United States v. Turner , 365 F. App'x 918 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 12, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 07-5143
(N.D. Okla.)
DESMOND DION TURNER, (D.C. No. 07-CR-47-HDC-1)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, HOLLOWAY, and O’BRIEN, Circuit Judges.
Desmond Dion Turner appeals from his convictions for possession with intent to
distribute cocaine base (crack), cocaine, and marijuana and use and carrying of a firearm
during and in relation to a drug trafficking crime. He was convicted by a jury. He voices
no complaints about the trial or the adequacy of his retained attorney. Instead he
complains that possible pretrial irregularities coupled with an inadequate record from
which to appeal compel reversal. Most of his concerns are
*
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
imagined and were not properly preserved (none were called to the attention of the
district judge). As to the remainder, if error occurred it was harmless. We affirm.
I. BACKGROUND
In late January 2007, Turner was arrested after police arranged a controlled buy in
an Oklahoma hotel room. An indictment charged Turner with possession with intent to
distribute crack, cocaine and marijuana and use and carrying of a firearm during and in
relation to a drug trafficking crime. He had six pretrial proceedings.1
Turner first appeared before a magistrate judge on March 26, 2007.2 Represented
by an Assistant Federal Public Defender, he acknowledged having read and understood
the indictment. Turner stated he was attempting to retain counsel. The magistrate judge
granted a continuance so Turner could make these arrangements. Arraignment was set
for March 28, 2007. The government filed a motion for pretrial detention and requested a
detention hearing.3 The magistrate judge scheduled the detention hearing for March 28,
1
Turner raises the adequacy of the original hearing transcripts as an issue on
appeal. Some of the original transcripts were obviously incomplete. We granted the
government’s motion to supplement the record with amended transcripts. The statement
of facts is taken, in part, from those amended transcripts.
2
The original March 26 transcript contains one page of dialogue and includes a
limited discussion of unidentified waiver forms. It appears to begin mid-hearing and
identifies a different Assistant United States Attorney. The supplemental transcript
makes no mention of waiver forms and does not include any dialogue shown in the
original transcript. The original transcript was at least inaccurate and may have involved
a different proceeding entirely. [Vol. I, Docket Sheet at 3; Vol. VI; Supp. Vol. I]
3
Because of the crimes for which Turner was indicted, he was presumed to be
ineligible for pretrial release but could rebut this presumption. See 18 U.S.C. §§ 924(c)
(using or carrying a firearm during and in relation to a drug trafficking crime);
3142(e)(3)(A) (a controlled substance offense that was subject to a maximum term of
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2007.
Turner next appeared before the magistrate judge on March 28, 2007, again
represented by an Assistant Federal Public Defender. He informed the magistrate judge
he was still attempting to retain an attorney who was out of town for personal reasons.
The magistrate judge again continued the matter to allow Turner the opportunity to
consult with counsel.
On April 3, 2007, Turner and his retained attorney appeared before the magistrate.
Turner pled not guilty and again stated he had read and understood the indictment. The
magistrate judge asked Turner’s lawyer how he wished to proceed on the government’s
detention motion. Counsel stated he needed time to prepare. The magistrate judge
honored the request for additional time and set a date agreeable to Turner’s counsel.
On April 5, 2007, Turner and his counsel appeared for the detention hearing.4 The
government called one witness who testified regarding the circumstances surrounding
Turner’s arrest. Turner called his former employer who testified he would rehire Turner
if he was released. The magistrate judge sustained the government’s motion for
detention. Although the magistrate judge issued no written findings or a statement of
reasons, he made oral findings in support of his decision which noted: Turner’s past
departure from the jurisdiction before fulfilling his supervised release conditions, his
imprisonment of ten years or more).
4
The original April 5 transcript is less than one page long. It includes only the
ultimate disposition of the government’s motion. The district court docket sheet contains
an entry recording only the minutes of the hearing and a notation that the magistrate
judge ordered Turner’s continued incarceration prior to trial.
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attempted flight from the police and failure to show his hands while possessing a loaded
weapon when arrested on the current charges, his past drug use, the fact his current
offense was a crime of violence and his limited history, family ties and employment
record in the community. No request for written findings or a written statement of
reasons was made, nor did Turner seek review of the detention order by the district court.
See 18 U.S.C. § 3145(b).
