United States v. Pace

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 90-1992
_____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

JACKY RONALD PACE,
Defendant-Appellant.

__________________________________

Appeal from United States District Court
for the Northern District of Texas
_________________________________
(December 17, 1993)

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and
WINGATE*, District Judge.

WINGATE, District Judge:

Appellant Jacky Ronald Pace was convicted on September

15, 1989, by a district court jury of all counts of a nine-count

indictment charging him with conspiracy to commit certain con-

trolled substance offenses, various substantive drug offenses,

and using a firearm in relation to a drug offense, all in viola-

tion respectively of Title 21 U.S.C. §§ 846, 841(a)(1) and Title

18 U.S.C. § 924(c). Aggrieved over the convictions, appellant

now raises four issues for review: (1) whether the district

court abused its discretion and violated the appellant's consti-

tutional right to confrontation by allowing the

________________________
*District Judge of the Southern District of Mississippi, sitting
by designation.
prosecution to call as a witness appellant's probation officer

for the purpose of establishing the location of appellant's

residence; (2) whether the district court was correct in its

assessment that the government's proof was sufficient to convict

appellant under Title 18 U.S.C. § 924(c) for "using a weapon

during and in relation to" a drug offense; (3) whether the

district court's instructions to the jury relative to this

§ 924(c) gun offense were legally adequate; and (4) whether the

district court was remiss in failing to provide appellant a

complete, accurate trial record. Finding no reversible errors,

we affirm the appellant's conviction.

The principal characters involved in this criminal

scenario were the appellant; his co-defendant, China Lewis, Sr.,

and Charles Phillip Springer of the City of Fort Worth, Texas,

Police Department, who was acting in an undercover capacity.

Appellant's present predicament began on January 18, 1989, when a

government informer introduced an unkempt, long-haired Springer

as "Phil" to an unsuspecting Lewis, who was led to believe

Springer was a potential distributor of large quantities of

amphetamine for Lewis. Once Lewis was confident of Springer's

interest, Lewis asked Springer to join Lewis' criminal venture

which included Lewis' partner named "Jacky." The next day,

January 19, 1989, Lewis introduced Springer to "Jacky," who is

our appellant. At this meeting of the threesome, the parties

negotiated the terms of their arrangement, and Springer agreed to

market amphetamines for Lewis and the appellant. However,

2
unknown to either appellant or Lewis, Springer had on his person

a hidden transmitting device which permitted a nearby surveil-

lance group of narcotic officers to overhear and to record the

conversations.

The obliging appellant was active in the negotiations

with Springer. Appellant suggested prices for the "product,"

debated the relative merits of various types of cutting agents,

and recommended a retail store where the mention of the appel-

lant's name would generate a generous 50% discount. Addition-

ally, the appellant promised to supply Springer with a quarter

pound of amphetamine the following day, January 20th. After the

appellant left, Lewis gave Springer 30.26 grams of a powdery

substance containing 45% amphetamine and four one-pound bags of

marijuana to sell. The next day, on January 20th, pursuant to

his promise of the preceding day, the appellant delivered to

Springer, through Lewis, 99.08 grams of a white powdery substance

which contained 90% amphetamine.

On January 25th and 30th, Lewis supplied Springer with

additional amounts of amphetamine. On the 25th, Lewis gave

Springer 111.9 grams to sell and on the 30th, 114.9 grams. On

the 25th, Lewis explained that he would have supplied four more

ounces, but he could not obtain the extra amount because his

source, the appellant, was in Corsicana, Texas, where appellant

had another amphetamine laboratory.

On February 6th, Springer, along with other officers,

decided to end the undercover operation and arrest the subjects.

3
First, they arrested Lewis. The officers then obtained an arrest

warrant for the appellant and proceeded to his reputed residence

of Lot 34, Paradise Estates, a mobile home park in Johnson

County, southwest of Mansfield, Texas.

The officers surrounded the mobile home and entered it

when their presence was discovered by the occupants therein.

Besides appellant, a Pamela Lanell Gilreath was inside the mobile

home. Officer Darrell Pena of the Narcotics Division, Fort Worth

Police Department, entered first. Upon entering the mobile home,

Officer Pena immediately encountered the appellant, whom he

grabbed and passed to the officers behind him. Officer Pena

observed a weapon, a Llama .38 caliber handgun, on a couch in the

front living room.

After obtaining a search warrant, the officers searched

the mobile home for illegal drugs and seized two additional

weapons. A Rossi .38 caliber revolver was found in the master

bedroom on the bed's headboard/book shelf in an unzipped pistol

case. An Ithaca .45 caliber semiautomatic handgun was found in

the other bedroom between a set of boxsprings and a mattress.

All of the firearms were loaded.

The officers also seized large quantities of amphet-

amine which were secreted about the mobile home. Approximately

seven pounds of amphetamine in powder form and of a very high

purity were seized, as were three and one-third quarts of amphet-

amine oil which, in its finished state, could produce eight

pounds of amphetamine. The officers also found paraphernalia

4
associated with the manufacture of amphetamine, including scales,

miscellaneous flasks, glassware, a grinder, and filter paper.

The officers additionally discovered a sizeable amount of cash:

$3,800.00 in a bank bag; $1,000.00 in a bag; $355.00 in an

address book; and $91.00 in a glass jar.

Following the search, Presley Darnell, criminal inves-

tigator with the Internal Revenue Service, asked Officer Michael

DeLaFlor of the Narcotics Division, Fort Worth Police Department,

how much amphetamine had been found. Officer DeLaFlor responded.

Then Pace, who had not been addressed, disagreed with Officer

DeLaFlor's estimate and said, "No, there's only two or three

pounds." Officer DeLaFlor corrected Pace, and Pace, who earlier

had been given his Miranda rights, said, "Yes, if you include

four pounds in the back, yes, it would have been a total of about

seven." Record VII at 115-17.

On February 22, 1989, the appellant, along with two co-

defendants, China Lewis, Sr., and Pamela Lanell Gilreath, were

charged in a nine-count indictment. Count 1 charged the

appellant with conspiracy to commit certain controlled substance

offenses, including the manufacture, possession with intent to

manufacture, distribution, and possession with intent to distrib-

ute amphetamine, a Schedule II controlled substance, in violation

of Title 21 U.S.C. § 846. Counts 2 through 6 charged the

appellant with the distribution of amphetamine in violation of

Title 21 U.S.C. § 841(a)(1). Count 7 charged the appellant with

possession with intent to distribute in violation of Title 21

5
U.S.C. § 841(a)(1). Count 8 charged the appellant with posses-

sion with intent to manufacture amphetamine in violation of Title

21 U.S.C. § 841(a)(1). And, count 9 charged the appellant with

the use of firearms during and in relation to the drug traffick-

ing offenses alleged in counts 1, 7 and 8 in violation of Title

18 U.S.C. § 924(c). Following a jury trial, on September 15,

1989, the appellant was convicted of all nine counts.

ISSUE NO. I

WHETHER THE TRIAL COURT ERRED IN
ADMITTING THE TESTIMONY OF A UNITED
STATES PROBATION OFFICER FOR THE
PURPOSES OF ESTABLISHING THE APPEL-
LANT'S RESIDENCE.

Although appellant had been arrested in the mobile home

containing a cache of amphetamine and an amphetamine laboratory,

at trial the government hoped to show a stronger connection

between appellant and the mobile home, namely, that it was his

residence. In an earlier court proceeding, the government had

stipulated that the mobile home was the residence of co-defendant

Pamela Gilreath.1 The government expected to establish through

the testimony of Officer Springer that it was also the residence

of the appellant, Gilreath's live-in lover.

At trial, Springer testified as the government ex-

pected. However, when defense counsel objected to the testimony

on grounds of hearsay, the trial court sustained the objection

1
During a hearing held pursuant to appellant's motion to
suppress evidence found at the mobile home, the government
stipulated that the mobile home in question was the residence of
Pamela Gilreath. There also was testimony that the utilities
were in her name. Record III at 39-40, 132-33.

6
and instructed the jury to disregard Springer's testimony on the

point.

The United States then called as a witness David Stout,

a United States Probation Officer, to testify that the mobile

home was appellant's residence. During the time of the alleged

offenses which are the subject of this opinion, the appellant was

on pretrial release in another criminal case.2 Stout's duty was

to monitor that pretrial release.

The government first asked Stout his name and then

asked "[h]ow are you employed, Mr. Stout?" Within the hearing of

the jury, Stout replied, "I am employed as [a] United States

Probation Officer."

In a conference before the bench, outside the hearing

of the jury, the appellant's counsel immediately objected to the

government's use of a probation officer as a witness. Appel-

lant's counsel argued that any testimony from a probation officer

inevitably would signal to the jury that the appellant was under

some sort of judicial supervision for a previous offense.3

2
During this period, the appellant was on pretrial release
in a prior related case. The appellant was indicted on June 16,
1987, in Criminal Action No. 4-87-082, and charged with various
controlled substance offenses, along with thirty co-defendants.
He was subsequently convicted of those charges and was sentenced
to life without parole, as well as other concurrent sentences, in
a combined sentencing hearing with the instant case on November
9, 1989.
3
Appellant's counsel also made an objection based on the
Fifth Amendment pursuant to the theory that an individual subject
to pretrial release is required to reveal his whereabouts to his
probation officer. Therefore, testimony by the probation officer
in regards to that information would be tantamount to compelled
self-incrimination. On appeal, the appellant apparently has

7
 Counsel for the government then explained that Stout

had twice been to the appellant's residence, once in December

1988 and once in January 1989, during the time the underlying

events of this cause had occurred. Counsel for the United States

emphasized the limited purpose of Stout's testimony, i.e., only

to establish the location of the appellant's residence. The

government further argued that the necessity for Stout's testi-

mony was occasioned because appellant's counsel earlier had

raised this issue. Ultimately, the trial judge overruled the

appellant's objection, agreeing with the government that appel-

lant had raised the question concerning his address.4

Appellant's counsel did not cross-examine Stout before

the jury. After the government rested its case and after appel-

lant rested without calling any witnesses, appellant's counsel

examined Stout outside the presence of the jury in order to make

a record and preserve his objection. He made no attempt to show

bias, mistake, or lack of credibility. Instead, appellant's

counsel only tried to establish the foundation for his now-

abandoned theory that the testimony of a probation officer

violated appellant's Fifth Amendment rights because an individual

abandoned this particular theory.
4
Presumably, the United States Attorney was referring to the
appellant's hearsay objection, which the trial judge sustained,
to Springer's testimony in regards to the address of the appel-
lant's residence. However, the appellant now concedes that the
appellant's residence is not an element that need be proven.
Nor, according to appellant, was it ever in question that the
appellant's residence was located at Lot 34.

8
on pre-trial release has a duty to disclose the whereabouts of

his residence to his probation officer.

In response to the concern of the appellant's counsel

that Stout's announced occupation as a Probation Officer lent the

inference to the jury that the appellant was on probation for

some crime he had committed, the trial judge decided to give a

curative instruction to the jury. Given immediately before the

judge charged the jury, this curative instruction advised the

jury that the appellant was not on probation at the time of

Stout's visits.5 The appellant objected to this instruction,

stating that it would further confuse the jury, would not ade-

quately cure the harm, and was not supported by the evidence.

The trial judge overruled these objections.

The appellant on appeal sets forth two theories to

support his assertion that the admission of the testimony of the

appellant's probation officer was reversible error. Firstly, the

appellant argues that the government's use of the probation

officer as a prosecution witness violated appellant's Sixth

Amendment6 right to cross-examination on the theory that the

5
The trial court's curative instruction was as follows.
"You are instructed that the defendant, Jacky Ronald Pace, was
not on probation for any criminal offense during December of 1988
and January of 1989 when Mr. Stout visited him. He was not on
probation for any criminal offense."
6
The Sixth Amendment to the United States Constitution
provides:

In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been

9
government created a situation whereby it was impossible for

appellant to exercise effectively his right to cross-examine

Stout without prejudicing himself. Secondly, the appellant

argues that Federal Rule of Evidence 4037 was violated because

the prejudicial impact of the probation officer's testimony

greatly outweighed its probative value. Each objection will be

discussed separately.

A. Sixth Amendment

Appellant claims that he could not effectively cross-

examine the probation officer/witness without eliciting prejudi-

cial information about his criminal history and pretrial release

status. Thus, continues the appellant, the only way he could

avoid these revelations was to forego cross-examination entirely.

From this, appellant concludes that his Sixth Amendment right of

cross-examination was violated. We disagree.

committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the accu-
sation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
U.S. Const. amend. VI (1789).

7
Rule 403. Exclusion of Relevant Evidence on Grounds
of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be ex-
cluded if its probative value is substan-
tially outweighed by the danger of unfair
prejudice, confusion of the issues, or mis-
leading the jury, or by considerations of
undue delay, waste of time, or needless pre-
sentation of cumulative evidence.

10
 The confrontation clause of the Sixth Amendment guaran-

tees a criminal defendant the right to cross-examine the wit-

nesses arrayed against him. See Davis v. Alaska, 415 U.S. 308,

315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) ("confrontation

means more than being allowed to confront the witness physi-

cally"); Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748,

749, 19 L.Ed.2d 956 (1968) (holding that the right of cross-

examination is included in the right of an accused in a criminal

case to confront the witnesses against him); Pointer v. Texas,

380 U.S. 400, 403-04, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)

(holding "that the Sixth Amendment's right of an accused to

confront the witnesses against him is likewise a fundamental

right and is made obligatory on the States by the Fourteenth

Amendment" and includes "... the right of cross-examination.");

see also United States v. Oroni, 535 F.2d 938, 945 (5th Cir.

1976) (holding that "[T]he Sixth Amendment confrontation clause

guarantees to a criminal defendant the right to cross-examine a

witness against him."). However, the confrontation clause

guarantees the defendant "an opportunity for effective cross-

examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish." Delaware

v. Fensterer, 474 U.S. 15, 18-20, 106 S.Ct. 292, 294, 88 L.Ed.2d

15 (1985). "Normally the right to confront one's accusers is

satisfied if defense counsel receives wide latitude at trial to

question witnesses." Pennsylvania v. Ritchie, 480 U.S. 39, 53,

107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987).

11
 Cases which have found violations of the constitutional

right to cross-examination can be divided into two broad catego-

ries. See Fensterer, 106 S.Ct. at 294. The first category

encompasses those cases involving the admission of out-of-court

statements. See Tennessee v. Street, 471 U.S. 409, 413, 105

S.Ct. 2078, 2081, 85 L.Ed.2d 425 (1985); Ohio v. Roberts, 448

U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Dutton v. Evans,

400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v.

Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489

(1970); cf. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct.

1620, 1627, 80 L.Ed.2d 476 (1968). The second category includes

those cases involving restrictions, imposed by law or by the

trial court, on the scope of cross-examination. See Davis, 415

U.S. at 318, 94 S.Ct. at 1111; Smith, 390 U.S. at 131, 88 S.Ct.

at 750.

The instant case falls within neither of these two

broad categories. The first category is completely inapplicable.

And, since the second category is seemingly limited to those

restrictions directly imposed by the law or the trial court, this

category, too, does not embrace our circumstance, where the

defendant made a decision that cross-examination was not in his

self-interest. The circumstances here are unlike those in Davis

v. Alaska, where the trial court did not permit the defendant to

"expose to the jury the facts from which jurors, as the sole

triers of fact and credibility, could appropriately draw infer-

ences relating to the reliability of the witness." 415 U.S. at

12
318, 94 S.Ct. at 1111; or those in Smith v. Illinois, 390 U.S.

at 130-31, 88 S.Ct. at 749, where the trial court prohibited the

defendant from questioning the informant/witness, the govern-

ment's key witness, about his true name and address.

Nevertheless, in his efforts to fit within the bound-

aries of those cases condemning court-imposed restrictions on

cross-examination, appellant champions the Sixth Circuit opinion

of United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), a case

somewhat factually similar to the one before this Court. In

Calhoun, the Sixth Circuit held that the trial court abused its

discretion in admitting the testimony of the defendant's parole

officer identifying the defendant as the robber shown in surveil-

lance bank photographs. The Calhoun Court concluded that the

defendant could not freely examine the relationship between the

defendant and the witness without revealing the prejudicial fact

that the defendant was on probation at the time of the robbery.

Calhoun, 544 F.2d at 295-96. The appellant argues that, like the

defendant in Calhoun, he had no real choice but to forego cross-

examination. However, the appellant's reliance on Calhoun is

misplaced.

Calhoun offers no support for the appellant's Sixth

Amendment-based argument because the Calhoun Court expressly

declined to reach the constitutional issue. Instead, the Calhoun

Court held that the trial court abused its discretion based on

the Federal Rules of Evidence. Id.

13
 We hold here that the trial court did not impose

restrictions on appellant's cross-examination of Stout in viola-

tion of the Sixth Amendment. The trial court admonished Stout

not to reveal the appellant's status as a pre-trial releasee, and

we assume that the witness would have obeyed the judge's order.

So, had the appellant chosen to cross-examine the witness in

front of the jury, he could have done so freely, except on the

appellant's pre-trial release status which was not shown to be

relevant to the credibility of the witness. The trial court did

not shackle any efforts of appellant to probe the credibility of

the witness or to elicit contradictory testimony. The trial

court did not handcuff any endeavors by appellant to test the

memory of the witness on the specifics of his alleged conversa-

tion with appellant or the directions to the mobile home. The

trial court submitted the witness to appellant for open cross-

examination; the appellant voluntarily declined the offer.

Even were we to characterize the events below as the

equivalent of restrictions directly imposed by a trial court,

this court still would not find a violation of the appellant's

constitutional right to confront the witnesses against him. In

this circuit, the standard for reviewing a district court's

restrictions on cross-examination is found in United States v.

Baresh, 790 F.2d 393, 400 (5th Cir. 1986). This Court must

"determine whether the trial court imposed unreasonable limits on

cross-examination such that a reasonable jury might have received

a significantly different impression of a witness' credibility

14
had defense counsel pursued his proposed line of cross-examina-

tion." Id.; see Delaware v. Van Arsdall, 475 U.S. 673, 106

S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Appellant made no offer

of proof that the witness harbored bias or prejudice which, if

explored, would have revealed the witness' true relationship with

the appellant. Instead, appellant's cross-examination of Stout

outside the jury's presence was merely occupied with developing

appellant's now-abandoned theory that appellant's Fifth Amendment

rights had been violated because appellant, a pre-trial releasee,

was required to divulge the location of his residence. We do not

see on these facts a transgression of appellant's Sixth Amendment

right of cross-examination.

B. Federal Rule of Evidence 403

The appellant next argues that, under Federal Rule of

Evidence 403's multi-factor balancing test, the trial court's

admission of the probation officer's testimony was an abuse of

discretion. The appellant's argument rests on two premises: (1)

that the prosecutor's elicitation of the probation officer's

occupation was highly prejudicial; and (2) that the probation

officer's testimony was not necessary to prove the government's

case. Appellant contends that since the United States had

sufficiently alternative means of proving the appellant's resi-

dence, the government's resort to the testimony of the probation

officer was error.

As in his Sixth Amendment argument, the appellant

relies primarily on the case of United States v. Calhoun. In

15
Calhoun, the United States employed the appellant's parole

officer to identify the appellant as the suspect in a series of

photographs taken during a bank robbery, for which the appellant

was subsequently convicted. The Sixth Circuit reversed the

appellant's conviction and remanded for a new trial. Calhoun,

544 F.2d at 297. The Calhoun Court held that under Federal Rules

of Evidence 4038 and Rule 7019 the trial court abused its discre-

tion in admitting the testimony of the defendant's parole officer

in the absence of a showing of necessity for employing the

probation officer instead of some other witness. The holding of

Calhoun was based on the theory that the defendant could not

freely examine the relationship between the defendant and the

witness without revealing the prejudicial fact that the defendant

was on probation at the time of the robbery, although the Calhoun

Court declined to reach the constitutional issue. Id. at 295.

Subsequent cases from the Fourth, Eighth and Ninth

Circuit Courts of Appeals have criticized Calhoun, where they

have not rejected it outright. In United States v. Allen, 787

F.2d 933, 937-38 (4th Cir.), vacated on other grounds, 479 U.S.

8
See supra note 7, at p. 11.
9
Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an
expert, the witness' testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are (a) ratio-
nally based on the perception of the witness
and (b) helpful to a clear understanding of
the witness' testimony or the determination
of a fact in issue.

16
1077, 94 L.Ed.2d 132, 107 S.Ct. 1271 (1987), the Fourth Circuit

explicitly rejected Calhoun and held that the testimony of a

parole officer identifying the defendants as the individuals

appearing in bank surveillance photographs was not unfairly

prejudicial under Rule 403. In United States v. Garrison, 849

F.2d 103, 107 (4th Cir.), cert. denied, 488 U.S. 996, 109 S.Ct.

566, 102 L.Ed.2d 591 (1988), the trial court admitted the testi-

mony of the defendant's probation officer concerning defendant's

weight loss after the time of the robbery for which the defendant

was being tried. The Fourth Circuit found that, for purposes of

identification, the testimony was not so prejudicial under Rule

403 as to be inadmissible. Similarly, in United States v.

Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984), the Eighth

Circuit, confronted with a situation nearly identical to that in

Calhoun, also expressly rejected the holding of Calhoun. The

Farnsworth Court held that it was not an abuse of discretion for

the trial court to have permitted parole officers to identify the

defendant. See also United States v. Wright, 904 F.2d 403, 405

n.3 (8th Cir. 1990), a case factually similar to Calhoun and

Farnsworth, followed Farnsworth and approved its rejection of

Calhoun. In United States v. Langford, 802 F.2d 1176, 1179 (9th

Cir. 1986), the defendant's parole officer testified that the

person depicted in bank surveillance photographs taken during a

robbery was the defendant. The Ninth Circuit held that given the

familiarity of the parole officer with the defendant the opinion

testimony of the parole officer was sufficiently probative to

17
outweigh the danger of unfair prejudice. Then, in United States

v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977), the Ninth Circuit

upheld the district court's admission of opinion testimony by

police and parole officers, on the basis of their prior contacts

with the defendant, that the defendant was the person depicted in

bank surveillance photographs. The Butcher Court held that it

was not prejudicial for the district court to admit police and

parole officers' testimony despite the existence of alternative

evidence in the record. 557 F.2d at 669-70.

We add our voice to the chorus of these cases insofar

as they reject an inflexible holding that a trial court's deci-

sion to allow a defendant's parole officer to testify against the

defendant is a per se violation of Rule 403. Rather, we choose

to apply to these situations, which promise to occur under

varying circumstances, the same balancing test of prejudice and

probativeness, as customarily applied under this rule. Hence, we

recognize that, based upon the material facts of a case, our Rule

403 slide rule analysis might calculate different results.

Before applying our Rule 403 measuring rod to the facts

of this case, we point out that when a trial judge's determina-

tion as to the admissibility of evidence is questioned on appeal,

our applicable standard of review is abuse of discretion. United

States v. Barron, 707 F.2d 125, 128 (5th Cir. 1983); United

States v. Brown, 692 F.2d 345, 349 (5th Cir. 1982); United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc),

cert. denied, 440 U.S. 920, 99 S.Ct. 1244-45, 59 L.Ed.2d 472

18
(1979). The exclusion of evidence under Rule 403 should occur

only sparingly:

Relevant evidence is inherently prejudi-
cial; but it is only unfair prejudice,
substantially outweighing probative value,
which permits exclusion of relevant matter
under Rule 403. Unless trials are to be
conducted on scenarios, on unreal facts tai-
lored andsanitized for the occasion, the
application of Rule 403 must be cautious and
sparing. Its major function is limited to
excluding matter of scant or cumulative pro-
bative force, dragged in by the heels for the
sake of its prejudicial effect. As to such,
Rule 403 is meant to relax the iron rule of
relevance, to permit the trial judge to pre-
serve the fairness of the proceedings by
exclusion despite its relevance. It is not
designed to permit the court to "even out"
the weight of the evidence, to mitigate a
crime, or to make a contest where there is
little or none.

United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert.

denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979).

We find here on balance that the trial court committed

error in allowing the probation officer to state his occupation

to the jury. In the context of this trial, this information was

unduly prejudicial. Other courts, too, have found error when a

government witness reveals to the jury, or gives testimony from

which the jury could infer, that the defendant is on probation or

has been recently involved in illegal conduct. See United States

v. Fortenberry, 860 F.2d 628, 632 (5th Cir. 1988); United States

v. Poston, 430 F.2d 706, 709 (6th Cir. 1970).

However, here, in light of the overwhelming evidence of

appellant's guilt and, secondarily, the curative instruction, we

find the trial court's error of allowing the government to elicit

19
the occupation of David Stout as a United States Probation

Officer to be harmless. See Bruton v. United States, 391 U.S.

123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968) (curative

instructions may be sufficient to cause a jury to disregard

prejudicial testimony; United States v. Pavon, 561 F.2d 799, 803

(9th Cir. 1977) (error held harmless due to overwhelming evidence

of guilt and curative instruction); United States v. Harrell,

737 F.2d 971, 978 (11th Cir. 1984) (error held harmless because

of overwhelming proof of defendant's guilt); United States v.

Mortazavi, 702 F.2d 526, 529 (5th Cir. 1983) (error held harmless

because of overwhelming proof of defendant's guilt); United

States v. Klein, 546 F.2d 1259, 1263 (5th Cir. 1977), reh'g

denied, 550 F.2d 42 (5th Cir. 1977) (DEA agent's references to

defendant's prior criminal behavior held harmless due to over-

whelming evidence of defendant's guilt and Fifth Circuit's

conviction that agent's comments did not have a substantial

impact on the jury's verdict). The government's case against the

appellant was based upon a voluminous amount of evidence, largely

unchallenged and unrebutted by the appellant who rested his

defense without calling any witnesses. The government estab-

lished the elements of the charged crimes by the testimony of

Officer Springer and the corroborative taped conversations among

the parties. Appellant's co-conspirator made statements which

connected appellant with the laboratory manufacture of amphet-

amine. Appellant himself is heard on the tapes promising to

supply Springer with the amphetamine later delivered. When

20
arrested, appellant was found in a mobile home which reeked of

amphetamine production from apparatus indicative of a functioning

laboratory found there in the mobile home. A large sum of money

was found in the mobile home, along with amphetamine in its

finished and unfinished states, and along with weapons. Appel-

lant, too, was found there, along with his van. And, if one

still has doubts whether the appellant was aware of the mobile

home contents, one need only consider his voluntary statement at

the scene of the arrest when he corrected Officer DeLaFlor on how

much amphetamine was located in the mobile home. This avalanche

of proof in the juridical context of a curative instruction

informing the jury that appellant was not on probation or parole

effectively neutralized and rendered harmless the government's

error of eliciting the occupation of the probation officer in the

presence of the jury.

In closing, we strongly urge all trial courts in this

circuit to adopt prophylactic procedures for the use of testimony

by a probation or parole officer. Plainly, the appearance of

these witnesses before a jury always carries the potential for

the interjection of unfair prejudice to the defendant. Such

testimony should not be sprung upon the court, but timely re-

vealed so that the trial court, outside of the jury's presence,

may gauge the anticipated testimony upon the weight scales of

Rule 403. The Court in United States v. Pavon, 561 F.2d 799 (9th

Cir. 1977), summed up the matter nicely:

We think that, in any criminal case in
which the government proposes to put a defen-

21
 dant's probation or parole officer on the
stand, the government should, as soon as it
knows that it intends to call the witness, so
advise the court and defense counsel. The
court should then, if asked to do so, permit
the defense to object in the absence of the
jury. In this way it may be possible to
handle the testimony in such a manner that
the jury will not know that the witness is a
probation or parole officer, or to arrange
for similar testimony by another witness, or
to substitute a stipulation as in this case.
If the value of the testimony does not out-
weigh its probable prejudicial effect, and if
there is no other way for the government to
present it, the court can exclude it
entirely. Prosecutors who fail to heed these
suggestions will run a serious risk of
reversal.

Id. at 802-03.

ISSUE NO. II

WHETHER THE GOVERNMENT'S PROOF WAS
SUFFICIENT TO CONVICT UNDER TITLE
18 U.S.C. § 924(C).

At trial, the jury found the appellant guilty as

charged of count 9 of the indictment which alleged that, in

violation of 18 U.S.C. § 924(c), the appellant had used firearms

during and in relation to the drug trafficking offenses alleged

in counts 1, 7 and 8. The firearms charged in count 9 were those

seized by law enforcement officers during their search of the

mobile home on Lot 34. The officers had found a Llama .38

caliber handgun on the couch in the living room; an Ithaca .45

caliber semiautomatic pistol in the second bedroom, between the

boxsprings and mattress of a bed; and a Rossi .38 caliber

revolver in the master bedroom within a gun pouch on top of the

cabinet/headboard of a bed. The appellant contends that the

22
government's evidence failed to satisfy the proof requirements of

§ 924(c).

Section 924(c) provides that "[w]hoever, during and in

relation to any crime of violence or drug trafficking crime ...

for which he may be prosecuted in a court of law in the United

States, uses or carries a firearm, shall ... be sentenced to

imprisonment for five years ...." We have consistently reviewed

convictions under § 924(c) under either the "fortress theory,"

United States v. Blake, 941 F.2d 334, 342 (5th Cir. 1991), or the

"more than mere strategic proximity theory," United States v.

Mora, 994 F.2d 1129, 1141 (5th Cir. 1993); United States v.

Williams, 985 F.2d 749, 755 (5th Cir. 1993), or both. In a

nutshell, the "fortress theory" line of cases states that "the

sheer volume of weapons and drugs makes reasonable the inference

that the weapons involved were carried in relation to the

predicate drug offense since they increase the likelihood the

drug offense will succeed." United States v. Wilson, 884 F.2d

174, 177 (5th Cir. 1989). The second line of cases requires the

government to show more than mere strategic proximity. Id.

Here, the government contends that both doctrines apply to this

case and support the jury's verdict.

Under either of the above theories, the government's

proof must show beyond a reasonable doubt that the accused "used"

or "carried" a firearm, "during and in relation" to a

prosecutable drug trafficking crime. Here, the government had to

prove that appellant used the three firearms in question in

23
connection with his plan to manufacture and traffic in

amphetamine. See United States v. Blankenship, 923 F.2d 1110,

1114 (5th Cir. 1991); United States v. Boyd, 885 F.2d 246, 250

(5th Cir. 1989). Possession of a firearm does not constitute

"use" unless the gun formed a part of the narcotics crime. See

United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988).

"Use" does not require the government to prove actual use such as

the discharging of or brandishing of the weapon. The government

may meet its burden by simply showing that the weapons

facilitated, or could have facilitated, the drug trafficking

offense. See United States v. Capote-Capote, 946 F.2d 1100, 1104

(5th Cir. 1991), cert. denied sub. nom., Rodriguez v. United

States, ____ U.S. ____, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992);

see also United States v. Blake, 941 F.2d 334, 342 (5th Cir.

1991), cert. denied, ___ U.S. ___, 113 S.Ct. 596, 121 L.Ed.2d 533

(1992); United States v. Beverly, 921 F.2d 559, 562-63 (5th

Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 2869, 115 L.Ed.2d

1035 (1991); Blankenship, 923 F.2d at 1114; United States v.

Rocha, 916 F.2d 219, 237 (5th Cir. 1990), cert. denied, ___ U.S.

___, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991); United States v.

Coburn, 876 F.2d 372, 375 (5th Cir.), reh'g denied, 885 F.2d 870

(5th Cir. 1989) (en banc); S.Rep.No. 225, 98th Cong., 2d Sess.

314 n.10, reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n.10. To

determine whether a defendant "used" a firearm, the Court should

look not solely to the defendant's intent, but to the totality of

the circumstances. Blankenship, 923 F.2d at 1115 (5th Cir.

24
1991). Further, the language "during and in relation to" refers

to Congress' intent to avoid convictions for inadvertently

carrying a firearm in an unrelated crime. Id. Accordingly, the

presence of loaded firearms at the home of a defendant of drugs,

money, and ammunition also may be sufficient to establish the use

of a firearm as an integral part of a drug trafficking crime.

See United States v. Blake, 941 F.2d at 342-43; Capote-Capote,

946 F.2d at 1104; United States v. Molinar-Apodaca, 889 F.2d

1417, 1424 (5th Cir. 1989). "Where several guns ... are found on

the premises of a drug laboratory, the obvious inference is that

they were there to protect the unlawful activity." United States

v. McKeever, 906 F.2d 129, 134 (5th Cir.1990), cert. denied, 498

U.S. 1070, 111 S.Ct. 790, 112 L.Ed.2d 852 (1991). Further, we

have held "that the [g]overnment is only obliged to show that the

firearm was available to provide protection to the defendant in

connection with his engagement in drug trafficking; ... ."

Molinar-Apodaca, 889 F.2d at 1424, citing United States v.

Raborn, 872 F.2d 589, 595 (5th Cir. 1989); Robinson, 857 F.2d at

1009.

The operative facts of Capote-Capote, 946 F.2d at 1102,

are strikingly similar to the facts presently before this Court.

In that case, the defendants were arrested in an apartment in

which they stored and sold cocaine. As here, the arresting

officers found three firearms in the apartment: a loaded

revolver, a loaded shotgun, and an unloaded machine gun. Id.

The defendants argued that the evidence was insufficient to

25
convict them under § 924(c) because neither of them was seen with

a gun, neither mentioned a gun to the informant, and neither was

linked to the gun by fingerprints or any indicia of ownership.

Id. at 1104. The defendants further argued that the machine gun

"was not and could not have been used to facilitate the

transaction in its 'partially disassembled' condition." "The

machine gun was discovered with a loaded clip beside it inside a

zipped bag in a closed drawer in a chest on the second floor of

the apartment." Id. Nonetheless, this Court held the evidence

sufficient to support a conviction, stating:

[T]he [machine] gun was not so remote or
inaccessible that it could not have been
employed as an instrument in the transaction.
Weapons in the home may facilitate a drug
crime because the defendants could use the
guns to protect the drugs. United States v.
Onick, 889 F.2d 1425, 1432 (5th Cir. 1989).
The jury was entitled to conclude based on
the totality of the circumstances surrounding
the transaction that the machine gun was
there to protect the drugs.

Capote-Capote, 946 F.2d at 1104 (emphasis added). Thus, despite

the fact that, as here, the Capote-Capote defendants did not pick

up, much less brandish, their weapons and that the machine gun in

Capote-Capote was discovered in a state which could suggest

storage,10 the Capote-Capote Court upheld the jury's verdict.

In Beverly, 921 F.2d at 561, government agents

suspected that the defendants were storing cocaine in their

apartment. In the course of a search of the bedroom in the

10
In contrast, although the Rossi revolver at issue here was
found in a gun case, it was still loaded and readily accessible,
rather than in a closed drawer.

26
apartment, pursuant to a warrant, the agents discovered one-half

gram of cocaine and two revolvers in a safety deposit box under a

mattress. Id. Neither of the revolvers fit the description of

the weapons that the agents earlier had seen on the defendants.

Id. Still, the Beverly Court found that a reasonable jury could

infer that the seized revolvers were to be used to protect the

drugs and, therefore, were used "during and in relation to" the

drug trafficking charges. Id. at 563.

In Boyd, 885 F.2d at 250, we upheld a conviction under

§ 924(c) based on the presence of a single loaded shotgun in the

office of a warehouse in which drugs were stored. Despite the

fact that the gun was broken open (apparently for cleaning) when

seized and could not be fired until it was closed, we upheld the

conviction, noting that "immediately prior to the arrest the

shotgun was located within arm's reach of Boyd and that the

loaded shotgun could have been made ready to fire within one

second." Id.

In the oft-cited case of Coburn, 876 F.2d at 373, the

defendant was driving a pickup truck with a toolbox and farm

equipment in the truck's bed when she was stopped at a border

checkpoint. The truck had a gun rack in the rear window which

held a .410 gauge shotgun, but the gun was unloaded and there

were no shells for it in the vehicle. While inspecting the

truck, Border Patrol agents discovered 218 pounds of marijuana

hidden in a false compartment underneath the toolbox. Id. at

374. The woman was convicted for possession with intent to

27
distribute marijuana and for using the unloaded shotgun "during

and in relation to" the drug trafficking offense. Id. at 375.

The Coburn Court held that the government had produced sufficient

evidence to prove that "a relationship existed between the

shotgun and the predicate drug trafficking offense." Id. at 375.

In commenting on the jury verdict, we noted that:

It was not unreasonable for the jury to
infer from the evidence that the shotgun
displayed in the rear window of the pickup
truck "emboldened" [the defendant], allowing
her to display the weapon to protect herself
or to intimidate those whom she might meet in
the course of distributing the marijuana.

Id. The Coburn Court also noted that the "fact that a firearm is

'unloaded' or 'inoperable' does not insulate the defendant from

the reach of § 924(c)." Id., citing United States v. York, 830

F.2d 885, 891 (8th Cir. 1987), cert. denied, 484 U.S. 1074, 108

S.Ct. 1047, 98 L.Ed.2d 1010 (1988).

Thus, the above survey of relevant cases confirms that

this Court has found the requisite connection between firearms

and the predicate drug trafficking offense under a wide variety

of factual circumstances. See also Rocha, 916 F.2d at 237 (the

following evidence was sufficient to support conviction under

§ 924(c): victim observed a bulge in defendant's waistband and

believed that said bulge was a gun; loaded .38 caliber pistol was

found beneath defendant's automobile seat; four .38 caliber

bullets were found on the defendant and a person who was with the

defendant prior to and at the time of his arrest also possessed a

firearm); United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th

28
Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 76, 112 L.Ed.2d 49

(1990) (finding that a loaded gun on vehicle floorboard, within

view and reach of the defendant providing surveillance for a drug

transaction, satisfies the "during and

in relation to" requirement of § 924(c)), and Molinar-Apodaca,

889 F.2d at 1424 (upholding § 924(c) conviction upheld based on

seizure of the following items in defendant's residence: an Uzi

rifle, a high-powered handgun, several rounds of ammunition, and

a "considerable quantity of marijuana").

The evidence is sufficient to support the jury's

verdict if a rational trier-of-fact could have found the

essential elements of the charged crime proven beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 313-14,

99 S.Ct. 2781-2786, 61 L.Ed.2d 560 (1979); see also United

States v. Ivy, 929 F.2d 147, 150 (5th Cir.), cert. denied, ___

U.S. ___, 112 S.Ct. 234, 116 L.Ed.2d 191 (1991). Any doubt about

the credibility of witnesses or about inferences that can be

drawn from the evidence should be resolved in favor of the jury

verdict. See Molinar-Apodaca, 889 F.2d at 1423. All that

§ 924(c)(1) requires is that the jury was reasonable in

concluding that the weapons were connected to the underlying drug

transaction rather than to some other activity. See e.g.,

Blankenship, 923 F.2d at 1115. As pointed out by United States

v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989), "under the current

version of § 924(c), the government is shouldered with the burden

of establishing some relationship between the firearm [the

29
defendant] possessed and the predicate drug trafficking offense."

Thus, applying the totality of the circumstances test,

we find on these facts under the "more than mere strategic

proximity" theory11 that the evidence here plainly falls above

the threshold level necessary to support the jury's verdict. All

three of the firearms were loaded and at the scene of a

functional, odiferous laboratory where amphetamine of high purity

was being produced and stored in large quantities and where a

sizeable amount of cash was located. All of the weapons were

available and one, the Llama .38 caliber, was lying on the couch

near the door where the officers entered the mobile home during

their raid. Hence, we conclude that the jury's reasoned verdict

should stand undisturbed.

ISSUE NO. III

WHETHER THE TRIAL COURT PROPERLY
INSTRUCTED THE JURY ON THE TITLE 18
U.S.C. § 924(C) CHARGE (COUNT 9).

The appellant contends that his conviction under

§ 924(c) should be reversed because the trial court's instruction

which set forth the government's burden regarding the use of a

firearm during and in relation to a drug trafficking offense

element was contrary to the law.

11
Although we have chosen not to analyze the facts at issue
here against Fifth Circuit "fortress" paradigm cases, we forego
this analysis purely for the sake of brevity. This should not be
interpreted in any way as a finding, or even the implication,
that the conviction here would not be upheld if analyzed under
the rubric of the "fortress" cases.

30
 The district court read the following charge to the

jury.

The government is not required to prove
that the defendant actually fired the weapon
or brandished it at someone in order to prove
"use," as that term is used in these
instructions. However, you must be convinced
beyond a reasonable doubt that the firearm
played a role in or facilitated the
commission of the drug offense. In other
words, you must find that the firearm was an
integral part of the drug offense charged.

Record I at 205. The appellant concedes that the above portion

of the instruction is a correct statement of the law and is the

pattern jury instruction currently employed by the Fifth Circuit

in § 924(c) cases. See Pattern Jury Instructions for Criminal

Cases, United States Fifth Circuit District Judges' Association,

126 (1990). The appellant contends, however, that the remainder

of the district court's instruction, reproduced below,

constitutes reversible error.

This element of the crime does not depend
on proof that the defendant had actual
possession of the weapon or used it in any
affirmative manner. It does require evidence
that the firearm was available to provide
protection to the defendant in connection
with his engagement, if any, in drug
trafficking.

Record I at 205.

At trial, the appellant specifically objected to the

disputed language of the instructions, stating that "the mere

availability or the possibility of the use of a weapon is not

enough." Record VIII at 52-56. However, the United States

pointed out that the disputed language was taken verbatim from an

31
earlier opinion of this Court, United States v. Raborn, 872 F.2d

589, 595 (5th Cir. 1989) (Record VIII at 54). The trial judge

overruled appellant's objection. The appellant's core argument

on appeal is that the effect of the disputed language in the jury

instruction was to "reliev[e] the [g]overnment of its burden of

proving the requisite conduct of 'using' a firearm during and in

relation to a drug offense, and allowed a conviction upon mere

availability of it to provide protection." Appellant's Brief at

20.

The standard of review we apply to jury instructions is

whether "the court's charge, as a whole, is a correct statement

of the law and whether it clearly instructs jurors as to the

principles of law applicable to the factual issues confronting

them." United States v. Chen, 913 F.2d 183, 186 (5th Cir. 1990),

quoting United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990);

see also United States v. August, 835 F.2d 76, 77 (5th Cir.

1987). Further, "the presence of an imprecise or misleading

statement within the jury instruction does not by itself entitle

defendants to a reversal. Reversible error exists only if the

jury charge, as a whole, misled the jury as to the elements of

the offense." See United States v. Kington, 875 F.2d 1091, 1098

(5th Cir. 1989), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95

L.Ed.2d 495 (1987).

In the present case, the jury instruction, taken as a

whole, stated the proper elements of the offense. The disputed

language was lifted directly from the Raborn case.

32
Significantly, the jury was not instructed that "use" could be

established merely by a showing of the "availability" of the

weapons. Nor did the instruction charge the jury that it could

convict the appellant for "mere possession" of firearms.

Instead, the instruction unmistakenly informed the jury that

there must be some connection between the possession or

availability of the firearm and the appellant's involvement in

drug trafficking. The instruction, as a whole, informed the jury

that it must find beyond a reasonable doubt that the firearm was

an integral part of the drug offense charged.

Furthermore, our discussion in section II of this

Opinion amply demonstrates that, in § 924(c) cases, the

government may satisfy its burden by demonstrating that the

firearm merely facilitated the underlying offense. Our synthesis

of the relevant cases also leads us to conclude that the concepts

encompassed by the word "facilitate" includes availability to

provide protection. In Molinar-Apodaca, we employed the exact

language disputed by the appellant here to state the government's

burden under § 924(c) that "the government is only obliged to

show that the firearm was available to provide protection to the

defendant in connection with his engagement in drug trafficking;

a showing that the weapon was used, handled or brandished in an

affirmative manner is not required." 889 F.2d at 1424 (emphasis

added). We think it is evident that the language disputed here

is an accurate characterization of the government's burden of

33
proof. Accordingly, we reject appellant's contention that the

jury charge in question was error.

ISSUE IV

WHETHER THE ABSENCE OF A PORTION OF
THE TRIAL RECORD CONSTITUTES
REVERSIBLE ERROR.

During its deliberations, the jury became deadlocked.

In the course of its attempts to break the deadlock, the jury

sent three notes to the judge. The first note requested a copy

of Title 18 U.S.C. § 924(c)(1). The judge's written reply stated

that a copy of the statute was reproduced in the charge. The

second note indicated that, as to one of the counts, the jury was

in hopeless disagreement. In response, the judge instructed the

jury to go to lunch. Following lunch, the jury sent the judge a

third note. This third note again indicated that the jury could

not agree. In response, the judge asked the jury, in writing,

over which count was it deadlocked. The jury informed the judge

that it was count 9, the weapons charge drawn under Title 18

U.S.C. § 924(c)(1). At that point, the judge called the jury

back into the courtroom to instruct them verbally. Following the

judge's instructions, the jury returned a verdict of guilty on

all counts in less than an hour.12

Following the trial and during the appeals process, the

attorney currently representing the appellant on appeal, Mr. R.H.

12
The clerk's docket sheet reflects that, after the third
note, the court "called jury into the courtroom and instructed
them as to the charge and told them to try once again." These
same entries reflect that at 3:05 p.m., a verdict of guilty was
rendered as to all counts. (Docket sheet, R-214).

34
Wallace, Jr.,13 replaced the appellant's court-appointed trial

attorney, Mr. Tim Evans. Mr. Wallace was not a stranger to the

appellant. In fact, Wallace's previous involvement with the

appellant was extensive. Wallace had represented the appellant

in an earlier criminal trial (docketed in this Court as No. 90-

1957) which lasted eleven months and also was appealed. Wallace

additionally had assisted Mr. Evans in the planning of a mental

competency examination in the instant case and then directly

participated in the proceedings of a joint mental competency

hearing involving both cases. Furthermore, Mr. Wallace had

participated in the sentencing phase of the instant cause, having

filed objections to the presentence report when it appeared that

Mr. Evans would be unavailable. He also appeared at the joint

sentencing hearing involving both cases14 and had argued for a

downward departure from the sentencing guidelines in the instant

cause.

Upon preparing appellant's appeal of the convictions

herein, Mr. Wallace, ordered a transcript of the entire trial

proceedings and specifically requested a transcript of the

court's instructions to the jury following the jury's third note.

13
Mr. Wallace states that he volunteered to represent the
plaintiff on appeal because the appellant requested that he do so
and because the effort required of his fifty-attorney firm to
prepare the instant appeal would be relatively de minimis
compared to the appeal from the earlier trial in which Mr.
Wallace represented the appellant.
14
See supra note 2, at p. 5.

35
The official court reporter could not locate that portion of the

transcript which contained the instructions in question.

Thereafter, on June 4, 1991, the government, by

appropriate motion, asked the trial court to supplement the

record in order to fill this gap. On the same day that it was

filed, the government's motion was granted, essentially ex parte,

and the trial court issued an order stating that the missing jury

instruction was a pattern Allen charge.15 The trial court also

15
The following Allen charge is taken from the Fifth Circuit
District Judges Association Pattern Jury Instructions (Criminal
Cases) (1990):

Members of the Jury:

I am going to ask that you continue your deliberations
in an effort to agree upon a verdict and dispose of this case;
and I have a few additional comments I would like for you to
consider as you do so.

This is an important case. The trial has been
expensive in time, effort, and money to both the defense and the
prosecution. If you should fail to agree on a verdict, the case
is left open and must be tried again. Obviously, another trial
would only serve to increase the cost to both sides, and there is
no reason to believe that the case can be tried again by either
side better or more exhaustively than it has been tried before
you.

Any future jury must be selected in the same manner and
from the same source as you were chosen, and there is no reason
to believe that the case could ever be submitted to twelve men
and women more conscientious, more impartial, or more competent
to decide it, or that more or clearer evidence could be produced.

If a substantial majority of your number are for a
conviction, each dissenting juror ought to consider whether a
doubt in his own mind is a reasonable one since it appears to
make no effective impression upon the minds of the others. On
the other hand, if a majority or even a lesser number of you are
for acquittal, the other jurors ought seriously to ask themselves
again, and most thoughtfully, whether they do not have a reason
to doubt the correctness of a judgment which is not shared by
several of their fellow jurors, and whether they should distrust

36
ordered the clerk to prepare and certify a supplemental record

containing a pattern Allen charge.

Wallace stated that when the United States notified him

of the attempt to supplement the record, he told the Assistant

United States Attorney that he would oppose the motion. Wallace

filed an objection to the United States' motion and to the

court's order, arguing that the supplementation of the record in

such an ex parte manner deprived the appellant of an opportunity

to be heard. He further opined that the supplemental portion of

the record was inappropriate because it was created solely from

the recollections of the trial court and the government and,

consequently, did not include any objections that might have been

made by the appellant at trial.

Earlier, we addressed this matter and, in a per curiam

order, remanded this cause to the trial court for an evidentiary

the weight and sufficiency of evidence which fails to convince
several of their fellow jurors beyond a reasonable doubt.

Remember at all times that no juror is expected to
yield a conscientious conviction he or she may have as to the
weight or effect of the evidence. But remember also that, after
full deliberation and consideration of the evidence in the case,
it is your duty to agree upon a verdict if you can do so without
surrendering your conscientious conviction. You must also
remember that if the evidence in the case fails to establish
guilt beyond a reasonable doubt, the accused should have your
unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the
occasion may require and should take all the time which you may
feel is necessary.

I will ask now that you retire once again and continue
your deliberations with these additional comments in mind to be
applied, of course, in conjunction with all of the instructions I
have previously given to you.

37
hearing pursuant to the appellant's objections. The hearing was

held on November 7, 1991.16 Following the hearing, the trial

court filed a new supplemental record which included a transcript

of the hearing and a short order. The order states that after

its receipt of the third note, the court called the jury into the

courtroom and read them the modified Allen charge. The order

further stated that the court believed that the appellant's

counsel at trial objected to the Allen charge, based on the

court's observation that it is customary for that attorney to so

object whenever the Allen charge is given.

16
The following individuals testified at the evidentiary
hearing: Donna DuMouchel, the official court reporter; Robert
Day, the jury foreman; Tim Evans, the appellant's attorney at
trial; and R.H. Wallace, the appellant's attorney on appeal.

The court reporter testified that she had lost her
trial notes and that her back-up tape system had malfunctioned.
She vividly recalled the court giving the Allen charge, because
she had not heard it often. She testified that she had no
recollection whether the trial judge made any additional comments
after the charge and before the jury went back to the jury room
to deliberate. Nor did she had have any memory whether the
defense counsel made any objection to the charge.

The jury foreman also recalled the Allen charge. He
stated that he remembered the trial judge emphasizing the
"urgency" of reaching an agreement, that there would be no new
evidence, that it would be quite expensive to impanel another
jury, that the jury should try harder to come to a verdict, and
that the jury had a duty to agree.

The appellant's trial counsel testified that it is his
practice to object to the giving of an Allen charge. He also
testified that he would have requested a mistrial if the charge
had been given.

The appellant's appellate counsel offered testimony to
show that his involvement with this case was limited to pre-trial
matters and to the sentencing hearing.

38
 The appellant argues to us on appeal that since a

substantial and significant portion of the trial transcript is

missing and since he is now represented by counsel other than his

attorney at trial, reversible error exists, even absent a showing

of specific prejudice. Contending that this circumstance

constitutes a violation of the Court Reporter Act, 28 U.S.C.

§ 753,17 the appellant bases his argument primarily on an earlier

opinion of this Court, United States v. Selva, 559 F.2d 1303 (5th

Cir. 1977) (otherwise known as Selva II).

In the precursor case to Selva II, United States v.

Selva, 546 F.2d 1173 (5th Cir. 1977) (otherwise known as Selva

I), we confronted a situation where that portion of the trial

transcript which contained the closing arguments was lost and

where the appellant retained a different attorney for the appeal.

Id. The appellant argued that he was prejudiced because his new

appellate counsel did not have a transcript of the closing

arguments. Although the appellant alleged no specific error, he

nonetheless alleged that this violation of the Court Reporter Act

necessitated reversal. Id.

17
The Court Reporter Act, Title 28 U.S.C. § 753(b) (1970)
states in relevant part:

One of the reporters appointed for each
such court shall attend at each session of
the court and at every other proceeding
designated by rule or order of the court or
by one of the judges, and shall record
verbatim by shorthand or by mechanical means
which may be augmented by electronic sound
recording ... (1) all proceedings in criminal
cases had in open court ... .

