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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-2193
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS ELTON STONE, and
DENISE SIENHAUSEN,
Defendants-Appellants.
______________________________________________
Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
(April 29, 1992)
Before BROWN, GARWOOD, and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Louis Elton Stone (Stone) and Denise
Sienhausen (Sienhausen) were convicted of conspiring to
manufacture, and attempting to manufacture, in excess of one
hundred grams of methamphetamine. They both appeal, raising
various challenges to their convictions. We affirm.
Facts and Proceedings Below
In July 1989, Stone entered the Scientific Chemical Company in
Harris County, Texas and attempted to purchase three pounds of
ephedrine, which is used as a precursor chemical in the manufacture

of methamphetamine, but was not itself a controlled substance at
that time. Scientific Chemical was out of ephedrine, so the
salesman took $350 from Stone, told him that he would order the
ephedrine, and asked Stone to get back in touch with him in a few
days. The salesman also recorded Stone's name, driver's license
number, and address, and in accordance with the company's practice
of cooperating with the Drug Enforcement Administration (DEA) by
reporting purchases of certain chemicals, called Agent Norris
Rogers at the DEA office in Houston with this information. After
running some checks on Stone, Rogers called the Scientific Chemical
salesman back and gave him his pager number, with instructions to
give the number to Stone and tell Stone he could call the number to
reach someone who could procure ephedrine for him.
Several days later, Stone called Rogers' pager number and told
him that he was looking for someone who could provide him with
ephedrine. Rogers arranged a meeting with Stone for the following
day. At that meeting, on July 21, 1989, Rogers posed as a black
market chemical salesman. Stone said that he had customers waiting
for methamphetamine, and that he was anxious to supply it because
he was in debt to his attorney for representation on a prior arrest
for methamphetamine manufacturing. Rogers said that he was making
a decent living as a black market chemical salesman, but that his
real aspiration was to expand into the more lucrative area of
methamphetamine manufacturing, and that he would supply the
ephedrine only if Stone would teach him how to cook
methamphetamine. Stone agreed. They worked out an arrangement in
which Rogers would sell Stone a pound and a half of ephedrine for
2

the $350 Stone had left with Scientific Chemical, and would give
Stone another pound and a half in exchange for Stone's teaching him
how to cook methamphetamine. Stone told Rogers that, at the
suggestion of his girlfriend, he was operating a methamphetamine
lab in the attic of her parents' house. Rogers asked him if he had
all of the other chemicals and equipment necessary for
manufacturing methamphetamine, and Stone said that he did. Stone
and Rogers agreed to meet again three days later.
On July 24, they met outside a restaurant in Houston. Rogers
was wearing a concealed transmitter in order to record their
conversations. Stone told Rogers that there had been a change in
plans; he was there to pick up his girlfriend's mother, who was
going to be at home that afternoon, making the house unavailable
for methamphetamine manufacturing. Stone told Rogers to go to a
pay phone and wait for Stone to page him with further instructions.
Rogers did so, and a few minutes later Stone called him and told
him to meet him at a convenience store. Rogers went there, and
Stone arrived shortly thereafter with a woman he introduced as his
girlfriend Denise. This woman was later determined to be the
defendant Sienhausen. In the back seat of Rogers' car, Stone and
Sienhausen began talking about how badly they needed the ephedrine
in order to sell some methamphetamine and alleviate their financial
problems. They told Rogers that the house would not be available
until later that night, after Sienhausen's mother went to bed, but
they asked Rogers to go ahead and give them the ephedrine. Stone
then suggested that he and Sienhausen leave and conduct the
manufacturing on their own, and bring Rogers back part of the
3

finished product. Suspecting that they were trying to cut him out
of the operation altogether and would not return with the finished
product, Rogers rejected their requests. Stone and Sienhausen
therefore agreed to drive him to Sienhausen's parents' house
several blocks away.
They arrived at the house and all three entered the garage.
Stone and Sienhausen again tried to persuade Rogers to leave the
ephedrine with them, but Rogers said that he would not do that
until he had seen some lab equipment, so that he could be sure they
actually knew how to manufacture methamphetamine. Stone or
Sienhausen said that the lab equipment was under Sienhausen's bed
and was inaccessible as long as her mother was up and moving around
the house. Rogers then suggested that if Stone would at least
write down the formula for manufacturing methamphetamine as proof
that he knew how to do it, Rogers would leave and wait until later
that night to return. Stone did so, discussing some of the steps
as he wrote. During this time, Sienhausen mentioned that both she
and Stone knew how to "cook," and that they never stored the lab
equipment in one place, so that if either got arrested, the other
would be able to continue operations and make some money to get the
first one out of jail. Rogers took the recipe written by Stone and
gave them about a pound of ephedrine. He left with Stone's promise
that they would call him on the pager when they started the
manufacturing.
After Rogers left, surveillance agents saw Stone and
Sienhausen leave the house. Stone and Sienhausen never called
Rogers, and they did not return to the house during the next
4

