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Case: 10-50856

Document: 00511795923

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Date Filed: 03/21/2012

No. 10-50856
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN THOMAS SHIPLEY, Defendant-Appellant. APPELLEES 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 governments 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 Appellants briefed issues; and effectuates the district courts 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).1 A jury convicted Appellant Shipley, an FBI agent, on all six indictment 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 Texasnamely New Jersey, North Carolina, Illinois, Oregon, California, and Arizona, as well as Houston and Dallas, Texas (4 1stSupp.R. 199, 210; 5 1stSupp.R. 215, 225, 480; 6 1stSupp.R. 3, 17, 520, 585, 597, 609; 1R. 112-13, 121). Of the defenses 12 witnesses who testified before the jury, two traveled from outside the Western District of TexasTennessee and Wyoming (6 1stSupp.R. 733; 7 1stSupp.R. 996; 8 1stSupp.R. 1058, 1099, 1204; 9 1stSupp.R. 1477; 1R. 112-13, 121). Admitted into evidence at trial were 130 government exhibits consisting of numerous firearms and other items, including more than 2,300 pages of documents (1R. 101-11; 4 1stSupp.R. 44-46, 66; 6 1stSupp.R. 734; 9 1stSupp.R. 1213, 1477), plus more than 150 defense exhibits (1R. 116-20; 4

Parenthetical references herein are to the appellate record. R. refers to one of two record volumes, preceded by the volume number and followed by one or more page numbers. Supp.R.identified as either 1st, 2nd, or 3rddenotes a supplemental record volume, preceded by the volume number and followed by one or more page numbers.
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1stSupp.R. 66, 211; 5 1stSupp.R. 481; 6 1stSupp.R. 734; 7 1stSupp.R. 997; 8 1stSupp.R. 1205; 9 1stSupp.R. 1478). 2. Appellate counsels addition to defense team; sentencing; appeal. In July 2010, Shipleys appellate counsel joined the defense legal team as co-counsel with Shipleys two trial lawyers (2R. 210-16, 245). Appellate counsel was not present during any part of Shipleys trial (11 1stSupp.R. 1567, 1569, 1582-83, 1589). In August 2010, Shipley was sentenced to imprisonment totaling 24

monthsdownwardly varying from an applicable range of 41 to 51 monthsfollowed by three-year terms of supervised release (11 1stSupp.R. 1582, 1597). He was permitted to remain on bond and self-surrender to the Bureau of Prisons (11 1stSupp.R. 1597-98). From the district courts written judgment (2R. 281-87), Shipleys sole appellate counsel noticed the instant appeal on September 3, 2010 (2R. 288). 3. Discovery of missing verbatim written transcription; governments recovery efforts. On November 3, 2010, the Appellant lodged his trial-transcript request (1 3rdSupp.R. 12 [docket entry 115]). As part of a motion for release pending appeal, Appellants 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 2nd Supp.R. 16, 21, 23-25). Seeking to recapture the missing data, the
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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 2ndSupp.R. 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 3rd Supp.R. 60, 62-85). At our urging, the district court authorized the government to subject the court reporters equipment to extensive forensic analysis in hopes of retrieving the missing data, and it extended Shipleys self-surrender deadline (2 3rdSupp.R. 86-104; 1 3rdSupp.R. 38-39, 42-43). The trial judge declared that, in 19 years as a state and federal judge, Ive never been confronted with a situation like this. . . .Im going to look at every avenue to try to avoid [a re-trial] (2 3rdSupp.R. 61). The governments several unsuccessful attempts at recapturing the missing datareview by a computer forensic examiner with the Department of Justices Office of Inspector General, examination by Kroll Ontrack computer forensics laboratory, and further cooperation from and communication with the substitute court reporterare summarized in a nine-page pleading (1 3rdSupp.R. 201-09, 188-89). The negative result of those efforts was shared at a May 25, 2011, hearing before the district court (3 3rd Supp.R. 211-13, 219-21, 225). At the hearing, as a prelude to
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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 proceedingswhich 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 3rdSupp.R. 213-15). After remarking that it sounds like every conceivable effort has been made to try to obtain a verbatim written transcript (3 3rdSupp.R. 213-14), and after appearing to express amenability to initiating nonverbatim record reconstruction (3 3rd Supp.R. 226), Appellants counsel thwarted the operation of Rule 10(c), 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. Attorneys Office doesnt use this as an appellate basis to attack my efforts (3 3rd Supp.R. 229-30). At the conclusion of the hearing, Appellants counsel requested and received the district courts denial of an extension on Shipleys 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 3rdSupp.R. 230) without having to deal with Rule 10(c) (3 3rdSupp.R. 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 Appellants counsel by the government at the May 2011 hearing (3 3rdSupp.R. 223), through which Shipley could have initiated record reconstructionby 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 Appellants 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 (Shipleys December 2011 appellate brief, 37-40; Shipleys October 2011 motion to this Court for summary remand for new trial; Shipleys June 2011 second
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supplemental motion to this Court for release pending appeal, at pp. 4-6, 9; Shipleys December 2010 first supplemental motion to this Court for release pending appeal, at pp. 3-5, 8; Shipleys December 2010 motion to this Court for release pending appeal2 ; 1 2nd Supp.R. 19-20; 3 3rd Supp.R. 214, 224-25). See United States v. Selva, 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 reporters 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 3rdSupp.R. 186-87; 3 3rdSupp.R. 215). From 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
2

This motion (at p. 4), with emphasis added, refers to reconstruction of the 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 the district court for release pending appeal, Appellants counsel incorrectly contended that six witnesses in addition to Shipley testified before the jury on April 13, based on
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Now that Shipley has filed his Appellants brief, there appears to be no dispute between the parties as to the general subject-matter covered at trial on April 13, 2010at most, Shipleys relatively brief remaining direct examination,4 his crossexamination, any redirect examination, and any and all objections to the same;

Shipleys attached affidavit stating his belief in the same erroneous information (1 2ndSupp.R. 16, 19, 26, refuted by 7 1stSupp.R. 883, 912, 936, 954, 966; 8 1st Supp.R. 1013; 3 3rdSupp.R. 215, 223). The next day, in a supplemental pleading, Appellants counsel represented that Shipley cannot now affirm that all other six witnesses testified on April 13th, and advised that he was looking for records to substantiate who else besides Mr. Shipley testified that day (1 2ndSupp.R. 33); Shipleys attached affidavit: repeated his earlier-stated erroneous belief that the case agent had testified before the jury on April 13; declared that he was now not positive that the other five witnesses he had mentioned in his earlier affidavit had actually testified that day to the jury; and, though not mentioned in his earlier affidavit, expressed his belief that his proposed character witness testified on voir dire before the district court on April 13 (1 2ndSupp.R. 36, 26). Both affidavits state without qualification that on April 13 Shipley provided testimony on direct and cross-examination, while venturing a belief that he also testified on redirect (1 2ndSupp.R. 26, 36). At the district courts May 2011 hearing, Appellants counsel: persisted in the erroneous belief or surmise that six witnesses in addition to Shipley testified before the jury on April 13; made no mention of redirect examination of Shipley; and did not mention voir-dire testimony from the proposed character witness (3 3rdSupp.R. 222-23). When Appellants counsel acknowledged that the identity of the April 13 witnesses remained unsettled and needed to be figure[d] out, the government noted the ease with which that could be accomplished by Shipley through Rule 10(c) (3 3rdSupp.R. 223). In pleadings filed by the Appellant in this Court from December 2010 to October 2011, Shipley appended and/or specifically referred to the same problem-plagued affidavits discussed in the first paragraph of this footnote (December 9, 2010, motion for release pending appeal, at p.3; December 13, 2010, supplemental motion for release pending appeal, at p.3; June 2011 second supplemental motion for release pending appeal, at p. 4; October 2011 motion for summary remand for new trial, at p. 3).
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On the preceding day, Shipleys direct testimony occupied 202 transcript pages (9 1 Supp.R. 1264-1402, 1414-76).
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a proffered defense character witness who was examined on voir dire outside the jurys presence and excluded as a witness,5 along with legal arguments, objections, and a Court ruling regarding the same; and as yet unspecified requests, objections, and rulings relating to jury instructions.6 See Shipleys appellate brief, 19-21. Until Shipley filed the Appellants 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.7 Having reviewed the issues raised on appeal, the record, and applicable

This subject was also discussed during transcribed proceedings on April 12 (9 1stSupp.R. 1413) and April 14, 2010 (10 1stSupp.R. 1484-86), during which the defense completed its proffer and the district court explained its ruling.
5

If there were any in addition to those discussed during transcribed proceedings on April 12 (9 1stSupp.R. 1404-12) and April 14, 2010 (10 1stSupp.R. 1480).
6

The question of whether a verbatim transcript could be recovered was not completely settled, even after the May 2011 hearing, because Appellants counsel represented to the district court that he would seek from this Court the appointment of an expert to address that subject. At the May 2011 hearing, he also suggested amenability to invoking Rule 10 reconstruction, which he also never undertook, even after this Court on November 8, 2011, denied his motion for summary remand for a new trial. Moreover, to the best of our knowledge, prior to filing his Appellants brief, Shipley did not allege a record deficiency with respect to a jury-charge conference or jury instructions, nor did he assert an intention to press an appeal issue relating to those subjects.
7

