U.S. v. Anzalone, 85-5158

Decision Date18 September 1989
Docket NumberNo. 85-5158,85-5158
Citation886 F.2d 229
PartiesUNITED STATES of America, Plaintiff/Appellee, v. Ronald Peter ANZALONE, Defendant/Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

William J. Genego, University of Southern California Law Center, Los Angeles, Cal., for defendant-appellant.

Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before NELSON and BOOCHEVER, Circuit Judges, and BROWNING, * District Judge.

NELSON, Circuit Judge:

Appellant Ronald P. Anzalone appeals his conviction for various offenses arising out of a conspiracy to manufacture, possess and distribute cocaine. For the reasons stated below, we affirm the judgment of the district court.

Anzalone was charged under 21 U.S.C. Secs. 841(a)(1), 843(b) & 846 in a nine count indictment. He was first tried by a jury on November 27, 1984. At the end of this trial, a unanimous verdict was announced and appellant was found not guilty on counts six, seven, and nine. One juror, however, dissented to the verdict when polled, and the district court judge declared a mistrial. A second trial was held, at the end of which Anzalone was found guilty on counts one, two, four, five, and nine. 1

Anzalone raises four issues on appeal: (1) that his retrial on counts six, seven and nine constituted double jeopardy; (2) that the trial court erred in finding that Anzalone was not prejudiced by any errors in the trial transcript; (3) that the trial court erred in failing to disclose the contents of a government witness' presentence report; and (4) that the trial court erred in conducting voir dire.

1. There was no double jeopardy.

A district court's denial of a motion to dismiss an indictment on double jeopardy grounds raises a question of constitutional law and is reviewed de novo. United States v. Schwartz, 785 F.2d 673, 676 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986).

Appellant asserts that since the jurors in his first trial announced a verdict of not guilty on counts six, seven and nine, his second trial on those counts, which resulted in a conviction on count nine, was barred by the double jeopardy clause. This contention is without merit. We have held that " 'a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered.' " United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir.1982) (quoting United States v. Taylor, 507 F.2d 166, 168 (5th Cir.1975)) (emphasis added). In appellant's first trial, the jury returned a completed verdict form indicating that it had reached a unanimous verdict of guilty on counts one, two, four, and five, and not guilty on counts six, seven and nine. The verdict was then read in open court and the jurors were individually polled. Before polling, however, defense counsel was asked if he wanted the jury polled as to each count or as to the verdict as a whole; he said as a whole. One juror, Mrs. Farrell, said the verdict was not her verdict. The defendant moved for a mistrial. The judge, over appellant's objection, asked Mrs. Farrell if she felt a verdict could be reached on one or more counts. She said, "I don't think so." In spite of her answer, the judge sent the jury to deliberate further. At this point appellant's trial counsel again objected and argued vehemently for a mistrial. He stated that no unanimous verdict had been reached on any count, and that it was clear that the announced verdict had been a compromise verdict. His relevant comments were as follows:

Your Honor ... in order to have a verdict, it has to be unanimous. It's clear that in this particular case it is not a unanimous verdict. It seems patently clear to me, Your Honor, knowing the counts that each defendant was acquitted of and each defendant was found guilty of, that it represents what's tantamount to a compromise verdict....

Appellant further argued that he was entitled to a mistrial and to be able to proceed again. The judge, however, allowed the jury to deliberate further in the hope that they might agree on some of the counts. Following is part of the judge's relevant comment:

Before we conclude that the Jury is in fact deadlocked, I think that they should be allowed to discuss it out among themselves as to ... whether they can find verdicts on some or all of these counts.

Finally, the jury was called back out and several jurors were polled, together with Mrs. Farrell. The judge asked if they might reach a verdict on some of the counts. Mrs. Farrell said no. Appellant moved again for a mistrial; it was granted over the government's objection. Therefore, no final verdict was reached. See F.R.Crim.P. 31(d); Nelson, 692 F.2d at 85 ("In this case, no unanimous verdict was rendered; one juror stated that the verdict as rendered was not her verdict.").

Since there was no final verdict on any count, appellant was not subjected to double jeopardy when he was retried and subsequently convicted on several counts, including count nine. See Nelson, 692 F.2d at 85.

2. The trial court did not err in finding that Anzalone was not prejudiced by any errors in the trial transcript.

Appellant contends that his conviction should be reversed based on allegedly inaccurate recordations and transcriptions of the first four days of trial. He asserts that there are inaccuracies and possible omissions which preclude him from bringing a meaningful appeal. In the alternative to a reversal, appellant argues that he is entitled to a new trial because the alleged omissions do not allow him to know of "potential issues which could possibly be raised on appeal."

