UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5433

JAMES STANLEY CALDWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-94-44-MR)

Argued: September 23, 1999

Decided: November 16, 1999

Before HAMILTON, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Stimson Trivette, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Brian Lee
Whisler, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,
Greensboro, North Carolina, for Appellant. Mark T. Calloway, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

James Stanley Caldwell was convicted in the United States District
Court for the Western District of North Carolina on three counts of
firearms and narcotics violations. In this direct appeal, Caldwell chal-
lenges his convictions and sentence on three grounds: (1) the pur-
ported ineffective assistance of his trial counsel; (2) the pre-trial
destruction of significant evidence; and (3) the failure of the court
reporter to produce a sentencing transcript. For the reasons stated
herein, we affirm Caldwell's convictions and sentence.

I.

On October 28, 1993, James Caldwell was standing outside in an
area of Charlotte, North Carolina, known for frequent violence and
drug activity. Caldwell was holding a bottle of beer when he saw
three Charlotte police officers approach in a patrol car. Caldwell
sought to elude the officers' vision by walking around a nearby
dumpster. Two of the police officers exited the patrol car and Cald-
well began to run. As the police officers chased after him, they saw
Caldwell discard a small film canister and a small handgun. After
throwing these objects, Caldwell stopped running and the officers
secured him. The police recovered the discarded film canister and dis-
covered that it contained twenty-two small bags of a substance sus-
pected to be cocaine base. The police also recovered the handgun,
which was identified as a .38 caliber, and found four .38 caliber bul-
lets in Caldwell's coat pocket. The substance found in the film canis-
ter was transported to the Charlotte-Mecklenburg Crime Laboratory,
where a forensic chemist, Jennifer Mills, tested the substance and
determined it to be cocaine base. Caldwell was placed under arrest for
state law violations and taken into custody. The state charges were
later dismissed.

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On April 4, 1994, Caldwell was named in a three-count federal
indictment for: (1) being a felon in possession of a firearm, in viola-
tion of 18 U.S.C.A. § 922(g)(1) (West Supp. 1999); (2) possession
with intent to distribute cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999); and (3) use and carry of a firearm during a
drug trafficking crime, in violation of 18 U.S.C.A.§ 924(c)(1) (West
Supp. 1999).

After the federal indictment was returned against Caldwell, and
about a month before his trial was scheduled to begin, the Charlotte
police destroyed the substance found in the film canister at the direc-
tion of Officer Sikes, one of the arresting officers. Caldwell had not
had an opportunity to test the substance himself.

At trial, Jennifer Mills testified that she had tested the substance
found in the film canister and determined it to be cocaine base. On
cross-examination, Caldwell's trial counsel asked Ms. Mills about her
testing methods, but never insinuated that the substance tested was
not actually cocaine base. Officer Sikes testified that he authorized
the destruction of the evidence after he checked the status of the case
on his computer and the computer indicated that the case against
Caldwell had been dismissed. Officer Sikes testified that when he
authorized the destruction of evidence, he was unaware that Cald-
well's case was going to proceed in federal court. Caldwell's trial
counsel cross-examined Officer Sikes, and Sikes reiterated that he
authorized the destruction because he believed the case had been dis-
missed.

During the trial, Caldwell's trial counsel stipulated to Caldwell's
prior conviction for possession with intent to sell and deliver cocaine
base, but he failed to remove the nature of the offense from the stipu-
lation. This failure allowed the jury to hear on more than one occasion
that Caldwell had previously been convicted of possession with intent
to sell and deliver cocaine -- the same offense for which he was on
trial. The district court also sustained a Government objection to one
of Caldwell's trial counsel's questions and instructed Caldwell's
attorney to "move on" while cross-examining a witness on a certain
line of questioning. Caldwell's trial counsel also agreed to stipulate
to one of the arresting police officer's expert status in the field of
street-level drugs. At the close of the Government's case, Caldwell's

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counsel moved for acquittal pursuant to Federal Rule of Criminal Pro-
cedure 29, which was denied, and then rested without putting on any
evidence. The jury returned a verdict convicting Caldwell on all three
counts.

Prior to sentencing, a U.S. probation officer prepared a presentence
report in which he classified Caldwell as an armed career criminal
under the Armed Career Criminal Act (ACCA), because Caldwell had
three qualifying predicate offenses. 18 U.S.C.A.§ 924(e) (West Supp.
1999). Caldwell's trial counsel objected to this classification, and the
probation officer responded that the objection was without merit. The
district court sentenced Caldwell to 262 months on Count One, 240
months on Count Two (to run concurrently with Count One), and 60
months on Count Three (to run consecutive to Counts One and Two),
and noted that Caldwell "technically fit[ ] the description of an armed
career criminal." (J.A. at 271.)

Despite persistent efforts by Caldwell, the court reporter was
unable to produce a transcript of the sentencing hearing. Pursuant to
our order of December 30, 1997, the parties proceeded pursuant to
Federal Rule of Appellate Procedure 10(c) and submitted their recol-
lections of the sentencing proceeding. Caldwell's counsel on appeal
was not Caldwell's trial counsel, however, and trial counsel could not
be located to help reconstruct what took place at sentencing. In accor-
dance with Rule 10(c), the district court ultimately settled the record
based upon the parties' submissions. The court found that it had con-
sidered the arguments of counsel at sentencing and had determined
that Caldwell qualified as an armed career criminal.

II.

Caldwell first asserts that his trial counsel provided ineffective
assistance. Ordinarily, an ineffective assistance of counsel claim is
raised in a 28 U.S.C.A. § 2255 (West Supp. 1999) motion in district
court and should not be raised on direct appeal"`unless the record
conclusively shows ineffective assistance.'" United States v. King,
119 F.3d 290, 295 (4th Cir. 1997) (quoting United States v. Williams,
977 F.2d 866, 871 (4th Cir. 1992)).

The standard for determining whether an attorney's performance
constituted ineffective assistance is a familiar one. For Caldwell to

                    4
prevail, the record must demonstrate (1) that his counsel's perfor-
mance fell "outside the wide range of professionally competent assis-
tance" and (2) "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 690,
694 (1984). This two-prong test, therefore, requires both that the
attorney's performance fall below an objective standard of reason-
ableness and that the deficient performance prejudice the client. See
id. at 688, 691-94. Caldwell proffers several examples of his trial
counsel's purported ineffective assistance, which we address in turn.

A.

Caldwell first argues that his trial counsel's failure to prevent the
jury from hearing the specifics of his prior conviction for possession
with intent to sell and deliver cocaine constituted ineffective assis-
tance. Because Caldwell was charged with being a felon in possession
of a firearm in violation of 18 U.S.C.A. § 922(g)(1) (West Supp.
1999), the Government needed to prove that Caldwell was indeed a
convicted felon. Although it appears that Caldwell stipulated to this
fact, thereby relieving the Government from affirmatively proving his
prior conviction, Caldwell's trial counsel apparently failed to move to
exclude the specifics of the prior conviction from the stipulation.1 The
prosecution was therefore able to alert the jury on several occasions
that Caldwell had previously been convicted for one of the same
crimes for which he was on trial. It is clear under the law of this Cir-
cuit that had Caldwell's trial counsel moved to exclude the nature of
the offense upon which Caldwell's prior conviction was based, his
motion would have been granted. See United States v. Poore, 594
F.2d 39, 41 (4th Cir. 1979).

We need not decide whether trial counsel's omission fell "outside
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1 The trial transcript indicates that the parties stipulated to the prior
conviction, but it does not include the wording of the stipulation itself.
Nonetheless, the stipulation appears to have included the nature of Cald-
well's prior conviction. In its closing argument, the Government said:
"You then heard the stipulations. You heard that the Defendant had been
convicted on May 8, 1991, of possession with intent to sell and deliver
cocaine here in Mecklenburg County." (J.A. at 209.)

