1The HONORABLE GARY A. FENNER, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-2396

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Randy D. Warner, *

* [TO BE PUBLISHED]

Appellant. *

___________

 Submitted: February 18, 2000

 Filed: February 28, 2000

___________

Before LOKEN, FAGG, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Randy D. Warner pleaded guilty to distributing a listed chemical knowing or

having reasonable cause to believe it would be used to manufacture methamphetamine,

in violation of 21 U.S.C. § 841(d)(2). He appeals his thirty-seven-month sentence,

arguing the district court1 erred in imposing a two-level enhancement under U.S.S.G.

§ 3B1.4 for attempting to use a minor to commit the offense, and in refusing to admit

an exhibit offered at the evidentiary sentencing hearing. We affirm.
2Warner argued to the district court this was not an attempt to use a minor to

commit the offense within the meaning of § 3B1.4, an argument he does not renew on

appeal. Although Warner’s unusual, spur-of-the-moment suggestion does not fit neatly

into the non-exclusive examples of “use” listed in Application Note 1 to § 3B1.4, the

district court did not commit plain error in finding Warner’s conduct fell within this

guidelines provision. Warner acted irresponsibly in bringing his young child on this

nefarious junket. His offer to leave her in what might well have been a dangerous

situation to facilitate his criminal activity warrants a sentence enhancement.

-2-

At sentencing, two undercover officers testified that they followed Warner’s

vehicle to a truck stop where they had arranged to purchase 90,000 ephedrine tablets

for $1500. Warner was accompanied by his eight-year-old daughter. Officer Flett,

wearing a tape recorder, left his car and went to the driver’s side window of Warner’s

vehicle. Warner said he would bring the money to his nearby supplier and return with

the ephedrine. Flett refused to pay the money until Warner brought the drugs. Warner

suggested that he leave his daughter in the truck stop restaurant with the officers so

they could give him the money in advance and be certain he would return with the

drugs. When Flett refused, Warner and his daughter left without the money, returned

in a short time with the ephedrine, and the illegal exchange was completed. The

§ 3B1.4 enhancement is based on Warner’s suggestion that he leave his daughter with

the officers while he took their money to his supplier.2

On appeal, Warner first argues the district court’s finding that he made this

suggestion is clearly erroneous because it cannot be heard on Flett’s audio tape of his

conversation with Warner, which was admitted into evidence and played at the

sentencing hearing. Both officers testified that portions of the tape were inaudible due

to background noise from nearby highway traffic. Officer Flett testified unequivocally

that Warner offered to leave his daughter in the restaurant while he took the money to

get the drugs, and Flett identified the point on the tape when this inaudible statement

occurred. The district court, having listened to the tape as well as the testimony,

credited Officer Flett’s testimony. Although the tape provides some “extrinsic
-3-

evidence that contradicts the witness’s story,” United States v. Womack, 191 F.3d 879,

885 (8th Cir. 1999), the tape does not establish whether Warner’s alleged suggestion

was never made, or was merely inaudible. In these circumstances, the district court’s

finding that Warner did offer to leave his daughter with the officers to facilitate the drug

deal is not clearly erroneous.

Warner also argues the district court erred in refusing to admit into evidence a

transcript of the tape prepared by the defense. This issue arose because Warner’s

counsel intended to use the tape in cross examining Officer Flett, and Flett brought the

tape but no cassette recorder to the hearing. On the assumption someone would find

a recorder in the courthouse, the district court sustained the government’s objection to

use of the transcript. A recorder was found, the tape was played for both the officers

and the court, and defense counsel used the tape in conducting the cross examination.

The court plainly did not abuse its substantial evidentiary discretion in excluding the

transcript. The tape, accompanied by the live testimony of Officer Flett, was the best

evidence of the conversation. The transcript was cumulative, and it was less reliable

because it was not prepared with Officer Flett’s assistance in deciphering the partially

inaudible tape. See United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974),

cert. denied, 421 U.S. 916 (1975).

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.