several days. Two days later, on July 26, the police executed a
search warrant on the house. They found no methamphetamine,
ephedrine, or lab equipment. On July 27, surveillance was
conducted at Stone's residence in Houston. A red truck arrived at
the residence, and the officers searched the vehicle and detained
the driver, a man named Gary Mock (Mock). In the truck they found
Freon and sodium hydroxide, both of which are used in the
methamphetamine manufacturing process. On July 31, after learning
that a warrant had been issued for their arrest, Stone and
Sienhausen turned themselves in.
On August 23, 1989, a two-count indictment was returned
against Stone and Sienhausen, charging them with conspiring with
each other to manufacture, and aiding and abetting each other in
the attempt to manufacture, in excess of 100 grams of
methamphetamine, in violation of 21 U.S.C. �� 841(a)(1),
841(b)(1)(A), 846, and 18 U.S.C. � 2. A jury found Stone and
Sienhausen guilty of both counts. The district court sentenced
Stone to concurrent terms of 121 months' imprisonment and 5 years'
supervised release on each count, and imposed a special assessment
of $50 on each count. Sienhausen was sentenced to concurrent terms
of 120 months' imprisonment and 5 years' supervised release on each
count, and was also ordered to pay a special assessment of $50 on
each count. Stone and Sienhausen both appeal their convictions.
Discussion
I. Sufficiency of the Evidence for the Conspiracy Convictions
In a conspiracy prosecution under 21 U.S.C. � 846, the
government must prove beyond a reasonable doubt (1) the existence
5

of an agreement between two or more persons to violate the
narcotics laws, (2) that each alleged conspirator knew of the
conspiracy and intended to join it, and (3) that each alleged
conspirator did participate in the conspiracy. United States v.
Carter, 953 F.2d 1449, 1454 (5th Cir. 1992); United States v.
Harris, 932 F.2d 1529, 1533 (5th Cir.), cert. denied, 112 S.Ct. 270
(1991). Stone and Sienhausen contend that the evidence was
insufficient to establish that they agreed with each other to
manufacture methamphetamine. They point out that in many of the
events described at trial, Rogers was the instigator, and they
agreed with his suggestions reluctantly if at all. They also point
out that they failed to follow through on the incriminating
promises that they made to RogersSQe.g., that they would
manufacture methamphetamine in the garage on the night of July 24
and that they would allow him to observe the process. Their
counsel suggested during opening and closing arguments at trial
that they had simply conned Rogers out of the ephedrine, and that
no proof of their true intent had been produced.
When the sufficiency of the evidence to support a conviction
is challenged on appeal, it is not necessary that the evidence
exclude every reasonable hypothesis of innocence; we review the
evidence in the light most favorable to the government, drawing all
reasonable inferences in support of the verdict, and will affirm
the conviction if a rational trier of fact could have found that
the evidence established each essential element of the offense
beyond a reasonable doubt. United States v. Vasquez, 953 F.2d 176,
181 (5th Cir. 1992); United States v. Evans, 941 F.2d 267, 271 (5th
6

