UNITED STATES COURT OF APPEALS For the Fifth Circuit __________________________________________
No. 98-41331 _________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NATHANIEL HOWARD THOMAS; JOHNNY MARIO URBANO; and ISRAEL ABEL TORRES, also known as “PEE WEE,”
Defendants-Appellants.
__________________________________________
Appeals from the United States District Court for the Eastern District of Texas (4:98-CR-14 ) __________________________________________ July 5, 2000 Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM1:
I. FACTUAL AND PROCEDURAL HISTORY
This is a direct appeal from final judgments of convictions and sentences in the United
States District Court for the Eastern District of Texas. The three Appellants named in this case
were tried together and charged in a 114-count indictment alleging a drug distribution conspiracy
involving substantial amounts of drugs sold in the area of McKinney, Texas. Several other
individuals were also indicted but were tried as a separate group in a trial preceding the
Appellants’ trial. All of the indicted individuals were charged with conspiracy to possess
controlled substances in violation of 21 U.S.C. § 846 (count one).2 Thomas was also charged
1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2 The controlled substances allegedly included: over 7 kilograms of crack cocaine, over 20 kilograms of powder cocaine, over 3 kilograms of methamphetamine, and over 600 pounds of with possession with intent to distribute and distributing crack cocaine in violation of 21 U.S.C. §
841(a) (counts 52-53) and with distributing crack cocaine within 1,000 feet of a playground in
violation of 21 U.S.C. § 860 (counts 107-108). Torres was also charged on identical charges
(possessing with intent to distribute in counts 54-55, and distributing within 1000 feet of a
playground in count 109), as well as a forfeiture count involving currency (count 114). Urbano
was also charged with using a communication facility to commit a controlled substance offense,
the sale of methamphetamine, in violation of 21 U.S.C. § 843 (count 60). The Appellants were
additionally charged with aiding and abetting in each of the offenses in violation of 18 U.S.C. § 2.
A pretrial conference was held April 30, 1998, at which time the district court announced
that due to the large number of defendants, the case would be held in two trials. Jury Selection
for Thomas, Torres, Urbano, and three other co-defendants was held on May 26, 1998. The
latter three co-defendants entered guilty pleas thereafter. The case against the three Appellants in
this case proceeded to trial on June 8, 1998. Prior to submission to the jury, the Government
moved to dismiss counts 55 and 109 due to the unavailability of a witness. On June 11, 1998, the
jury returned a guilty verdict on all remaining counts charged.
Each Appellant now appeals his conviction on various grounds. Only Torres challenges
his sentence. Based on his total offense level and criminal history, the guideline range for Torres’s
imprisonment was from 188 to 235 months. However, because Torres had several prior felony
drug convictions, the minimum sentence was life. Torres was sentenced to life imprisonment on
count one and to 188 months on count 54, to be served concurrently. Thomas was sentenced to
235 months imprisonment on each of five counts, all to be served concurrently. Urbano was
sentenced to 151 months on count 1 and 48 months on count 60, to run concurrently.
II DISCUSSION
A. Thomas
1. Outside influence on the jury.
marijuana.
2 We review the district court’s handling of complaints of outside influence on a jury under
an abuse of discretion standard. See United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir.
1995); United States v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996).
A juror reported the following incident to the court. The juror was standing outside a
restaurant and innocently initiated contact with a nearby stranger by asking whether the restaurant
was crowded. During this brief contact, the stranger asked the juror whether she was involved in
the trial and, after the juror responded affirmatively, the stranger mentioned that he was friends
with “those people,” which presumably referred to the defendants. The juror immediately ended
the contact, left the stranger behind, and went into the restaurant. There was no further contact
between the juror and the stranger. The juror subsequently avoided the stranger but later saw him
in the courtroom. After the juror brought the incident -- which the juror described as “rather
uneventful” -- to the court’s attention, the trial judge discussed the incident with the juror in his
chambers without alerting counsel for either side.
Thomas argues that the failure to hold a hearing regarding this incident deprived him of
the opportunity to prove the possibility of juror-bias and thereby violated his Sixth Amendment
right to a fair and impartial jury. However, we find that the district court was within his discretion
to handle such a minor incident without an evidentiary hearing. In United States v. Sylvester, 143
F.3d 923, 932 (5th Cir. 1998), we explained that the court must balance the probable harm
resulting from the emphasis a hearing would place upon the alleged misconduct against the likely
extent and gravity of the prejudice generated by the alleged misconduct. We further explained
that “only when the court determines that prejudice is likely should the government be required to
prove its absence.” Id. at 934. In this case, where the juror initiated a minor contact which was
not likely to relate in any prejudice, a hearing is not only unnecessary but in fact could only draw
unnecessary attention to an otherwise trivial event. We therefore hold that the district court did
not abuse its discretion in concluding that there was no credible allegation of jury tampering and
juror prejudice, therefore it was not necessary to hold a hearing involving all parties.