39
 The Selva I Court remanded the case and instructed the

trial court to conduct a hearing in order to supplement the

record with a "substantially verbatim account of the proceedings"

or, if deemed to be just, grant a new trial. Id. The Selva I

Court instructed the court below to employ sources such as the

trial court's notes, the court reporter's notes, and the

testimony of witnesses, including the trial attorneys, in order

to reconstruct the missing portion of the trial transcript. Id.

On remand to the trial court, it was disclosed at the

evidentiary hearing that the record of the closing arguments was

irretrievably lost due to the unfortunate combination of an ill

court reporter and malfunctioning recording equipment. Selva II,

559 F.2d at 1304. Although the trial judge concluded that a

substantially verbatim reconstruction of the closing arguments

was impossible, he nonetheless declined to grant a new trial.

Id. at 1305.

The issue again was appealed. The Selva II Court

reversed the judgment of the district court and remanded for a

new trial. Id. The Selva II Court stated that the "language [of

the Court Reporter Act] is clear and its requirements are

mandatory[]" and that "[i]t is also established beyond any shadow

of a doubt that a criminal defendant has a right to a record on

appeal which includes a complete transcript of the proceedings at

trial. Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11

L.Ed.2d 331 (1964)." Id. at 1305 (footnote omitted). Further,

stated the Court, where the defendant is represented by the same

40
attorney at trial and on appeal, reversal is called for only if

the defendant can "show that failure to record and preserve the

specific portion of the trial proceedings visit a hardship upon

him and prejudices his appeal." Id. at 1305. However, "[w]hen

... a criminal defendant is represented on appeal by counsel

other than the attorney at trial, the absence of a substantial

and significant portion of the record, even absent any showing of

specific prejudice or error, is sufficient to mandate reversal."

Id. at 1306. The Selva II Court provided the following

explanation for its ruling:

The wisdom of this rule is apparent. ...
When a defendant is represented on appeal by
the same attorney who defended him at trial,
the court may properly require counsel to
articulate the prejudice that may have
resulted from the failure to record a portion
of the proceedings. ... The attorney, having
been present at trial, should be expected to
be aware of any errors or improprieties which
may have occurred during the portions of the
proceedings not recorded. But when a
defendant is represented on appeal by counsel
not involved at trial, counsel cannot
reasonably be expected to show specific
prejudice. Often, however, even the most
careful consideration of the available
transcript will not permit us to discern
whether reversible error occurred while the
proceedings were not being recorded. In such
a case, to require new counsel to establish
the irregularities that may have taken place
would render illusory an appellant's right to
notice plain errors or defects, Hardy, 375
U.S. at 280, 84 S.Ct. 424, and render merely
technical his right to appeal.

Id.

Following our holding in Selva II, we decided United

States v. Taylor, 607 F.2d 153 (5th Cir.), reh'g denied, 614 F.2d

41
294 (5th Cir. 1980). In Taylor, the court reporter failed to

make a verbatim transcript of the trial court's charge to the

jury. Id. at 154. The trial judge gave each juror a written

copy of the charge, but the court reporter did not attempt to

transcribe the charge as the judge read it from the bench. Id.

The Taylor Court phrased the issue thusly: "Our problem arises

from the fact that, while the written charge is part of the

record on appeal, we have no way of knowing whether there was any

variance between that writing and the oral charge." Id. We

remanded and instructed the trial court to determine whether the

written charge could be viewed as the equivalent of the oral

charge. Id.

In Taylor, we again emphasized that the requirement of

the Court Reporter Act, that a verbatim transcript be made of

"all proceedings in criminal cases had in open court" is

mandatory and that this rule is "not to be overridden by local

practice." Id. at 154, quoting from United States v. Brumley,

560 F.2d 1268, 1280 (5th Cir. 1977). We further stated in

Taylor, "we have not chosen to adopt a per se rule requiring

reversal of any and all omissions. Instead, we apply one of two

standards depending on whether or not the defendant is

represented on appeal by the same attorney that represented him

at trial." Id. at 154.

From Selva II and its progeny, we thus discern three

interrogatories to be answered in this case: (1) which standard

of review to apply, which is dependent upon whether the defendant

42
is represented on appeal by the same attorney who defended him at

trial; (2) if the appellate counsel differs, whether the lost

portion is substantial and significant; and (3) if the portion

is substantial and significant, whether the trial court's

reconstruction amounts to a "substantially verbatim account" of

the missing portion of the transcript. In the instant case, we

need not spend much time on the first two inquiries.

We reject the government's contention that appellant's

appellate attorney should be deemed the functional equivalent of

appellant's trial attorney based upon appellate attorney's

participation in the trial proceedings below. As earlier

outlined, that participation was limited to pre-trial matters

involving the appellant's competency to stand trial and to

matters of sentencing. Appellant's current counsel was not

present when the instruction in issue was given to the jury.

Thus, appellant's appellate counsel, unlike appellant's trial

counsel, cannot articulate here what prejudice has befallen upon

appellant resulting from the missing portion of the record. Nor

can the court expect appellate counsel "to be aware of any errors

or improprieties which may have occurred during the portions of

the proceedings not recorded." United States v. Selva, 559 F.2d

1303, 1306 (5th Cir. 1977). Hence, we hold that on appeal the

appellant is being represented by counsel other than his attorney

at trial.

We also hold that the jury charge in issue is a

"substantial and significant" portion of the trial record. A

43
trial court's jury instructions designed to educate the jury on

the applicable law of the case and to prescribe the contours of

deliberations by a jury sworn to obey are certainly a

"substantial and significant" portion of the trial record.

We hold here that the record reconstructed at the

evidentiary hearing on remand was a substantially verbatim

account of the lost jury charge. The court reporter testified

that the trial court gave the jury the modified Allen charge

which she identified at the evidentiary hearing. Neither the

court reporter, the appellant's trial attorney, nor the jury

foreman indicated that the trial judge may have deviated from the

written modified Allen charge instruction, taken from the Pattern

Jury Instructions (Criminal Cases), United States Fifth Circuit

District Judges Association (1990).

Further, we find no error in the trial court's decision

to give this charge. On many occasions, we have upheld the

language of the charge. United States v. Gordon, 780 F.2d 1165,

1177 (5th Cir. 1986). And, we have stated that the trial court

has broad discretion to give the Allen charge when the jury is

deadlocked. Id.

Our holding here on the record reconstruction is not in

conflict with the rule announced in Selva II. There, the missing

trial record was trial counsel's closing arguments, an omission

which was almost impossible to reconstruct in a substantially

verbatim manner. A similar problem plagued the omissions in

44
those cases upon which Selva II relied. Id. at 1306 n.6.18

However, unlike the missing part of the record in Selva II and in

those cases upon which Selva II relies, the record of the loss of

a pattern jury instruction, faithfully read, is simply easier to

reconstruct as a substantially verbatim account.

Accordingly, the judgment of the district court is

AFFIRMED.

18
United States v. Gregory, 472 F.2d 484 (5th Cir. 1973)
(missing voir dire and opening statements); United States v.
Garcia-Bunifascio, 443 F.2d 914 (5th Cir. 1971) (missing
government's closing argument); United States v. Upshaw, 448
F.2d 1218, 1223 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92
S.Ct. 970, 30 L.Ed.2d 810 (1972) (missing defense arguments);
United States v. Rosa, 434 F.2d 964 (5th Cir. 1970) (missing
entire transcript); United States v. Atilus, 425 F.2d 816 (5th
Cir. 1970) (missing entire transcript); Stephens v. United
States, 289 F.2d 308 (5th Cir. 1961) (missing voir dire and
closing arguments).

45