Cir.), cert. denied, 112 S.Ct. 451 (1991). In this case, the
evidence was clearly sufficient to permit the jury to reach a
verdict of guilty. Stone and Sienhausen's statements to Rogers, if
believed, are more than adequate to establish an agreement between
the two of them to violate the narcotics laws, and given their
purchase of ephedrine and other circumstances, it was within the
province of the jury to accept Stone and Sienhausen's own account
of their plan. Stone's ability to write down a recipe and a fairly
detailed set of instructions for the manufacturing processSQwhich
a DEA chemist confirmed at trial to be correctSQdemonstrated that
their professions to be familiar with methamphetamine manufacturing
were not a complete falsehood. The possibility that they may have
misled Rogers about some particulars, such as the location of the
lab equipment, or never intended to allow him to observe or share
in the proceeds of the methamphetamine manufacture, does not compel
a reasonable doubt about their purpose in acquiring the ephedrine.1
1
Through a supplemental submission to this Court, Stone calls
our attention to the recent Second Circuit case of United States
v. Perrone, 936 F.2d 1403 (2d Cir.), clarified, 949 F.2d 36 (2d
Cir. 1991). In reliance on that decision, he argues that it was
error for the district court to convict and sentence him under 21
U.S.C. � 841(a) rather than under section 841(d). We find this
argument to be without merit. The concern expressed by the
Perrone Court in its original opinion was that the only evidence
against Perrone was his possession of chemicals under
circumstances indicating he knew or should have known that they
would be used to manufacture a controlled substanceSQconduct that
Congress intended to punish under section 841(d)SQand that to
convict him under section 841(a) based solely on that conduct
would thwart the statutory scheme. See id. at 1415. Even if the
case can still be cited for that proposition after the court's
clarification, that concern does not apply in the present case.
The basis for Stone's conviction under section 841(a) was not
merely his possession of ephedrine; it was his numerous
expressions of intent to manufacture methamphetamine. The same
is true of Sienhausen.
7

II. Identification of Sienhausen at Trial
Sienhausen contends that the evidence is insufficient to
support her convictions because the record fails to reflect that
she is the person described in Rogers' testimony. On direct
examination, in describing his meeting with Stone on the afternoon
of July 24, 1989 and his initial introduction to Sienhausen, Rogers
testified as follows:
"A.
He [Stone] called her Denise, and he said that she
was his girlfriend.
"Q.
Okay. Did he introduce her to you?
"A.
Yes.
"Q.
Okay. And is she here in the courtroom?
"A.
Yes, sir.
"Q.
Would you identify her for the jury?
"A.
She's the lady sitting next to -- at the first
table next to the defense attorney. She has on a
yellow sweater and a green, lime green turtleneck.
And she has sort of blondish hair."
There is no challenge made here to Rogers' recollection or ability
to identify the woman involved in the events of July 24, 1989. The
sole basis for Sienhausen's point of error is that, because the
prosecutor did not at the end of this exchange expressly request
that the trial transcript reflect that Rogers had identified the
defendantSQwhich he clearly should have doneSQthere is no way in
examining the record on appeal to know whether she was in fact the
woman in the lime green turtleneck.
We find this challenge, raised for the first time on appeal,
creative but unavailing. As the above testimony shows, there can
be no doubt that Rogers identified the person whom he was
8

discussing with adequate specificity for the jury and others
present in the courtroom. During voir dire Sienhausen was present
in court and was personally identified before the entire panel by
the Assistant United States Attorney and by her counsel as the
defendant Denise Sienhausen, and Sienhausen personally pleaded not
guilty in the presence of the jury. Absent some genuine issue as
to the identity of the person who committed the offense, we are not
inclined to reverse a conviction based on such a technicality in
the appellate record.
III. Constructive Amendment of the Indictment
Stone and Sienhausen contend that the jury instructions
allowed the jury to convict them based on an agreement to
manufacture not charged in the indictmentSQnamely, a supposed
agreement with undercover agent Rogers. They also suggest that the
jury could have convicted them based on an agreement with Mock.
This too, they assert, would represent a constructive amendment of
the indictment, Count One of which alleged that Stone and
Sienhausen "did knowingly and unlawfully agree, conspire and
confederate between themselves to manufacture" methamphetamine.
We find no basis for this argument. The jurors were given a
copy of the indictment to use during their deliberations, and in
instructing the jury on the essential elements of the offense that
the government was required to prove, the court repeated the
indictment's language quoted above. In addition, the instructions
included a reminder that the jurors should first determine "whether
or not the conspiracy existed as charged" (emphasis added). As
discussed in Part I, there was ample evidence from which the jury
9