3 2. Severance
We review denial of severance and new trial motions for an abuse of discretion. United
States v. Posada-Rios, 158 F.3d 832, 836 (5th Cir. 1998) (citations omitted). To show reversible
error, Thomas must point to “clear, specific and compelling evidence that resulted in an unfair
trial.” Additionally, Thomas must show that he was so prejudiced that the district court could not
provide protection and that such prejudice outweighed the interest in judicial economy. See
United States v. Manges, 110 F.3d 1162, 1174 (5th Cir. 1997). Generally, severance should be
granted only if there is a serious risk that a joint trial would compromise a specific trial right of
one of the defendants or prevent the jury from making a reliable judgment about guilt. United
States v. Tencer, 107 F.3d 1120, 1132 (5th Cir. 1997). Experience shows that a severance is only
granted in very unusual circumstances. The general rule is that indicted co-conspirators should be
tried together. Id.
Thomas was tried with Urbano, a co-conspirator and cooperating government witness. At
trial, Urbano admitted the existence of a conspiracy, but argued for acquittal because he alleged
that the government reneged on his cooperation deal. However, there are several reasons
Thomas fails to show compelling evidence of an unfair trial. Urbano’s testimony did not implicate
Thomas as a member of the conspiracy. Thomas was thus free to argue that he was not involved
in the conspiracy and the jury was free to make an independent determination of guilt or
innocence. Moreover, Urbano’s counsel complied with the court’s instruction never to mention
Thomas and the jury instructions contained admonitions about considering the evidence against
each defendant separately. The court took all reasonable steps to protect Thomas. We cannot
say that the district court failed to provide adequate protection or that any prejudice outweighed
the interest in judicial economy. In sum, these factors do not rise to the level of clear and
compelling evidence of an unfair trial.3 We therefore affirm.
3 The only incident of possible prejudice cited by Thomas involved a witness’s note regarding a list of individuals alleged to be involved with drugs, which was arguably exculpatory because it did not include Thomas’s name, but which was excluded because it contained Urbano’s name.
4 3. Sufficiency of the Evidence
Thomas challenges his convictions for the drug conspiracy, possession of crack cocaine
with the intent to distribute, and distribution of crack cocaine within 1,000 feet of a playground.
In reviewing a sufficiency of the evidence challenge, this court examines the evidence and all
reasonable inferences drawn therefrom in the light most favorable to the verdict and will affirm the
challenged verdict if a rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is free
to choose from among all reasonable inferences and the jury has sole responsibility for
determining the credibility of witnesses. United States v. Dean, 59 F.2d 1479, 1484 (5th Cir.
1995).
Thomas argues that the evidence, even when viewed favorably to the verdict, is
insufficient to support his conspiracy conviction pursuant to 21 U.S.C. § 846. The elements of a
drug conspiracy are: (1) the existence of an agreement between two or more persons to violate
the narcotics laws; (2) knowledge of the conspiracy; and (3) voluntary participation in the
conspiracy. United States v. Mitchell, 31 F.3d 271, 274 (5th Cir. 1994).
Thomas argues that there was no direct evidence that he agreed to participate in bringing
drugs into McKinney, storing and delivering the drugs, or sharing in the profits. Thomas also
argues that there was no evidence that the defendants in his trial ever met. These arguments are
unavailing. Notably, the agreement may be tacit and the jury may infer its existence from
circumstantial evidence. United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994). Moreover, it is
not necessary that the conspiracy involve Thomas’s specific co-defendants. Posada-Rios, 158
F.3d at 858.
A review of the record and briefs reveals sufficient evidence to sustain Thomas’s
The exclusion of this list does not rise to the level of compelling evidence of an unfair trial because the list was of such marginal value as exculpatory evidence. The witness against whom Thomas attempted to introduce the list did not even mention Thomas as an individual involved with drugs. Additionally, Thomas had the opportunity to cross-examine this witness at trial to highlight that Thomas had not been listed as a person involved with drugs.
5 conspiracy conviction. There was evidence from which a jury could conclude that Thomas
admitted that over a three year period he bought, and had delivered to him, crack cocaine from
alleged members of the conspiracy. Several witnesses testified as to these transactions and a
confidential government witness testified that he had bought drugs from Thomas. There is clearly
sufficient evidence from which a rational juror could infer beyond a reasonable doubt that Thomas
was an active member of the alleged drug conspiracy. Thomas’s conspiracy conviction is
therefore affirmed.
Next, Thomas challenges his conviction pursuant to 21 U.S.C. § 841(a)(1). We shall
affirm if a jury could rationally find beyond a reasonable doubt that Thomas knowingly possessed
crack cocaine with the intent to distribute. United States v. Gonzales, 79 F.3d 413, 423 (5th Cir.
1996). Such proof may depend on inference and circumstantial evidence. Id. at 423.
Additionally, Thomas challenges his conviction under 21 U.S.C. § 860. In order to convict
Thomas of this charge, the Government had to prove that he knowingly possessed crack cocaine
within 1,000 feet of a playground. United States v. Sparks, 2 F.3d 574, 580 (5th Cir. 1993).
Viewed in the light most favorable to the verdict, the evidence was sufficient to prove that
Thomas distributed crack cocaine and did so within 1,000 feet of a playground. A witness
testified that he had bought crack cocaine from Thomas on numerous occasions. After this
witness was arrested, he agreed to make controlled (undercover) buys from Thomas and did so on
several occasions. At least one of these buys occurred at Thomas’s residence. Additionally, there
was sufficient evidence establishing that Thomas’s house was within 1,000 feet of a playground.
A McKinney city employee testified that aerial photographs of the city were digitized and entered
into a computer program that produced maps that automatically set out radii of 1,000 feet. This
map showed that Thomas’s residence was within 1,000 feet of a playground. In addition,
photographs of playground equipment near Thomas’ residence were entered through the
testimony of a police officer. In conclusion, there was sufficient evidence that Thomas distributed
crack cocaine and did so within 1,000 feet of a playground. See Sparks, 2 F.3d at 580 (holding
6 that evidence was sufficient to support two defendants' convictions for possessing with intent to
distribute crack within 1,000 feet of public school where city engineer identified aerial photograph
of place of defendants' operations and testified that photograph demonstrated that place was
within 1,000 feet of a school).
Thomas argues that the testimony of the confidential informant cannot support his
conviction because it was inconsistent. Additionally, Thomas argues the informant’s testimony
regarding his undercover purchases should not be credited because they were motivated by his
desire to have his case dismissed and because the controlled buys were not strictly enough
controlled. Thomas implies that the informant could have used drugs obtained elsewhere.
These arguments are without merit. The “strictly controlled” argument is baseless because
the evidence shows that the informant was searched before and after the drug sales. The only
inconsistency in the informant’s testimony is that he said he met the police officer at the police
station after each of four controlled buys, while the officer testified that they met twice at the
station and twice elsewhere. However, it is the province of the jury to determine whether this
witness’s testimony was credible even though he was a cooperating witness, and even though his
testimony contained minor inconsistencies. See United States v. Bailey, 444 U.S. 394, 414
(1980). Thus, we affirm Thomas’s conviction on the counts of possession with intent to
distribute cocaine, and distribution within 1,000 feet of a playground.
4. Evidentiary Rulings
Thomas argues that the district court erred with respect to the following evidentiary
rulings: (a) the admission of a map depicting the distance between Thomas’s residence and a
playground; (b) exclusion of a jailhouse conversation; and (c) refusal to recess to allow Thomas’s
counsel to obtain an audiotape. We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Parks, 68 F.3d 860, 867 (5th Cir. 1995). Even if an abuse of
discretion is found, we apply the harmless error doctrine and will reverse only if a substantial right
of the complaining party was affected. United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.
7 1997).
(a) Admission of the map. The district court allowed the government to introduce into
evidence a map derived from aerial photography but digitized to include red radii showing that
Thomas’s house was within 1,000 feet of a playground. Thomas’s counsel objected to the
admission of this map on the basis that it was hearsay and that proper foundation had not been
laid for its admission.
We find no abuse of discretion in the admission of the map, which the district court could
have reasonably found was admissible as both a public record and an official publication made as
part of the City’s regularly conducted activity. Moreover, the creator of the map testified as to its
production, thereby providing sufficient authentication. A drafting technician for the City, who
was a professional in the use of the Autocad software used to produce such maps, testified that he
had produced the map in question and had digitized it to add the red lines. As a drafting
technician, he regularly produced such maps in the ordinary course of his duties and in the
ordinary course of the City’s business. In other words, the map in question was produced by a
process regularly employed for the City’s business and the map’s creator testified in this regard.
As such, the map was demonstrated to have sufficient reliability and authenticity for admission.
See, e.g., FED. R. EVID.. 803(6) (admitting, as exception to hearsay, records of regularly
conducted activity); FED. R. EVID. 803(8) (admitting, as exception to hearsay, data compilations
of public offices); FED. R. EVID. 901- 902 (respectively noting that testimony by a witness with
knowledge provides adequate authentication and explaining that certain public records and official
publications are self-authenticating.)
Thomas complains that the production of the map was not solely the work of the drafting
technician and that the technician had not “physically gone out and measured” anything. The
production of the map relied on aerial photos of the City of McKinney which had been digitized
by a consulting firm some years earlier. These factors do not constitute hearsay or a lack of
foundation. See, e.g. United States v. Hutson, 821 F.2d 1015, 1019-1020 (5th Cir. 1987)
8 (holding that bank’s computer records were properly admitted, no requirement that witness laying
foundation also have entered data into computer or be able to attest personally to its accuracy.)
Rather they are factors relating to how much weight the jury should give to the map which were
brought to the jury’s attention during cross-examination. Thus, we are confident that no
substantial right of Thomas was affected. We therefore affirm the admission of the map.
(b) Jailhouse conversation
The district court, after holding an evidentiary hearing, excluded statements overheard in
jail which allegedly demonstrated that some of the Government’s witnesses, including Anthony
Grasso, had lied on the stand. Thomas contends that it was error to exclude these conversations
and that he was denied his constitutional right to confront his accusers and to impeach their
testimony. However, Grasso’s testimony went to the scope of the conspiracy; his testimony
directly implicated Torres and Urbano, but Thomas fails to point to any testimony by Grasso
which mentions or directly implicates Thomas. Additionally, other alleged statements attributed
to Grasso to the effect that some unspecified Government witness may have lied on the stand fails
to directly implicate Thomas. It is therefore unclear that Thomas’s substantial rights were
affected by this ruling.
Moreover, the evidentiary hearing failed to expose clear evidence that anyone had lied.
The district court heard the testimony of two prisoners claiming to have either conversed with
Grasso or to have overheard his statements. Neither man testified that he heard Grasso admit that
he had lied. One man testified that Grasso did not say that he lied, but that he would have to
testify or face life imprisonment. The other man testified that Grasso has mentioned that other
unspecified witnesses had lied and that Grasso would say what he had to say in order to get his
time reduced. The district court did not abuse its discretion by excluding these conversations
which: (a) did not impeach any specified witness who had directly implicated Thomas, (b) did not
contain statements to the effect that Grasso had lied, and (c) merely raised issues regarding
Grasso’s motivation for testifying which were already before the jury.
9 (c) Audio Tape. Thomas argues that the district court abused its discretion when it refused
to recess to allow Thomas’s counsel to obtain an audio tape relating to the credibility of a
Government witness. During the Government’s case, officer Cogwell testified that Thomas had
told him that he had purchased crack cocaine from two conspiracy members over 100 times. In
an attempt to impeach Cogwell’s testimony, Thomas wished to introduce a tape containing
Thomas’s statement that he never purchased anything from alleged conspiracy members. In other
words, the denials on the tape are the same as those which the jury heard when Thomas took the
stand. Therefore, even if the exclusion of the tape was error, Thomas was not prejudiced. Either
way, the issue would have been the jury’s determination of the credibility of Thomas’s statements.
We have rejected Thomas’s challenges regarding outside influence on the jury, the denial
of severance, the sufficiency of the evidence, and the admission of evidence. Having found no
error, Thomas’s conviction and sentence are therefore affirmed.
B. Urbano
Urbano objects to the exclusion of the afore-mentioned jailhouse conversations, but on
different grounds. Urbano argues that Grasso’s statement that several unspecified witnesses who
had testified on the conspiracy charges had lied was broad enough to include witnesses such as
Bobby Enloe and Shawn McPeak, who had testified as to their personal knowledge of Urbano’s
drug activities. After reviewing the record, we find the district court was within its discretion in
excluding this evidence. Because Urbano can only speculate that Grasso’s comments included
Enloe and McPeak, the district court could reasonably conclude that the statement could only
confuse the jury and result in undue delay. Thus, the district court’s decision to exclude the
evidence was reasonable. Alternatively, we note that any error would be harmless given Urbano’s
admissions of substantial drug dealing, at least one other witness’s testimony regarding drug
deliveries to Urbano’s home, and cellular phone records showing phone and pager calls between
Urbano and conspiracy ringleaders. Having found no error, Urbano’s conviction is therefore
affirmed.
