United States of America, Plaintiff, Appellee, v. Rodrigo Brand, Defendant, Appellant.united States of America, Plaintiff, Appellee, v. Felix Aponte-velazquez, Defendant, Appellant.united States of America, Plaintiff, Appellee, v. Carmelo Pulliza-delgado, Defendant, Appellant, 80 F.3d 560 (1st Cir. 1996)

Appellants Aponte, Pulliza, and Brand raise several claims of error on appeal of their convictions for various substantive offenses in connection with a cocaine importation and distribution scheme. Finding none meritorious, we affirm.

After persistent efforts by appellate counsel to obtain a complete trial transcript, the trial court determined that certain portions--closing arguments and the court's jury charge--had been permanently lost. Appellants then moved this court for summary reversal, which we denied without prejudice in an order requesting the court to attempt a recreation adequate for appeal, or, if unable, to determine whether appellants were prejudiced as a result of remaining gaps. The court recreated its jury charge, and located a transcript containing the complete closing argument on behalf of Pulliza and a "substantial portion" of the closing argument for Aponte. It received from Brand's trial attorney some incomplete notes prepared for his closing, along with assurances that it would be impossible to recreate the actual argument. The government filed what the parties agreed is a "reasonable recreation" of its main closing argument, as well as a recreation of its rebuttal, which appellants view as inadequate. All agreed that no contemporaneous objections had been raised during these segments of the trial. The court then certified that the record had been reconstructed

as best as the court and the parties could. The defendants have not shown any specific prejudice arising from the absence of the trial transcript other than the inconvenience of not having the precise text ... for purposes of developing argument on appeal on the basis of clear error.¹ 

Appellants contend adequate appellate review of their convictions is impossible because the court did not produce a reasonable recreation of the missing transcripts,²  entitling them to reversal and a new trial. They concede that due process does not automatically require reversal when a defendant is denied a full verbatim trial transcript, see, e.g., Bundy v. Wilson, 815 F.2d 125, 135 (1st Cir. 1987) (an "adequate substitute" may suffice) (citing cases), but contend that non-compliance with the Court Reporter Act, 28 U.S.C. § 753(b) (1), alone requires reversal and a new trial. We disagree.

The Act provides, inter alia, that all open court proceedings in criminal cases "shall be recorded verbatim." 28 U.S.C. § 753(b) (1) (1982). This provision is mandatory, United States v. Andiarena, 823 F.2d 673, 676 (1st Cir. 1987), and concededly not complied with in this case, yet nothing prescribes automatic reversal of a defendant's convictions for non-compliance, and we are aware of no cases which so hold. Appellants cite Hardy v. United States, 375 U.S. 277, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964), for the proposition that new counsel on appeal³  cannot properly represent their clients without an "entire transcript." Id. at 279-80, 84 S. Ct. at 426-27. Hardy held that an indigent federal defendant is entitled to a trial transcript free of charge in order to perfect an appeal; we do not read it to have created a rule mandating reversal for less than a verbatim account.

Alternatively, appellants suggest we follow the Fifth Circuit's view that new counsel on appeal may obtain reversal for lack of a verbatim transcript under § 753(b) (1) merely by showing the missing portion is "substantial and significant," United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977), and that any reconstruction thereof is less than "substantially verbatim." United States v. Pace, 10 F.3d 1106, 1124-25 (5th Cir. 1993), cert. denied, --- U.S. ----, 114 S. Ct. 2180, 128 L. Ed. 2d 899 (1994). True, in Hardy the Court observed that the right established by Federal Rule of Criminal Procedure 52(b) to have "plain errors or defects" noticed by the court "is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended." 375 U.S. at 280, 84 S. Ct. at 427. Yet this was in the context of deciding whether or not appellant should be afforded a transcript at all. We do not take this statement to mean that if no verbatim transcript is available that an effective appeal is not possible.

The majority of circuits construing § 753(b) (1) have held that to obtain reversal and a new trial, whether or not there is new appellate counsel, defendant must show specific prejudice to his ability to perfect an appeal, beyond mere non-compliance with the act. See United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert. denied, 474 U.S. 1068, 106 S. Ct. 826, 88 L. Ed. 2d 798, and cert. denied, 474 U.S. 1069, 106 S. Ct. 828, 88 L. Ed. 2d 800 (1986) (disagreeing with Selva) ; United States v. Sierra, 981 F.2d 123, 126-27 (3rd Cir. 1992), cert. denied, 508 U.S. 967, 113 S. Ct. 2949, 124 L. Ed. 2d 696 (1993) (same); United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.), cert. denied, 498 U.S. 963, 111 S. Ct. 398, 112 L. Ed. 2d 407 (1990) (same). But see United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993) (as successor court to former Fifth Circuit, bound by Selva) . We have indicated preference for the majority view, see Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978) (holding that if § 753(b) (1) applied to extradition proceedings, reversal on account of non-compliance would require showing specific prejudice), and explicitly adopt it today.

Appellants conceded to the trial court that the government's reconstruction of its main closing argument is substantially accurate. This should enable effective review for plain error, yet appellants make no particularized claim that such error occurred. Nor do they make any claim that plain error could have occurred during the closing arguments of one of their own attorneys. With respect to the government's rebuttal, we are hard-pressed to conceive what sort of illegitimate argument could have been made during these few moments that might have "so poisoned the well that the trial's outcome was likely affected," Arrieta-Agressot v. United States, 3 F.3d 525, 528 (1st Cir. 1993) (quoting United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987)), nor do appellants suggest any based on the reconstruction that was submitted. In any event, given the quantity and strength of the evidence against all three appellants from the testimony of several co-conspirators--eye-witnesses to their involvement in the various preparations, possessions and transactions amounting to the offenses charged--we are not persuaded that any deficiency could have risen to a miscarriage of justice; i.e., even if the rebuttal was tainted by some imaginable error, we would not find "a substantial chance that absent the error the jury would have acquitted." Id. We therefore uphold the district court's conclusion that appellants' ability to perfect an appeal was not prejudiced, and turn now to the merits of their claims.

On the morning of trial the defense made a final request for continuance based on the last minute decision of Jorge Hernandez Miller, the lead co-conspirator, to plead guilty and become the government's chief witness. Remaining defendants argued this necessitated more time to adjust trial strategy and gather information to impeach him. After thorough exploration, the court, though sympathetic, saw no justification for delay:

[Y]ou had the opportunity to interview him ... as you told me in chambers that this has been done and now that all the Jencks Act [material] has been turned over ... the latest bits of information that were generated like the interviews [of the witness] with the agents ... are going to be turned over to you including rough notes, ... I will not continue this case.

A trial court has wide discretion to grant or deny a request for continuance. United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995). "Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel," and would amount to an abuse of that discretion. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 1616-17, 75 L. Ed. 2d 610 (1983) (internal quotations omitted). We assess appellants' special reasons, plus relevant factors such as the amount of time needed for effective preparation and the amount actually available, diligence in preparing for trial and whether the defense contributed to its perceived predicament, the likely utility of a continuance, inconvenience to the court, opposing party, and witnesses, and any unfair prejudice caused by the denial. Saccoccia, 58 F.3d at 770 (citations omitted).

Appellants allege the court failed to address "special circumstances of an emergent nature beyond their control." They claim that after Miller's change of plea they suddenly faced an unexpected need to gather impeachment material and to do additional preparation, as they had divided responsibilities among themselves due to the considerable volume of trial material involved,⁴  and Miller's defection overburdened the remaining defendants. They contend they "could not have been more diligent," would have found valuable impeachment material if granted additional time, and were prejudiced in cross-examining Miller because of the denial; inconvenience to others, by comparison, was minimal.

Appellants' accusations against the court are unfounded. As the court pointed out, the defense had had ample time and substantial assistance from the court to prepare for trial, and although more might have helped, that is always true. Defense counsel could have anticipated that a division of labor strategy might leave them in a bind if one dropped out, especially since the original indictment included some 31 co-defendants who had been pleading out on a regular basis up to and even during trial. The court was very careful to elicit from counsel precisely what more they thought they needed and hoped to find to impeach Miller, and why. It gave a thoroughly reasoned response, observing that the defense had been given unlimited access to the witness for four days prior to the start of trial and at least several more afterward until he took the stand, a "dream for a defense attorney," as well as notes government agents had taken during their interviews of the witness. There was no abuse of discretion in ruling this was sufficient.

We add only that we do not see, even with hindsight, what more a continuance would have achieved. The defense had apparently hoped to discredit Miller by implicating him in the uncharged murders of several accomplices in the cocaine conspiracy, and wished more time to locate, interview and subpoena witnesses who could tie Miller to these crimes. The court, however, in a pre-trial ruling, had strictly prohibited introduction of extrinsic evidence of Miller's involvement in the murders and limited cross-examination in reference to these crimes strictly to questioning his motivation to enter the plea agreement,⁵  in accordance with Federal Rule of Evidence 608(b).⁶  See Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1979). As to this, post.

Before trial government counsel had informed the defense and the court that Miller had stated during plea negotiations that he had decided to plead guilty because "he thought that he was going to be imputed with some murders to which he denies, and ... the reason that motivated him is because he wanted to clear the record that in fact he did not participate in those murders." During a pre-trial interview Miller had told defense counsel roughly the same--that he was afraid "the government ... [was] going to bring a massacre against him, a murder against him, but he also stated to us that in fact he did not do that." The plea agreement was admitted in evidence. It made no mention, of course, of murders.

During cross-examination defense counsel sought vigorously to impeach Miller's testimony linking their clients to the drug venture by attempting to solicit an admission from Miller that he was motivated to cooperate with the government by a desire to "minimize the severity of the accusations against himself," specifically by avoiding being implicated in, or charged with, the murders. Miller repeatedly denied such motivation, professing only a desire to "repent" and "tell the truth."

Appellants now contend this was an outright lie that due process required the government to correct.⁷  They rely principally upon Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), which held that a defendant's due process rights under the Fourteenth Amendment required reversal of his conviction where the prosecutor failed to correct a witness' denial of receiving promises of leniency in exchange for his testimony, knowing it was false, even though the prosecutor had not himself solicited the falsity. 360 U.S. at 269, 79 S. Ct. at 1177. The Court said this principle, "implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness." Id. Nor did the fact that the jury was presented with other grounds for questioning the witness' credibility "turn[ ] what was otherwise a tainted trial into a fair one." Id. at 270, 79 S. Ct. at 1177. Appellants contend defense counsels' equal knowledge of Miller's pre-trial admissions cannot alleviate the government of its duty in this case to bring this impeachment "evidence" before the jury.

There are two answers to this. The first is that the court had already ruled that testimony of murders was too prejudicial to be admitted. But, more important, although defendant refused this specific characterization of his motives, he did concede to believing the plea agreement meant that "if I speak about things of which I have knowledge or in which I have taken part, I wouldn't be indicted for them," and "would be sentenced to fewer years." This was a sufficient acknowledgment that his claim of rebirth was less than genuine; there could be no question the government had no duty to go further.

Having raised no objections to any aspect of the jury instructions at trial, Aponte now claims plain error both in the court's explanation of reasonable doubt and in its failure to give a requested instruction on the defendant's exercise of his right to remain silent. The following instructions (emphasis ours) contain the alleged errors:

A reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty.

If after a careful and impartial consideration with your fellow jurors of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration with your fellow jurors of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

... Each defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not-guilty verdict.

Aponte contends that by the first paragraph the court permitted the jury to convict by a degree of proof lower than constitutionally required. He argues that "firmly convinced" suggests a burden of proof akin to the civil "clear and convincing" standard, use of which is impermissible in a criminal case. See Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1808-09, 60 L. Ed. 2d 323 (1979) (clear and convincing is an "intermediate standard" between preponderance of the evidence and proof beyond a reasonable doubt); In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368 (1970) (guilt in a criminal case must be proved by no less a standard than "beyond a reasonable doubt"). According to Aponte, it is linguistically impossible to conceive how "firmly convinced" could equate with "beyond a reasonable doubt," when "clear and convincing" does not.

Assessing the instructions as a whole, Victor v. Nebraska, --- U.S. ----, ----, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994), we conclude that the emphasized portions adequately and ultimately conveyed an accurate, unambiguous and comprehensible description of the government's burden and the standard for acquittal. Whether or not the "firmly convinced" definition alone would be constitutionally sufficient to convey the meaning of proof beyond a reasonable doubt, the court's further exposition here left no doubt that the jury's duty was to convict only upon reaching consensus as to guilt beyond a reasonable doubt.⁸  Nothing further is required. United States v. Andujar, 49 F.3d 16, 23 (1st Cir. 1995).B.

As was his right, Aponte elected not to testify, and requested the following instruction be given to the jury:

Under the law, a defendants [sic] does not need to testify, since it is the Government who must prove her [sic]⁹  guilty beyond a reasonable doubt. No presumption or inference of guilt may be made or drawn.

The court declined, instructing instead as quoted above. While he did not object, Aponte now claims violation of his constitutional rights.

The Fifth Amendment guarantees a criminal defendant both the right to remain silent and that no adverse inferences may be drawn from his exercise of this right. Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 1121-22, 67 L. Ed. 2d 241 (1981). Further, "when the defendant makes a timely request that a prophylactic instruction be given ... [the court] has the constitutional obligation ... to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." Id.¹⁰  We have not read Carter to require use of the exact wording requested, however, so long as the trial court's instructions complied with this obligation. United States v. Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989).

Our question is whether instructing that the government has the burden of proof and that defendant does not have to testify or present evidence adequately communicates that no adverse inferences may be drawn from the fact that he does not testify. The government urges that we answered this affirmatively in Ladd, where we approved an instruction that the defendant's silence "cannot even be considered by you in arriving at your verdict." Id. Not so. A jury might well think that a defendant's right not to testify means merely that he cannot be called as a witness, leaving it to draw such conclusions from his silence as it felt warranted. An instruction not to consider his failure to testify precisely forbids drawing inferences. Ladd, 877 F.2d at 1089. Here, however, the court mentioned nothing beyond the defendant's right not to testify or present evidence. Carter v. Kentucky makes clear that, once request for a no-adverse-presumption instruction has been made, the "full and free exercise" of the constitutionally guaranteed privilege against self-incrimination requires more than instruction on the right not to testify and to be presumed innocent until proven guilty. 450 U.S. at 305, 101 S. Ct. at 1121-22. See also United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984) (holding instructions similar to those given here constitutionally deficient under Carter) .

We also find, per United States v. Olano, 507 U.S. 725, 736-37, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993), that the forfeited error was "plain," and "affect[ed] substantial rights" within the meaning of Fed. R. Crim. P. 52(b). See Bruno v. United States, 308 U.S. 287, 293-94, 60 S. Ct. 198, 200-01, 84 L. Ed. 257 (1939) (failure to give requested instruction cautioning against drawing presumptions from defendant's failure to testify was not a mere "technical erro[r] ... which do[es] not affect ... substantial rights...."). We therefore perceive discretion to reverse, but no obligation to do so. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 734-36, 113 S. Ct. at 1778. See also Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827-28, 17 L. Ed. 2d 705 (1967) (not every constitutional error automatically requires reversal).

Olano contemplates that we guide our discretion under Rule 52(b) by further determining whether the error "seriously affect[ed] the fairness, integrity or public reputation of the judicial proceedings." 507 U.S. at 736, 113 S. Ct. at 1779 (internal quotations omitted). We have long realized that among the things we may consider is the weight of the evidence of guilt or innocence, without casting it favorably to the government or presuming that credibility issues were resolved in its favor, Arrieta-Agressot, 3 F.3d at 528, to determine whether the error could have made any difference to the verdict.¹¹  We do not view Olano as having removed or limited such an assessment from our discretionary consideration as a general matter. However, the Court has deemed a small number of "structural defects" not amenable to "quantitative[ ] assess[ment]," Arizona v. Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302 (1991), including total deprivation of the right to counsel at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)), and lack of an impartial judge (Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)). Id. at 309, 111 S. Ct. at 1264-65. See also id. at 310, 111 S. Ct. at 1265 (citing additional cases); Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182 (1993) (constitutionally deficient reasonable doubt instruction). The distinction these special errors share is that they are "structural defects in the trial mechanism" which affect "the entire conduct of the trial from beginning to end" and "without [which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence," rather than being simply "error[s] in the trial process itself." Fulminante, 499 U.S. at 309-10, 111 S. Ct. at 1265 (internal quotations omitted). We think failure to give a requested Carter instruction falls comfortably in the latter category. It is not the sort of error for which an assessment of the evidence is unsuitable precisely because it concerns the evidentiary value the jury may give to a defendant's election not to testify on his own behalf. Carter, 450 U.S. at 305, 101 S. Ct. at 1121-22. On this basis we are confident in saying that the uncontradicted evidence against appellants Aponte and Pulliza, from the testimony of several co-conspirators involved in various aspects of the scheme, was overwhelming, and the verdict rendered would have ensued regardless of the error. In sum, although "the failure to limit the jurors' speculation on the meaning of [the defendant's] silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of [defendant's Fifth Amendment privileges]," id., we do not believe it could have seriously affected the fairness of the proceedings.

Aponte maintains that because the same offenses underlying his convictions also formed the basis of a civil forfeiture of some personal assets, pursuant to the Controlled Substances and Money Laundering Acts, 21 U.S.C. §§ 881(a) (6) and (7) and 18 U.S.C. § 981, respectively, his criminal sentence constitutes a prohibited second punishment, for the same offenses, in violation of the Double Jeopardy Clause of the Fifth Amendment. See, e.g., United States v. Dixon, 509 U.S. 688, ----, 113 S. Ct. 2849, 2855-56, 125 L. Ed. 2d 556 (1993).

The Clause only becomes relevant, however, once a defendant has first been placed in jeopardy, and "even then, it is only the second proceeding that is constitutionally endangered." United States v. Pierce, 60 F.3d 886, 889 (1st Cir. 1995), pet. for cert. filed, Oct. 19, 1995 (No. 95-6474). Aponte contends, against all authority, that jeopardy in the criminal case did not attach until his sentencing, well after imposition of the civil penalty.¹²  We regard it as beyond question that "jeopardy attaches when the jury is empaneled and sworn." Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 2161, 57 L. Ed. 2d 24 (1978). Pierce, 60 F.3d at 889. A glance at the sequence of events in this case, supra note 12, reveals that the criminal sanction therefore cannot have been second to the forfeiture, and thus whether or not civil sanctions under 21 U.S.C. §§ 881(a) (6) and (7) and 18 U.S.C. § 981 even constitute punishment for the purposes of the Double Jeopardy Clause is a question we need not reach.

The convictions of appellants are therefore affirmed.