U.S. v. Preciado-Cordobas
| Decision Date | 27 January 1993 |
| Docket Number | ARIZA-SIERR,PRECIADO-CORDOBA,GUZMAN-ANGARIT,Nos. 88-5276,89-5138 and 91-6094,M,D,89-5134,C,s. 88-5276 |
| Citation | 981 F.2d 1206 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Martinarlos Escobar, Luis Miguel Ariza-Sierra, Mario Alberto Guzman-Angarita, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Luis Miguelartin Preciado-Cordobas, Carlos Escobar, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Mario Albertoefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis Miguelarlos Escobar, Martin Preciado-Cordobas, Mario Alberto Guzman-Angarita, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Milton Hirsch, Miami, FL, for Martin Preciado-Cordobas, Carlos Escobar and Luis Miguel Ariza-Sierra.
Hal Kessler, Miami, Miami Beach, FL and San Francisco, CA, for Mario Alberto Guzman-Angarita.
Humberto J. Pena, Zuckerman, Spaeder, Taylor & Evans, Miami, FL, Sheryl Lowenthal, Coral Gables, FL, for amicus Florida Ass'n of Criminal Defense Lawyers.
Phillip DiRosa, Linda C. Hertz and Mayra R. Lichter, Asst. U.S. Attys., Miami, FL, for U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before DUBINA and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
During the appellants' consolidated jury trial on drug and conspiracy charges, the court reporter's recording equipment malfunctioned, rendering his notes of much of the closing arguments, the jury charge and the motions for judgment of acquittal illegible and impossible to transcribe. This case has been previously remanded twice, first to reconstruct the jury charge and the second time to recall the closing arguments. In their third appearance before this court the appellants claim they are entitled to a new trial because of the inability of their new appellate counsel to examine a verbatim transcript of the closing arguments. We hold that the record has been sufficiently rehabilitated for the appellants to receive effective appellate review of their trial, find an alleged comment by the prosecutor to be harmless and affirm the convictions.
On October 19, 1987, Martin Preciado-Cordobas, Carlos Escobar, Luis Miguel Ariza-Sierra and Mario Alberto Guzman-Angarita were apprehended aboard a small vessel carrying nearly five tons of marijuana from Colombia to the Bahamas. The appellants' boat, the Coral Reef, was only forty feet long and nine feet across at its widest point and was packed with marijuana in every available space. The United States Coast Guard Cutter Chase initially spotted the Coral Reef while patrolling the windward passage between Haiti and Cuba. The Chase's crew observed the Coral Reef riding low in the water and flying no national flag. As the Chase approached, the crew also noticed that the Coral Reef had no name or registration number painted on its hull. Crew members from the Chase could smell the bulk marijuana when they were still 15 to 30 feet away from the Coral Reef.
A boarding party officer requested to speak to the captain of the Coral Reef. Alfonso Barker-Hernandez stepped forward and identified himself as the captain. Barker-Hernandez and the appellants were the only five persons aboard the boat. Barker-Hernandez's case was eventually severed from the trial of the appellants because his duress defense was antagonistic to that of the appellants. He claimed that the appellants forced him aboard the Coral Reef at gunpoint and also coerced him to present himself as the captain. Barker-Hernandez is not a party to this appeal.
In response to questions from the Coast Guard personnel, Barker-Hernandez acknowledged that the Coral Reef was flying no national flag and that it was transporting marijuana. He granted the Coast Guard request to board the Coral Reef.
The boarding party found no logs, customs clearance papers, cargo manifests, registry papers, bills of lading, fishing gear or legitimate cargo. They did, however, see approximately 200 bales of marijuana stacked in the pilot house, under the bunks, in the unsecured holds and in the engine room. The appellants and Barker-Hernandez were arrested and the Coral Reef seized.
Guzman-Angarita was the only appellant to testify during the consolidated jury trial in the United States District Court for the Southern District of Florida. He stated that neither he nor any of the other appellants knew the Coral Reef was carrying marijuana until they went aboard the boat from a smaller transport some ten miles out at sea off the Colombian coast. They thought they would be transporting coffee and tobacco. Only the captain, Barker-Hernandez, knew about the marijuana and he threatened the appellants when they objected to the presence of the contraband cargo. According to Guzman-Angarita, the appellants did not try to overpower the captain because they were afraid that they or their families would be harmed by the Colombian drug cartels if they refused to cooperate. However, he also testified that the appellants attempted to throw the marijuana overboard and that they planned to refuse to unload the marijuana in the Bahamas.
All the appellants were convicted of possession with intent to distribute at least 1000 kilograms of marijuana aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a) and 18 U.S.C. § 2, and conspiracy to commit those substantive offenses, in violation of 46 U.S.C. § 1903(j).
