Addison v. United States

• Decision Date: 24 May 1963
• Docket Number: No. 18902.,18902.
• Citation: 317 F.2d 808
• Parties: John Milton ADDISON et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

317 F.2d 808 (1963)

John Milton ADDISON et al., Appellants, v. UNITED STATES of America, Appellee.

No. 18902.

United States Court of Appeals Fifth Circuit.

May 24, 1963.

COPYRIGHT MATERIAL OMITTED

Robert H. Power, Irving, Tex., James L. Guilmartin, Stanley Jay Bartel, Edwin C. Ratiner, Fuller Warren, Miami, Fla., for appellants.

W. B. West, III, Atty., Dept. of Justice, Washington, D. C., Robert S. Travis, Asst. U. S. Atty., Fort Worth, Tex., for appellee; Barefoot Sanders, U. S. Atty., C. W. Aston, Securities and Exchange Comm., of counsel.

Before TUTTLE, Chief Judge, and WISDOM and GEWIN, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from conviction and sentence of the six appellants who were indicted and tried on twenty-four counts charging violation of the criminal sections of the Securities and Exchange Act, and charging violation of Title 18 U.S.C.A. § 1341, dealing with the use of the mails in executing a scheme and artifice to defraud. Count twenty-four also charged a conspiracy on the part of the defendants and certain other persons to violate the statutes included in the other counts of the indictment, a violation of 18 U.S.C.A. § 371.

Following a trial, which lasted approximately four weeks, all of the appellants were found guilty on twelve counts, including the conspiracy count. They were found not guilty of counts twenty-two and twenty-three, dealing respectively with the delivery through the mails of a security after a sale thereof without there then being in effect a registration statement as to such security and an offer to sell such securities through interstate commerce when there was not then in effect a registration as to such securities. The government dismissed counts five through ten and counts fifteen, seventeen, nineteen and twenty-one, after the conclusion of the evidence, and just prior to the submission of the case to the jury. Giving effect to the sentences that run concurrently, Addison stood convicted and sentenced to serve a total of fifteen years, and to pay fines totalling $36,000; White to serve seven years and one day, and to pay total fines of $20,000; Olson to serve two years and pay a $5,000 fine; Groom to serve five years; Scoggins to serve two years and pay a $5,000 fine; and Metz to serve two years and pay a $5,000 fine.

Principal reliance by all appellants is placed upon the fact that the official court reporter who reported the trial failed to comply with the part of the requirements of 28 U.S.C.A. § 753(b).¹ To the extent that he did not take down by shorthand or by mechanical means the arguments of counsel, appellants take the bald and flat position that this requirement of the law is what they call "mandatory" and that the failure to comply with the statute works an automatic reversal for a new trial. This Court has held to the contrary. We stated in Strauss v. United States, 5 Cir., 311 F. 2d 926, "We have never held that a failure to comply with the Court Reporter Act is error per se. See Fowler v. United States, 5 Cir., 1962, 310 F.2d 66; and United States v. Taylor, 4 Cir., 1962, 303 F.2d 165. We do not do so now, and that in substance is the question before us."

In their appeal in this case, although appellants were represented in the trial by six lawyers, one of whom is still representing one of the appellants in this court, the record is silent as to any objection made or any motion of any kind filed with respect to any alleged impropriety during the course of the final arguments of counsel. Nor have the appellants in their original brief filed in this case attempted to state that any inflammatory or other improper comments were made by counsel during their summations. Obviously, even though a failure of the court reporter to report the arguments of counsel were an error per se, such error would not be available to appellants to work a reversal without a showing that it was prejudicial error. Rule 52(a) F.R.Crim.Proc. Without even the contention being made as to language used or other conduct of counsel that goes beyond the permitted range of oral argument, no effort is made to show that such failure prejudiced appellants. In such a situation the language used in the Strauss case is apposite:

"Furthermore, no specific error or prejudice resulting therefrom is called to our attention. This is the very least that would be required under Stephens v. United States, 5 Cir., 1961, 289 F.2d 308, where errors were specified, and where there was no record on which to test the claimed errors. To permit an appellant simply to claim error for failure to record under the Act, without more, would eliminate the necessity of a showing of prejudice because of the error. The error may well have been harmless when considered in the light of the facts which were reported."

We now repeat what we stated in the Strauss case — There is no excuse for a court reporter's failure to comply with the requirements of the statute, unless the party waives the requirement. However, this does not work on automatic reversal.

Much of the attention of the parties on this appeal has been directed to the fact that when the United States was served with appellants' brief criticizing the failure of the reporter to record the oral arguments of counsel, the United States moved the trial court for a hearing on a motion to supplement the record in an effort by it to show what it contended had actually transpired with respect to this failure. The trial court granted such motion, and set the matter down for hearing. Testimony was taken, as a result of which the trial court found, as testified to by the court reporter, that counsel for each of the defendants in the trial court stated to him that they did not wish to have him report the oral arguments.

Appellants strongly attack the propriety of such a proceeding to supplement the record. Because of the failure of the appellants to allege any prejudice to them resulting from the failure of the trial court reporter to record the oral argument, we have disposed of this point on the broad ground that nothing is here presented that can avail the appellants on appeal. We thus do not pass on the question whether the record can be supplemented in such a manner. It is appropriate, however, to call attention to the fact that unless the record is supplemented, there is nothing to support the appellants' contention that the reporter failed to comply with the statute, since the statute requires only that the reporter take down the testimony by shorthand or mechanical means, there being no requirement that he transcribe it and include it as part of the record unless requested to do so. Thus the record, as presented to this court by the appellants, did not support their contention that the reporter had failed to comply with the statute. This is not the kind of matter that ordinarily appears in the record. Now, when the supplementary hearings disclose the fact that he did not do so, they also disclose the fact that his failure to do so was by the consent of the parties.

The next most vigorous argument made on behalf of appellants, Addison and Olson, relate to the failure of the trial court to suppress certain evidence which these appellants contend came into the possession of the United States from certain Texas state officials. The plain difficulty with this contention is that although the trial court conducted a long hearing prior to trial on a motion filed by these appellants to suppress as evidence in the case documents and papers alleged to have been taken from hotel rooms of Addison and Olson by state officials, and by them turned over to the United States agents, no specific items were identified as being the basis of the motion to suppress, and the trial court did not enter an order finally granting or denying the motion, thus leaving it open to the appellants during the trial to offer their objection to any specific document or other bit of evidence which they considered to have been the subject of such illegal seizure.

Appellants write with great feeling about the ten filing cabinets that were taken from the hotel rooms, and it appears that their argument is pretty much the same as it was on the first point, that the mere fact that state officials took certain cabinets of papers from the rooms of Addison and Olson without legal warrant, completely destroys the trial thereafter conducted at which information testified to by witnesses, may also have been reflected in the filing cabinets. This they contend although no showing is made as to any item or document which, after having been examined by the United States following such seizure by the state officials, was introduced or testified to at the trial.

Upon this charge being made in the appellants' brief, the United States again filed its motion for taking testimony to supplement the record in order to complete the showing as to the alleged illegal search and seizure and its effect on the United States' prosecution. Appellants strenuously opposed such proceeding, although appellants in their brief make the statement: "Should it so decide to do, this court has the power to vacate and remand to the court below for the taking of further testimony relative to the question of unreasonable search and seizure. Cf. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697."

Again, we need not consider the propriety or legality of such a proceeding. We think the cases clearly hold that the burden is on the accused attacking the propriety of evidence used against him to establish the fact that it was in fact illegally obtained. This, we think, is the clear teaching of Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, and Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L. Ed.2d 321. In the Nardone case, a wire tapping case, the court said: "The facts improperly obtained do not `become sacred and inaccessible. If knowledge of them is gained from independent...