United States v. Deshone Stacy , 337 F. App'x 837 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 24, 2009
No. 07-12918 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14029-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESHONE STACY,
a.k.a. Bert,
DERRICK COOPER,
a.k.a. Coop,
a.k.a. Blackboy,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(July 24, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
A Southern District of Florida jury convicted Deshone Stacy and his brother,
Derrick Cooper, of conspiring, in violation of 21 U.S.C. § 846, to possess with
intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1). The jury also convicted Cooper of the substantive offense of
possession with intent to distribute 50 grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1). Following the imposition of sentence, Stacy and Cooper
appealed their convictions. After the appeal got underway, they notified this court
that the transcript of the closing arguments and jury instructions at their joint trial
was missing. On May 2, 2008, we issued an order remanding the case to the
district court with the instruction that the district court attempt to reconstruct the
record under Federal Rule of Appellate Procedure 10(c). After holding a hearing
on the issue, the district court filed and submitted to this court a statement of
evidence regarding the missing transcript. This appeal then resumed.
In their briefs on appeal, Stacy and Cooper argue that they are entitled to a
new trial on the ground that the transcript of the oral arguments and jury
instructions are missing and the district court’s reconstruction is materially
inadequate. They argue alternatively that they should receive a new trial because
the district court abused its discretion in denying their motion for a post-trial juror
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interview and a new trial based on juror misconduct. Stacy presents a third
argument, that the district court abused its discretion in denying his motion for a
new trial based on ineffective assistance of counsel.
I.
The Court Reporters Act requires a reporter to record “verbatim by
shorthand, mechanical means, electronic sound recording, or any other method” all
criminal proceedings held in open court. 28 U.S.C. § 753(b). A criminal
defendant has a right on appeal to a complete transcript of the trial proceedings.
Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 428, 11 L.Ed.2d 331(1964).
We have established a two-part standard for determining whether an
incomplete trial transcript entitles a defendant to a new trial. United States v.
Selva, 559 F.2d 1303, 1305-06 (5th Cir. 1977). First, if the defendant is
represented on appeal by trial counsel, a failure to properly record and preserve a
portion of the trial proceedings only works a reversal if the defendant makes “a
specific showing of prejudice,” such that the failure “visits a hardship upon him
and prejudices his appeal.” Id. at 1305. By contrast, if the defendant is
represented by new counsel on appeal, “the absence of a substantial and significant
portion of the record, even absent any showing of specific prejudice or error, is
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sufficient to mandate reversal.” Id. at 1306. The dual standard from Selva is based
on the understanding that “an appellate attorney who participated in the trial
generally would be in a better position to point to specific prejudice resulting from
the omission of parts of the proceedings from the record on appeal,” whereas “an
appellate attorney who was not involved in the trial often will be unable to identify
and pursue irregularities that might otherwise entitle an appellant to relief.” United
States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993).
First, in regard to a case involving new counsel on appeal, “[t]here can be no
substantial and significant omissions from a reconstructed record if, taken as a
whole, it accords effective review on appeal.” Id. at 1213. Thus, if a
“reconstructed record discloses an accurate account of the trial so as to provide
effective appellate review,” then we may address the assigned errors. Id. In
contrast, a reconstructed record that still lacks a sufficiently detailed account of a
substantial and significant portion of the record may provide an inadequate basis
for our review and require us to remand for a new trial. See id. at 1213-15.
Second, in regard to a case involving the same counsel who defended the
appellant at trial, specific prejudice resulting from the record omission must be
shown to mandate reversal. Selva, 559 F.2d at 1305-06. In such a case, counsel
“should be expected to be aware of any errors or improprieties which may have
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occurred during the portion of the proceedings not recorded,” and counsel is
required to “articulate the prejudice that may have resulted from the failure to
record a portion of the proceedings.” Id. at 1306. An appellant’s “vague
allegations” that “missing portions of the record would have supported the points
of error alleged in his brief and would have revealed certain other potential points
of error that his counsel could not consider without the record” were not sufficient
to demonstrate prejudice. United States v. Bankston, 603 F.2d 528, 534-35 (5th
Cir. 1979); see also Addison v. United States, 317 F.2d 808, 811 (5th Cir. 1963)
(holding that reversal was not required, even though closing arguments were not
recorded, because the record did not demonstrate and the appellants did not
identify any potentially improper comments or actions during the closing
arguments that gave rise to prejudice).
Stacy is represented by new counsel on appeal; Cooper is represented by the
same counsel that defended him at trial. Accordingly, under Selva, different
standards govern these two defendants and their requests for new trial based on the
missing transcript of the closing arguments and jury instructions.
After review of the reconstructed record and the parties’ briefs, we conclude
that Stacy is entitled to a new trial because the missing transcript, and omissions
from the reconstructed record, are “substantial and significant.” Cooper, however,
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is not entitled to such relief because he has failed to demonstrate any specific
prejudice based on the missing portion of the record. Accordingly, we vacate
Stacy’s conviction, remand the case for further proceedings.1
II.
“A motion for new trial based on newly discovered evidence is committed to
the sound discretion of the trial court and will not be overturned absent abuse of
discretion.” United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994).
Likewise, a district court’s decision to deny a defendant’s post-trial motion to
interview the jury regarding juror prejudice is reviewed for an abuse of discretion.
United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976).
The Sixth Amendment guarantees defendants the right to trial by an
impartial jury. U.S. Const. amend. VI. A defendant is entitled to a new trial based
on juror misconduct if: (1) a juror intentionally fails to answer a question honestly
at voir dire; and (2) he shows that the juror’s truthful answer would have provided
a challenge for cause based on juror bias. United States v. Perkins, 748 F.2d 1519,
1531-32 (11th Cir. 1984). “A relationship between a juror and a defendant, albeit a
remote one, can form the basis of a challenge for cause.” Id. at 1532.
A motion for new trial based on juror misconduct is treated as a motion for
1
In doing so, we decline to address Stacy’s other arguments.
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new trial based on newly discovered evidence. United States v. Calderon, 127
F.3d 1314, 1351 (11th Cir. 1997). In order to obtain a new trial based on newly
discovered evidence, the movant must establish that the evidence was discovered
after trial and that the failure to discover the evidence prior to the jury verdict was
not due to a lack of due diligence. Id. “[A] defendant cannot learn of juror
misconduct during the trial, gamble on a favorable verdict by remaining silent, and
then complain in a post-verdict motion that the verdict was prejudicially influenced
by that misconduct.” United States v. Jones, 597 F.2d 485, 488 n.3 (5th Cir. 1979).
A defendant waives a juror misconduct claim if he learns of the basis for such a
claim during trial and fails to bring it to the court’s attention before the jury renders
its verdict. United States v. Bolinger, 837 F.2d 436, 438 (11th Cir. 1988).
The district court did not abuse its discretion in denying Cooper’s motion for
a post-trial juror interview and a new trial based on juror misconduct. General
allegations came to light during the trial that the juror in question, Derrick Johnson,
knew Cooper. Although those allegations did not include specific information
about how Johnson knew Cooper, Cooper did not exercise due diligence in
pursuing the issue prior to being found guilty. In addition, when the general
allegations came to light, at trial and in open court, Cooper objected to the
Government’s request to interview Johnson. Thus, Cooper invited any arguable
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error committed by the district court in declining to pursue the allegations.
Accordingly, we affirm Cooper’s convictions.
AFFIRMED, in part; VACATED and REMANDED, in part.
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