U.S. v. Andiarena, 85-1838

• Decision Date: 06 October 1986
• Docket Number: No. 85-1838,85-1838
• Citation: 823 F.2d 673
• Parties: 23 Fed. R. Evid. Serv. 908 UNITED STATES of America, Appellee, v. Oscar ANDIARENA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 673

823 F.2d 673

23 Fed. R. Evid. Serv. 908

UNITED STATES of America, Appellee, v.Oscar ANDIARENA, Defendant, Appellant.

No. 85-1838.

United States Court of Appeals First Circuit.

Heard Oct. 6, 1986.

Decided July 13, 1987.

Melvyn Kessler, Miami, Fla., for defendant, appellant.

David R. Collins, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Joseph H. Groff, III, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BROWN, Senior Circuit Judge.

Oscar Andiarena challenges his conviction of conspiracy to possess with intent to distribute cocaine.His primary contention on appeal is that the trial court erred in admitting substantial amounts of evidence concerning prior criminal or bad acts under Fed.R.Evid. 404(b).Andiarena also claims ineffective assistance of counsel and that the court reporter's failure to transcribe tape recordings played before the jury interferes with his right to a complete record for appeal.We find no merit in any of Andiarena's claims and therefore affirm the District Court.

The Cocaine Connection

Andiarena supplied cocaine from Florida to Neil Kurtzmann, Louis Llerena, Joe Lopez, and Gus Lopez, a group who distributed cocaine in Maine, beginning in 1983.The cocaine was carried from Florida to Maine body-packed ¹ on a woman referred to as "Feffa" or "the grandmother."Upon her arrival, she would be met at the airport, exchange the cocaine for money, and then take the money back to Florida.In the spring of 1984, the parties stopped dealing with each other due to a financial dispute.They evidently resolved their dispute, because in October 1984, they decided to deal with each other again and re-established the network from Florida.The source of cocaine for the reestablished network was again to be Andiarena or one other person, depending on price and quality.Feffa was again used to body-pack the cocaine from Florida to Maine in the same manner she did in 1983.

Neil Kurtzmann, one of the distributors in Maine, was arrested on November 7, 1984 and agreed to cooperate with the federal agents.Kurtzmann provided the information which led to the arrest of Louis Llerena, another of the distributors.Llerena in turn, identified Andiarena as the source of cocaine for their revived cocaine distribution network.They agreed to assist the DEA by tape recording conversations with other members of the group.The testimony of Kurtzmann, Llerena, and the Lopez brothers, along with the tape recordings, was introduced as evidence at Andiarena's trial.Andiarena was found guilty of conspiracy to distribute cocaine with intent to distribute it to others in violation of 21 U.S.C. Sec. 846 for his participation in the cocaine conspiracy during October and November 1984.

Andiarena presents three contentions in contesting his conviction.Andiarena's main contention is that the District Court abused its discretion in permitting evidence of prior bad acts to be presented to the jury because the prejudicial effect of these prior bad acts outweighed their probative value.He also urges that the court reporter's failure to transcribe the portions of the tapes that were played before the jury creates an incomplete record of what evidence was before the jury and inhibits his ability to formulate an appeal.Finally, Andiarena contends that he received ineffective assistance of counsel primarily due to counsel permitting evidence of prior bad acts to be presented without objection.

Transcribing the Tapes

Nine tapes were played before the jury at Andiarena's trial.The court reporter did not transcribe these tapes into the record while they were being played to the jury.Although the government had prepared transcripts of the taped conversations which the witness and counsel followed while the tapes were played, the transcripts were not formally introduced into evidence or made part of the record at trial.Thus, at the time Andiarena filed his appeal, there was no written record of the taped conversations played to the jury, although the tapes themselves were introduced and made part of the record as exhibits.

The Court Reporter Act, 28 U.S.C. Sec. 753(b), requires that a reporter "shall record verbatim by shorthand or by mechanical means ... all proceedings in criminal cases held in open court."The language of the Act is clear, and although its requirements are mandatory, ² the consequences of a technical violation are in no sense equally mandatory.

