United States v. Schuman

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDY THOMAS SCHUMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-03-CR-99-2
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Andy Thomas Schuman appeals his conviction for conspiracy to
distribute cocaine and aiding and abetting the distribution of
cocaine. He argues that the district court abused its discretion
by admitting two audio tapes into evidence at trial.
Prior to their admission, the tapes were authenticated by
Special Agent Emrich. His testimony established the fidelity of
the recording equipment and the absence of material alterations.
Additionally, he identified one of the speakers as the

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confidential informant who was making the recording. Based on
Emrich’s testimony, the tapes were sufficiently authenticated
prior to admission. See United States v. Lance, 853 F.2d 1177,
1181-82 (5th Cir. 1988). Nevertheless, even assuming that the
district court abused its discretion in admitting the tapes on
the basis of Emrich’s testimony alone, Schuman cannot show that
his substantial rights were affected. See United States v.
Asibor, 109 F.3d 1023, 1032 (5th Cir. 1997). The tapes were not
played until the confidential informant, who was a party to the
conversations, testified. The informant’s testimony confirmed
the accuracy of the recordings and the identification of the
parties. Schuman has also failed to establish that the quality
of the recordings was so poor as to render them untrustworthy.
See United States v. White, 219 F.3d 442, 448-49 (5th Cir. 2000).
Accordingly, the judgment is AFFIRMED.

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