United States v. Rosa, No. 29457.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation434 F.2d 964
Docket NumberNo. 29457.
Decision Date17 November 1970
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ralph Pineda ROSA, Defendant-Appellant.

434 F.2d 964 (1970)

UNITED STATES of America, Plaintiff-Appellee,
v.
Ralph Pineda ROSA, Defendant-Appellant.

No. 29457.

United States Court of Appeals, Fifth Circuit.

November 17, 1970.


Samuel S. Forman, Miami, Fla., court-appointed, for defendant-appellant; Ralph Pineda Rosa, pro se.

Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, DYER* and INGRAHAM, Circuit Judges.

PER CURIAM:

In a return bout before this Court Appellant Rosa contends that his 1960 three count conviction1 for the purchase and sale of a narcotic drug must be reversed because (i) a transcript of the proceedings in the Trial Court was unavailable at the time that he was preparing his appeal, and because (ii) the Trial Court erred in failing to conduct an evidentiary hearing as ordered by the previous mandate of this Court.2

Appellant's first ground of error falls squarely within the rule announced in Hardy v. United States, 1963, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331, and United States v. Atilus, 5 Cir., 1970, 425 F.2d 816, which requires a criminal conviction to be reversed if there is no transcript of the Trial Court proceedings available for the Defendant's use when he is preparing his appeal. Accordingly Appellant's 1960 conviction for the purchase and sale of a narcotic drug is reversed. Since the sentence imposed has already been completed, "a retrial would be pointless". 425 F.2d at 817. Therefore the case "is remanded for the entry of appropriate orders to expunge the records of the 1960 conviction." 425 F.2d at 817. Under these circumstances we find it unnecessary to reach the merits of Appellant's second complaint.

I. Background

In 1960 Rosa received concurrent sentences of 5 years on each of the counts in his three count indictment and conviction. The same year he began filing pro se pleadings in which he steadfastly

434 F.2d 965
maintained that (i) he was entrapped by Eugene Marshall, then the Chief Federal Narcotics Agent in Miami, Florida, and that (ii) Marshall, the Government's star witness at Appellant's trial, perjured himself in order to get Appellant convicted. After completing three and one-half years of his 1960 concurrent sentences Rosa was released. Approximately one month after his release he was arrested, convicted, and sentenced to a ten-year term on another narcotics offense.3 In 1965, about 5 years after Rosa had commenced his pro se accusations against Marshall, the Agent was convicted of unfaithfulness to his trust as a federal narcotics agent and he was sentenced to a prison term of 14 and one-half years.4

At the present time, Rosa has already served 6 and one-half years of his second conviction, and presumably he is presently eligible for mandatory release benefits.5 He contends that he had suffered disabilities and disadvantages during his second sentence because of the first conviction.6 Rosa claims that "a reversal of his first conviction would greatly affect the restrictions he is currently on and that if the first conviction is reversed he will be able to have the sentence on the second conviction reduced."

II. Lack of Transcript

As a consequence of our earlier opinion7 the District Court held an evidentiary hearing. It found that "through the fault of no one" the testimony at trial was never recorded and that the court reporter's notes are unavailable. Appellant, represented in this proceeding by a new court-appointed counsel, submits that...

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17 practice notes
  • U.S. v. Pace, No. 90-1992
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 17, 1993
    ...1223 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972) (missing defense arguments); United States v. Rosa, 434 F.2d 964 (5th Cir.1970) (missing entire transcript); United States v. Atilus, 425 F.2d 816 (5th Cir.1970) (missing entire transcript); Stephens v. Uni......
  • U.S.A v. Delgado, No. 07-41041
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 2011
    ...States v. Selva, 559 F.2d 1303, 1304 (5th Cir. 1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir. 1973); United States v. Rosa, 434 F.2d 964, 965 (5th Cir. 1970). We have not found reversible error when a transcript was missing seventy-two bench conferences. See United States v. G......
  • U.S. v. Delgado, No. 07–41041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 2011
    ...States v. Selva, 559 F.2d 1303, 1304 (5th Cir.1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir.1973); United States v. Rosa, 434 F.2d 964, 965 (5th Cir.1970). We have not found reversible error when a transcript was missing seventy-two bench conferences. See United States v. Gieg......
  • United States v. Bennett, Criminal No. 1:15cr60–HSO–JCG
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 2017
    ...the Court's review of these issues. United States v. Gallardo–Trapero , 185 F.3d 307, 321 (5th Cir. 1999) (quoting United States v. Rosa , 434 F.2d 964, 966 (5th Cir. 1970) ).Defendants contend that the Court should set aside their convictions or order a new trial for the following reasons:......
  • Request a trial to view additional results
17 cases
  • U.S. v. Pace, No. 90-1992
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 17, 1993
    ...1223 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972) (missing defense arguments); United States v. Rosa, 434 F.2d 964 (5th Cir.1970) (missing entire transcript); United States v. Atilus, 425 F.2d 816 (5th Cir.1970) (missing entire transcript); Stephens v. Uni......
  • U.S.A v. Delgado, No. 07-41041
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 2011
    ...States v. Selva, 559 F.2d 1303, 1304 (5th Cir. 1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir. 1973); United States v. Rosa, 434 F.2d 964, 965 (5th Cir. 1970). We have not found reversible error when a transcript was missing seventy-two bench conferences. See United States v. G......
  • U.S. v. Delgado, No. 07–41041.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 2011
    ...States v. Selva, 559 F.2d 1303, 1304 (5th Cir.1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir.1973); United States v. Rosa, 434 F.2d 964, 965 (5th Cir.1970). We have not found reversible error when a transcript was missing seventy-two bench conferences. See United States v. Gieg......
  • United States v. Bennett, Criminal No. 1:15cr60–HSO–JCG
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • January 6, 2017
    ...the Court's review of these issues. United States v. Gallardo–Trapero , 185 F.3d 307, 321 (5th Cir. 1999) (quoting United States v. Rosa , 434 F.2d 964, 966 (5th Cir. 1970) ).Defendants contend that the Court should set aside their convictions or order a new trial for the following reasons:......
  • Request a trial to view additional results

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