U.S. v. Valdez

• Decision Date: 22 November 1988
• Docket Number: No. 87-3338,87-3338
• Citation: 861 F.2d 427
• Parties: 27 Fed. R. Evid. Serv. 242 UNITED STATES of America, Plaintiff-Appellee. v. Juan Francisco VALDEZ, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 427

861 F.2d 427

27 Fed. R. Evid. Serv. 242

UNITED STATES of America, Plaintiff-Appellee. v. Juan Francisco VALDEZ, Defendant-Appellant.

No. 87-3338

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 22, 1988.

Rehearing and Rehearing En Banc Denied Dec. 19, 1988.

Anthony F. Gonzalez, Howard J. Shifke, Tampa, Fla., Terrence E. Kehoe, Orlando, Fla., for defendant-appellant.

Marylyn Barnes, Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, HIGGINBOTHAM and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Juan Francisco Valdez appeals his conviction on multiple charges arising out of a scheme to introduce a shipload of marijuana into this country. His appeal revolves around the loss of much of his trial transcript. We reject Valdez' arguments because he neither establishes error nor asserts with particularity how the unavailability of portions of the trial transcript prejudices his ability to do so.

I.

A jury convicted Valdez of conspiracy to possess marijuana with intent to distribute and conspiracy to import marijuana, along with the substantive offenses of importing and possessing the marijuana. The charges emanated from a single scheme to bring more than 30,000 pounds of marijuana into the country in July 1986. After trial, portions of the trial transcript representing 5 1/2 days of the eight-day trial were stolen from the court reporter's car. The missing portions include the closing statements, the court's jury charge, and much of the testimony.

The government's case rested chiefly on co-conspirator Stanley Yancey, a Louisiana businessman who helped to plan the scheme and testified as the government's star witness under a plea bargain agreement. Yancey's testimony is in the record and we describe his testimony below in some detail.

Yancey testified that the scheme originated in January 1986 when he visited a longtime friend, John Ledet, at the federal penitentiary in Big Spring, Texas. Yancey, Ledet and Ledet's cellmate, Billy Geittmann, agreed that Geittmann would use his supply connections to arrange for marijuana to be loaded on a Colombian ship. Yancey was to provide a boat to meet the Colombian ship in the Gulf of Mexico, where the marijuana would be transferred to the boat and delivered to Louisiana for storage and distribution.

Billy Geittmann brought his brother, Gunther, into the conspiracy to serve as Billy's liaison with the conspirators while he finished his prison term. Billy, Gunther and Yancey met in Dallas on April 1, 1986, for more preliminary planning while Billy was on a one-week prison furlough. In early May 1986, Yancey met with Gunther Geittmann, Juan Mendez, and a man known to Yancey only as "Roger" or "Paco," in Gunther's hotel room in New Orleans. The four settled on May 31, 1986, as the rendezvous date, set the location for the rendezvous between the Colombian mothership and the boat Yancey would provide, and discussed communications problems. Yancey, Mendez and Roger also toured potential delivery and storage sites near Houma, Louisiana.

Yancey, working through co-conspirator Jerry Galliano, spent the following weeks arranging for a boat, crew, stash houses and truckers to carry the marijuana. On May 25, 1986, Yancey and Gunther Geittmann met with Juan Mendez and Roger in Miami. Mendez introduced them to appellant Juan Francisco Valdez, who was known to Yancey as "Frank," and Jose Alberto "Al" Gonzalez.

As the meeting wore on, Yancey realized that Valdez "was the man [with whom] I'd really need to discuss all of the fine points in the deal because he was, you know, running the show pretty much." Valdez asked Yancey during the meeting if his boat could carry more marijuana than the 25,000 pounds Yancey originally had planned to carry, so that the operation could take full advantage of this opportunity to meet with the mothership. When Yancey told Valdez that his boat could carry up to 45,000 pounds of marijuana, Valdez responded, "We can do it." The men also agreed to push the rendezvous date back a week to June 7, 1986, and discussed the locations of the unloading site and stash houses in Louisiana.

Yancey met with Valdez, and a man known to Yancey only as "Mark," in New Orleans during the first week of June to locate stash houses and an apartment for Valdez. Valdez indicated that he would keep 5,000 pounds of the marijuana to store and distribute himself. Juan Mendez also flew into New Orleans and stayed overnight, but then returned to Miami to maintain radio communications with the Colombian suppliers. Meanwhile, further delays pushed the rendezvous date back another week to June 14, 1986. By June 11, 1986, the boat Yancey had arranged was fueled, loaded with supplies and ready to leave for the rendezvous. However, Yancey and Valdez received word from Mendez that afternoon that Colombian authorities had apprehended the mothership in Colombia. With the rendezvous delayed again, Yancey and Jerry Galliano dispatched their boat to pick up another load of marijuana in Panama.

