                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            July 24, 2009
                            No. 07-12918                  THOMAS K. KAHN
                        Non-Argument Calendar                  CLERK
                      ________________________

                   D. C. Docket No. 06-14029-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DESHONE STACY,
a.k.a. Bert,
DERRICK COOPER,
a.k.a. Coop,
a.k.a. Blackboy,


                                                       Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                   for the Southern District of Florida
                     _________________________

                              (July 24, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

      A Southern District of Florida jury convicted Deshone Stacy and his brother,

Derrick Cooper, of conspiring, in violation of 21 U.S.C. § 846, to possess with

intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1). The jury also convicted Cooper of the substantive offense of

possession with intent to distribute 50 grams or more of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1). Following the imposition of sentence, Stacy and Cooper

appealed their convictions. After the appeal got underway, they notified this court

that the transcript of the closing arguments and jury instructions at their joint trial

was missing. On May 2, 2008, we issued an order remanding the case to the

district court with the instruction that the district court attempt to reconstruct the

record under Federal Rule of Appellate Procedure 10(c). After holding a hearing

on the issue, the district court filed and submitted to this court a statement of

evidence regarding the missing transcript. This appeal then resumed.

      In their briefs on appeal, Stacy and Cooper argue that they are entitled to a

new trial on the ground that the transcript of the oral arguments and jury

instructions are missing and the district court’s reconstruction is materially

inadequate. They argue alternatively that they should receive a new trial because

the district court abused its discretion in denying their motion for a post-trial juror



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interview and a new trial based on juror misconduct. Stacy presents a third

argument, that the district court abused its discretion in denying his motion for a

new trial based on ineffective assistance of counsel.

                                           I.

      The Court Reporters Act requires a reporter to record “verbatim by

shorthand, mechanical means, electronic sound recording, or any other method” all

criminal proceedings held in open court. 28 U.S.C. § 753(b). A criminal

defendant has a right on appeal to a complete transcript of the trial proceedings.

Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 428, 11 L.Ed.2d 331

(1964).

      We have established a two-part standard for determining whether an

incomplete trial transcript entitles a defendant to a new trial. United States v.

Selva, 559 F.2d 1303, 1305-06 (5th Cir. 1977). First, if the defendant is

represented on appeal by trial counsel, a failure to properly record and preserve a

portion of the trial proceedings only works a reversal if the defendant makes “a

specific showing of prejudice,” such that the failure “visits a hardship upon him

and prejudices his appeal.” Id. at 1305. By contrast, if the defendant is

represented by new counsel on appeal, “the absence of a substantial and significant

portion of the record, even absent any showing of specific prejudice or error, is



                                           3
sufficient to mandate reversal.” Id. at 1306. The dual standard from Selva is based

on the understanding that “an appellate attorney who participated in the trial

generally would be in a better position to point to specific prejudice resulting from

the omission of parts of the proceedings from the record on appeal,” whereas “an

appellate attorney who was not involved in the trial often will be unable to identify

and pursue irregularities that might otherwise entitle an appellant to relief.” United

States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993).

      First, in regard to a case involving new counsel on appeal, “[t]here can be no

substantial and significant omissions from a reconstructed record if, taken as a

whole, it accords effective review on appeal.” Id. at 1213. Thus, if a

“reconstructed record discloses an accurate account of the trial so as to provide

effective appellate review,” then we may address the assigned errors. Id. In

contrast, a reconstructed record that still lacks a sufficiently detailed account of a

substantial and significant portion of the record may provide an inadequate basis

for our review and require us to remand for a new trial. See id. at 1213-15.