The reporter's failure to comply with the Court Reporter Act constitutes harmless error in this case.The record on appeal is not flawed due to the absence of transcriptions of the tapes.In a similar case where tape recordings played to a jury were formally introduced, but were not transcribed by the court reporter, the Seventh Circuit held that they had "the most accurate record of what was heard by the jury, and the fact that the court reporter did not transcribe the contents of the tape recordings in no way impedes our review of the proceedings below."United States v. Craig, 573 F.2d 455, 480(7th Cir.1977)cert. denied, 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110(1978).We echo the Seventh Circuit's holding.As the actual tapes are a part of the record in the District Court, both the defendant and the appellate court have the ability to listen to those tapes to review for errors and defects.³

Additionally, upon receipt of Andiarena's brief, the government undertook to have the District Court supplement the record on appeal with transcripts of the nine tapes in question pursuant to Fed.R.App.P. 10(e).⁴The District Court correctly granted the government's motion to supplement the record over Andiarena's spurious objections that the District Court lacked jurisdiction to supplement the record.

The District Court properly supplemented the record by forwarding to this court the 25-page transcript of the nine tape recordings played before the jury.The record, which now contains both the tape recordings and the transcripts, is in no way incomplete nor does it impede Andiarena's ability to review the record to formulate his appeal.⁵

Evidence of Prior Bad Acts

The District Court allowed the government to introduce evidence of Andiarena's involvement with a cocaine network comprising the same individuals in 1983--prior to the beginning of the conspiracy for which he was on trial.Before the government started to question its first witness about the earlier networking scheme with Andiarena, the government requested a side bar conference to discuss the Fed.R.Evid. 404(b) implications of the testimony.⁶The Judge stated his concern about the prejudicial effect such evidence might have and asked the prosecutor what probative, non-prejudicial purpose the evidence was offered to support.Following argument by both counsel, the Judge permitted evidence of the earlier networking operation to be presented to the jury to prove the identity of Andiarena as the source of the cocaine and gave a limiting instruction to the jury under Fed.R.Evid. 105 sua sponte.Likewise, at several junctures in the trial when a witness testified about Andiarena's involvement in the prior networking scheme or the similar method of operation of that prior scheme, the Judge gave limiting instructions to remind the jury of the limited purpose for which the evidence could be considered.

The taped conversations which were played to the jury referred to the earlier networking scheme and the individuals involved in that scheme.The testimony about the agreement to reinitiate the networking operation with the same actors required a contextual knowledge of the prior networking operation.The evidence concerning the manner in which the cocaine was carried from Florida to Maine by the grandmother Feffa was similarly probative.

Evidence of prior bad acts may be admitted "for purposes other than to prove bad character ... if it has some special probative value."United States v. Morris, 700 F.2d 427, 431(1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306(1983), citingUnited States v. Moccia, 681 F.2d 61, 63(1st Cir.1982).As we held in both Morris and Moccia, the trial Judge must balance this special probative value against the possible prejudice under Fed.R.Evid. 403.Balancing these concerns lies within the broad discretion of the trial Judge and will only be reversed upon a showing that the Judge abused his discretion.SeeUnited States v. Maldonado-Medina, 761 F.2d 12, 15(1st Cir.1985);Morris, 700 F.2d at 431;United States v. Eatherton, 519 F.2d 603, 611(1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304(1975).

The proper analysis for determining the admissibility of evidence of prior bad acts under Fed.R.Evid. 404(b) was announced by this Circuit in United States v. Maldonado-Medina, 761 F.2d 12, 15(1st Cir.1985)."The first step is to determine whether the evidence has some 'special' probative value....The second step to admit evidence under Fed.R.Evid. 404(b) involves a balancing process: the district judge must balance the probative value of the evidence against possible prejudice."United States v. Kadouh, 768 F.2d 20, 21(1st Cir.1985), citingMaldonado-Medina, 761 F.2d at 15.See alsoUnited States v. Beechum, 582 F.2d 898, 911(5th Cir.1978)(en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472(1979).

The record reflects that the District Court received argument on both factors required under Maldonado-Medina.The Judge initially ruled to sustain Andiarena's objection, but changed his ruling after further argument showing the witness' identification of Andiarena as the source of the cocaine came from being introduced to him during the prior networking operation.This demonstrates the Judge carefully balanced the probative value of the proffered testimony against its potential unfair prejudice...