United States v. Guess ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-40174
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERRIC DESHAWN GUESS, also known as Shawn Guess,
also known as Baby G,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(4:96-CR-38-1)
_________________________________________________________________
December 11, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Sherric Deshawn Guess appeals his convictions
after a jury trial for three counts of possession of cocaine base
with intent to distribute in violation of 21 U.S.C. § 841(a) and
two counts of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). Finding no reversible error, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
Guess’s appeal centers on one issue: the fact that the
notes and transcript of his suppression hearing have been lost.
Prior to trial, Guess moved to suppress evidence found and seized
at various times reflected in his five-count indictment. On
September 18, 1996, the district court held a hearing and denied
the motion in all respects. It is undisputed that the court
reporter responsible for transcribing the hearing lost his notes as
well as the recording and that the hearing has never been
transcribed.1
Approximately two weeks later, the case proceeded to
trial. The evidence presented at trial established that on
February 10, 1995, shortly after having served prison time for
possession of cocaine with intent to deliver and aggravated sexual
assault on a female child under 14 years of age, Guess was present
at an apartment when Sherman, Texas police officers executed a
search warrant; the apartment was being rented by a Mr. Jimmy Nash.
Guess was found in one of the bedrooms on a couch, sitting on a
.380 semiautomatic pistol. The search warrant permitted the
officers to look for cocaine, which they found in a bedroom closet.
Both Guess and Nash were arrested incident to this search.
On October 7, 1995, Sherman patrol officer Ken Brooks and
his partner were in a squad car in a high-crime, high-drug
neighborhood when they spotted a Cadillac El Dorado with a rear
1
Although it is true that the notes and transcript of
this hearing have not been located, the record does contain the
minutes of this hearing. See 1 Rawle 59.
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window broken out. Inside the car was a female who stepped out of
the car to talk to the officers. Shortly thereafter, Guess walked
up. Although appearing to be nervous and mildly intoxicated, Guess
told them he owned the car and gave the officers permission to
search it, admitting that a .380 pistol was inside. Upon searching
the car, the officers discovered the gun. The officers did not
arrest Guess at this time, but did file a report.
On March 5, 1996, Denison, Texas police officer Carroll
Spaugh gave chase to a speeding car. The driver jumped from the
car while it was still moving and ran into the woods beside the
road. At that time, Spaugh noticed that the man was carrying a tan
plastic grocery-type bag. Because the car was still moving and was
without a driver, Spaugh chased the car and managed to stop it.
After radioing for assistance, Spaugh looked inside the car for
registration or insurance papers, but only found two plastic
baggies containing crack cocaine. Another officer, Rollins, went
into the woods to search for the fleeing man and, at a distance,
briefly spotted a man fitting the description provided by Spaugh.
Shortly thereafter, Rollins found the man, lying down in the woods.
The man whom Rollins arrested for evading arrest was Guess. Guess
was not carrying either a firearm or drugs at that time. However,
another officer who had also been in pursuit of Guess at this time
found two grocery bags -- one blue and one tan -- hanging from a
tree in the woods. Inside the bags were small jars and plastic
baggies containing cocaine. Guess was charged with state charges
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of possession of a controlled substance with intent to deliver and
evading arrest; he made bond and was released.
On July 19, 1996, Sherman officer Jeff Jones, acting on
a tip from a confidential informant (“CI”) that Guess was bringing
crack cocaine to Sherman, stopped Guess’s car as it was returning
to Sherman from Dallas. The officer arrested Guess on outstanding
warrants and conducted an inventory search of the car. Although
there was a strong odor of burning marijuana in the car at that
time, Jones was unable to find drugs in the car other than
marijuana in the ashtray. The car was impounded. Three days later
Officer Brad Gibson obtained a search warrant and conducted a
search of the car. At that time, he found a baggie containing
crack cocaine between the center console and front passenger seat.
Also, on July 19, 1996, officers had obtained warrants to search
for cocaine at two residences associated with Guess. Cocaine was
found hidden inside a pool table in one of the residences.
In connection with these four incidents, the authorities
seized a total of 230.26 grams of crack cocaine.
After a trial, a federal jury found Guess guilty of all
five counts of a superseding indictment: three counts of
possession of cocaine base with intent to distribute (Counts 1, 2,
and 3, relating to incidents on February 10, 1995, March 5, 1996,
and July 19, 1996, respectively) and two counts of possession of a
firearm by a felon (Counts 4 and 5, relating to the incidents on
February 10, 1995 and October 7, 1995, respectively). The district
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court sentenced Guess to 360 months in prison as to the first three
counts and 60 months as to Counts 4 and 5, all to be served
concurrently. He was also sentenced to a 10-year term of
supervised release as to Count 1, eight years as to Count 3, and
three years as to Counts 4 and 5, with the terms to run
concurrently.