In addition to reasons already mentioned in this footnote, the government could not rely on Shipleys prior pleadings for release pending appeal, in which he enumerated some of the issues he planned to raise on appeal, but never didnamely several nonforfeiture sentencing issues, as noted in his: December 6, 2010, motion to the district court (1 2ndSupp.R. 18); December 9, 2010, motion to this Court, at p. 6; December 13, 2010, supplemental motion to this Court, at pp. 6-8; and June 2011 second supplemental motion to this Court, at pp. 7-9. 10

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legal authorities, the government has determined that, of Shipleys 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 courts exclusion of Shipleys sole proffered character witness because a verbatim transcription of that persons 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 in his appellate brief that the missing April 13 transcription impairs this Courts ability to effectively review his seven remaining appeal issues: 4 evidence-sufficiency issues (Shipleys brief, 21-24, 27-32, 32-34, 34-36), as the entirety of the governments case-inchief is captured by a verbatim written transcript; an attack on a statute as void for vagueness (Shipleys brief, 25-28), an issue that is purely legal or may secure any necessary factual context from the governments case-in-chief; claimed errors as to forfeiture (Shipleys brief, 45-47), which should turn on a fully-transcribed sentencing and the governments case-in-chief, as well as filed documents; and an assertion of improper closing argument by the government (Shipleys brief, 47-51), which has been transcribed 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 transcriptionpart of Shipleys testimony, the defense character witness proffered testimony, the jury-charge conference, and attendant objections, requests, and rulingsshould be readily ascertainable from such sources as the two defense witnesses involved, Shipleys trial lawyers, government counsel, and even the district court itself. At the May 2011 hearing, mindful that part of Shipleys testimony was untranscribed, the government quoted Rule 10(c)s invitation for the Appellant to draw from the best available means, including the appellants 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 3rd Supp.R. 220). During the same hearing, the government reminded Appellants counsel that he also had resort to the recollections of Shipleys trial lawyers, who were officers of the court subject to subpoena (3 3rd Supp.R. 223). Having ignored these important considerations, Shipleys 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.9 Selva, 559 F.2d at 1306. However, before passing on the merits of the appeal in Selvawhich contained no transcription of the closing arguments by both parties at trialthis 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 the issue of missing transcripts requires that the defendant demonstrate prejudice, whether or not 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 such undesirable consequences as creating a perverse incentive for defendants to dismiss trial counsel and seek new appellate counsel whenever questions arise over the sufficiency of the trial transcript. See id. (citation omitted); United States v. Smith, 591 F.2d 1105, 1109 n.1 (5th Cir. 1979) (noting that the anomalous rule in Selva seems to invite 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 in order to gain a new trial. See, e.g., United States v. Valdez, 861 F.2d 427, 429-31 (5th Cir. 1988) (convictions affirmed; following remand, the district court concluded that it was not feasible to reconstruct closing statements, the courts jury charge, and much of the 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, a defense motion, testimony on the final day of evidence, jury arguments, and jury instructions). 13

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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) (quoting Preciado-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. See United 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 Courts 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 judges 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 prosecutors initial closing argument and part of the closing argument of two defense lawyers, supplemented by the prosecutors 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-Cordobas when 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 defendants 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, theres another set of steps to go through under Rule 10 (3 3rdSupp.R. 213). The government also 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 evidencespecifically including subpoenaed notes and testimony from Shipleys two trial lawyers (who served with Appellants attorney as co-counsel at Shipleys sentencing) and from the excluded defense character witness (3 3rdSupp.R. 220, 223-24). At this juncture, less than two years have elapsed since the April 2010 triala shorter passage of time than in Preciado-Cordobas.
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Cordobas, the delay is largely attributable to Shipley, who has relied exclusively on Selva and declined to follow Rule 10 procedures. 2. To effectuate the district courts intent. A Rule 10(e) record-reconstruction remand, to which the district court was receptive (3 3rdSupp.R. 226), would further the district judges resolve to look at every avenue to try to avoid [a re-trial] (2 3rd Supp.R. 61). Naturally, an attempt at reconstruction may spare all concerned the considerable time, energy, and expense of a full-blown retrial. Before pronouncing sentence, the district court expressed that it agree[d] entirely with the jurys verdict (11 1stSupp.R. 1589) and opined that Shipley, who rejected a government plea offer to one of the indictment counts (3 1stSupp.R. 29), never should have gone to trial (11 1stSupp.R. 1589). 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 Shipleys 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) recordreconstruction remand, was not evident to the government until Shipley identified the issues on appeal in the Appellants brief filed on December 29, 2011. At its first opportunity, having thoroughly reviewed the issues raised on appeal, the record, and this Courts 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 PreciadoCordobas, 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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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 Appellees 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. Hardy MICHAEL R. HARDY Assistant United States Attorney Western District of Texas 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216 (210) 384-7090
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