United States v. Armando Jose Riascos

944 F.2d 442, 1991 U.S. App. LEXIS 21728, 1991 WL 179440
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 16, 1991
Docket91-1018SD
StatusPublished
Cited by13 cases

This text of 944 F.2d 442 (United States v. Armando Jose Riascos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Armando Jose Riascos, 944 F.2d 442, 1991 U.S. App. LEXIS 21728, 1991 WL 179440 (8th Cir. 1991).

Opinion

ARNOLD, Circuit Judge.

This is a drug case. Armando Riascos appeals his conviction and sentence for conspiring to distribute five kilograms of cocaine. 18 U.S.C. §§ 841, 846. Riascos says he did not get a fair trial. He gives two reasons. During its deliberations, his jury used transcripts that were not in evidence of tape recordings that were in evidence. And one of his co-conspirators testified that he and Riascos had distributed drugs before. Riascos also finds fault with his sentence. He claims the District Court 1 erred in calculating his sentence by using the five kilograms he promised to deliver instead of the two and one-half grams that were actually delivered. Riascos also claims he was not a leader or organizer of the conspiracy. The District Court found that he was.

None of Riascos’s assignments of error has merit. Any error resulting from the jury’s use of the transcripts was harmless. Admitting the challenged co-conspirator’s testimony was not an abuse of discretion. And we see no error in Riascos’s sentence. We therefore affirm.

Riascos argues that his jury was improperly swayed by information not in evidence: the transcripts of certain tape recordings. This conspiracy was far-flung. Riascos, a Colombian living in Miami, was to be the source of cocaine bound for South Dakota. Undercover agents and a former co-conspirator working for them taped several conversations where the plan was laid and pursued. Those tapes were admitted into evidence and played for Riascos’s jury. The law in our Circuit, United States v. McMillan, 508 F.2d 101 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975) (Webster, J.), allows transcripts of such recordings to be distributed to the jury. The point is to help them follow what are often poor-quality recordings, in which it is difficult to keep track of the various speakers. The transcripts are then collected before the jury begins deliberating. The law also requires that the District Court explain to the jury that the *444 tapes — not the transcripts — are the evidence, and that the transcripts are only to help them understand the tapes. McMillan, 508 F.2d at 105-06. This distinction may be more theoretical than real. It is, however, the rule of our Court, and it governs this case.

The District Court followed McMillan to the letter during the trial proper. The problem, Riascos urges, came later, during the jury’s deliberations. The jury sent the following note to the District Judge: “May we use the written transcripts of the tapes to find information to listen to on the tapes[?]” Addendum 10. The Court instructed the clerk to assemble the transcripts and deliver them to the jury. Neither counsel was notified. Nor was the cautionary instruction — that the transcripts are not evidence — repeated.

Riascos was recorded on only one of the tapes. He mounted this defense at trial: he could not obtain the cocaine, and he never intended to supply it. He planned instead, he claimed, to steal the South Dak-otans’ money and deliver nothing. The particulars of the tape recording of Rias-cos — his tone, inflection, and manner of speaking — were allegedly essential to his deception defense. Faced with the written words, he continues, the subtleties of the conversation were lost to his jury, and his conviction resulted. Riascos makes one other point. He challenges the accuracy of the transcripts. Though he reluctantly allowed their use at trial to guide the jury, he says he was denied the chance to check them carefully, as he would have done had he been told the jury would have them during their deliberations.

We believe any error here is harmless. It is true that Riascos never conceded at trial that the transcripts were completely accurate. Neither in his brief nor at oral argument, however, has he pointed to any specific inaccuracy, material or otherwise. Riascos presses instead that we cannot be sure that there is not an error in the transcriptions. The possibility of error, however, is not enough to justify a reversal. Without specific allegations of error to guide us, we must assume that the transcripts were accurate representations of the tapes. Further, the jury’s note belies the claim that the transcripts rather than the tapes moved them to a verdict. Judge Battey’s admonition must have been hanging in their minds: they requested the transcripts as maps to the tapes, not as independent sources of information. We presume the jury was as good as its word. Since there is no real dispute about the transcripts’ accuracy, and since the jury’s note reveals its proper intentions, we see no reversible error here. Compare United States v. Costa, 691 F.2d 1358, 1362-63 (11th Cir.1982) (per curiam). The Court certainly should have informed counsel about the jury’s note and allowed them to be heard on what would be a proper response. But no prejudice from this error has been shown.

Riascos also claims the testimony of John Showalter deprived him of a fair trial. Showalter, a co-conspirator turned government agent, testified about his prior drug dealings with Riascos. These transactions happened long ago, some even in another country, and were arguably not similar to the conspiracy alleged here. Riascos claims that the prejudice of this evidence far outweighed any probative value it might have had. The District Court, he continues, erred in admitting this other-crimes evidence. Fed.R.Evid. 404(b). We disagree. The District Court, admirably aware that this was a nettlesome question, held a hearing in chambers before admitting the challenged testimony. The Court concluded that Riascos’s prior dealings with Showalter did not raise a 404(b) question. The prior transactions went, rather, to Showalter’s knowledge of where he could get cocaine. This reasoning is correct. The District Court, however, went even further to protect Riascos. During the challenged testimony, the Court instructed the jury about Showalter’s evidence this way:

The defendant is on trial for the offense charged in the indictment and the fact that he may have been involved in a marijuana shipment, he is not on trial for that act. But you can consider the facts *445 under that in the other contacts which this witness had with the defendant to determine whether this witness knows what he is talking about when he is talking about Mr. Riascos’ involvement in this case.

T. 222. The testimony was properly admitted. And the District Court’s admonition further insulates its decision here.

Riascos was sentenced to twelve years and seven months in jail. He argues that this sentence is too harsh. The five kilograms of cocaine he promised were never delivered. Only a small sample, two and one-half grams, were handed over. Moreover, Riascos claims he never intended to produce that much cocaine, and that he could not have done so even if he had wanted to.

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Bluebook (online)
944 F.2d 442, 1991 U.S. App. LEXIS 21728, 1991 WL 179440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-armando-jose-riascos-ca8-1991.