motion for limited remand
DESCRIPTION
US v. ShipleyTRANSCRIPT
No. 10-50856
IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN THOMAS SHIPLEY,
Defendant-Appellant.
APPELLEE’S MOTION FOR EXPEDITED LIMITED REMAND
Appellee United States of America, by and through its undersigned counsel,
hereby moves this Court, under FED. R. APP. P. 10(e)(2), for an expedited limited
remand to the district court to hold a record-reconstruction hearing and make findings
thereon for this Court. In support of this motion, the United States would show the
Court as follows:
A. Summary
Through no fault of either party, and despite the government’s best efforts, a
written verbatim transcript cannot be obtained for one trial day that is the subject of
the above-captioned direct criminal appeal pending with this Court. Since May 25,
2011, the date the district court found that a verbatim transcript was unobtainable, the
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Appellant has not taken any steps to rehabilitate the record, including the procedure
specifically reserved for him under FED. R. APP. P. 10(c). The need for record
reconstruction via FED. R. APP. P. 10(e)(2) became evident to the government only
when the Appellant revealed the significance of the missing transcription by
specifying the issues on appeal as raised in his brief filed on December 29, 2011.
Having reviewed those issues in light of the record and applicable legal
authorities, we now request that the Court direct an expedited limited remand under
Rule 10(e)(2) for the district court to conduct a record-reconstruction hearing
concerning missing portions of the trial transcript and to make findings thereon to this
Court so that it may determine whether an accurate nonverbatim reconstructed record
permits effective appellate review. The requested relief comports with Circuit
precedent; facilitates appellate review of several of the Appellant’s briefed issues; and
effectuates the district court’s stated intent to, if possible, avoid a retrial.
B. Background
1. Trial. With both parties concurring, the district court in the El Paso
Division of the Western District of Texas certified this case as complex and unusual,
inasmuch as the indictment covered a period greater than three years, encompassed
voluminous discovery compiled during an investigation that lasted more than one
year, and involved witnesses and transactions scattered throughout the United States
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(1R. 42-53). A jury convicted Appellant Shipley, an FBI agent, on all six indictment1
counts: one count of dealing firearms without a license, four counts of causing a
firearms dealer to maintain false records, and one count of making a false statement
(1R. 16-23; 2R. 275).
During the eight-day trial in April 2010, the United States called 16 witnesses,
nine of whom came from outside the Western District of Texas–namely New Jersey,
North Carolina, Illinois, Oregon, California, and Arizona, as well as Houston and
Dallas, Texas (4 1 Supp.R. 199, 210; 5 1 Supp.R. 215, 225, 480; 6 1 Supp.R. 3, 17,st st st
520, 585, 597, 609; 1R. 112-13, 121). Of the defense’s 12 witnesses who testified
before the jury, two traveled from outside the Western District of Texas–Tennessee
and Wyoming (6 Supp.R. 733; 7 1 Supp.R. 996; 8 1 Supp.R. 1058, 1099, 1204; 9 1st st st
1 Supp.R. 1477; 1R. 112-13, 121). Admitted into evidence at trial were 130st
government exhibits consisting of numerous firearms and other items, including more
than 2,300 pages of documents (1R. 101-11; 4 1 Supp.R. 44-46, 66; 6 1 Supp.R. 734;st st
9 1 Supp.R. 1213, 1477), plus more than 150 defense exhibits (1R. 116-20; 4st
Parenthetical references herein are to the appellate record. “R.” refers to one of1
two record volumes, preceded by the volume number and followed by one or more pagenumbers. “Supp.R.”–identified as either 1 , 2 , or 3 –denotes a supplemental recordst nd rd
volume, preceded by the volume number and followed by one or more page numbers.
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1 Supp.R. 66, 211; 5 1 Supp.R. 481; 6 1 Supp.R. 734; 7 1 Supp.R. 997; 8 1 Supp.R.st st st st st
1205; 9 1 Supp.R. 1478). st
2. Appellate counsel’s addition to defense team; sentencing; appeal. In July
2010, Shipley’s appellate counsel joined the defense legal team as co-counsel with
Shipley’s two trial lawyers (2R. 210-16, 245). Appellate counsel was not present
during any part of Shipley’s trial (11 1 Supp.R. 1567, 1569, 1582-83, 1589). Inst
August 2010, Shipley was sentenced to imprisonment totaling 24
months–downwardly varying from an applicable range of 41 to 51 months–followed
by three-year terms of supervised release (11 1 Supp.R. 1582, 1597). He wasst
permitted to remain on bond and self-surrender to the Bureau of Prisons (11
1 Supp.R. 1597-98). From the district court’s written judgment (2R. 281-87),st
Shipley’s sole appellate counsel noticed the instant appeal on September 3, 2010 (2R.