10 C. Torres
1. Sentence Enhancement
Torres arrived at his trial in this case with multiple prior felony convictions for drug
offenses. Torres was then convicted at this trial under 21 U.S.C. § 841(a)(1). On the basis of his
prior felony convictions, he was sentenced to mandatory life imprisonment under 21 U.S.C. §
841(b)(1)(A), which provides that if a person commits a violation of § 841(a)(1) “after two or
more prior convictions for a felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment without release.” Naturally, the purpose of
the mandatory minimum is to deter future criminal conduct and target recidivism. United States
v. Hass, 150 F.3d 443, 449 (5th Cir. 1998). Torres’s case fits both the language and the purpose
of the sentencing enhancement statute because, according to two of his drug-crime accomplices,
Torres continued to deal drugs after his prior felony drug convictions became final and after he
was released after serving time for those convictions.
Torres now challenges his sentence enhancement. We review the district court’s
application of the Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Ashburn, 20 F.3d 1336, 1339 (5th Cir. 1994). The district court has wide discretion in
evaluating the reliability of the information presented before it and making the determination as to
whether or not to consider it. Id. The district court need only determine its factual findings by a
preponderance of the relevant and sufficiently reliable evidence. Id. The defendant bears the
burden of proving that the evidence used against him in sentencing is materially untrue, inaccurate
or unreliable. Id.
Torres argues that his sentence should be vacated because it was based on the “unreliable”
and uncorroborated testimony of his drug accomplices who were testifying as a result of a plea
agreement. Torres also complains that the witnesses did not give a prior written statement prior
to their in-court testimony. We reject this challenge. First, the testimony at issue was sworn
testimony given under oath in open court. Cases cited by Torres merely hold that unsworn
11 accusations of a co-defendant generally do not bear sufficient indicia of reliability to be considered
by a trial court at sentencing. See United States v. Ashburn, 20 F.3d 1336, 1349 (5th Cir. 1994),
United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). Moreover, the lack of prior written
statements goes only to credibility. The district court did not commit clear error by finding this
sworn testimony was credible. Thus, the district court did not err in imposing a mandatory life
sentence pursuant to 21 U.S.C. § 841(b) because there was credible evidence to support the
finding that Torres continued in the drug conspiracy after his multiple, prior felony drug
convictions became final.
Finally, Torres challenges his sentence on due process grounds. He argues that the
prosecution’s ability to offer inducements, e.g., reduced sentences, immunity, etc., to a witness in
exchange for the testimony used to enhance his sentence violates his due process rights. Torres
argues this is so, in part, because the ability is non-reciprocal, i.e., Torres’s counsel is constrained
by ethical rules from offering similar inducements. However, Torres offers no case to show that
such the use of plea-bargains and offers of lower sentences, even though non-reciprocal, violate
due process. In fact, “no practice is more ingrained in our criminal justice system” than the
practice of the government calling a witness to testify under a plea bargain that promises him a
reduced sentence. United States v. Haese, 162 F.3d 359, 366 (5th Cir. 1998). In his brief, Torres
suggests the Government offered money (a “contingent fee”) in exchange for testimony.
However he offers no proof or citations to the record to support such a contention. At any rate,
Torres’s challenge is barred by United States v. Cervantes-Pacheco, 825 F.2d 310 (5th Cir. 1987)
in which we held that there is no per se rule against finding that an informant paid a contingent fee
is nonetheless a competent witness. In fact, we noted in Cervantes that a witness who is paid a
fee for his services has less of an inducement to lie than witnesses who testify with promises of
reduced sentences. Id. Thus, the fact that the witnesses were offered inducements in exchange
for their testimony is just a credibility factor for the district court to consider. As we noted above,
the district court did not abuse its considerable discretion in determining that the witness’s
12 testimony was credible pursuant to sentencing Torres. Additionally, Torres brings no evidence
which even suggests this is a rare case in which the use of a reduced sentence, a contingent fee, or
any other inducement to testify is so outrageous as to violate due process. See United States v.
Ray, 811 F.2d 1453, 1456-7 (11th Cir. 1987) (rejecting per se exclusion while noting that rare
circumstances might arise in which the use of a contingently motivated informer might be so
outrageous as to violate due process.) We therefore affirm Torres’s sentence.
