MOTION TO EXCLUDE TAPES DUE TO INAUDIBILITY

COMES NOW, the defendant,*, by undersigned counsel, hereby moves this Honorable Court to exclude from the trial of this case the tapes made of undercover conversations allegedly made between the defendants and the confidential informants. As grounds for this motion, defendant states as follows:

1. The Government, in a timely manner, provided counsel with several cassette tapes of undercover conversations made while the confidential informants in this case were wearing body bugs. The conversations were allegedly between the informants and the defendants.

2. Counsel listened to a substantial portion of the tapes and came to the conclusion that they were inaudible. This opinion was confirmed when counsel was told by the Government's attorney that the tapes were inaudible and would not be used at trial.

3. On this date, February 4, 1994, counsel for the Government notified undersigned counsel that the Government will seek the admission of the tapes and intends to play a portion of the tapes for the jury.

4. It is the defendant's position that the tapes are inaudible. While there may be occasional words that can be heard, the unintelligible portions are so substantial as to render the recordings as a whole untrustworthy.

5. By this motion, it is defendant's request that the Court hold an audibility hearing out of the presence of the jury and ultimately order the exclusion of the tapes.

MEMORANDUM OF LAW

See United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944

(1971).

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