288).
3. Discovery of missing verbatim written transcription; government’s
recovery efforts. On November 3, 2010, the Appellant lodged his trial-transcript
request (1 3 Supp.R. 12 [docket entry 115]). As part of a motion for release pendingrd
appeal, Appellant’s counsel reported that, as of December 1, 2010, he was notified
that a written verbatim transcription for one trial day was unavailable and could not
be produced (1 2 Supp.R. 16, 21, 23-25). Seeking to recapture the missing data, thend
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government swiftly requested and received from the district court an order compelling
the court reporter to preserve all of her records, notes, and equipment (1 2 Supp.R.nd
38-40, 44-45). At a December 22, 2010, hearing, a substitute freelance court reporter
testified that a computer equipment malfunction had prevented her from submitting
a verbatim written transcript of trial proceedings occurring on April 13, 2010 (2
3 Supp.R. 60, 62-85). At our urging, the district court authorized the government tord
subject the court reporter’s equipment to extensive forensic analysis in hopes of
retrieving the missing data, and it extended Shipley’s self-surrender deadline (2
3 Supp.R. 86-104; 1 3 Supp.R. 38-39, 42-43). The trial judge declared that, “in 19rd rd
years as a state and federal judge, I’ve never been confronted with a situation like
this. . . .I’m going to look at every avenue to try to avoid [a re-trial]” (2 3 Supp.R.rd
61).
The government’s several unsuccessful attempts at recapturing the missing
data–review by a computer forensic examiner with the Department of Justice’s Office
of Inspector General, examination by Kroll Ontrack computer forensics laboratory,
and further cooperation from and communication with the substitute court
reporter–are summarized in a nine-page pleading (1 3 Supp.R. 201-09, 188-89). Therd
negative result of those efforts was shared at a May 25, 2011, hearing before the
district court (3 3 Supp.R. 211-13, 219-21, 225). At the hearing, as a prelude tord
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record-reconstruction procedures outlined in FED. R. APP. P. 10(c) to obtain a fair and
accurate nonverbatim account of the untranscribed proceedings–which the
government repeatedly urged and to which the district court was receptive (3 3rd
Supp.R. 215-17, 220, 223-24, 226)–the government extended the Appellant the
opportunity to utilize his own experts to try to recover a written verbatim transcript
(3 3 Supp.R. 213-15). rd
After remarking that “it sounds like every conceivable effort has been made”
to try to obtain a verbatim written transcript (3 3 Supp.R. 213-14), and afterrd
appearing to express amenability to initiating nonverbatim record reconstruction (3
3 Supp.R. 226), Appellant’s counsel thwarted the operation of Rule 10(c),rd
representing that he would ask this Court to appoint an expert to assure that the
written-verbatim-transcript issue was fully resolved “to cover myself . . .so the U.S.
Attorney’s Office doesn’t use this as an appellate basis to attack my efforts” (3
3 Supp.R. 229-30). At the conclusion of the hearing, Appellant’s counsel requestedrd
and received the district court’s denial of an extension on Shipley’s June 10, 2011,
self-surrender deadline so that counsel could pursue with this Court bond pending
appeal and his contention that the missing verbatim written transcript entitled Shipley
to a new trial (3 3 Supp.R. 230) without having to deal with Rule 10(c) (3 3 Supp.R.rd rd
224-25).
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Contrary to his assurance to the district court, the Appellant did not move this
Court for an expert forensic analyst so that the defense could satisfy itself about the
unavailability of a written verbatim transcript. Nor did Shipley ever attempt to
recreate the missing record under Rule 10(c)–the mechanism, as quoted to
Appellant’s counsel by the government at the May 2011 hearing (3 3 Supp.R. 223),rd
through which Shipley could have initiated record reconstruction–by submitting to
the district court a statement detailing the contents of the omitted testimony and
communications, including but not limited to a reiteration of the substance of his own
untranscribed trial testimony. See Pascouau v. Martin Marietta Corp., No. 98-1099,
1999 WL 495621, at *3 (10th Cir. 1999) (unpublished); United States v. Honken, 477
F.Supp.2d 1004, 1007-08 (N.D. Iowa 2007) (discussing Fifth Circuit Rule 10(c)
cases).