On July 8, 1986, co-conspirator Jose Alberto Gonzalez called Yancey from Miami to tell him that another mothership would leave Colombia and reach the rendezvous point in several days. Yancey scrambled to find another pick-up boat because the first was unavailable; on July 13, Jerry Galliano introduced Yancey to Elmo Pitre, a friend of Galliano's who agreed to charter a boat for the rendezvous. However, Pitre contacted the government almost immediately and became a paid informant.

Pitre created more immediate problems for Yancey when he demanded his $38,000 fee from the co-conspirators in advance. Yancey relayed the demand by telephone to Valdez, who offered to show the money to Pitre but refused to give it to him before the rendezvous. On July 14, Yancey, Valdez and three other co-conspirators drove to Golden Meadow, Louisiana, to look over Pitre's boat and resolve the payment dispute. One of the other three co-conspirators showed the money to Pitre in Valdez' presence, but Pitre infuriated Valdez when he still refused to release the boat before payment. Billy Geittmann, out of prison by then, resolved the dispute when he agreed to ride on the boat to the rendezvous if the others would pay Pitre up front.

Billy Geittmann arrived in New Orleans on July 15; Yancey, Valdez, Billy Geittmann and other co-conspirators drove to Fouchon, Louisiana, to watch Pitre's departure preparations. Another co-conspirator, who was carrying a radio, boarded Pitre's boat and talked with Valdez over the radio once the boat was underway. After the boat left, Valdez and another co-conspirator carried Pitre's $38,000 payment to Pitre's truck and placed it on the passenger side of the front seat.

On July 18, 1986, Yancey told Valdez and other co-conspirators to come to Houma, Louisiana, to wait for the delivery boat's arrival. Yancey called Pitre, who said the boat would arrive at 6:00 p.m. the next day. Pitre also told Yancey that he had arranged for a second boat to meet the mothership because all of the marijuana would not fit in the first boat. This news angered Valdez and two other co-conspirators, who feared that they would lose control of the excess marijuana.

United States Customs and DEA agents arrested Yancey on July 19 at his parents' house, where he had gone to wait for the arrival of the shipment. Yancey agreed to cooperate with the agents; shortly afterwards, Jose Alberto Gonzalez paged Yancey on his beeper to check on the shipment's status and the agents taped the call. The agents also taped a second telephone conversation, in which Gonzalez told Yancey the government had seized the main delivery. But Gonzalez and the other co-conspirators still wanted to recover the excess marijuana that did not fit on the first boat, so Gonzalez and Yancey agreed that Yancey would meet them at a motel in Kenner, Louisiana.

When Yancey and the agents arrived in Kenner, Yancey identified Gonzalez and Juan Mendez and the agents arrested them. Valdez arrived shortly afterwards and was arrested after Yancey identified him to the agents.

The government indicted twenty-one participants in the conspiracy. Eighteen defendants pleaded guilty to one or more counts of the indictment. The indictment was dismissed against another defendant. A jury convicted Juan Valdez and Juan Mendez on all four counts; the district court sentenced Valdez to three concurrent ten-year prison terms for the first three counts, and a consecutive three-year term for the fourth count.

On appeal, Valdez challenges the sufficiency of the evidence, asserts a variety of district court errors, and contends that prosecutorial misconduct in closing argument deprived him of a fair trial. Above all, Valdez argues that the incomplete trial transcript irreparably harms his ability to appeal these points.

II.

Valdez filed a motion for reversal, discharge and immediate release after the district court disclosed that the full transcript of the trial was unavailable. This court denied the motion and remanded so the trial court could determine whether the record could be reconstructed. The trial court concluded that reconstruction was not feasible, after which Valdez renewed his motion. This court denied the motion and ordered full briefing on the merits to guide us in determining whether the lack of a complete record prejudiced Valdez' appeal.

Where, as here, trial counsel also represents the criminal defendant on appeal, loss of a portion of the complete trial record does not require automatic reversal. To obtain reversal, the defendant must make a specific showing that the incomplete record "visits a hardship upon [the appellant] and prejudices his appeal." United States v. Renton, 700 F.2d 154, 157 (5th Cir.1983); United States v. Selva, 559 F.2d 1303, 1305-06 (5th Cir.1977). As this court reasoned in Selva, "The...