could have concluded that Stone and Sienhausen agreed with each
other to manufacture methamphetamine; we have been shown no reason
to assume that the jury disregarded its instructions and based its
guilty verdict on a different agreement. Accord United States v.
Lokey, 945 F.2d 825, 831-32 (5th Cir. 1991).
IV. Refusal to Give Requested Jury Instruction
Stone and Sienhausen's fourth point of error is that the
district court erred in refusing to give to the jury their proposed
instruction setting out their theory of the case. The instruction
read:
"It is the Defendant's theory that they did not
unite to commit a crime. That is to say, while they
stated
they
were
planning
on
manufacturing
methamphetamine, their statements were not an accurate
reflection of their true intent. The Defendants contend
that they had no agreement with each other to manufacture
methamphetamine. In determining the kind of agreement or
understanding that existed as to each Defendant, unless
you find beyond a reasonable doubt that the agreement or
understanding
reached
by
a
Defendant
actually
contemplated manufacturing methamphetamine, you will find
that Defendant not guilty."
Relying on United States v. Kim, 884 F.2d 189, 193 (5th Cir. 1989),
they argue that a defendant is entitled to have the jury instructed
on a theory of the defense for which there is any foundation in the
evidence.
Initially, we observe that, as this Court clarified in its
opinion denying rehearing in United States v. Stowell, 947 F.2d
1251 (5th Cir. 1991), reh'g denied, 953 F.2d 188 (5th Cir.) (per
curiam), cert. denied, 112 S.Ct. 1269 (1992), the defendants'
contention is not a completely accurate statement of the law; in
order for a defendant to be entitled to an instruction, "any
10

evidence in support of a defensive theory must be sufficient for a
reasonable jury to rule in favor of the defendant on that theory."
953 F.2d at 189.
However, defendants' argument fails here for the separate
reason that their "theory" amounts to little more than suggesting
the nonexistence of one of the essential elements of the offense
(criminal intent underlying their agreement).2 The refusal to give
a requested jury instruction constitutes reversible error if the
instruction (1) was substantially correct, (2) was not
substantially covered in the charge given to the jury, and (3)
concerned an important issue so that the failure to give it
seriously impaired the defendant's ability to present a given
defense. United States v. Allison, 953 F.2d 870, 876 (5th Cir.
1992); United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th
Cir. 1988). Here, the jury instructions fully set forth the
requirements that Stone and Sienhausen must have genuinely reached
an agreement or understanding, and that that agreement must have
contemplated commission of the offense charged in the indictment.3
2
We also note that defendants' request here seeks to place
before the jury a defensive theory not affirmatively raised by
the evidence. Neither defendant presented any evidence at trial
and none of the government's evidence reflected that defendants
did not intend to manufacture methamphetamine; defense counsel's
suggestions during opening statements and argument and in his
questions of Rogers on cross-examination are the only sources of
that theory.
3
The jury was instructed that they must be able to find
beyond a reasonable doubt from the evidence:
"(1) That two or more persons in some way or
manner, positively or tacitly, came to a mutual
understanding to try to accomplish a common and
unlawful plan, as charged in the indictment;
11

The jury was also cautioned that mere presence at the scene of a
transaction and mere similarity of conduct would not necessarily
constitute proof of a conspiracy. Because the elements of
agreement and intentSQas well as the legal defenses based on lack
of agreementSQwere substantially covered in the charge given to the
jury, a theory of the defense that merely recounted the facts
without those elements was not required. See United States v.
Lance, 853 F.2d 1177, 1184-85 (5th Cir. 1988); United States v.
Barham, 595 F.2d 231, 244-45 (5th Cir. 1979).
V.
Sufficiency of the Evidence to Support Convictions for Aiding
and Abetting an Attempt to Manufacture Methamphetamine
Stone and Sienhausen next challenge the sufficiency of the
evidence to support their convictions for attempt to manufacture
methamphetamine, aided and abetted by each other. To be convicted
of attempt under 21 U.S.C. � 846, a defendant "must have been
acting with the kind of culpability otherwise required for the
commission of the crime which he is charged with attempting," and
"must have engaged in conduct which constitutes a substantial step
toward commission of the crime," i.e., conduct "strongly
corroborative of the firmness of the defendant's criminal intent."
United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974),
cert. denied, 95 S.Ct. 792 (1975). To have aided and abetted a
"(2) That the Defendant knowingly or intentionally
became a member of such conspiracy."
The jury was additionally told that in order to convict they must
find beyond a reasonable doubt that "Louis Elton Stone and Denise
Sienhausen did knowingly and unlawfully agree, conspire or
confederate between themselves to manufacture in excess of one
hundred grams of methamphetamine."
12

