U.S. v. Brand

• Decision Date: 12 January 1996
• Docket Number: Nos. 94-1350,APONTE-VELAZQUE,94-1351 and 94-1352,PULLIZA-DELGAD,D,s. 94-1350
• Citation: 80 F.3d 560
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Rodrigo BRAND, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Felixefendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Carmeloefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 560

80 F.3d 560

UNITED STATES of America, Plaintiff, Appellee, v. Rodrigo BRAND, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Felix APONTE-VELAZQUEZ, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Carmelo PULLIZA-DELGADO, Defendant, Appellant.

Nos. 94-1350, 94-1351 and 94-1352.

United States Court of Appeals First Circuit.

Heard Jan. 12, 1996.

Decided March 26, 1996.

Appeals from the United States District Court for the District of Puerto Rico; Hon. Jose Antonio Fuste, U.S. District Judge.

Peter Goldberger with whom James H. Feldman, Jr., Pamela A. Wilk, Alan Ellis and Law Offices of Alan Ellis, P.C. were on brief for appellant Felix Aponte-Velazquez.

Graham A. Castillo Pagan with whom Luis Rafael Rivera was on brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.

Luis Rafael Rivera with whom Graham A. Castillo Pagan was on brief for appellants Rodrigo Brand and Carmelo Pulliza-Delgado.

Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom Guillermo Gil, United States Attorney, Juan A. Pedrosa, Assistant United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

ALDRICH, Senior Circuit Judge.

Appellants Aponte, Pulliza, and Brand raise several claims of error on appeal of their convictions for various substantive offenses in connection with a cocaine importation and distribution scheme. Finding none meritorious, we affirm.

I. Reconstruction of Trial Record

After persistent efforts by appellate counsel to obtain a complete trial transcript, the trial court determined that certain portions--closing arguments and the court's jury charge--had been permanently lost. Appellants then moved this court for summary reversal, which we denied without prejudice in an order requesting the court to attempt a recreation adequate for appeal, or, if unable, to determine whether appellants were prejudiced as a result of remaining gaps. The court recreated its jury charge, and located a transcript containing the complete closing argument on behalf of Pulliza and a "substantial portion" of the closing argument for Aponte. It received from Brand's trial attorney some incomplete notes prepared for his closing, along with assurances that it would be impossible to recreate the actual argument. The government filed what the parties agreed is a "reasonable recreation" of its main closing argument, as well as a recreation of its rebuttal, which appellants view as inadequate. All agreed that no contemporaneous objections had been raised during these segments of the trial. The court then certified that the record had been reconstructed

as best as the court and the parties could. The defendants have not shown any specific prejudice arising from the absence of the trial transcript other than the inconvenience of not having the precise text ... for purposes of developing argument on appeal on the basis of clear error. ¹

Appellants contend adequate appellate review of their convictions is impossible because the court did not produce a reasonable recreation of the missing transcripts, ² entitling them to reversal and a new trial. They concede that due process does not automatically require reversal when a defendant is denied a full verbatim trial transcript, see, e.g., Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir.1987) (an "adequate substitute" may suffice) (citing cases), but contend that non-compliance with the Court Reporter Act, 28 U.S.C. § 753(b)(1), alone requires reversal and a new trial. We disagree.

The Act provides, inter alia, that all open court proceedings in criminal cases "shall be recorded verbatim." 28 U.S.C. § 753(b)(1) (1982). This provision is mandatory, United States v. Andiarena, 823 F.2d 673, 676 (1st Cir.1987), and concededly not complied with in this case, yet nothing prescribes automatic reversal of a defendant's convictions for non-compliance, and we are aware of no cases which so hold. Appellants cite Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), for the proposition that new counsel on appeal ³ cannot properly represent their clients without an "entire transcript." Id. at 279-80, 84 S.Ct. at 426-27. Hardy held that an indigent federal defendant is entitled to a trial transcript free of charge in order to perfect an appeal; we do not read it to have created a rule mandating reversal for less than a verbatim account.

