September 21, 2005

 

 

Michael J. Tostengard Assistant Attorney General 1200 Bremer Tower 445 Minnesota Street St. Paul, MN 55101

Stephen L. Madsen, Esq. 190 Midtown Commons 2334 University Avenue St. Paul, MN 55114

 

            Re:      In the Matter of the License of Standard Construction, Inc.;

                        OAH Docket No. 7-1902-15754-2

 

Dear Counsel:

 

During the hearing in this matter, Standard Construction Services, LLC, offered Exhibit 22, purportedly a transcript of a conversation between officers of Standard Construction and Charles Durenberger of the Department that occurred on July 2, 2004.  The transcript was prepared from a tape recording that was done by an officer of Standard Construction.  The tape recording was not consented to by (or disclosed to) Mr. Durenberger.  The ALJ took the matter under further advisement and requested briefs from the parties as to whether Exhibit 22 should be admitted.

 

The Department objected to the admission of Exhibit 22 on the ground that there was no evidence that either Mr. Durenberger or the other participants to the conversation consented to the recording of the conversation.  That argument applies only to the Department, since Standard Construction now sponsors the evidence and the other participants in the conversation were its agents.

 

In its brief, the Department asserted that the transcript was not relevant to support any “legally cognizable defense.”  While the Department maintained that Exhibit 22 was inadmissible as irrelevant, the Department also pointed out that the poor quality of the recording resulted in a transcript full of gaps.  The latter argument goes to the weight of the evidence, not its admissibility.

 

Standard Construction asserted that the transcript should be admitted to support an affirmative defense of entrapment or estoppel.  Standard Construction seeks to prevent the Department from disputing whether a valid settlement existed between the Company and the Agency.

 

Transcripts are admissible aids to tape recorded conversations.  U.S. v. Frazier, 394 F.3d 612 (8^th Cir. 2001).  Portions of conversations so recorded can be stricken as inadmissible hearsay, where appropriate.  Bernhardt v. State, 684 N.W.2d 465, 475-76 (Minn. 2004).  In Minnesota, no consent by the participants appears to be required before tape recordings of in-person conversations can be admitted as evidence. 

 

After a review of the transcript, it does not appear to contain any inadmissible hearsay.  Standard Construction has articulated an issue that could be supported by the transcripts, depending on the contents of the conversation.  For these reasons, IT IS ORDERED that Exhibit 22 be ADMITTED to the record of this proceeding.

 

With the resolution of this evidentiary issue, the hearing record in this matter is now closed.  Thank you for your cooperation. 

 

           

 

                                                                                    Very truly yours,

 

                                                                                    /s/ Richard C. Luis

 

 

                                                                                    RICHARD C. LUIS

                                                                                    Administrative Law Judge

 

                                                                                    Telephone: (612) 349-2542

 

 

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