crime within the meaning of 18 U.S.C. � 2, a defendant must have
(1) associated with the criminal venture, (2) participated in the
venture, and (3) sought by action to make the venture succeed.
United States v. Gallo, 927 F.2d 815, 822 (5th Cir. 1991).
Sienhausen argues that, because Rogers admitted that he never
saw any evidence of a manufacturing lab at her parents' house, and
because there was no testimony as to what happened to the ephedrine
after Rogers left the house, no rational trier of fact could have
convicted Stone and her of attempt to manufacture methamphetamine.
Stone argues more particularly that, viewed objectively, his
conduct cannot amount to a "substantial step." We disagree.
Stone's purchase of a precursor chemical from a purported black
market salesman, while declaring a plan to use the chemical to
manufacture methamphetamine and furnishing the salesman an accurate
explanation of how to do so, was an act which, "without any
reliance on the accompanying mens rea, mark[s] the defendant's
conduct as criminal in nature." United States v. Oviedo, 525 F.2d
881, 885 (5th Cir. 1976). Although there may be some ambiguity
over what precisely Stone and Sienhausen intended to doSQi.e.,
whether they actually had a laboratory set up in Sienhausen's
parents' house and sincerely intended to allow Rogers to observe,
or whether they had an operation elsewhere and never intended to
include RogersSQthe purchase of the ephedrine was clearly a
significant enough step toward that end to corroborate the firmness
of their intent to carry out their plan, and (as discussed supra in
Parts I and III) it was permissible for the jury to conclude that
their objective was that described in the indictment. Moreover, a
13

jury could rationally conclude that by making her parents' house
available for the manufacturing operations themselves, or even
merely for the dealings with Rogers that led to procurement of the
ephedrine, Sienhausen participated in the venture and sought by
action to make it succeed.
VI. Failure to Properly Instruct the Jury on the Law of Attempt
Stone and Sienhausen's next contention is that the district
court's instruction to the jury on the offense of attempt to
manufacture methamphetamine was inadequate because it failed to
require that they have taken a "substantial step" toward commission
of the offense. The court instructed the jury that "[t]o attempt
to commit an offense means merely to willfully do some act in an
effort to bring about or accomplish something the law forbids."
The defendants did not object to the instruction below, so we will
reverse only if the instruction constituted plain error, i.e., if
"considering the entire charge and evidence presented against the
defendant, there is a likelihood of a grave miscarriage of
justice." United States v. Sellers, 926 F.2d 410, 417 (5th Cir.
1991).
Stone and Sienhausen are correct that the instruction at least
inadequately described the second element of the offense as set
forth in Mandujano (see Part V, supra). When a jury instruction
omits or significantly misstates an essential element of an
offense, the error may be severe enough to meet the plain-error
standard. See, e.g., United States v. Flitcraft, 803 F.2d 184,
186-87 (5th Cir. 1986). Recently, however, this Court confronted
a very similar instruction to the present one and concluded that,
14

in light of the evidence in the case, it did not rise to the level
of plain error. See United States v. Contreras, 950 F.2d 232, 239-
40 (5th Cir. 1991), petition for cert. filed (3-20-92). We find
the same to be true here. Although the defect in the instruction
given here may even have been, because of the inclusion of the word
"merely,"4 slightly greater than the one at issue in Contreras, we
are not persuaded that under the circumstances of this caseSQwhere
the contest as argued below was more whether the plan entertained
by the defendants was the crime charged in the indictment than
whether they took a substantial step toward effectuation of their
planSQ"it could have meant the difference between acquittal and
conviction." Id. at 240.5 Also weighing against a finding that
the defective instruction could have resulted in a grave
miscarriage of justice for these defendants is the fact that they
received identical concurrent sentences on the conspiracy charges;
the imposition of the additional $50 special assessments were the
only consequence of the convictions for attempt.
VII. Admission of Audio Tapes and Use of Written Transcripts
During the investigation, the government made five tapes of
Rogers' conversations with Stone or with Stone and Sienhausen
together. The first three were taped from telephone conversations
and were clear recordings. The fourth and fifth tapes were made on
4
This wording is not focused on in the appellate briefs of
either defendant.
5
Cf. Lowenfield v. Phelps, 108 S.Ct. 546, 552 (1988);
Wainwright v. Witt, 105 S.Ct. 844, 853 & n.11 (1985) (absence of
objection, even where not a waiver, may reflect posture and
understanding of trial participants).
15

July 24, when Rogers wore a concealed transmitter to his meetings
with Stone and Sienhausen. The tapes were made by a second DEA
agent, Alton Lewis (Lewis), who carried the receiver in his vehicle
and followed Rogers from the restaurant to the convenience store
and then to Sienhausen's parents' house. A heavy thunderstorm
during this time interfered with the reception, and large portions
of the tapes are very difficult to understand. Rogers prepared
written transcripts of the fourth and fifth tapes.
Prior to trial, the defendants contended that the fourth and
fifth tapes were unintelligible, and that to allow the jury to
consider typed transcripts of the tapes would constitute
unauthorized bolstering of the evidence contained on the tapes.
The defendants objected to use of the transcripts for this reason,
and in a separate motion asked that the district court conduct a
hearing outside the jury's presence prior to admitting any
transcripts in order to determine their accuracy. At a pretrial
hearing, the court ruled that the transcripts could not be admitted
into evidence or taken to the jury room during deliberations, but
could merely be used as a potential guide for the jury while the
tapes were being played. The court found no need to rule on
defendants' further request that it hold a hearing to determine the
accuracy of the transcripts, because that motion merely requested
such a hearing before the transcripts were admitted into evidence.
The defendants then promptly filed written motions requesting that
the government be prohibited from using the transcripts before the
jury at all.
Immediately prior to trial, the district court indicated that
16

it had listened to one tape and reviewed the transcript, and that
the defendants' objection to use of the transcript as a potential
guide for the jury was overruled. During the same conference,
counsel for the government notified the court that it had that
morning submitted revised versions of the transcripts for the
fourth and fifth tapes, which were essentially the same but
contained some typographical corrections. Defense counsel did not
renew its motion that the court compare the tapes to the new
transcripts.
At the end of the first day of trial, the district court
admitted the tapes into evidence over defendants' objection that
they were of such poor quality that they would mislead the jury.
On the second day of trial, the district court allowed the
government to play the fourth and fifth tapes for the jury and to
submit the transcripts to the jury to be used as potential guides
while the tapes were playing. The defendants renewed their
objection to use of the transcripts, and the court again overruled
the objection, noting that from its review it had concluded that
the tape was not so unintelligible that someone familiar with the
conversation could not make an accurate transcript. The court
instructed the jury that the transcripts had been prepared by the
government's agent, and cautioned the jury as follows:
"Now, this [transcript] is only for your general
guidance. You are directed and ordered by this Court to
make your own interpretation of what you hear from that
tape. This is only what the Government believes on this
tape. And if you feel it's unintelligible, then you are
to disregard anything that you feel is unintelligible,
notwithstanding what the Government has down as to what
its position is on that tape.
17

"So, in effect, I will let you consider this just as
-- well, just as a transcript as far as the Government's
version is concerned. The defense in no way adopts this
version. . . . However, it's my decision to allow you
to use it for whatever weight, if any, you desire to give
to it. If you feel that tape is unintelligible, then
disregard what the Government thinks is on that tape.
And if you listen and you hear it differently from what
is down here, you ought to consider what you hear as best
you can from the tape."
The court further stated: "It [the transcript] is not evidence in
this case. The tape is the evidence."
In this appeal, Stone and Sienhausen make three distinct
challenges regarding the tapes and transcripts: (1) that the
government failed to establish the predicate for admission of the
tapes; (2) that the tapes' unintelligibility rendered the district
court's admission of the tapes an abuse of discretion; and (3) that
the district court compounded its error by wrongfully allowing use
of the transcripts and restricting cross-examination of Rogers
about the transcripts.
On Stone and Sienhausen's first point, the guiding principles
for this Circuit were set forth in United States v. Biggins, 551
F.2d 64 (1977). There the Court held that when seeking to
introduce a recording in a criminal prosecution, the government
bears the burden of "going forward with foundation evidence
demonstrating that the recording as played is an accurate
reproduction of relevant sounds previously audited by a witness,"
which generally requires the government to demonstrate (1) the
competency of the operator, (2) the fidelity of the recording
equipment, (3) the absence of material deletions, additions, or
alterations, and (4) the identification of the relevant speakers.
18

Id. at 66. The Biggins Court further held that although strict
compliance with the government's particularized burden is "the
preferred method of proceeding," even in the absence of such
compliance, the trial judge retains broad discretion to
independently determine that the recording accurately reproduces
the auditory experience. Id. at 66-67.
In the present case, prior to admission of the tapes, Rogers
testified that they were the tapes of his conversations with Stone
and Sienhausen, that they had been recorded by Lewis while Rogers
was talking with the defendants and wearing a hidden transmitter,
that they had been kept in a secure place from the time they were
made, and that no alterations had been made. Later, after the
tapes had been played for the jury, Lewis testified and went into
a little more detail about the recording equipment and its
capabilities. He admitted that the thunderstorm reduced the
transmitter's effective range, and that at times he had not been
able to stay close enough to Rogers to make an intelligible
recording.
We conclude that the government adequately laid a foundation
for the tapes under Biggins. Although not all of the Biggins
factors were thoroughly covered before the tapes were played, the
Biggins decision indicates that the list is not meant to command
"formalistic adherence" at the expense of the district court's
discretion. Id. at 67. We perceive no abuse of that discretion
here, particularly since the essence of the defendants' opposition
to the tapes at trial was not really an authentication issue. The
defendants did not contend that the government had not adequately
19