Alternatively, appellants suggest we follow the Fifth Circuit's view that new counsel on appeal may obtain reversal for lack of a verbatim transcript under § 753(b)(1) merely by showing the missing portion is "substantial and significant," United States v. Selva, 559 F.2d 1303, 1306 (5th Cir.1977), and that any reconstruction thereof is less than "substantially verbatim." United States v. Pace, 10 F.3d 1106, 1124-25 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2180, 128 L.Ed.2d 899 (1994). True, in Hardy the Court observed that the right established by Federal Rule of Criminal Procedure 52(b) to have "plain errors or defects" noticed by the court "is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended." 375 U.S. at 280, 84 S.Ct. at 427. Yet this was in the context of deciding whether or not appellant should be afforded a transcript at all. We do not take this statement to mean that if no verbatim transcript is available that an effective appeal is not possible.

The majority of circuits construing § 753(b)(1) have held that to obtain reversal and a new trial, whether or not there is new appellate counsel, defendant must show specific prejudice to his ability to perfect an appeal, beyond mere non-compliance with the act. See United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir.1985), cert. denied, 474 U.S. 1068, 106 S.Ct. 826, 88 L.Ed.2d 798, and cert. denied, 474 U.S. 1069, 106 S.Ct. 828, 88 L.Ed.2d 800 (1986) (disagreeing with Selva ); United States v. Sierra, 981 F.2d 123, 126-27 (3rd Cir.1992), cert. denied, 508 U.S. 967, 113 S.Ct. 2949, 124 L.Ed.2d 696 (1993) (same); United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990) (same). But see United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir.1993) (as successor court to former Fifth Circuit, bound by Selva ). We have indicated preference for the majority view, see Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir.1978) (holding that if § 753(b)(1) applied to extradition proceedings, reversal on account of non-compliance would require showing specific prejudice), and explicitly adopt it today.

Appellants conceded to the trial court that the government's reconstruction of its main closing argument is substantially accurate. This should enable effective review for plain error, yet appellants make no particularized claim that such error occurred. Nor do they make any claim that plain error could have occurred during the closing arguments of one of their own attorneys. With respect to the government's rebuttal, we are hard-pressed to conceive what sort of illegitimate argument could have been made during these few moments that might have "so poisoned the well that the trial's outcome was likely affected," Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir.1993) (quoting United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987)), nor do appellants suggest any based on the reconstruction that was submitted. In any event, given the quantity and strength of the evidence against all three appellants from the testimony of several co-conspirators--eye-witnesses to their involvement in the various preparations, possessions and transactions amounting to the offenses charged--we are not persuaded that any deficiency could have risen to a miscarriage of justice; i.e., even if the rebuttal was tainted by some imaginable error, we would not find "a substantial chance that absent the error the jury would have acquitted." Id. We therefore uphold the district court's conclusion that appellants' ability to perfect an appeal was not prejudiced, and turn now to the merits of their claims.

II. Motion for Continuance

On the morning of trial the defense made a final request for continuance based on the last minute decision of Jorge Hernandez Miller, the lead co-conspirator, to plead guilty and become the government's chief witness. Remaining defendants argued this necessitated more time to adjust trial strategy and gather information to impeach him. After thorough exploration, the court, though sympathetic, saw no justification for delay:

[Y]ou had the opportunity to interview him ... as you told me in chambers that this has been done and now that all the Jencks Act [material] has been turned over ... the latest bits of information that were generated like the interviews [of the witness] with the agents ... are going to be turned over to you including rough notes, ... I will not continue this case.

A trial court has wide discretion to grant or deny a request for continuance. United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995). "Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel," and would amount to an abuse of that discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1983) (internal quotations omitted). We assess appellants' special reasons, plus relevant factors such as the amount of time needed for effective preparation and the amount actually available, diligence in preparing for trial and whether the defense contributed to its perceived predicament, the likely utility of a continuance, inconvenience to the court, opposing party, and witnesses, and any unfair prejudice caused by the denial. Saccoccia, 58 F.3d...