JEFFREY ANTOINE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5416 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 6781-6792) is reported at 906 F.2d 1379. JURISDICTION The judgment of the court of appeals was entered on July 5, 1990. The petition for a writ of certiorari was filed on August 8, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's conviction should be reversed because he lacked a complete transcript of his trial when he appealed. 2. Whether the three-year delay experienced by petitioner in obtaining a transcript of his trial violated his due process rights. STATEMENT After a jury trial in the United States District Court for the Eastern District of Washington, petitioner was convicted on one count of bank robbery, in violation of 18 U.S.C. 2113(a) (Count 1). The district court sentenced him to a term of 15 years' imprisonment and imposed a special assessment of $50. Petitioner noticed an appeal, but despite numerous attempts over several years was unable to obtain a complete transcript of his trial. The court of appeals vacated the conviction and remanded the case so that the district court could determine whether petitioner was specifically prejudiced by the lack of a complete transcript or by the delay in proceeding with his appeal. Pet. App. 6781-6792. 1. The evidence at petitioner's trial showed that on September 16, 1985, petitioner and two other persons robbed the United Bank in Tacoma, Washington, of approximately $5,663. Two bank tellers identified petitioner as one of the bank robbers. He was also identified by an eyewitness who saw him running with two other men from the area of the bank to a parked vehicle and driving away. In addition, three witnesses who knew petitioner reviewed a videotape of the bank robbery and identified petitioner as one of the robbers. Gov't C.A. Br. 3-4. 2. Petitioner's trial ended on March 4, 1986. On March 12, 1986, his ex-wife, acting on his behalf, requested a copy of the trial transcript from the court reporter and paid the full amount necessary to obtain it. Despite the filing of repeated motions by petitioner's counsel and the entry of repeated orders by the district court directing the preparation of the transcripts, as of July 11, 1988, the court reporter had neither filed any transcripts nor explained her failure to file them. On that date, the reporter finally informed the district court that she was not able to locate her trial notes and tapes. Pet. App. 6784. On August 9, 1988, the clerk of the court of appeals directed the district court to prepare a reconstruction of the trial proceedings pursuant to Fed. R. App. P. 10(c); the court of appeals confirmed this directive by an August 29, 1988 order. On February 16, 1989, petitioner's counsel filed a Rule 10(c) statement with the district court, but stated that this reconstruction was inadequate. The district court ordered a hearing for April 29, 1989. Meanwhile, portions of the reporter's notes were discovered. Using these notes, a substitute court reporter prepared a partial transcript and filed it on May 31, 1989. /1/ Objecting that in numerous places the transcript was incomplete or testimony was garbled, petitioner moved to vacate his conviction. On August 11, 1989, the district court denied the motion and ordered petitioner to proceed on appeal under either the partial transcript or the Rule 10(c) reconstruction, which the government had conceded (see Gov't C.A. Br. 5) to be inadequate. Pet. App. 6784-6785. 3. The court of appeals vacated petitioner's conviction and remanded the case to the district court for a determination whether petitioner had been specifically prejudiced by the lack of a complete trial transcript. Pet. App. 6786-6788. Petitioner had argued that his lack of a complete transcript compelled reversal of his conviction. Relying, inter alia, on United States v. Anzalone, 886 F.2d 229, 232 (9th Cir. 1989), the court of appeals held (Pet. App. 6786-6787) that absent a showing of specific prejudice, reversal was not required. Appellant had further argued that because his appellate counsel was different from his trial counsel, the outright reversal of his conviction was required by Hardy v. United States, 375 U.S. 277 (1964). The court of appeals declined to read Hardy as mandating that result, observing that Hardy "indicates only that the substitution of counsel is one significant factor to be considered in determining prejudice" (Pet. App. 6787). /2/ Petitioner had also argued that the three-year delay in processing his appeal was a violation of due process. Using the four-factor test to assess such claims set forth in Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981), /3/ the court of appeals found (Pet. App. 6788-6789) that the first three factors in the test -- the length of the delay, the reason for the delay, and the defendant's assertion of his right -- weighed in petitioner's favor. The court, however, was unable to determine whether the fourth factor, prejudice to the defendant, did so as well (see id. at 6789-6790). /4/ For example, the court could not determine from the incomplete record before it either