                    5
the wide range of professionally competent assistance," as required
under the first prong of the Strickland test, Strickland, 466 U.S. at
690, because we have no doubt that the record fails to demonstrate
that Caldwell was prejudiced by his counsel's actions, as required
under the second prong of Strickland, see id. at 694. The evidence
that Caldwell committed the crimes for which he was convicted was
overwhelming. The Government presented testimony from the three
arresting officers setting forth the circumstances of the arrest. The
chemist who tested the substance recovered from the film canister tes-
tified that the substance was cocaine base. The defense was unable to
present any exculpatory evidence at all. Although Caldwell claims
that he was prejudiced by the jury's exposure to the specifics of his
prior conviction, Caldwell simply does not show, and the record cer-
tainly does not conclusively establish, that "but for" his counsel's pur-
ported error the outcome of his trial would have been different.

B.

Caldwell also surmises that his trial counsel might have provided
ineffective assistance during sentencing with respect to Caldwell's
designation as an armed career criminal. The record shows, however,
that Caldwell's trial counsel objected to Caldwell's classification as
an armed career criminal in the presentence report. Nothing suggests
that trial counsel would have abandoned this objection during sen-
tencing. Moreover, the district court determined that the parties
argued this point during sentencing, when it settled the record pursu-
ant to Federal Rule of Appellate Procedure 10(c). We decline to sus-
tain an ineffective-assistance-of-counsel argument on direct appeal on
the basis of such unfounded speculation.

C.

Finally, Caldwell raises other examples of his trial counsel's pur-
ported ineffective assistance, including the tactical decision to stipu-
late to the expert status of a witness, the cross-examination of
witnesses without "purpose," and the "dogged[ ] pursui[t] [of] a line
of questioning." (Appellant's Br. at 22.) These arguments are also
unavailing. These tactical decisions simply did not fall "below an
objective standard of reasonableness." Strickland, 466 U.S. at 688.

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Nor is there any evidence that Caldwell suffered any prejudice as a
result of these decisions. See id. at 691-94.

III.

Caldwell next argues that he was denied due process because he
was unable to test the substance found in the film canister before its
destruction.

It is well settled that to prevail in establishing a due process viola-
tion for the government's failure to preserve potentially exculpatory
evidence, the appellant must demonstrate that the police acted in bad
faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988); United
States v. Sanders, 954 F.2d 227, 231 (4th Cir. 1992) (rejecting a
defendant's due process claim based upon the erasure of a potentially
exculpatory videotape in the absence of showing bad faith). Whether
the police officer acted in bad faith "turn[s] on the police's knowledge
of the exculpatory value of the evidence at the time it was lost or
destroyed." Youngblood, 488 U.S. at 56 n.*.

Caldwell proffers no evidence of bad faith on the part of the police
in destroying the substance found in the film canister. Instead, Cald-
well argues that an inference of bad faith is unavoidable because only
the police laboratory tested the substance before one of the arresting
officers authorized it to be destroyed. Nothing in the record, however,
supports a finding of bad faith. Officer Sikes explicitly testified that
he authorized the destruction of the evidence because his computer
indicated that the case had been dismissed. He was unaware that the
case against Caldwell was going to proceed to federal court. No evi-
dence suggests that Sikes destroyed the evidence for any other reason.
Caldwell has therefore failed to meet his burden of showing bad faith.2
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2 In addition, nothing suggests that the destroyed evidence was poten-
tially exculpatory. See Arizona v. Youngblood , 488 U.S. 51, 56-57
(1988). The chemist who tested the substance determined it to be cocaine
base. She testified to this fact at trial and was subjected to cross-
examination by Caldwell's attorney. All of the evidence presented indi-
cated that the destroyed evidence was indeed inculpatory.

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IV.

Caldwell's third and final argument on appeal concerns the failure
of the court reporter to produce a sentencing transcript.

