as one who “dealt drugs to support his habit.” Crusoe says this distinction was

crucial to his defense because it would show C.J.’s true status to the jury. Crusoe

asserts that both Brugman and the federal prosecutor kept this fact from the jury.

Crusoe alleges the prosecutor knew this testimony to be untrue but “stood by

passively” while the case agent gave misleading or false testimony. To the contrary,

the prosecutor called C.J. a “drug dealer” in his opening statement and closing

argument. C.J. admitted at Crusoe’s trial that he had sold heroin in the past. There

was no prosecutorial misconduct simply because the DEA agent would not “agree”

to an unqualified characterization of C.J. as a drug dealer. Furthermore, Brugman’s

opinion was not false testimony, only an opinion for the jury to evaluate. See United

States v. Kirkie, 261 F.3d 761, 768 (8th Cir. 2001) (witness credibility is within the

province of the jury). 

Second, over Crusoe’s objection, the district court1

 admitted the partially

inaudible tapes of the controlled buys. Various parts of C.J.’s testimony were

corroborated by audio tapes, photographs, and testimony of agents who watched the

transactions before and after the two entered the restroom. 

The admission of a tape recording is reviewed for an abuse of discretion.

United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996) (quoting United States

v. Martinez, 951 F.2d 887, 888 (8th Cir. 1991). The case of United States v.
-4-

McMillan, 508 F.2d 101, 104 (8th Cir. 1974), governs the admissibility of tape

recordings. It lists seven foundational requirements: 

(1) The recording device was capable of taking the conversation

now offered in evidence.

(2) The operator of the device was competent to operate the

device.

(3) The recording is authentic and correct.

(4) Changes, additions or deletions have not been made in the

recording.

(5) The recording has been preserved in a manner that is shown to

the court.

(6) That the speakers are identified.

(7) The conversation elicited was made voluntarily and in good

faith, without any kind of inducement.

Crusoe challenges the recordings on the basis of requirements (1) and (6). The

fact that the conversation was recorded satisfies requirement (1). See United States

v. McGowan, 706 F.2d 863, 865 (8th Cir. 1983). As for requirement (6), C.J.

identified his own voice and Crusoe’s voice. See United States v. Wells, 347 F.3d

280, 288 (8th Cir. 2003). 

Finally, Crusoe challenges the recordings because they were partially inaudible.

The key is to determine, whether in light of the purposes for which the tapes are

offered, they are so inaudible as to make the whole recording untrustworthy. Webster,

84 F.3d at 1064. If a listener can understand essential parts of the conversations, the

tapes may be admitted. United States v. Bell, 651 F.2d 1255, 1259 (8th Cir. 1981).

The government claims the tapes were admitted for three purposes: (1) to rebut

Crusoe’s position that C.J. tampered with them, (2) to corroborate C.J.’s testimony

about the second purchase, and (3) to rebut Crusoe’s claim that C.J. sold heroin to
-5-

him. The portions of the recordings during the actual exchanges of money for drugs

are inaudible. However, the conversations before and after the exchanges provide

insight into the relationship between Crusoe and C.J. The court did not abuse its

discretion in admitting the audio tapes. 

 The judgment is affirmed. 

_____________________________