the lawfulness of petitioner's confinement, or whether his grounds for appeal or his defense upon any retrial had been impaired. Id. at 6789-6790. Accordingly, the court remanded the case on this ground as well, so that the district court could determine whether the delay on appeal had impaired petitioner's defense in any retrial. /5/ ARGUMENT 1. Petitioner contends (Pet. 10-17) that the failure of the court reporter to provide him with a complete transcript of his trial proceedings denied him his rights under the Sixth Amendment and under 28 U.S.C. 753(b). As the court of appeals correctly determined, such an assertion is premature until the district court has ascertained whether petitioner's lack of a complete transcript of his trial caused him specific prejudice. In addition, this interlocutory decision of the court of appeals is not in conflict with any decision of this Court or of any court of appeals. It does not warrant further review. In pertinent part, 28 U.S.C. 753(b) provides that Each session of the court and every other proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method * * *. Proceedings to be recorded under this section include (1) all proceedings in criminal cases had in open court * * *. The failure of a court reporter to record proceedings verbatim, however, does not require automatic reversal of a defendant's conviction. E.g., United States v. Anzalone, 886 F.2d at 231; United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir.), cert. denied, 479 U.S. 984 (1986). In the present case, although there were errors in, and omissions from, the trial transcript, the record as a whole was not so defective that it warranted outright reversal of petitioner's conviction. The transcript contains (see Gov't C.A. Br. 12) the hearing on pretrial motions on the first morning of trial, the jury voir dire, the opening statements of counsel, the district court's rulings on objections to its intended jury instructions, the direct and cross-examinations of the witnesses, the closing statements of counsel, and the court's receipt of the jury's verdict. While neither the court's jury instructions nor petitioner's sentencing were part of the transcript, the record of the district court clerk contained the pretrial motions presented on petitioner's behalf, the court's written orders on the pretrial motions decided prior to trial, the court's written instructions to the jury, and the judgment and commitment order memorializing the results of petitioner's sentencing (see Gov't C.A. Br. 12-13). The record as a whole thus provided an adequate basis from which petitioner could have identified potential errors at trial. Despite the adequacy of this record, petitioner did not identify a single instance of prejudicial error that warranted reversal of his conviction. In the circumstances, the court of appeals correctly refused to presume prejudice, see Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986) (petitioner must present more than gross speculation that missing transcripts were necessary for a fair appeal), cert. denied, 481 U.S. 1056 (1987), but instead remanded the case to the district court for a determination whether the inadequacies of the transcript had prejudiced petitioner. United States v. Anzalone, 886 F.2d at 232; Mitchell v. Wyrick, 698 F.2d 940, 941 (8th Cir.) ("Mere absence of a perfect transcript does not necessarily deny one due process of law."), cert. denied, 462 U.S. 1135 (1983); United States v. Piascik, 559 F.2d 545, 547 (9th Cir. 1977), cert. denied, 434 U.S. 1062 (1978). Petitioner's claim that the decision below is in conflict with United States v. Selva, 559 F.2d 1303 (5th Cir. 1977), is mistaken. /6/ In the first place, Selva is distinguishable on its facts. In Selva, because of the illness of the court reporter and the malfunctioning of a tape recorder, no record at all was made of the closing arguments of counsel for either party. 559 F.2d at 1304-1305. The Fifth Circuit described this omission from the transcript as "significant and crucial" (id. at 1305). In the present case, although there are concededly a number of errors in the transcript, and omissions from it, there has been no showing that any, or all, of these errors and omissions are "significant and crucial." /7/ Indeed, the purpose of the remand to the district court is to afford petitioner an opportunity to make a showing that any such errors and omissions are so "significant and crucial" that they prejudiced his rights. Second, petitioner to the contrary, Selva itself does not stand for the broad principle that per se reversal is required whenever a trial transcript is incomplete and a defendant is represented by substitute counsel on appeal. The Selva court said: We do not suggest that any failure to record, however small or insignificant, will work a reversal. * * *. While we do not condone any departure from the requirements of the Court Reporter Act, * * * a merely technically incomplete record, involving no substantial or significant omissions, will not be sufficient to work a reversal. 