United States v. Moreno ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6218
(D.C. No. 5:12-CR-00297-R-13)
BANI MORENO, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges.
_________________________________
Proceeding pro se,1 Bani Moreno appeals the district court’s denial of his
motion to compel the production of the court reporter’s backup audio tapes from his
criminal trial. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that the
district court had no jurisdiction to consider this case, so we vacate the district
court’s order and remand for the district court to dismiss.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Moreno appears pro se, we liberally construe his arguments,
stopping short of serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
BACKGROUND
In 2013, a jury convicted Moreno for one count of conspiracy to possess
methamphetamine with intent to distribute, two counts of possession of
methamphetamine with intent to distribute, and two counts of unlawful use of a
communication facility in connection with a drug transaction. The district court
sentenced Moreno to 151-months’ imprisonment for the conspiracy and possession-
with-intent-to-distribute convictions and 48-months’ imprisonment for the unlawful-
use-of-a-communication-facility conviction. The court ordered the sentences to run
concurrently and imposed five years’ supervised release. Moreno then unsuccessfully
pursued a direct appeal, see United States v. Moreno, 607 F. App’x 775 (10th Cir.
2015) (unpublished), and a petition for post-conviction relief under 28 U.S.C. § 2255,
see United States v. Moreno, 655 F. App’x 708 (10th Cir. 2016) (unpublished).
This appeal arises from the district court’s denial of Moreno’s November 16,
2018 “Motion for Leave to Acquire the Court’s Reporter Original Notes, and Back
Up Audio Recordings of the Trial.” Citing the Court Reporters Act, 28 U.S.C. § 753,
Moreno asked the district court to compel the court reporter to produce all backup
audio recordings and original notes from his trial. Moreno distrusts the trial’s
stenographic transcript because “to Moreno’s recollection, the trial transcripts do not
fully reflect what was said or the testimony that was elicited, nor some statements
made by the government’s counsel, and defense counsel[].” R. at 1464.
Without receiving a government response or addressing jurisdiction, the
district court denied the motion on the merits. The court first noted that though
2
Moreno may arrange to view the court reporter’s notes, he is “not entitled to a free
copy of them.” R. at 1467 (citing Sistrunk v. United States, 992 F.2d 258, 260 (10th
Cir. 1993)). The court next concluded that Moreno has no right to access the court
reporter’s backup audio recordings. Observing that such records are deemed the
personal property of the court reporter and not part of the public record “unless some
reason is shown to distrust the accuracy of the stenographic transcript,” the court
concluded that Moreno’s “recollections, standing alone, are insufficient evidence—if
evidence at all—to show distrust in the accuracy of the transcript.” R. at 1468
(quoting Smith v. U.S. Dist. Court Officers, 203 F.3d 440, 442 (7th Cir. 2000)). On
appeal, Moreno challenges only the district court’s ruling regarding the audio tapes.
He argues that denying him access to the backup recordings violates his due process
right to meaningful appellate review.
DISCUSSION
On appeal, the government contends the district court lacked jurisdiction to
entertain Moreno’s motion. Under Federal Rule of Appellate Procedure 28(a)(4)(A),
regardless of his pro se status, Moreno must show the factual and legal basis for the
district court’s jurisdiction. See United States v. Woods, No. 15–3304, __ F. App’x
__, __, 2016 WL 3457754, at *2 (10th Cir. June 23, 2016) (“Even a pro se appellant
has an affirmative obligation to inform us in the opening brief of the basis for the
district court’s jurisdiction.”); Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 841 (10th Cir. 2005) (noting that Rule 28 applies to pro se litigants as well as
those represented by counsel). Moreno fails to satisfy this burden.
3
Moreno identifies no basis for the district court’s jurisdiction in his opening
brief on appeal, but in his reply brief, he cites 28 U.S.C. § 1331 as his jurisdictional
basis. But § 1331 did not provide the district court jurisdiction to proceed with this
case.2
As a panel of this court has observed, when, as here, an indigent defendant
seeks “to have the court reporter’s backup audiotapes placed in the record pursuant to
28 U.S.C. § 753(b) and the applicable regulations enacted by the Judicial Conference
of the United States,” the sole means by which the defendant may “obtain that relief,
if at all, [is] through a writ of mandamus.”3 United States v. Mondragon-Avilez, 263
F. App’x 691, 693 (10th Cir. 2008) (unpublished) (citation omitted). Here, Moreno
has not pursued relief under that remedy. Because the district court had no
jurisdiction over Moreno’s claim, and because Moreno has not sought mandamus, we
conclude that the district court lacked jurisdiction to hear Moreno’s case.
CONCLUSION
Because the district court lacked jurisdiction to proceed with this case, we
vacate its order and remand for it to dismiss on that basis. Further, because the
district court lacked jurisdiction, we deny as moot Moreno’s motion to supplement
2
But if the audio recordings Moreno seeks were part of the original record
(and not merely backup recordings), jurisdiction would exist under § 1331. See Smith
v. U.S. Dist. Court Officers, 203 F.3d 440, 441 (7th Cir. 2000) (“[T]here is a federal
common law right to access to federal judicial records which can be enforced by
means of an ordinary suit under 28 U.S.C. § 1331.” (citation omitted)).
3
28 U.S.C. § 1361 grants a district court “original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.”
4
the opening brief and motion to proceed in forma pauperis.
Entered for the Court
Gregory A. Phillips
Circuit Judge
5