Shortly after the trial and sentencing, the district judge held a hearing at which he advised all the lawyers that the court reporter was unable to reproduce counsels' closing arguments, the jury instructions and the motions for judgment of acquittal made pursuant to Fed.R.Crim.P. 29. Apparently, there was a defective ribbon in the stenotype machine used by the court reporter to take down the trial proceedings. Because of that defective ribbon the notes of those last parts of the trial were not legible. The tape recording of the trial that was supposed to function as a backup either could not be found or was unintelligible.
The appellants, all of whom except Guzman-Angarita had new appointed counsel for appeal, moved the district court for a new trial on grounds that they could not effectively appeal their convictions without a complete transcript. The district court denied the motions without prejudice to the defendants' right to proceed under Fed.R.App.P. 10(c). 1 The appellants declined to prepare their own statement of the missing evidence as permitted by Rule 10(c).
The appellants timely filed notices of appeal and moved for a limited remand pursuant to the authority of United States v. Taylor, 607 F.2d 153 (5th Cir.1979), 2 to determine whether the district court's written jury charge could be included in the transcript in place of the unrecorded oral charge. An administrative panel of this court granted that motion without a hearing. After a Taylor hearing, the magistrate judge recommended and the district court found, based upon the certification of the court reporter, that the instructions delivered orally to the jury were identical to those contained in the judge's written copy. This finding of fact was based on the testimony of the trial judge's court reporter that the judge always read his jury instructions verbatim from his prepared text. 3 The written charge was made a part of the record.
After the first limited remand, the case returned to this court and appellants raised as one of their grounds for reversal a violation of the Court Reporter Act. United States v. Preciado-Cordobas, 923 F.2d 159 (11th Cir.1991) (Preciado-Cordobas I ). The challenge focused on the absence of the closing arguments in the trial transcript.
Again, we remanded, this time pursuant to Fed.R.App.P. 10(e), 4 directing the district court to attempt to reconstruct the closing arguments. Preciado-Cordobas I, 923 F.2d at 160. We advised the district judge that in attempting to reconstruct the record, he "may use his notes, the [court] reporter's notes, and, of course, the testimony of witnesses, including the appellant[s'] trial attorney[s]." Id. at 160-61. Unfortunately, Judge Eugene Spellman, the trial judge, died shortly after the opinion in Preciado-Cordobas I was issued, but before the reconstruction hearing. Consequently, we do not have the judge's notes or recollections of the trial that might have proven beneficial in recalling the record.
The magistrate judge took testimony and evidence from the prosecutor and the trial defense attorneys in an effort to reconstitute the record. All four of the appellants' trial lawyers participated in the hearing and testified about what they remembered from the trial and possible bases for appeal.
The government produced a partial transcript of the closing arguments. Sometime in early 1991, notes were found that the court reporter, Mario Cantillo, had typed during the trial. The government subpoenaed Cantillo to try to recall the closing arguments from his notes. Cantillo's transcription was admitted into evidence at the hearing. The transcript contains a portion of the prosecutor's initial closing argument, some from that of Jose Batista, counsel for Ariza-Sierra, and a portion by Mario Cano, the attorney for Escobar. A certificate by Cantillo at the end of the transcript recounts in part:
I state that what is dictated on this cassette which may or may not be transcribed was dictated from notes, the majority of which were not legible because apparently there was a defective ribbon on my machine which was printing legibly for only some of [the prosecutor's] closing argument, some of Mr. Batista's closing, but none of the rest of counsel including [the prosecutor's] final rebuttal argument, all of...
To continue reading
Request your trial
-
United States v. Svete
...individually are non-reversible. See, e.g., U.S. v. Ramirez, 426 F.3d 1344, 1353 (11th Cir. 2005); United State v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th Cir. 1993) (citing United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984)); United States v. Adams, 74 F.3d 1093,1099 (11......
-
People v. Rodriguez
...from the failure to record a portion of the proceedings. Id. at 1306 (footnote and citations omitted); see United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir.1993) (applying the Selva standard); United States v. Valdez, 861 F.2d 427, 431 (5th Cir.1988), cert. denied, 489 U.S.......
-
United States v. Cardon-Cortez
...individually are non-reversible. See, e.g., U.S. v. Ramirez,426 F.3d 1344, 1353 (11th Cir. 2005); United State v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th Cir. 1993)(citing United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984)); United States v. Adams, 74 F.3d 1093,1099 (11th......
-
Brown v. United States
...pursued on appeal occurred during those parts of the trial for which we do not have a verbatim transcript.” United States v. Preciado–Cordobas, 981 F.2d 1206, 1213–14 (11th Cir.1993). As for the first factor, the extent of the missing portion of the transcript constitutes the oral voir dire......