"Court reporters are required to record proceedings verbatim, 28 U.S.C. Sec. 753(b), but the failure to do so does not require a per se rule of reversal." United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir.), cert. denied, 479 U.S. 984, 107 S.Ct. 572, 93 L.Ed.2d 576 (1986); see also United States v. Piascik, 559 F.2d 545, 548 (9th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978) (where trial court concludes that no prejudice has occurred, the conviction cannot be attacked on that basis). The court in Piascik further stated that, in accordance with Brown v. United States, 314 F.2d 293 (9th Cir.1963), when a court reporter has failed to record part of the trial proceedings,

[t]he appropriate procedure is to vacate the judgment and remand for a hearing to determine whether appellant was prejudiced by the error in failing to record the arguments. If the trial court concludes that he was, a new trial may be ordered. If the court concludes that he was not, a new final judgment may be entered.

Piascik, 559 F.2d at 547 (quoting Brown, 314 F.2d at 295) (emphasis added). Although this court has not expressly stated the standard of review for this type of claim, a trial court's factual finding that transcripts are accurate and complete cannot be disturbed unless clearly erroneous. See Maine v. Taylor, 477 U.S. 131, 144-45, 106 S.Ct. 2440, 2450, 91 L.Ed.2d 110 (1986).

Based on these standards, appellant's claim fails. First, it is doubtful that there are any omissions from the reporter's transcriptions of the first four days of trial. The government and appellant each hired their own stenographer to review the transcripts. Both stenographers agreed that there were typographical and spelling errors. Appellant's reviewing stenographer, however, repeatedly states in her reports to appellant that "[t]here is no indication further proceedings were deleted or omitted." In addition, the trial court judge stated that although the transcripts covering those days were not of the usual quality for his court, it appeared that they reported the proceedings with reasonable completeness and substantial accuracy. The judge also stated firmly that he would have certainly remembered if the reporter had said that she was unable to get everything down, as appellant contends she said. The judge further stated that he found no errors or omissions that would be in any degree prejudicial to appellant, noting also that appellant had not pointed to any either. Additionally, the judge said the cross-examination of witness Stewart, which appellant claims is missing, never took place; he points out that Stewart presented no evidence against appellant.

The second reason that appellant's claim fails is that, as the trial court judge correctly pointed out, Anzalone has not pointed to any specific prejudice he has suffered from the alleged errors in the transcripts. Appellant argues that he cannot know of "potential unknown errors." However, even assuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice. We have previously stated that, "[a]lthough we believe that the better procedure is to report everything said in the courtroom, a reversal is not necessary. Defendants allege no prejudice." United States v. Weiner, 578 F.2d 757, 789 (9th Cir.) (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); see also Doyle, 786 F.2d at 1442. Appellant's claim therefore fails, since he has not shown that the trial judge's certification of the transcripts was clearly erroneous.

Appellant alternatively argues that if his conviction is not reversed due to the potential omissions, he should be entitled to an evidentiary hearing with a judge other than the original trial judge to determine if the transcripts are accurate. This argument is frivolous. First, the original trial judge is the one best able to make this kind of determination since he was present throughout the trial. Second, before he certified the records as accurate, the judge allowed appellant every opportunity to present evidence, which appellant did, to challenge the transcripts. Over the course of eighteen...

To continue reading

Request your trial
43 cases
  • Kennedy v. Lockyer
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 14, 2004
    ...reason why counsel's lack of access to a complete transcript affected the outcome of his second trial. Cf. United States v. Anzalone, 886 F.2d 229, 232 (9th Cir.1989) ("The second reason that appellant's claim fails is that [he] has not pointed to any specific prejudice he has suffered from......
  • Doc v. Cain
    • United States
    • U.S. District Court — Western District of Louisiana
    • October 14, 2014
    ...States v. Neal, 27 F.3d 1035, 1044 (5th Cir. 1994); Mullen v. Blackburn, 808 F.2d 1143, 1146 (5th Cir. 1987); United States v. Anzalone, 886 F.2d 229, 232 (9thCir.1989) ("even assuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice.......
  • U.S. v. Baker
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 13, 1993
    ...voir dire of prospective jurors. We review a district court's voir dire procedures for an abuse of discretion. United States v. Anzalone, 886 F.2d 229, 234 (9th Cir.1989). The court's findings of juror impartiality may be overturned only for manifest error. Mu'Min v. Virginia, 500 U.S. 415,......
  • U.S. v. Alvarez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 25, 2004
    ...and are not public documents subject to prosecutorial control — or are otherwise distinguishable. See, e.g., United States v. Anzalone, 886 F.2d 229, 232-33 (9th Cir.1989) (concluding that the trial court did not abuse its discretion in denying defendant's request to disclose, or examine in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT