Moreno v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 29, 2021
• Docket: 20-6151
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 29, 2021 _________________________________ Christopher M. Wolpert Clerk of Court BANI MORENO,

Petitioner - Appellant, No. 20-6151 v. (D.C. No. 5:20-CV-00535-R) (W.D. Okla.) UNITED STATES OF AMERICA,

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. _________________________________

This appeal involves a request for mandamus, which grew out of a

jury trial on drug charges. 1 After the trial, defendant Bani Moreno

* Because oral argument would not materially help us decide the appeal, we base our decision on the briefs and record on appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 The trial resulted in convictions on five counts:

• one count of conspiring to possess methamphetamine with intent to distribute,

• two counts of using a communication device to facilitate a drug transaction, requested the court reporter’s backup audiotapes. The district court denied

the request, and Mr. Moreno appeals from this ruling and seeks leave to

proceed in forma pauperis. We affirm the denial of mandamus but grant

leave to proceed in forma pauperis.

Mandamus

Mandamus is a “drastic remedy” that is highly discretionary and

justifiable only in “extraordinary circumstances.” In re Cooper Tire &

Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (quoting

Barclaysamerican Corp. v. Kane, 746 F.2d 653, 655 (10th Cir. 1984)). To

justify this drastic remedy, a petitioner must show

• the absence of other adequate means to obtain relief and

• a “clear and indisputable” right to mandamus.

Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309 (1989)

(quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)).

Mr. Moreno alleges satisfaction of these requirements based on his

recollection of trial testimony that does not appear in the transcript. Based

on this allegation, Mr. Moreno wanted the court reporter’s backup

audiotapes in order to check the accuracy of the trial transcript.

• one count of distributing methamphetamine, and

• one count of possessing methamphetamine with intent to distribute.

2 In our view, Mr. Moreno has not shown a clear, indisputable right to

the backup audiotapes. The district court recognized Mr. Moreno’s right to

access the court reporter’s notes. But Mr. Moreno also wanted the backup

audiotapes, which were the court reporter’s personal property. See 6 Guide

to Judiciary Policy § 510.40.10(c)(1) (“Backup recordings made by court

reporters for their own convenience and not otherwise required by 28

U.S.C. § 753 are the personal property of the court reporter.”); see also

Smith v. U.S. Dist. Court Officers, 203 F.3d 440, 442 (7th Cir. 2000)

(stating that backup audiotapes are the court reporter’s personal property).

The district court must safeguard the court reporter’s backup audiotapes

unless there is some reason to distrust the accuracy of the transcript. See

Smith, 203 F.3d at 442 (stating that the backup audiotapes should not “be

deemed judicial records, unless some reason is shown to distrust the

accuracy of the stenographic transcript”).

The court reporter attested to the accuracy of Mr. Moreno’s trial

transcript, and this attestation constituted prima facie evidence of the

transcript’s accuracy. United States v. Austin, 954 F.3d 877, 879 (6th Cir.

2020). Despite this prima facie evidence of accuracy, Mr. Moreno points

out that (1) the attestation is not necessarily foolproof and (2) his memory

diverges from the transcript. But parties, attorneys, and judges often

misremember what was said in a court proceeding, particularly when trying

to remember what had been said years earlier.

3 Mr. Moreno moved for the writ roughly 7-1/2 years after the trial. To

justify a writ requiring production of the court reporter’s property, Mr.

Moreno had to do more than just say that his memory of what was said

over seven years ago had diverged from the transcript. But he didn’t

present any other evidence to support his recollection of what had been

said at the trial. So he has not shown a clear, indisputable right to

mandamus relief. We thus affirm the denial of mandamus.

Leave to Proceed in Forma Pauperis

Though we affirm the denial of a writ of mandamus, we grant leave

to proceed in forma pauperis.

To obtain leave to proceed in forma pauperis, Mr. Moreno must show

that he

• lacks the money to prepay the filing fee and

• brings the appeal in good faith.

28 U.S.C. § 1915(a)(1), (a)(3). Mr. Moreno satisfies both requirements. He

cannot prepay the filing fee, and we have no reason to question his good

faith. We thus grant leave to proceed in forma pauperis.

Entered for the Court

Robert E. Bacharach Circuit Judge