established the content of the tapes to make them admissible, i.e.,
the defendants did not challenge the means by which the tapes were
prepared or suggest alteration or distortion of the tapes, but
instead simply questioned the usefulness of the final product (and
did this for the first time during the trial itself).
On the defendants' second contention regarding the tapes, this
Court has consistently held that poor quality and partial
unintelligibility do not render tapes inadmissible unless the
unintelligible portions are so substantial as to render the
recording as a whole untrustworthy, and that this determination is
left to the sound discretion of the trial judge. United States v.
Ruppel, 666 F.2d 261, 272 (5th Cir. Unit A), cert. denied, 102
S.Ct. 3487 (1982); United States v. Sutherland, 656 F.2d 1181, 1200
(5th Cir. Unit A 1981), cert. denied, 102 S.Ct. 1451 (1982); United
States v. Llinas, 603 F.2d 506, 508 (5th Cir. 1979), cert. denied,
100 S.Ct. 1030 (1980). We find no abuse of discretion in the
admission of the tapes here, particularly given the precautions
taken by the court when they were played. Accord Ruppel, 666 F.2d
at 272.
Finally, on Stone and Sienhausen's third point, this Circuit's
guidelines for use of transcripts were set out in United States v.
Onori, 535 F.2d 938, 946-49 (5th Cir. 1976). In Onori, this Court
held that transcripts given to the jury are evidence, admitted for
a limited purpose, and that therefore a determination of the
transcript's accuracy is typically a jury function rather than a
judicial one constituting a precondition to admission. Id. at 947-
48. The Onori Court indicated that the preferred procedure was to
20

have the parties arrive at a "stipulated" transcript to be given to
the jury; if the parties cannot agree on all portions of the
transcript, then the transcript may contain both versions of the
disputed portions, or the court may give two transcripts to the
jury. Id. at 948-49. The Onori Court, consistent with its
classification of the accuracy of a transcript as basically a
factual determination, held that the defendants in that case,
having been offered the opportunity to present their own version of
the transcript and to have their expert witness testify as to
errors in the government's, had not shown reversible error in the
district court's refusal to rule on the accuracy of the
government's transcript before giving it to the jury. Id. at 949.
We have likewise held that when a defendant challenges the
government's translation of a foreign-language conversation for the
jury, but fails to offer his own translation, the district court is
under no obligation to pass on the transcript's accuracy. United
States v. Armendariz-Mata, 949 F.2d 151, 156 (5th Cir. 1991);
Llinas, 603 F.2d at 509-10.
The situation of Stone and Sienhausen was in some ways
distinct from the situation contemplated in Onori. Onori described
an instance in which the defendants alleged specific errors in the
government's transcript. See Onori, 535 F.2d at 948. Almost by
necessity, a challenge to a translation by the government will
similarly concern specific defects. In the present case, however,
the defendants' contention was that so much of the tape was
unintelligible that no reliable transcript could be made. To place
upon them the burden of coming forward with their own transcript
21

would be to require of them what they contended could not be done.
Therefore, Onori alone would not provide authority for admission of
the transcript in this case without a finding of the transcript's
accuracy.6
However, the district court in this case went considerably
beyond the minimum procedure set forth in Onori. At the beginning
of trial, the district court had before it the defendants' motion
to make an in camera determination of the accuracy of the
government's transcripts, and, if it found them to be inaccurate,
to suppress them.7 In the conference immediately prior to the
beginning of trial, the judge informed counsel that he had listened
to the tape given him and had read the transcript, and that he was
denying the motion to suppress the transcript. He indicated,
though, that the jury would receive a thorough instruction as to
the weight to give the transcript. On the second day of trial,
when the defendants renewed their objection as the tapes were about
to be played, the district court stated: "I listened to the tape
myself, compared it to the transcript, and it was my determination
6
Although United States v. Mendoza, 574 F.2d 1373, 1378-79
(5th Cir.), cert. denied, 99 S.Ct. 584 (1978), arguably presented
a similar situation, the opinion in that case reflects only that
the defendants argued that the government's transcript was
inaccurate; it does not reveal whether they argued that no
accurate transcript could be made.
7
Again, Stone and Sienhausen do not raise an authentication
issue as such. That is, they do not claim that the government
failed to meet its initial burden of introducing testimony by the
person who prepared the transcripts stating that they were
accurate reproductions of the taped conversation. See
Sutherland, 656 F.2d at 1201 & n.16. Rogers testified that he
prepared and reread the transcripts, and that he had made them as
accurate as possible given the quality of the tapes.
22