On May 22, 2007, Turner and his attorney appeared for a pretrial conference. His
attorney stated the government had provided a written plea agreement that appeared to be
acceptable but he had not had time to review it with Turner in detail. However, he
represented he was authorized to inform the court that a trial would not be needed. The
magistrate judge scheduled a change of plea hearing but stated if there was no plea
Turner would be expected to go to trial as scheduled.
On May 30, 2007 - three business days before trial was to begin - Turner appeared
with his attorney. Defense counsel informed the magistrate judge Turner would not be
pleading guilty and wanted to proceed to trial with a new attorney.5 The attorneys and
the magistrate judge discussed plea negotiations and Turner’s rejection of the
government’s proposed plea bargain, the time needed for a trial, and Turner’s request for
a different attorney. When the magistrate judge asked why he wanted new counsel,
Turner responded:
5
The original May 30 transcript is less than two pages long. It includes the
dialogue referencing Turner’s request for substitution of counsel and references previous
untranscribed dialogue between the magistrate judge and the attorneys about the time
needed for a trial.
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Well, we did talk, like, last week when I came to court about the plea and
everything but everything still wasn’t explained to me, the guidelines
weren’t gone over with me. I mean, I still wasn’t sure about what I wanted
to do. I didn’t get a visit from my lawyer until Tuesday which I thought
was my court date.
So it was, like --- I just feel like he’s not really working for me and I feel
like --- I mean, I feel like we’ve lost already. He’s not really --- I don’t feel
like he’s fighting for me at all. So, therefore, I don’t think it would be right
to represent me as my lawyer.
(R. Supp. Vol. II at 6.) The magistrate judge told Turner that he had time to speak with
his attorney before trial was set to begin and directed him to explain his concerns in
writing to the district court judge who would preside at the trial. Implicitly, the
magistrate judge denied the request to substitute counsel.
Turner appeared with his attorney for trial on June 4, 2007. Defense counsel
stated the defense was ready. Neither defense counsel nor Turner raised an objection
about the pretrial proceedings and Turner did not renew his request for appointment of
new counsel. After a two-day trial, the jury found Turner guilty. Turner was sentenced
to seventy-eight months imprisonment. He raises no complaint about his trial or
sentencing.
Rather, Turner’s appellate arguments involve two concerns: the transcription
accuracy of the pretrial proceedings and the adequacy of those proceedings. He distills
these concerns to six issues: (1) the district court’s failure to preserve a record adequate
to afford a meaningful appeal; (2) a violation of the Court Reporter’s Act through failure
to accurately transcribe proceedings; (3) procedural errors by the magistrate judge during
Turner’s arraignment and initial appearance; (4) the magistrate’s failure to issue written
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findings or a statement of reasons when granting the government’s motion for pretrial
detention; (5) the magistrate’s failure to properly consider his desire to substitute counsel;
and (6) to the extent each of these alleged errors are harmless, cumulative error requiring
reversal.
II. DISCUSSION
A. Record Issues
1. Transcription of the pretrial proceedings
Turner claims the court failed to maintain an adequate record of the pretrial
proceedings for appeal. Pretrial proceedings before magistrate judges in the Northern
District of Oklahoma are ordinarily recorded electronically and only transcribed upon a
party’s request. After filing his notice of appeal, Turner requested transcripts of his
pretrial hearings.6 The Court Reporter prepared them and certified they were a true and
accurate transcription of the proceedings. Despite this certification, some of the
transcripts were obviously incomplete. Rather than questioning the accuracy of the
transcripts with the court reporter or the district court through a post-trial motion,7 Turner
6
Turner is represented by a new attorney on appeal.
7
There are multiple ways Turner could have requested the record be reviewed
before or after it was compiled. For example, Rule 10(c) of the Federal Rules of
Appellate Procedure states: “If the transcript of a hearing or trial is unavailable, the
appellant may prepare a statement of the evidence or proceedings from the best available
means . . . .” This statement is then provided to the appellee for comment or objection,
submitted to the district court for approval, and included in the record on appeal.
Similarly, Rule 10(e)(1) states: “If any difference arises about whether the record truly
discloses what occurred in the district court, the difference must be submitted to and
settled by that court and the record conformed accordingly.” Turner did not prepare a
statement of the evidence to include in the appellate record nor did he file an objection to
the record or a motion to correct the record with this Court or the district court.
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filed his brief in this Court alleging the court reporter’s certification of faulty transcripts
violated the Court Reporter’s Act and the deficient transcripts failed to provide an
adequate record from which to appeal. He does not explain how pretrial errors, if any,
survive a guilty verdict in an error-free trial.
After Turner made these allegations – and at the government’s request — the court
reporter compared the electronic recordings to the original transcripts and found that
three electronic recordings contained significantly more dialogue than originally
transcribed. The court reporter certified amended transcripts. The government then filed,
and we granted, a motion to supplement the record with the amended transcripts. Turner
continues to allege the original transcription problems cast doubt on the reliability of the
supplemental amended transcripts. His argument is specious.
The Tenth Circuit Rules of Appellate Procedure place the duty to provide
transcripts which “give the court a complete and accurate record of the proceedings”
upon the Appellant. 10th Cir. R. 10.1(A)(1). “A party who seeks to reverse the decision
of a district court must provide an adequate record for this court to determine that error
was committed.” Travelers Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118, 1119
(10th Cir. 2003). Turner does not challenge the existence of the electronic recordings,
nor does he offer evidence to show the supplemental transcripts vary from the electronic
recordings (much less that they lack in substance).8 Rather, Turner asserts the
supplemental transcription raises more questions about the accuracy of what occurred and
8
Neither party sought to have the record supplemented with the electronic
recordings.
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whether other potentially unrecorded (or improperly transcribed) proceedings prejudiced
his rights.9 His speculations do not show that the record and supplemental record fail to
accurately detail the pretrial proceedings at which Turner alleges the magistrate judge
violated his rights.
2. Court Reporter’s Act – 28 U.S.C. § 753(b)
The Court Reporter’s Act requires all criminal proceedings held in open court be
recorded verbatim by shorthand, mechanical or electronic means. 28 U.S.C. § 753(b).
The Act also explains the process by which written transcripts shall be certified: “The
transcript in any case certified by the reporter . . . shall be deemed prima facie a correct
statement of the testimony taken and proceedings had. No transcripts . . . shall be
considered as official except those made from the records certified by the reporter.” Id.The Act’s requirements are mandatory; no request to enforce them is required of the
defendant. Edwards v. United States, 374 F.2d 24, 26 n.2 (10th Cir. 1966).
The original certified transcripts were incomplete. The transcripts for the March
26 and April 5 hearings each contained less than one page of dialogue and the transcript
for May 30 included only a portion of the hearing and referred to conversations not
included in the transcript. Because these transcripts did not encompass a verbatim
recording of the proceedings, there is no doubt the court reporter erred in certifying them.
This was a violation of the Court Reporter’s Act. Although a serious violation, it does
9
Turner does not identify any specific prejudice or substantial right allegedly
placed in jeopardy, but only asserts “serious questions of what else is missing and what
else may be present that doesn’t belong” and demands complete reversal. (Appellant’s
Reply. Br. at 16.)
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not compel reversal of Turner’s conviction.
A violation of the Court Reporter’s Act is not per se prejudicial error; an appellant
must show prejudice before we will reverse his conviction due to non-compliance.
United States v. Haber, 251 F.3d 881, 889-90 (10th Cir. 2001). Such non-compliance is
reversible error only “when the unavailability of a transcript makes it impossible for the
appellate court to determine whether or not prejudicial error was committed with regard
to a challenged action.” Id. at 889 (quotations omitted).
Turner asserts a generalized objection to the “many seriously disturbing questions
that call into doubt the integrity of the district court’s record-keeping system . . .” and
challenges the reliability of the court’s recordkeeping as a whole. (Appellant’s Reply Br.
at 9.) He points to the original transcript of the March 26 hearing that referred to waiver
forms not included in the record and argues a possible missing waiver form makes it
impossible to know for certain whether prejudicial error occurred. However, counsel has
not identified a waiver sought to be enforced against Turner, nor any alleged prejudice
Turner has suffered. There can be no prejudice in an unenforced waiver of Turner’s
rights, if there even was a waiver.
While the deficiencies in the transcripts were error, Turner’s unsupported
allegations of prejudice are uncompelling. Turner had the opportunity to question the
accuracy of the transcripts with the court reporter, file a post-trial motion with the district
court, or even utilize the various procedures set forth in Rule 10 of the Federal Rules of
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Appellate Procedure in an attempt to correct the record.10 Turner’s attorney admitted he
made absolutely no inquiry into the transcripts’ accuracy except to ask his client, who
could not remember the proceedings. The problems with the initial transcripts were
identified and corrected in a straightforward fashion through a review of the electronic
recordings and supplementation of the record.
After a full review of the record we are satisfied the amended transcripts provide
an adequate basis for us to determine if any error by the magistrate judge was prejudicial
to Turner’s substantial rights. Any hardship Turner may have faced because of the court
reporter’s initial errors and his own failure to inquire about the sufficiency of the
transcripts did not affect his substantial rights. The court reporter’s error in certifying the
initial transcripts does not entitle Turner to reversal.
B. Pretrial Insufficiencies
Turner alleges three pretrial insufficiencies for the first time on appeal.
Specifically, he alleges the district court violated Rules 5 and 10 of the Federal Rules of
Criminal Procedure – which set forth pretrial procedure - and the Bail Reform Act by not
issuing written findings and a statement of reasons. We review each for plain error
because the issues were not raised before the district court. United States v. Vonn, 535
U.S. 55, 66 (2002) (“A defendant’s right to review of error he let pass in silence depends
10
While Turner has the right to rely upon the court reporter’s certification of the
transcripts, a cursory review of them would have caused any attorney to question their
accuracy. He should have, as a matter of common sense, asked the court reporter directly
or filed a post-trial motion with the district court, allowing it an opportunity to consider
alleged errors and any attending prejudice.
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upon the plain error rule.”); see also United States v. Lalonde, 509 F.3d 750, 757 (10th
Cir. 2007) (“We review violations of the Federal Rules of Criminal Procedure for plain
error if the defendant fails to object before the district court.”). “Plain error occurs when
there is (1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008). “[F]or a
defendant seeking reversal of his conviction, plain error review requires a heightened
showing of prejudice.” Lalonde, 509 F.3d at 759. The defendant bears the burden of
proof on plain error review. Vonn, 535 U.S. at 62-63.
1. Rules 5(d) and 10(a) of the Federal Rules of Criminal Procedure
Rules 5(d) and 10(a) of the Federal Rules of Criminal Procedure set forth
procedural requirements for initial appearances and arraignments. Turner alleges the
magistrate judge failed to abide by these rules. The transcripts confirm the magistrate
judge erred in some respects. In other respects, the record is clear no error occurred.
Rule 5(d)(1) provides:
[T]he judge must inform the defendant of the following:
(A) the complaint against the defendant, and any affidavit filed with it;
(B) the defendant’s right to retain counsel or to request that counsel be
appointed if the defendant cannot obtain counsel;
(C) the circumstances, if any, under which the defendant may secure
pretrial release;
(D) any right to a preliminary hearing; and
(E) the defendant’s right not to make a statement, and that any statement
made may be used against the defendant.
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The record shows no violation of Rule 5(d)(1)(A)-(B) occurred. The transcripts from
March 26 and April 3 indicate the magistrate judge provided Turner a copy of the
indictment against him, made certain he understood the charges, and assured he was (or
would be) represented by the counsel of his choice. However, the transcripts do show the
magistrate judge failed to inform Turner of some of his rights under Rule 5(d)(1)(C)-(E),
i.e., he failed to advise Turner of the circumstances under which he could obtain pretrial
release, his right not to make a statement and the consequences of making a statement.
Rule 5 provides no discretion on these requirements. In relation to these requirements,
the magistrate judge erred.11
While there were errors and they were plain, Turner makes no cogent argument as
to how they affected his substantial rights and we detect none from our review. He was
represented by competent counsel at all times. While he was never informed by the court
of his ability to obtain pretrial release, the magistrate judge held a detention hearing
where Turner’s attorney presented a witness and cross-examined another. Finally, Turner
was not informed of his right to remain silent or the ability of the government to use his
statements against him. But there is no argument he made a prejudicial statement or that
the government has ever attempted to use any of his statements against him. We discern
no prejudice to Turner’s substantial rights through these errors.
Rule 10(a) requires:
11
In his litany of technical complaints, Turner includes not being advised of his
right to a preliminary hearing. He has no such right as he was indicted before his initial
appearance. United States v. Brooks, 569 F.3d 1284, 1290 (10th Cir.), cert. denied, 130
S. Ct. 234 (2009). Strict compliance with Rule 5 does not require notifying a defendant
of non-existent rights.
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An arraignment must be conducted in open court and must consist of:
(1) ensuring that the defendant has a copy of the indictment or information;
(2) reading the indictment or information to the defendant or stating to the
defendant the substance of the charge; and then
(3) asking the defendant to plead to the indictment or information.
The record is clear the requirements of Rule 10(a)(1) and (a)(3) were satisfied. Turner
indicated he was given a copy of the indictment and stated he had read it and understood
the charges against him on both March 26 and April 3. He then, while represented by
retained counsel, pled not guilty to all counts.
The requirement of Rule 10(a)(2) was not met – the magistrate judge failed to read
the indictment or a summary of the charges to Turner prior to his entering a plea.
Regardless, Turner makes no argument this failure to read the indictment aloud was
prejudicial. He said he understood the charges, pled not guilty, and went to trial on all
charges. There was no mistaken or ill-informed waiver of the right to a trial or even
improper entry of a plea. We have held a failure to satisfy Rule 10 meets the first two
prongs of the plain error test but no more. See Lalonde, 509 F.3d at 758. This case is no
different. While the magistrate judge plainly erred in not reading the indictment aloud,
there was no prejudice to Turner’s substantial rights in failing to do so.
2. Bail Reform Act (18 U.S.C. § 3142)
The Bail Reform Act requires “written findings of fact and a written statement of
the reasons for detention” after a hearing determining pretrial detention. 18 U.S.C. §
3142(i)(1). The primary purpose of the written-finding requirement is to ensure the
underlying reasons for a detention order are sufficiently clear to permit appellate review.
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United States v. Affleck, 765 F.2d 944, 954 (10th Cir. 1985) (noting the statutory
requirement “comports with Fed. R. App. P. 9(b) . . . [which] requires the district court to
‘state in writing [its] reasons’ [to] aid[] our appellate function by requiring . . . written
findings and conclusions.”); see also United States v. Goodman, 145 Fed. Appx. 282, 284
(10th Cir. 2005) (unpublished) (“The primary purpose of §3142(i)(1) is to ensure that the
reasons underlying a detention order are articulated with sufficient clarity to permit
appellate review.”).12
The record demonstrates the magistrate judge discussed with clarity his reasons
for issuing a detention order; as detailed earlier, he listed a number of reasons. However,
it is undisputed the magistrate judge failed to make written findings of fact and a written
statement of reasons for detention.13
The magistrate’s failure to issue written findings and a statement of reasons was
error and it is plain. However, the supplemental transcript shows the magistrate’s oral
statements addressed the statutory factors for detention and are preserved for our review.
Additionally, Turner’s subsequent conviction negated any consequence of the error -
particularly when he was given credit toward his sentence for time served prior to trial.
Turner has identified no prejudice as a result of his continued detention and reversal
12
Unpublished opinions are not binding precedent. 10th Cir. R. 32.1(A). We
mention Goodman as we would an opinion from another circuit, persuasive because of
its reasoned analysis.
13
Turner did not object to these findings and reasons or to the absence of a
written order at the time. Neither did Turner exercise his right to appeal the detention
order to a district judge, who has the authority to reconsider it. See 18 U.S.C. § 3145(b);
see also United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003).
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would not restore the benefits a timely written order would have provided. See United
States v. Montalvo-Murillo, 495 U.S. 711, 721 (1990).
3. Sixth Amendment Right to Counsel
Turner also claims the magistrate judge erred by failing to hold a hearing on his
request to substitute counsel or allow self-representation.14 A decision regarding
substitution or discharge of counsel is reviewed for abuse of discretion. United States v.
Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). We have explained the showing necessary
for the substitution of one’s counsel:
[T]he defendant must show good cause, such as a conflict of interest, a
complete breakdown of communication or an irreconcilable conflict which
leads to an apparently unjust verdict. Good cause for substitution of
counsel consists of more than a mere strategic disagreement between a
defendant and his attorney. [R]ather, there must be a total breakdown in
communications. To prove a total breakdown in communication, a
defendant must put forth evidence of a severe and pervasive conflict with
his attorney or evidence that he had such minimal contact with the attorney
that meaningful communication was not possible.
Our cases instruct us in making this assessment to look at whether (1) the
defendant’s request was timely; (2) the trial court adequately inquired into
defendant’s reasons for making the request; (3) the defendant-attorney
conflict was so great that it led to a total lack of communications precluding
an adequate defense; and (4) the defendant substantially and unreasonably
contributed to the communication breakdown.
United States v. Porter, 405 F.3d 1136, 1140 (10th Cir. 2005) (citations and quotations
omitted).
14
The only reference to this issue in the record is found in the transcript of the
May 30, 2008 hearing where Turner’s counsel told the magistrate, “Mr. Turner again
advises that he wishes to seek other counsel.” (R. Supp. Vol. II at 6.) Because Turner
never requested to represent himself, we do not consider the self-representation claim.
See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992) (we will
generally not consider an issue on appeal not raised below).
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Ultimately, “[a] defendant’s right to obtain counsel of his choice must be balanced
against the need for the efficient and effective administration of criminal justice. United
States v. Weninger, 624 F.2d 163, 166 (10th Cir. 1980). While courts should inquire into
a defendant’s reasons for seeking substitution of counsel, failure to do so “is harmless
where the defendant otherwise stated his reasons for dissatisfaction.” United States v.
Padilla, 819 F.2d 952, 956 n.1 (10th Cir. 1987). “[I]f the reasons proffered are
insubstantial and the defendant receives competent representation from counsel, a court’s
failure to inquire sufficiently or to inquire at all constitutes harmless error.” United
States v. Doe #1, 272 F.3d 116, 123 (10th Cir. 2001).
Turner informed the magistrate judge of his desire to substitute counsel at the May
30, 2007 pretrial hearing, three business days before the start of trial. While the
magistrate judge did not hold a separate hearing, he asked Turner to explain his
dissatisfaction. Turner said:
Well, we did talk, like, last week when I came to court about the plea and
everything but everything still wasn’t explained to me, the guidelines
weren’t gone over with me. I mean, I still wasn’t sure about what I wanted
to do. I didn’t get a visit from my lawyer until Tuesday which I thought
was my court date.
So it was, like --- I just feel like he’s not really working for me and I feel
like --- I mean, I feel like we’ve lost already. He’s not really --- I don’t feel
like he’s fighting for me at all. So therefore I don’t think it would be right
to represent me as my lawyer.
(R. Supp. Vol. II at 6.)
None of Turner’s concerns indicated a complete breakdown in communication that
would preclude an adequate defense. The magistrate judge stated Turner could discuss
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these concerns with his attorney prior to trial and told him to raise the issue with the trial
judge. Turner never objected to these instructions or raised the issue again until this
appeal.
The magistrate’s failure to hold a hearing was reasonable given the generic nature of
Turner’s concerns, the apparent ongoing communication between Turner and his counsel,
and the competent representation Turner’s counsel was providing (Turner raises no claim
of deficiencies in counsel’s representation). The magistrate judge could have held a
hearing on the matter or inquired further. However, the failure to do so was not an abuse
of discretion when one considers the timing of the request, the lack of a complete
breakdown in communication with his counsel, or Turner’s inability to identify a valid
concern with counsel’s representation.
C. Cumulative Error
Finally, Turner argues that to the extent the errors raised in this appeal are
determined to be harmless, their cumulative effect rendered his proceedings before the
district court fundamentally unfair. As we have explained:
A cumulative-error analysis merely aggregates all the errors that
individually have been found to be harmless, and therefore not reversible,
and it analyzes whether their cumulative effect on the outcome of the trial is
such that collectively they can no longer be determined to be harmless.
Unless an aggregate harmlessness determination can be made, collective
error will mandate reversal, just as surely as will individual error that
cannot be considered harmless. The harmlessness of cumulative error is
determined by conducting the same inquiry as for individual error - courts
look to see whether the defendant’s substantial rights were affected.
United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). “[C]umulative-error
analysis should evaluate only the effect of matters determined to be error, not the
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cumulative effect of non-errors.” Id. at 1471.
Clearly, there were technical errors: 1) the irregularities in the original
transcriptions, 2) the failure to advise Turner of the circumstances under which he could
obtain pretrial release, 3) his right not to make a statement, 4) the failure to read the
indictment aloud in court, and 5) the magistrate’s failure to issue a written order
following the detention hearing. These errors were not properly preserved. Nevertheless,
alone or cumulatively, they did not adversely affect Turner’s rights.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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