559 F.2d at 1306 n.5 (emphasis added). The court later stated: We do not advocate a mechanistic approach to situations involving the absence of a complete transcript of the trial proceedings. We must, however, be able to conclude affirmatively that no substantial rights of the appellant have been adversely affected by the omissions from the transcript. Id. at 1306 (emphasis added). /8/ This approach is fully consistent with the decision below, which remands the case precisely so that the district court can determine whether any substantial rights of the petitioner have been adversely affected. /9/ Petitioner also contends (e.g., Pet. 17) that the court of appeals misread this Court's opinion in Hardy v. United States, supra, but that is not the case. Like the court below, and unlike the Selva court, cf. 559 F.2d at 1305, we do not read Hardy to mandate that a defendant be provided with a complete transcript of trial proceedings. In Hardy itself this Court did not require that the defendant be provided with at least three significant portions of the trial transcript -- the jury voir dire and the opening and closing arguments of counsel. See 375 U.S. at 282. 2. Petitioner further contends (Pet. 18-24) that the delay he experienced in obtaining a transcript of his trial proceedings denied him his due process rights to a timely appeal under the Fifth Amendment. This claim too is premature. "(D)ue process can be denied by any substantial retardation of the appellate process, including an excessive delay in the furnishing of a transcription of testimony necessary for completion of an appellate record," Rheuark v. Shaw, 628 F.2d at 302 (collecting cases), but "not every delay in the appeal of a case, even an inordinate one, violates due process." Id. at 303. In the present case, in order to determine whether the delay in petitioner's appeal violated his due process rights, the court of appeals properly applied the four-part test adopted in Rheuark, 628 F.2d at 303 n.8, which in turn was derived from the test for pretrial delay announced by this Court in Barker v. Wingo, 407 U.S. at 530. See also United States v. Johnson, 732 F.2d 379, 382 (4th Cir.), cert. denied, 469 U.S. 1033 (1984). Under that analysis, as the court of appeals observed (Pet. App. 6788-6789), the first three factors -- the three-year delay, /10/ the inability or unwillingness of the court reporter to produce the transcript, and the petitioner's vigorous assertion of his right to the transcript -- weighed in petitioner's favor. The court correctly found, however, that it could not determine the impact of the fourth prong of the Rheuark-Barker test, i.e., whether the delay had prejudiced petitioner. Although it could reasonably decide that the anxiety caused to petitioner by the delay in his appeal was not "particularly compelling" (Pet. App. 6790), it could not, on the record before it, apply the other two factors in the second Rheuark-Barker test and gauge whether petitioner's confinement was unlawful and therefore oppressive (see id. at 6789-6790) or whether the delay had impaired petitioner's arguments on appeal or his defense at any retrial. /11/ In these circumstances, the court properly concluded that it was "premature to rule on the alleged due process violation" (id. at 6791). /12/ Petitioner's reliance on United States v. Johnson, supra, and Rheuark v. Shaw, supra, is misplaced. In those caes, the courts of appeals either found or presumed prejudice under the fourth prong of the test adapted from Barker v. Wingo. See Johnson, 732 F.2d at 382; Rheuark, 628 F.2d at 302-303. In the present case, the court of appeals lacked sufficient information to make an authoritative Rheuark-Barker determination with respect to prejudice. In the circumstances, a remand of the case to the district court was not merely advisable, but compelled. This interlocutory decision of the court of appeals does not merit further review. /13/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General THOMAS M. GANNON Attorney OCTOBER 1990 /1/ Although neither the court's instructions to the jury nor the sentencing proceeding were transcribed, the record of the district court clerk contained both the court's written jury instructions and the judgment and commitment order memorializing the results of the sentencing proceeding. Gov't C.A. Br. 12-13. /2/ The court stated (Pet. App. 6787-6788) that its decision was inconsistent with United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977), which requires automatic reversal where a defendant lacks a substantially complete transcript and has substitute counsel on appeal. /3/ The Rheuark court itself had adapted this test from an analogous test developed by this Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine the constitutionality of pretrial delays. /4/ Here the court adopted a further test developed by the Rheuark court, to assess the possible prejudice resulting from a delayed appeal. The potential categories of prejudice were: oppressive incarceration pending appeal; anxiety of the incarcerated defendant pending resolution of the appeal; and impairment of the defendant's grounds for appeal or his defense upon retrial. Pet. App. 6789 (citing 628 F.2d at 303 n.8). The court in Rheuark was relying on Barker v. Wingo, 407 U.S. at 532, for the elements of this test as well. /5/ Petitioner had also claimed that his right to a speedy trial was violated in the district court. The court of appeals rejected this claim, Pet. App. 6785-6786, and petitioner does not challenge that ruling in this Court, Pet. 16. In addition, petitioner had contended that the prosecution had improperly withheld information about a government witness in violation of Brady v. Maryland, 373 U.S. 83 (1963). The court of appeals remanded this issue to the district court along with the issues raised in the instant petition. Pet. App. 6792. Petitioner's Brady claim, however, is not part of the instant petition. /6/ We recognize that the court of appeals in the present case acknowledged an inconsistency between the decision below and Selva. Pet. App. 6787-6788. We believe, however, that Selva can be read more narrowly than the court of appeals did, and that any conflict between the two decisions is more apparent than real. In addition, any conflict is more appropriately addressed after it is determined whether petitioner can demonstrate prejudice. If petitioner can make that demonstration, the alleged conflict would not have affected his case. /7/ The clerk's record in the district court, for example, substantially compensates for any omissions from the transcript. See Gov't C.A. Br. 12-13. Cf. United States v. Taylor, 607 F.2d 153, 154-155 (5th Cir. 1979) (remanding to district court for a determination whether the trial judge's written jury charge is an adequate substitute for a transcript of the oral charge under Selva). /8/ See United States v. Stefan, 784 F.2d 1093, 1102 (11th Cir.) (assuming the applicability of Selva, one hour and forty-five minute gap not a "substantial and significant omission" despite court reporter's testimony that omitted bench conference was a "pivotal point in the case"), cert. denied, 479 U.S. 855, 1009 (1986); United States v Colmenares-Hernandez, 659 F.2d 39, 43 (5th Cir.) (omission of transcript of government's rebuttal witnesses not a "substantial and significant omission of the transcript justifying reversal"), cert. denied, 454 U.S. 1127 (1981). /9/ In any event, the continuing vitality of Selva's interpretation of the Court Reporter Act is doubtful even in the Fifth Circuit. Another panel has questioned Selva's distinction between cases in which the defendant is represented by trial counsel on appeal (in which case the defendant is required to show prejudice), and cases in which the defendant has new counsel on appeal (in which case the conviction is "automatically" reversed if the omissions in the transcript are substantial and significant). See United States v. Smith, 591 F.2d 1105, 1109 n.1 (5th Cir. 1979) ("This anomalous rule seems to invite the manipulation of appellate causes to achieve unmerited reversals."). The Eleventh Circuit has questioned the wisdom of Selva on this ground, see United States v. Stefan, 784 F.2d at 1102, while the Sixth Circuit has specifically rejected it, United States v. Gallo, 763 F.2d 1504, 1530 (1985) ("We disagree, however, that a separate, less demanding test need be applied when a defendant is represented by new counsel on appeal."), cert. denied, 474 U.S. 1068, 1069, 475 U.S. 1017 (1986); id. at 1531 n.40 ("To apply a different standard as a matter of course may * * * permit a resourceful defendant to reap the benefit by utilizing a different counsel on appeal."). /10/ Approximately 16 months of the delay were attributable to petitioner and his trial counsel. This part of the delay arose out of confusion over whether petitioner intended to appeal his conviction. Gov't C.A. Br. 16-17. /11/ The court remarked (Pet. App. 6790) that it was "unclear how the passage of time could impair a defense based entirely upon a claim that the government had presented insufficient evidence to carry its burden of proof." At trial, petitioner had called only one witness, a bank teller who had identified him during the government's case-in-chief. Gov't C.A. Br. 18. /12/ The court of appeals rightly noted that even if petitioner had shown a due process violation, the remedy he sought, entry of a judgment of acquittal by the district court, was neither the only nor the usual remedy for such a violation. Pet. App. 6791; see Johnson, 732 F.2d at 383 (civil rights action or civil contempt proceeding could constitute alternative remedy); Layne v. Gunter, 559 F.2d 850, 851 (1st Cir. 1977) (affirmative relief inappropriate where state court has finally begun to process long-delayed appeal), cert. denied, 434 U.S. 1038 (1978); Morales Roque v. Puerto Rico, 558 F.2d 606, 607 (1st Cir. 1976) (per curiam) (release after conviction for nonbailable offense a last resort, even where appeal delayed). /13/ In People of Territory of Guam v. Olsen, 462 F. Supp. 608, 613 (D. Guam 1978), another case relied on by petitioner, prejudice from a delay in transcript preparation appeared on the face of the record. No such prejudice was shown in the instant case. Accordingly, Olsen does not help petitioner.