that it is not so unintelligible that someone familiar with the
transaction could not have made a transcript that was just for the
jury's consideration."8 The defendants did not request a more
specific finding as to the accuracy of the transcript.
We conclude that the district court's handling of the
situation was within its discretion. Its finding that a reliable
transcript could have been made by someone familiar with the
conversation was a direct consideration and rejection of the
objection raised by the defendants, and put the case back into the
posture contemplated in Onori: it was the province of the jury to
decide whether the government's transcript was accurate, and the
obligation of the defendants to raise specific challenges to the
transcript before the jury.9 Moreover, the district court gave a
8
As noted above, at the pretrial hearing the district court
found it unnecessary to consider the defendants' first motion for
the court to assess the accuracy of the transcripts before
admitting them into evidence, because in the district court's
view the transcripts would not be admitted into evidence, only
used as a guide for the jury while the tapes were being played.
Although this broad, categorical distinction is one that has been
rejected by this Circuit's decisions, see Onori, 535 F.2d at 947;
Sutherland, 656 F.2d at 1200 n.15, any possible error in this
ruling was rendered harmless by the court's consideration of the
defendant's second motion and subsequent willingness to compare
the transcript to the tape.
9
Stone and Sienhausen's claim that the district court unduly
interfered with cross-examination of Rogers is based on the same
issue discussed in note 8: the district court's arguable misuse
of terminology in stating that the transcripts had not been
admitted into evidence. The district court allowed defense
counsel to question Rogers about the conversation as reflected in
the transcript, but would not allow him to direct Rogers to a
specific line and sentence in the transcript to cross-examine him
about that statement, because the transcript was not "in
evidence." No error is presented by this ruling, however, since
imposition of a restriction such as this one is consistent with
the "limited purpose" admission contemplated by Onori.
23

thorough limiting instruction to the jury, which the Onori decision
indicates is "the key to protecting a defendant's rights in this
situation." Onori, 535 F.2d at 949. The defendants argue to this
Court that the district court listened to only one of the two
disputed tapes and never made any specific findings about accuracy.
However, the trial transcript reveals no request by the defendants
for either of these steps.10
VIII. Lack of Effective Assistance of Counsel
Stone finally contends that he was denied his Sixth Amendment
right to counsel. He makes the following arguments in support of
his position: (1) that the district court refused to allow his
trial counsel to withdraw in the face of a clear conflict of
interest; (2) that the district court's scheduling interfered with
the representation by his new trial counsel (who represented Stone
jointly with the initial attorney); (3) that the district court
interfered with his counsel's cross-examination at various points
in the trial; (4) that the prosecutor made an improper remark about
defense counsel during closing argument to which defense counsel
failed to object; (5) that defense counsel blundered in introducing
the evidence about Mock, because that evidence enabled the
government to elicit testimony that the police had previously
seized a methamphetamine lab from Stone's address.
Several of these complaintsSQsuch as the scheduling issue and
the alleged interference with cross-examinationSQare not in reality
10
Indeed, the district court indicated that it had listened to
the only tape provided to it with the defendants' motion, and the
defendants made no further request or offer to supply the other
tape.
24

claims based on ineffective assistance of counsel; if Stone cannot
identify error in the district court's scheduling or evidentiary
rulings themselves, then whatever disadvantage they caused him was
not attributable to counsel. Nor do we perceive any reversible
error in the district court's rulings referenced in (2) and (3)
above or in the prosecutor's comment referenced in (4) above.
Ineffective assistance of counsel was not raised below, so even the
points that are genuine claims of this nature are not properly
reviewable on this direct appeal. See United States v. Armendariz-
Mata, 949 F.2d 151, 156 (5th Cir. 1991); United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 108 S.Ct. 1051
(1988).11
Conclusion
Because we find no reversible error presented by any of Stone
and Sienhausen's contentions, the judgment of the district court is
AFFIRMED.
11
As to complaints of ineffective assistance of counsel (other
than those referenced in (2), (3), and (4) above), our affirmance
is without prejudice to same being appropriately pursued in a
proper and timely proceeding under 28 U.S.C. � 2255.
25