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United States v. Bennett

United States District Court, E.D. Michigan, Northern Division

October 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES DANIEL BENNETT, Defendant.

          ORDER DENYING MOTION TO EXCLUDE AUDIO EVIDENCE, EXPERT TESTIMONY, AND EVIDENCE OF PRIOR CONVICTIONS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         On July 28, 2017, an indictment was returned which charged Defendant James Daniel Bennett with one count of domestic assault by an habitual offender. ECF No. 1. On August 28, 2017, Bennett filed two motions. In Bennett's first motion, he seeks an order excluding a number of audio tape recordings, testimony of the Government's expert on domestic violence, and all evidence of Bennett's prior domestic violence convictions. ECF No. 12. In the second motion, Bennett requests disclosure of the complaining witness's grand jury testimony. ECF No. 13. On September 27, 2017, the Court held a hearing on Bennett's motion for exclusion and discovery. For the following reasons, the motion will be denied.

         I.

         In the indictment, Bennett is charged with one count of domestic assault by an habitual offender. ECF No. 1. Specifically, the indictment alleges that “[o]n or about April 30, 2017, . . . James Daniel Bennett assaulted T.C., a person he has cohabited with as someone similarly situated to a spouse after having convicted of Domestic Violence in the Barry County District Court on or about November 19, 1998 and Domestic Violence in the Isabella County Trial Court on or about June 26, 2000, both of which involved a victim that was a spouse or intimate partner.” Id. at 1.

         On July 19, 2017, the Government filed a discovery notice on the docket. ECF No. 10. In the notice, the Government indicated that at trial it will seek admission of audio recordings of the alleged victim talking to police and judgments of Bennett's prior domestic violence convictions. Id. at 2. The Government further advised that it intends to introduce a domestic violence expert, Holly Rosen, at trial.

         II.

         In the present motion, Bennett argues that “[a]ll evidence of James Bennett's prior domestic violence convictions must be excluded as irrelevant to this case.” Mot. Exclude at 2, ECF No. 12. He further argues that the audio tapes of the alleged victim's interviews with the police must be excluded because they are unintelligible. Id. at 1-2. Finally, Bennett argues that the Government's proposed expert on domestic violence must be prevented from testifying at trial. All three requests will be denied. Bennett also requests discovery from the Government, but he does not contend that the Government has failed to comply with any legal obligations regarding discovery, and so the Court will not issue a redundant order directing the Government to comply with the law.

         A.

         First, Bennett argues that all evidence of his prior convictions must be excluded as irrelevant. Bennett is charged under 18 U.S.C. § 117. Accordingly, the Government must prove that Bennett 1) committed a domestic assault, 2) did so within the special maritime and territorial jurisdiction of the United States or Indiana county, and 3) has “a final conviction on at least 2 separate prior occasions . . . for offenses that would be, if subject to Federal jurisdiction . . . any assault, sexual abuse, or serious violence felony against a spouse or intimate partner.” Id. at § 117(a)(1). Bennett's prior domestic violence convictions are thus elements of the charged crime. Thus, those prior convictions are admissible. See United States v. Drapeau, 827 F.3d 773, 776 (8th Cir. 2016) (holding that the district court did not abuse its discretion in permitting testimony regarding the details of prior offenses because the defendant did not stipulate that his prior convictions constituted predicate offenses and because the district court gave curative instructions to the jury).

         B.

         Next, Bennett requests an order excluding certain audio of interviews given by the complaining witness to the 911 operator and police officers. “[T]he admission of tape recordings at trial rests within the sound discretion of the trial court. United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983). To be admitted, “the tapes must be authentic, accurate and trustworthy.” Id. Further, the tapes “must be audible and sufficiently comprehensible for the jury to consider the contents.” Id. However, “[t]he fact that a tape recording has some unintelligible portions does not automatically render the entire recording inadmissible.” United States v. Wilkinson, 53 F.3d 757, 761 (6th Cir. 1995). Rather, a partially unintelligible tape is inadmissible “if the ‘unintelligible portions are so substantial as to render the recording as a whole untrustworthy.'” Robinson, 707 F.2d at 876 (quoting United States v. Jones, 540 F.2d 465, 470 (10th Cir. 1976)).

         In this matter, the Court reviewed the intelligibility of the recordings at the hearing. As indicated on the record, the Court is satisfied that the jury will be able to understand that record and that any potentially unintelligible portions do not call into question the trustworthiness of the recording as a whole.

         Alternatively, the Government has indicated its intention to provide a transcript of the audio recording to the jury. “The use of transcripts is also a matter commended to the trial court's discretion.” Id. The “preferred practice is not to submit transcripts to the jury unless the parties stipulate to their accuracy.” Id. When that is not possible, the second best method is for the district court to compare the transcript and recording and make a pretrial determination of accuracy. Id. As a last resort, the Government's transcript and Defendant's transcript can both be ...


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