U.S. v. Charles

• Citation: 313 F.3d 1278
• Decision Date: 03 December 2002
• Docket Number: No. 01-12498.,01-12498.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. McGhee CHARLES, a.k.a. Charles McGee, Roussly Elliassaint, Joseph Sampson Auguste, Yves Herard, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

313 F.3d 1278

UNITED STATES of America, Plaintiff-Appellee, v. McGhee CHARLES, a.k.a. Charles McGee, Roussly Elliassaint, Joseph Sampson Auguste, Yves Herard, Defendants-Appellants.

No. 01-12498.

United States Court of Appeals, Eleventh Circuit.

December 3, 2002.

Marisa Tinkler Mendez, Marisa Tinkler Mendez, P.A., Stuart Adelstein, Adelstein & Matters, Kathleen M. Williams, Miami, FL, Richard L. Rosenbaum, Law Offices of Richard L. Rosenbaum, Brenda G. Bryn, Fort Lauderdale, FL, for Defendants-Appellants.

Randy Alan Hummel, U.S. Atty., Anne R. Schultz, Madeleine R. Shirley, Miami, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and BARKETT,

Circuit Judges, and WEINER^*, District Judge.

PER CURIAM:

McGhee Charles ("Charles"), Roussly Elliassaint ("Elliassaint"), Yves Herard ("Herard"), and Joseph Auguste ("Auguste") appeal their convictions for conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841 and conspiracy to use and carry a firearm in furtherance of this offense in violation of 18 U.S.C. § 924(c) and (o). Charles and Herard also appeal their convictions for using and carrying a firearm in the commission of a drug offense in violation of 18 U.S.C. § 924(c)(1) and (2).

The appellants challenge their convictions and sentences on various bases. We affirm Charles, Herard, and Auguste's convictions and sentences. But because the evidence was insufficient to show Elliassaint knew that the conspiracy involved drugs, we reverse his conviction.

BACKGROUND

The string of events that eventually led to the convictions of Charles, Elliassaint, Herard, and Auguste began on December 1, 1999, with the arrest of the government's confidential informant ("CI") Joacel Dorelus for his participation in a home invasion drug robbery. After initially contesting the charges against him, Dorelus later decided to cooperate with the government. Dorelus agreed to plead guilty to the charges stemming from his arrest in return for a plea agreement. Under Dorelus's plea, the government agreed to recommend that he receive a three point reduction in his sentence under the Federal Sentencing Guidelines. In addition, the government agreed to lower the cost of his bond so that he could leave federal custody and assist in future investigations of home invasion drug thefts.

In May 2000, Dorelus encountered a former high school friend, Richard,¹ who proposed that the two engage in a home invasion robbery. Richard indicated he was associated with a group of individuals who executed such thefts. Dorelus reported this conversation to the Federal Bureau of Investigation ("FBI"). The FBI instructed Dorelus to reestablish contact with Richard and attempt to identify Richard's associates.

On June 1, 2000, Dorelus arranged to meet with Richard and told him that he was "ready to meet [his] boys." Later that day, Dorelus met with Richard in Dorelus's car while wearing a concealed FBI tape recording device. Richard provided Dorelus directions to where his friend Herard could be found and the two proceeded to that location so Richard could introduce Herard to Dorelus. After Herard entered the car, he explained to Dorelus and Richard that he was involved with a group of individuals who were in need of money. Herard further stated that he and his associates would be willing to burglarize a home for the purpose of stealing drugs. To convince Dorelus and Richard of his experience in this arena, Herard recounted previous drug invasions in which he had participated and showed Dorelus a nine-millimeter pistol with a silencer.

The FBI instructed Dorelus to set up a meeting with Herard and his associates on June 7, 2000 at a hotel "war room" to plan the home invasion. The FBI had previously installed a hidden video camera in the room. At an initial meeting in this war room, Dorelus purchased a shotgun from Herard. Subsequent meetings in the hotel room involved Herard and his associates. All parties except Dorelus, who remained in the room throughout, entered and exited the room periodically.

The FBI preselected an abandoned house as the location of the home invasion drug robbery and installed video surveillance equipment therein. The FBI had instructed Dorelus to tell Herard that an accomplice would call Dorelus' cell phone later that evening with the location of the home where the drugs would ostensibly be hidden. At a point in the evening when the entire group of coconspirators were gathered together in the hotel room, the FBI telephoned Dorelus and provided the location of the home. Dorelus informed the group of the location and reported that the drugs could be found in a second floor closet of the house, as well as behind a sheetrock wall.