      Second, in regard to a case involving the same counsel who defended the

appellant at trial, specific prejudice resulting from the record omission must be

shown to mandate reversal. Selva, 559 F.2d at 1305-06. In such a case, counsel

“should be expected to be aware of any errors or improprieties which may have



                                            4
occurred during the portion of the proceedings not recorded,” and counsel is

required to “articulate the prejudice that may have resulted from the failure to

record a portion of the proceedings.” Id. at 1306. An appellant’s “vague

allegations” that “missing portions of the record would have supported the points

of error alleged in his brief and would have revealed certain other potential points

of error that his counsel could not consider without the record” were not sufficient

to demonstrate prejudice. United States v. Bankston, 603 F.2d 528, 534-35 (5th

Cir. 1979); see also Addison v. United States, 317 F.2d 808, 811 (5th Cir. 1963)

(holding that reversal was not required, even though closing arguments were not

recorded, because the record did not demonstrate and the appellants did not

identify any potentially improper comments or actions during the closing

arguments that gave rise to prejudice).

      Stacy is represented by new counsel on appeal; Cooper is represented by the

same counsel that defended him at trial. Accordingly, under Selva, different

standards govern these two defendants and their requests for new trial based on the

missing transcript of the closing arguments and jury instructions.

      After review of the reconstructed record and the parties’ briefs, we conclude

that Stacy is entitled to a new trial because the missing transcript, and omissions

from the reconstructed record, are “substantial and significant.” Cooper, however,



                                           5
is not entitled to such relief because he has failed to demonstrate any specific

prejudice based on the missing portion of the record. Accordingly, we vacate

Stacy’s conviction, remand the case for further proceedings.1

                                               II.

      “A motion for new trial based on newly discovered evidence is committed to

the sound discretion of the trial court and will not be overturned absent abuse of

discretion.” United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994).

Likewise, a district court’s decision to deny a defendant’s post-trial motion to

interview the jury regarding juror prejudice is reviewed for an abuse of discretion.

United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976).

      The Sixth Amendment guarantees defendants the right to trial by an

impartial jury. U.S. Const. amend. VI. A defendant is entitled to a new trial based

on juror misconduct if: (1) a juror intentionally fails to answer a question honestly

at voir dire; and (2) he shows that the juror’s truthful answer would have provided

a challenge for cause based on juror bias. United States v. Perkins, 748 F.2d 1519,

1531-32 (11th Cir. 1984). “A relationship between a juror and a defendant, albeit a

remote one, can form the basis of a challenge for cause.” Id. at 1532.

      A motion for new trial based on juror misconduct is treated as a motion for



      1
          In doing so, we decline to address Stacy’s other arguments.

                                                6
new trial based on newly discovered evidence. United States v. Calderon, 127

F.3d 1314, 1351 (11th Cir. 1997). In order to obtain a new trial based on newly

discovered evidence, the movant must establish that the evidence was discovered

after trial and that the failure to discover the evidence prior to the jury verdict was

not due to a lack of due diligence. Id. “[A] defendant cannot learn of juror

misconduct during the trial, gamble on a favorable verdict by remaining silent, and

then complain in a post-verdict motion that the verdict was prejudicially influenced

by that misconduct.” United States v. Jones, 597 F.2d 485, 488 n.3 (5th Cir. 1979).

A defendant waives a juror misconduct claim if he learns of the basis for such a

claim during trial and fails to bring it to the court’s attention before the jury renders

its verdict. United States v. Bolinger, 837 F.2d 436, 438 (11th Cir. 1988).

      The district court did not abuse its discretion in denying Cooper’s motion for

a post-trial juror interview and a new trial based on juror misconduct. General

allegations came to light during the trial that the juror in question, Derrick Johnson,

knew Cooper. Although those allegations did not include specific information

about how Johnson knew Cooper, Cooper did not exercise due diligence in

pursuing the issue prior to being found guilty. In addition, when the general

allegations came to light, at trial and in open court, Cooper objected to the

Government’s request to interview Johnson. Thus, Cooper invited any arguable



                                            7
error committed by the district court in declining to pursue the allegations.

Accordingly, we affirm Cooper’s convictions.

      AFFIRMED, in part; VACATED and REMANDED, in part.




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