The Court Reporter Act requires that a reporter"shall . . . record[ ]
verbatim . . . all proceedings in criminal cases had in open court." 28
U.S.C.A. § 753(b) (West 1993). Although compliance with this Act
is mandatory, Congress did not provide a remedy for its violation. We
have previously held that when a portion of a trial transcript is
unavailable, an appellant must show "that the missing portion of the
transcript specifically prejudices his appeal before relief will be
granted." United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985).
We think that in the case of an unavailable sentencing transcript, the
same showing of specific prejudice must be made. 3

Federal Rule of Appellate Procedure 10(c) is expressly designed to
address the situation when a transcript is unavailable.4 In this case, the
parties proceeded in accordance with Rule 10(c) and submitted their
_________________________________________________________________
3 With respect to incomplete or unavailable trial transcripts, the Fifth
Circuit has created a dual standard, ruling that in cases in which the
defendant is represented on appeal by new counsel, the normal "specific
prejudice" standard does not apply, and the mere"absence of a substan-
tial and significant portion of the record" requires reversal. United States
v. Selva, 559 F.2d 1303, 1305-06 (5th Cir. 1977); accord United States
v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993) (as succes-
sor court to former Fifth Circuit, bound by Selva). We have recently
joined the majority of Courts of Appeals in rejecting this approach and
held that a showing of prejudice must be made even if the defendant is
represented by new counsel on appeal. See United States v. Huggins,
Nos. 96-4310, 98-7351, 1999 WL 717244, at *3, *4 (4th Cir. Sept. 15,
1999). We believe the same rule should apply for an incomplete or
unavailable sentencing transcript.
4 Federal Rule of Appellate Procedure 10(c) provides:

          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, including the appellant's recollection. The
          statement must be served on the appellee, who may serve objec-
          tions or proposed amendments within 10 days after being served.
          The statement and any objections or proposed amendments must
          then be submitted to the district court for settlement and
          approval. As settled and approved, the statement must be
          included by the district clerk in the record on appeal.

Fed. R. App. P. 10(c).

                    8
statements of the sentencing proceeding to the best of their recollec-
tions. Of course, because Caldwell's counsel on appeal did not repre-
sent Caldwell at trial and could not locate Caldwell's trial counsel, he
likely had a difficult time in presenting his proposed statement of the
sentencing proceeding.

Caldwell contends that without a sentencing transcript, or an
informed account of the sentencing proceeding, we cannot effectively
review whether the sentencing was conducted properly. Specifically,
Caldwell argues that we will be unable to review the trial court's des-
ignation of Caldwell as an armed career criminal for purposes of the
ACCA. Caldwell asks that we remand the case for resentencing. We
decline to do so.

To begin, the presentence report clearly indicates that Caldwell was
initially classified as an armed career criminal. The record also clearly
shows that Caldwell objected to that designation, and the U.S. proba-
tion officer who prepared the presentence report responded that he
believed Caldwell's objection was without merit. Moreover, it
appears that the district court considered this question. In entering the
judgment in this case, the district court adopted the factual findings
and guideline application in the presentence report and noted that the
defendant "technically fit[ ] the description of an armed career crimi-
nal." (J.A. at 271.) Finally, in its order settling the record pursuant to
Rule 10(c), the district court established that it had considered the
positions of both parties and had determined that Caldwell was prop-
erly designated an armed career criminal for purposes of the ACCA.

In this appeal, Caldwell does not assert that he should not have
been categorized as an armed career criminal. He merely claims that
because we are unable to know what evidence was presented other
than the presentence report, we must remand for resentencing. Cald-
well fails to show, however, that he has incurred any "specific preju-
dice" because of the lack of the sentencing transcript. We note again
that all indications in the record show that the district court fully con-
sidered whether Caldwell was an armed career criminal under the
ACCA and that the district court expressly found this fact in settling
the record pursuant to Rule 10(c). Caldwell has failed to demonstrate
any specific prejudice that he incurred because of the lack of a sen-
tencing transcript, and we therefore affirm his sentence.

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V.

Because Caldwell has failed to meet the requisite showing (1) that
his trial counsel provided him with ineffective assistance, (2) that the
police acted in bad faith in authorizing the destruction of evidence, or
(3) that he has been specifically prejudiced by the lack of a sentencing
transcript, we hereby affirm his convictions and sentence.

AFFIRMED

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