The Appellant’s uniform strategy before this Court and the district court has
been to do nothing to try to rehabilitate the record. As he has repeatedly told this
Court and the district court, Shipley has been content to rely on a line of cases from
this Circuit holding that, when appellate counsel was not trial counsel, missing
portions of a trial transcript deemed “substantial and significant” require reversal for
a new trial (Shipley’s December 2011 appellate brief, 37-40; Shipley’s October 2011
motion to this Court for summary remand for new trial; Shipley’s June 2011 second
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supplemental motion to this Court for release pending appeal, at pp. 4-6, 9; Shipley’s
December 2010 first supplemental motion to this Court for release pending appeal,
at pp. 3-5, 8; Shipley’s December 2010 motion to this Court for release pending
appeal ; 1 2 Supp.R. 19-20; 3 3 Supp.R. 214, 224-25). See United States v. Selva,2 nd rd
559 F.2d 1303, 1306 & n.5 (5th Cir. 1977) (citing cases).
This line of authority, however, does not consider records reconstructed via
Rule 10. Consonant with defense strategy thus far, Shipley has opposed the instant
motion for an expedited limited remand to the district court under Rule 10(e)(2). 4. Particular record gaps; their relation to appeal issues; suitability of Rule
10(e)(2) record reconstruction. The substitute court reporter’s handwritten notes,
supplied by the government at the May 2011 hearing, reflect that the missing trial-day
transcription encompassed 9:10 a.m. to 12:15 p.m., and 1:50 p.m. to 2:10 p.m., for a
total of three hours and 25 minutes (1 3 Supp.R. 186-87; 3 3 Supp.R. 215). Fromrd rd
December 2010 through October 2011, the Appellant provided the district court and
this Court with affidavits and information about the nature of the untranscribed
proceedings that were conflicting, tentative, and sometimes incorrect. 3
This motion (at p. 4), with emphasis added, refers to “reconstruction” of the2
record in the sense of obtaining “a verbatim account of the lost proceedings.”
In the first full paragraph and elsewhere in his December 6, 2010, motion to the3
district court for release pending appeal, Appellant’s counsel incorrectly contended thatsix witnesses in addition to Shipley testified before the jury on April 13, based on
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Now that Shipley has filed his Appellant’s brief, there appears to be no dispute
between the parties as to the general subject-matter covered at trial on April 13,
2010–at most, Shipley’s relatively brief remaining direct examination, his cross-4
examination, “any” redirect examination, and “any and all objections to the same”;
Shipley’s attached affidavit stating his belief in the same erroneous information (12 Supp.R. 16, 19, 26, refuted by 7 1 Supp.R. 883, 912, 936, 954, 966; 8 1 Supp.R.nd st st
1013; 3 3 Supp.R. 215, 223). The next day, in a supplemental pleading, Appellant’srd
counsel represented that “Shipley cannot now affirm that all other six witnesses testifiedon April 13 ,” and advised that he was “looking for records to substantiate who elseth
besides Mr. Shipley testified that day” (1 2 Supp.R. 33); Shipley’s attached affidavit:nd
repeated his earlier-stated erroneous belief that the case agent had testified before the juryon April 13; declared that he was “now not positive” that the other five witnesses he hadmentioned in his earlier affidavit had “actually testified that day” to the jury; and, thoughnot mentioned in his earlier affidavit, expressed his belief that his proposed characterwitness testified on voir dire before the district court on April 13 (1 2 Supp.R. 36, 26). nd
Both affidavits state without qualification that on April 13 Shipley provided testimony ondirect and cross-examination, while venturing a belief that he also testified on redirect (12 Supp.R. 26, 36). nd
At the district court’s May 2011 hearing, Appellant’s counsel: persisted in theerroneous belief or surmise that six witnesses in addition to Shipley testified before thejury on April 13; made no mention of redirect examination of Shipley; and did notmention voir-dire testimony from the proposed character witness (3 3 Supp.R. 222-23). rd
When Appellant’s counsel acknowledged that the identity of the April 13 witnessesremained unsettled and needed to be “figure[d] out,” the government noted the ease withwhich that could be accomplished by Shipley through Rule 10(c) (3 3 Supp.R. 223).rd
In pleadings filed by the Appellant in this Court from December 2010 to October2011, Shipley appended and/or specifically referred to the same problem-plaguedaffidavits discussed in the first paragraph of this footnote (December 9, 2010, motion forrelease pending appeal, at p.3; December 13, 2010, supplemental motion for releasepending appeal, at p.3; June 2011 second supplemental motion for release pendingappeal, at p. 4; October 2011 motion for summary remand for new trial, at p. 3).
On the preceding day, Shipley’s direct testimony occupied 202 transcript pages (94
1 Supp.R. 1264-1402, 1414-76).st
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a proffered defense character witness who was examined on voir dire outside the
jury’s presence and excluded as a witness, “along with legal arguments, objections,5
and a Court ruling regarding the same”; and as yet unspecified requests, objections,
and rulings relating to jury instructions. See Shipley’s appellate brief, 19-21. 6
Until Shipley filed the Appellant’s 52-page brief on December 29, 2011,
identifying the issues on appeal, the significance of any record deficiency in
conjunction with the need for a Rule 10(e)(2) remand was not evident to the
government. Having reviewed the issues raised on appeal, the record, and applicable7
This subject was also discussed during transcribed proceedings on April 12 (95
1 Supp.R. 1413) and April 14, 2010 (10 1 Supp.R. 1484-86), during which the defensest st
completed its proffer and the district court explained its ruling.
If there were any in addition to those discussed during transcribed proceedings on6
April 12 (9 1 Supp.R. 1404-12) and April 14, 2010 (10 1 Supp.R. 1480). st st
The question of whether a verbatim transcript could be recovered was not7
completely settled, even after the May 2011 hearing, because Appellant’s counselrepresented to the district court that he would seek from this Court the appointment of anexpert to address that subject. At the May 2011 hearing, he also suggested amenability toinvoking Rule 10 reconstruction, which he also never undertook, even after this Court onNovember 8, 2011, denied his motion for summary remand for a new trial. Moreover, tothe best of our knowledge, prior to filing his Appellant’s brief, Shipley did not allege arecord deficiency with respect to a jury-charge conference or jury instructions, nor did heassert an intention to press an appeal issue relating to those subjects.
In addition to reasons already mentioned in this footnote, the government couldnot rely on Shipley’s prior pleadings for release pending appeal, in which he enumerated some of the issues he planned to raise on appeal, but never did–namely several non-forfeiture sentencing issues, as noted in his: December 6, 2010, motion to the districtcourt (1 2 Supp.R. 18); December 9, 2010, motion to this Court, at p. 6; December 13,nd
2010, supplemental motion to this Court, at pp. 6-8; and June 2011 second supplementalmotion to this Court, at pp. 7-9.
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legal authorities, the government has determined that, of Shipley’s 10 briefed
appellate issues, three appear to be affected by the missing transcription.
His sixth issue (at brief, 37-40) argues that he is automatically entitled to a new
trial because of the absence of a verbatim transcript for April 13. His seventh issue
(at brief, 41-43) suggests that a new trial is mandated because this Court may not be
able to evaluate the district court’s exclusion of Shipley’s sole proffered character
witness because a verbatim transcription of that person’s voir-dire testimony before
the district court is unavailable. Relatedly, in his eighth issue (at brief, 43-44),
Shipley argues that this Court cannot effectively gauge whether the district court
erred in failing to instruct the jury on evidence of his good character because the
record lacks a verbatim transcription of any jury-instruction requests, objections,
arguments, and rulings made on April 13.8
In contrast to his three aforementioned appellate issues, Shipley has not alleged in8
his appellate brief that the missing April 13 transcription impairs this Court’s ability toeffectively review his seven remaining appeal issues: 4 evidence-sufficiency issues(Shipley’s brief, 21-24, 27-32, 32-34, 34-36), as the entirety of the government’s case-in-chief is captured by a verbatim written transcript; an attack on a statute as void forvagueness (Shipley’s brief, 25-28), an issue that is purely legal or may secure anynecessary factual context from the government’s case-in-chief; claimed errors as toforfeiture (Shipley’s brief, 45-47), which should turn on a fully-transcribed sentencingand the government’s case-in-chief, as well as filed documents; and an assertion ofimproper closing argument by the government (Shipley’s brief, 47-51), which has beentranscribed verbatim in writing.
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All three of these issues clearly call for a Rule 10 record-reconstruction
attempt. Upon limited expedited remand to the district court, the substance of the
missing transcription–part of Shipley’s testimony, the defense character witness’
proffered testimony, the jury-charge conference, and attendant objections, requests,
and rulings–should be readily ascertainable from such sources as the two defense
witnesses involved, Shipley’s trial lawyers, government counsel, and even the district
court itself. At the May 2011 hearing, mindful that part of Shipley’s testimony was
untranscribed, the government quoted Rule 10(c)’s invitation for the Appellant to
draw from “the best available means, including the appellant’s recollection” (3 3rd
Supp.R. 223). Also during the hearing, the government specifically referred to Rule
10 when advising the Appellant that he could recreate the proffered testimony of the
excluded character witness in various ways at a record-reconstruction hearing, such
as through testimony from the witness himself or a written version of that witness’
April 13 proffered testimony (3 3 Supp.R. 220). During the same hearing, therd
government reminded Appellant’s counsel that he also had resort to the recollections
of Shipley’s trial lawyers, who were officers of the court subject to subpoena (3 3rd
Supp.R. 223). Having ignored these important considerations, Shipley’s appellate
brief understandably neglects to even mention FED. R. APP. P. 10.
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C. Justification for Limited Expedited Remand under Rule 10(e)
1. To facilitate appellate review. When a defendant is represented by different
counsel on appeal than at trial, the absence of a “substantial and significant portion
of the record” is sufficient to warrant reversal for a new trial, even absent any
showing of specific prejudice or error. Selva, 559 F.2d at 1306. However, before9
passing on the merits of the appeal in Selva–which contained no transcription of the
closing arguments by both parties at trial–this Court first remanded to the district
court under Rule 10(e) for “remedial treatment” and “supplementing the record.” Id.
at 1304.
Except for the Fifth and Eleventh Circuits, almost every circuit to consider the9
issue of missing transcripts requires that the defendant demonstrate prejudice, whether ornot the defendant had different counsel on appeal than at trial. See United States v.Weisser, 417 F.3d 336, 342 (2d Cir. 2005) (citing cases). The majority rule avoids suchundesirable consequences as creating a “perverse incentive” for “defendants to dismisstrial counsel and seek new appellate counsel whenever questions arise over thesufficiency of the trial transcript.” See id. (citation omitted); United States v. Smith, 591F.2d 1105, 1109 n.1 (5th Cir. 1979) (noting that the “anomalous rule” in Selva “seems toinvite the manipulation of appellate causes to achieve unmerited reversals”).
In the Fifth Circuit, when appellate counsel also represented the defendant at trial,the appellant must show specific prejudice to his appeal from the missing transcription inorder to gain a new trial. See, e.g., United States v. Valdez, 861 F.2d 427, 429-31 (5thCir. 1988) (convictions affirmed; following remand, the district court concluded that itwas not feasible to reconstruct closing statements, the court’s jury charge, and much ofthe testimony for five and one-half days of an eight-day trial); United States v. Renton,700 F.2d 154, 157-59 (5th Cir. 1983) (convictions affirmed after Rule 10 reconstruction;record omissions included argument to judge about admission of coconspirators’statements, the ability of a witness to testify after having heard portions of the trial, adefense motion, testimony on the final day of evidence, jury arguments, and juryinstructions).
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Treating Selva as binding precedent, the Eleventh Circuit in United States v.Preciado-Cordobas, 981 F.2d 1206, 1213 n.7 (11th Cir. 1993), rejected defense
arguments that, when confronted with assertedly substantial and significant omissions
from the original trial transcript, the appellate court should reverse the convictions
without affording the district court the opportunity to remedy such omissions through
reconstruction. Instead, Preciado-Cordobas encouraged Rule 10(e) record-
reconstruction remands through its articulation of this appellate review standard:
“Whether there is a substantial and significant omission can be decided only after the
district court has attempted to reconstruct those portions missing from the transcript.” Id. at 1212 (emphasis added).
Our Court of Appeals has relied on Preciado-Cordobas, observing that
“[t]here can be no substantial and significant omissions from a reconstructed record
if, taken as a whole, it accords effective review on appeal.” United States v. Rivera,
No. 09-41082, 2011 WL 4840960, at *4 (5th Cir. 2011) (unpublished) (quotingPreciado-Cordobas, 982 F.2d at 1213). “If the reconstructed record discloses an
accurate account of the trial so as to provide effective appellate review, the court of
appeals must then address the assignments of error raised by the appellant.” Preciado-Cordobas, 982 F.2d at 1213.
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Rule 10(e) procedures tend to “promote[] accuracy in appellate records” and
provide context that can be indispensable for appellate judicial decision making. SeeUnited States v. Jackson, 419 Fed.Appx. 666, 669-70 & n.1 (7th Cir. 2011) (citing
cases). For example, in Selva, at 559 F.2d at 1305, this Court’s Rule 10(e) remand
facilitated reversal of a conviction when the trial judge concluded that it was not
possible to reconstruct a sufficiently accurate account of the untranscribed closing
arguments. More frequently, Rule 10(e) record-reconstruction remands supply an
appellate court with sufficient confidence to determine that the record as rehabilitated
permits the defendant to receive effective appellate review of his trial.
One such case is Preciado-Cordobas. The appellate court ordered two limited
remands under Rule 10(e) after the appellants “declined to prepare their own
statement of the missing evidence as permitted by Rule 10(c).” 981 F.2d at 1209.
The first remand enabled reconstruction of the charge to the jury based on testimony
from the trial judge’s court reporter that the judge always read his jury instructions
verbatim from a prepared text that was made part of the appellate record. Id. at 1209,
1213. The second remand, focusing on the absence of transcribed closing arguments
from the prosecutor and four defense lawyers during a trial that lasted less than two
full days, id. at 1210, 1214, directed the district court to attempt reconstruction
through such sources as the notes of the trial judge and court reporter “and, of course,
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the testimony of witnesses, including the appellant[s’] trial attorney[s],” id. at 1210.
The hotly contested reconstruction hearing yielded a partial transcript of a
portion of the prosecutor’s initial closing argument and part of the closing argument
of two defense lawyers, supplemented by the prosecutor’s trial notes and
recollections, testimony from the defendants’ trial lawyers, and trial notes from some
of the defense attorneys. Id. at 1210-11. The district court caused the aforementioned
evidence to be submitted to the appellate court without venturing an opinion about
whether the reconstructed closing arguments “provided an accurate account of what
transpired during the closing arguments sufficient to permit an effective appellate
review.” Id. at 1212. Since all the defense lawyers testified at the reconstruction
hearing, the appellants were “in almost the same position as they would be if they
were represented by their trial lawyers on appeal.” Id. at 1213. Although passage of
three and one-half years between the trial and the reconstruction hearing dimmed
memories of the participants, it did not prevent the appellate court from regarding the
reconstructed record as presenting a fair and accurate picture of what transpired
during closing arguments. See id. at 1213-14. “If a meritorious ground for appeal
was forgotten during that time,” the appellate court blamed “the appellants’ decision
to seek reversal based solely on Selva,” their failure to prepare a statement of the
evidence as envisioned by Rule 10(c), and their pointing out at the reconstruction
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hearing “only one possible error that may have occurred during that stage of the trial.” Id. at 1213.
In Rivera, 2011 WL 4840960, at *3-5, this Court relied on Preciado-Cordobaswhen finding that, despite destruction of all nine defense exhibits and 25 government
exhibits, the reconstructed record rendered the loss of those exhibits insignificant.
Of like effect is United States v. Pace, 10 F.3d 1106, 1122-23, 1125 (5th Cir. 1993),
where following a Rule 10(e) reconstruction hearing on remand, testimony from the
court reporter, the jury foreman, and the defendant’s trial counsel yielded a
sufficiently reliable account of the lost jury charge.
As for the instant case, the government pointed out at the May 2011hearing
that, once it is determined that a verbatim transcript is unavailable, “there’s another
set of steps” to go through under Rule 10 (3 3 Supp.R. 213). The government alsord
explained the virtue of a Rule 10(e) record-reconstruction remand to assist this Court,
at which both parties would have the opportunity to present documentary and
testimonial evidence–specifically including subpoenaed notes and testimony from
Shipley’s two trial lawyers (who served with Appellant’s attorney as co-counsel at
Shipley’s sentencing) and from the excluded defense character witness (3 3 Supp.R.rd
220, 223-24). At this juncture, less than two years have elapsed since the April 2010
trial–a shorter passage of time than in Preciado-Cordobas. As in Preciado-17
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Cordobas, the delay is largely attributable to Shipley, who has relied exclusively onSelva and declined to follow Rule 10 procedures.
2. To effectuate the district court’s intent. A Rule 10(e) record-reconstruction
remand, to which the district court was receptive (3 3 Supp.R. 226), would furtherrd
the district judge’s resolve to “look at every avenue to try to avoid [a re-trial]” (2
3 Supp.R. 61). Naturally, an attempt at reconstruction may spare all concerned therd
considerable time, energy, and expense of a full-blown retrial. Before pronouncing
sentence, the district court expressed that it “agree[d] entirely with the jury’s verdict”
(11 1 Supp.R. 1589) and opined that Shipley, who rejected a government plea offerst
to one of the indictment counts (3 1 Supp.R. 29), “never should have gone to trial”st
(11 1 Supp.R. 1589).st
D. Conclusion and Requested Relief
Although the missing transcription is the fault of neither party, Shipley has
elected to do nothing to resolve the omissions on which he predicates his appeal.
This stems, in part, from Shipley’s decision to hire an appellate attorney who did not
represent him at trial. While this decision was unrelated to the discovery of the
transcript omission, it has served to eliminate any incentive for him to reconstruct the
record. See Footnote 9, infra, and the text to which it applies. Shipley has chosen to
spurn his opportunity under Rule 10(c) to initiate record reconstruction, which would
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have rendered the instant motion unnecessary. Finally, the significance of the
missing transcription, in conjunction with the need for a Rule 10(e)(2) record-
reconstruction remand, was not evident to the government until Shipley identified the
issues on appeal in the Appellant’s brief filed on December 29, 2011.
At its first opportunity, having thoroughly reviewed the issues raised on appeal,
the record, and this Court’s precedents, the United States respectfully requests that
this Court order an expedited limited remand to the district court under FED. R. APP.
P. 10(e)(2), as occurred in Preciado-Cordobas, to conduct a record-reconstruction
hearing and make findings thereon to this Court. Consonant with Preciado-Cordobas, we request that this Court direct that the district court: (1) attempt
reconstruction of the missing transcription by conducting a hearing, during which the
district court should consider appropriate documentary and testimonial evidence; (2)
certify and forward to this Court the reconstructed record; and (3) make such findings
as it deems advisable, including whether the reconstructed record provides a fair and
accurate account of what transpired at trial on April 13, 2010, so as to permit
effective appellate review.
CERTIFICATE OF CONFERENCE
Opposing counsel, Mr. Leon Schydlower, was contacted on March 20, 2012.
Mr. Schydlower conveyed his opposition to this motion.
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Case: 10-50856 Document: 00511795923 Page: 19 Date Filed: 03/21/2012
FOR THESE REASONS, the United States respectfully requests that this Court
order an expedited limited remand to the district court under FED. R. APP. P. 10(e)(2),
as herein described. In the alternative, should this motion be denied, the United
States respectfully requests an additional 30 days from the date of the denial in which
to file its Appellee’s brief.
Respectfully submitted,
ROBERT PITMAN United States Attorney
By: /s/ Michael R. Hardy MICHAEL R. HARDY Assistant United States Attorney
CERTIFICATE OF SERVICE
This is to certify that on March 21, 2012, this document was filed with the Fifth
Circuit Court of Appeals using the CM/ECF filing system, which will cause a copy
of the document to be delivered to counsel for the Appellant, Mr. Leon Schydlower./s/ Michael R. HardyMICHAEL R. HARDYAssistant United States AttorneyWestern District of Texas601 N.W. Loop 410, Suite 600San Antonio, Texas 78216(210) 384-7090
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Case: 10-50856 Document: 00511795923 Page: 20 Date Filed: 03/21/2012