United States v. Blanca Virgen ( 2010 )

Case: 09-10815 Document: 00511175970 Page: 1 Date Filed: 07/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 16, 2010
No. 09-10815
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BLANCA MARIBEL VIRGEN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-3-1
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Blanca Maribel Virgen appeals her jury trial convictions and sentences for
conspiracy to distribute 50 grams or more of methamphetamine and maintaining
a drug-involved premises at her home. She was sentenced to a total of 360
months of imprisonment and a five-year term of supervised release. Virgen
argues on appeal, inter alia, that her conviction must be reversed because a
substantial and significant portion of the record is missing on appeal. She
asserts that the entire second day of trial which included the jury instructions,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10815 Document: 00511175970 Page: 2 Date Filed: 07/16/2010
No. 09-10815
the proceedings related to the return of the verdict, and the polling of the jury
have not been transcribed. As such, she contends that she cannot perfect her
appeal and reversal is thus required.
Part of Virgen’s argument is not supported by the record. Following the
filing of her initial brief, this court granted Virgen’s motion to supplement the
record with the transcript of the second day of trial and to amend her brief. The
transcript reflects that the entire second day of trial was transcribed, including
the proceedings related to the juror note, the return of the verdict, and the
polling of the jurors. Thus, the only omission at issue before this court is the
transcription of the jury charge.
Virgen is represented by new counsel on appeal. Thus, she need only show
that there is “a substantial and significant portion of the record” missing. See
United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977). A jury charge has
been determined to be “a ‘substantial and significant’ portion of the trial record.”
United States v. Pace, 10 F.3d 1106, 1125 (5th Cir. 1993). Although the record
contains a copy of the written jury charge, it is unclear from the record whether
there was any variance between that written and oral charge given by the court.
See United Stats v. Taylor, 607 F.2d 153, 154 (5th Cir. 1979). Accordingly, we
hereby remand this case to the district court for the limited purpose of
conducting a hearing to determine whether the court reporter had a copy of the
written charge and can certify that it was read to the jury as written. The
district court is directed to return the case to this court for further proceedings
once a ruling has been made. The Cerk’s office is directed to allow the parties
an opportunity to file supplemental briefs, if necessary.
LIMITED REMAND.
2