Guess timely filed a notice of appeal. Subsequently, the
clerk’s office granted an unopposed motion by Guess’s trial
counsel, Barrett K. Brown, to withdraw from the case. Substitute
appellate counsel, Garland Caldwell, was appointed for Guess and
currently represents him on this appeal.
DISCUSSION
Guess contends that he is entitled to a new trial because
he is now represented by an attorney who did not represent him at
trial and the testimony from the hearing on Guess’s motion to
suppress is not available. Citing United States v. Selva, 559 F.2d
1303 (5th Cir. 1977) (“Selva II”), Guess contends that the
suppression-hearing transcript is a “significant and substantial
portion of the record” which “can make or break the government’s
case” and the absence of which has a “limitless prejudicial effect”
on him. He argues that he is entitled to a new trial under FED. R.
APP. P. 10(c).
Pursuant to 28 U.S.C. § 753(b) of the Court Reporter Act
(“CRA”), a reporter “shall . . . record[ ] verbatim by shorthand,
mechanical means, electronic sound recording, or any other method
. . . (1) all proceedings in criminal cases had in open court.”
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Failure to comply with the CRA is not error per se but the
defendant-appellant must ordinarily show that the reporter’s
failure to record a portion of the proceedings “visits a hardship
upon him and prejudices his appeal.” Selva II, 559 F.2d at 1305
(citations omitted). However, “[w]hen . . . a criminal defendant
is represented on appeal by counsel other than the attorney at
trial, the absence of a substantial and significant portion of the
record, even absent any showing of specific prejudice or error, is
sufficient to mandate reversal.” Id. at 1306.
However, not all failures to record “will work a
reversal.” Id. at 1306 n.5. This court has held that missing
transcripts of nine bench conferences in a transcript exceeding
3,000 pages were not a substantial and significant portion of the
record under Selva II. See United States v. Aubin, 87 F.3d 141,
149 (5th Cir. 1996), cert. denied, 117 S. Ct. 965 (1997); see also
United States v. Neal, 27 F.3d 1035, 1043-44 (5th Cir. 1994)
(allegedly missing portions of the record were deemed not
significant). Moreover, “there may be some instances where it can
readily be determined from the balance of the record whether an
error has been made during the untranscribed portion of the
proceedings.” Selva II, 559 F.2d at 1306. In determining whether
the missing suppression hearing transcript in Guess’s case is a
substantial and significant proceeding, we note that, in reviewing
district court factfindings relating to the denial of a motion to
suppress, this court reviews “evidence at both the suppression
hearing and trial” in the light most favorable to the prevailing
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party. United States v. Hope, 102 F.3d 114, 116 (5th Cir. 1996)
(emphasis added) (footnotes and citations omitted).
After a complete review of the record, we agree with the
Government that when the record is viewed as a whole, the absence
of the transcript of the suppression hearing is neither substantial
nor significant. The minutes of the suppression hearing indicate
that six of the seven witnesses that testified at the suppression
hearing testified at Guess’s trial as well. There has been no
claim that these witnesses’ testimony at trial differed from their
testimony at the hearing. Moreover, the minutes of the hearing
reflect that the court ruled that (1) Guess did not have standing
to suppress evidence found in Nash’s apartment, (2) regarding the
March 5, 1996 search of the car, the Denison officer had good cause
to search the car, (3) Guess’s motion to suppress items found in
the vehicle after he abandoned the car was overruled, and (4) there
was probable cause for the search incident to Guess’s final arrest.
The court then denied Guess’s motion to suppress in all respects.
Additionally, the trial transcript in this case contains
considerable testimony regarding the various arrests, searches, and
seizures involving Guess. We ascertain no error. This information
is substantial enough that the transcript of the suppression
hearing itself is not a “substantial and significant” proceeding
whose absence warrants reversal.
Although complete trial and sentencing transcripts are
included in the record, Guess also claims that the “incomplete”
record in this case prevents him from discerning whether further
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points of error are necessary in his case. Accordingly, he urges
this court to permit him time to file a supplemental brief at a
later date. Because Guess could have raised all issues relating to
his trial and sentencing at the time of this appeal, Guess’s
request to file a supplemental brief is DENIED.
CONCLUSION
For the foregoing reasons, we AFFIRM Guess’s conviction
and DENY his request to file a supplemental brief.
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