Later that evening, the FBI observed Elliassaint parking a car with Herard, Charles, and Auguste inside in front of the home. Charles and Herard entered the home without any observable weapons. Subsequently, Auguste exited the automobile with an object wrapped in a white towel that he passed through a side door of the house to Charles. Elliassaint remained in the car. Inside the home, Charles, with gun in hand, and Herard were videotaped opening a second floor closet and knocking on the walls with their hands. The FBI agents then arrested Herard, Elliassaint, Charles, and Auguste and found a discarded nine-millimeter Beretta handgun inside the home.

We address the claims of the different appellants in turn.

DISCUSSION

1. HERARD, CHARLES & AUGUSTE

Herard, Charles, and Auguste present several issues for our review.² We have carefully examined the entire record in this case and conclude that Herard, Charles, and Auguste cannot prevail on their arguments for the reversal of their convictions and sentences, either because there was no error, or because any error that occurred was harmless.

We do address, however, the argument that reversal is warranted because the court reporter failed to transcribe the recorded evidence presented at trial.³ The evidence in this case consisted almost exclusively of audiotaped and videotaped conversations between Dorelus and the coconspirators. At trial, Dorelus served as the narrator for these tapes, explaining as they were played the setting and context of what transpired and verifying the identity of the speakers. However, the court reporter did not transcribe the audio- and videotaped conversations that were admitted into evidence and played before the jury. Rather, before the tapes were played, the jury was given a transcript of the taped conversations that had been translated from Creole into English. During his testimony, Dorelus made several corrections to the transcripts because he believed that some statements were erroneously attributed to individuals who had not in fact made them.

Optimally, the transcribed testimony of the trial would include a full account of the court proceedings, including a verbatim transcription of all audiotaped and videotaped evidence presented to the jury. Absent this comprehensive recordation, the court reporter should provide some notation in the record that clearly identifies the specific place in the tape being played as well as the line and page number of the translated pages before the jury. Such a notation is especially warranted if specific testimony is proffered pertaining to particular sections of the translations. The lack of such guidance in this case made our review of the transcript quite onerous because, as noted above, Dorelus testified that the translated written transcript identified the wrong speaker on some segments of the tapes.⁴

Because the court reporter did not transcribe the audiotaped and videotaped evidence, Charles, Auguste, and Elliassaint seek reversal. See 28 U.S.C. § 753(b) ("Each session of the court ... shall be recorded verbatim"). The government argues that, though not in the trial transcript, all of the tape-recorded evidence presented at trial is part of the supplemental record. While the government concedes that the language of section 753(b) clearly requires court reporters to transcribe all proceedings held in a criminal court, it argues that minor technical violations do not entitle the appellants to a new trial. Appellee's Br. at 26 (citing United States v. Medina, 90 F.3d 459, 462-63 (11th Cir.1996)).

In Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993), the Supreme Court addressed the doctrine of judicial immunity as it applies in litigation against court reporters. The Court stated that "court reporters are required by statute to `recor[d] verbatim' court proceedings in their entirety." Id. at 436, 113 S.Ct. 2167 (quoting 28 U.S.C § 753(b)). The Court further stated that court reporters "are afforded no discretion in the carrying out of this duty; they are to record, as accurately as possible, what transpires in court." Id.

The right to a new trial based on a deficiency of the record, however, is "premised upon the district court's inability to reconstruct the record." United States v. Cashwell, 950 F.2d 699, 704 (11th Cir.1992). A reconstructed record, even if not identical to the original trial transcript and exhibits, will provide an appellant with sufficient due process so long as it can "accord effective appellate review" of the issues raised on appeal. Id. at 703.

We have developed a bifurcated standard for determining whether an incomplete trial transcript entitles an appellant to a new trial. United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir.1993) (citing United States v. Selva, 559 F.2d 1303 (5th Cir.1977)).⁵ If the same attorney represents an appellant at trial and on appeal, a new trial may be granted "only if the defendant can show that the failure to record and preserve a specific portion of the trial visits a hardship on him and prejudices his appeal." Id. But if a new attorney represents the...