2. Denial of request for transcript
Torres argues that he made a motion for the transcripts from his first trial, in which he was
granted a mistrial, in order to prepare a defense against those witnesses who testified against him
in the first trial and would do so again at his second trial. Although the mistrial was granted on
May 18, 1998, Torres did not make a request for the transcripts of that trial until May 29, 1998.
The request involved 700 pages of testimony, and was made ten days before the second trial
started on June 8, 1999. The district court denied the motion, finding that its lateness of the
motion meant that the court reporter did not have enough time to transcribe the testimony
without delaying the second trial.
It is clear that an indigent defendant must be provided a transcript of prior proceedings
when needed for an effective defense. See Britt v. North Carolina, 404 U.S. 226, 227 (1971);
United States v. Pulido, 879 F.2d 1255, 1256 (5th Cir. 1989). This right is limited, however.
The two factors bearing on the determination of need for transcripts for an effective defense are:
(1) the value of the transcript to the defendant in connection with the proceedings for which it is
sought, and (2) the availability of alternative devices – such as cross-examination of the witness to
be impeached – that would fulfill the same functions as the transcript. Britt, 404 U.S. at 227. We
have consistently recognized that an indigent is entitled to a complete transcript free of charge
without showing a particular need for the transcript. See id. at 228; United States v. Smith, 605
F.2d 839, 843 (5th Cir. 1979). Thus, the determination of need in this case comes down to the
availability of alternative devices.
13 In addition to the factor of need, timing and availability provide another limit on an
indigent’s right to a transcript. An indigent defendant may not be deprived of "the basic tools of
an adequate defense or appeal, when those tools are available for a price to other prisoners."
Britt, 404 U.S. at 227 (emphasis added). In other words, courts are required to make transcripts
as available to indigents as they are for those who can pay. Where, as here, there is an issue as to
whether the court was given adequate time to prepare the requested transcripts for anybody,
indigent or not, we have given “significant weight to the timing of defendant’s last minute
request.” United States v. Smith, 605 F.2d 839, 843 (5th Cir. 1979). See also, Pulido, 879 F.2d
at 1257. Finally, a district court’s managerial decisions are reviewed for abuse of discretion.
Smith, 605 F.2d at 843.
Torres’s motion requested all the testimony of all the witnesses who had previously
testified in the original trial. In addition, it specifically asked for the previous testimony of Paul
Cogwell, a McKinney police officer who had testified regarding Torres’s participation in a
controlled purchase of drugs.
As regards Cogwell, we find that the alternative device of cross-examination was
effectively employed in lieu of the transcript. The only identified discrepancy in Cogwell’s
testimony was whether Torres returned to his apartment (which is what Cogwell testified at trial)
or drove off in a car (which is how the report on the incident read) after the alleged buy took
place. Defense counsel vigorously cross-examined Cogwell about which account was true, and
Cogwell admitted that he did not know why the report was different than his testimony. Thus,
counsel was able to attack Cogwell’s credibility without the transcript of his prior testimony.
Because the alternative used by counsel fulfilled the same function as a transcript, there was no
error in denying the request for the transcript, and any error, if made, was harmless.
We note that Torres also argues that the lack of a transcript impaired his ability to cross-
examine other witnesses who had testified about Torres’s involvement in various drug
transactions. The district court noted that it may have been able to fulfill a more limited request
14 for specific, identified portions of the transcript. However, the record does not show that Torres
made a specific request for the testimony of any of these witnesses from the first trial. Thus,
putting aside the request for Cogwell’s testimony, Torres made an indiscriminate request for 700
pages of transcript, and did so just ten days before the beginning of the second trial. In the
absence of a request for specific testimony, the issue here, therefore, is whether the entire
transcript request was reasonably available and whether the district court erred in denying this
broad request. As noted, our case law frowns on the last minute, indiscriminate requests for
transcripts in lengthy trials such as the one at issue here. United States v. Smith, 605 F.2d 839,
843 (5th Cir. 1979) (requesting over 1000 pages of testimony five days prior to trial); United
States v. Pulido, 879 F.2d 1255, 1257 (5th Cir. 1979). Given this caselaw, we find that the
district court did not err in refusing to provide the entire transcript where the district court
reasonably determined that the untimely and indiscriminate nature of the request made compliance
with that request impossible.
In conclusion, we find no error in the denial of the full transcript or in the imposition of
Torres’s life sentence. We therefore affirm Torres’s sentence and conviction.
III. CONCLUSION
The convictions and sentences of all Appellants are hereby AFFIRMED.