U.S. v. Cabra, 79-4063
| Decision Date | 25 July 1980 |
| Docket Number | No. 79-4063,79-4063 |
| Citation | 622 F.2d 182 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edwin L. CABRA and Claude "Buddy" Leach, Defendants-Appellants. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael S. Fawer, Matthew H. Greenbaum, New Orleans, La., for Cabra.
William H. Jeffress, Jr., Seth P. Waxman, Washington, D. C., for Leach.
J. Ransdell Keene, U. S. Atty., Shreveport, La., for United States.
Appeal from the United States District Court for the Western District of Louisiana.
Before AINSWORTH, FAY and RANDALL, Circuit Judges.
This appeal raises the novel question whether a district judge can impound notes taken during a criminal trial by a paralegal employed by defense counsel to assist in preparation of the defense. We hold that in this case, the district judge acted improperly in impounding the notes.
Appellants Edwin L. Cabra and Claude "Buddy" Leach were tried in district court on charges of vote buying in connection with the November 7, 1978 general election. After three weeks of trial, appellants were acquitted on all counts. 1 Other charges against Leach alleging illegal receipt of campaign contributions are still pending.
During the trial, the district judge, on his own motion, called a bench conference to ask defense counsel if anyone associated with the defense was taking notes of the proceedings. Defense counsel informed the court that Ms. Mary Jane Marcantel, a paralegal employed by the defense, was taking shorthand notes of portions of the testimony. Counsel stated that the purpose of the note-taking was to assist in the preparation of cross-examination, to provide summaries of testimony, and to aid in the preparation of the defense in anticipated criminal prosecutions in related cases. Ms. Marcantel was not present during the entirety of the trial and thus her notes did not reflect a complete account of the proceedings. The shorthand notes were not verbatim, but merely reflected, as accurately as possible, the substance of the testimony.
After ascertaining the character of the notes, 2 the district judge, over defense counsel's objection, ordered that Ms. Marcental could continue to take notes but that at the completion of trial the notes were to be submitted to the court and sealed. After trial, the district judge sent a letter requesting compliance with the order. Appellants moved to vacate the order and filed a memorandum of law supporting their position. The district judge denied the motion, but stayed the order pending this appeal.
The district judge based the order on the court's duty "to insure the orderly process of a case." He stated that since the notes could be considered as an unofficial transcript the validity of the official transcript was at stake. (R. 1140)
A district judge has the power to issue appropriate orders regulating conduct in the courtroom in order to assure an orderly trial. See, e. g., United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir. 1974); Seymour v. United States, 373 F.2d 629 (5th Cir. 1967). See also United States v. Dinitz, 538 F.2d 1214, 1223-24 (5th Cir. 1976), cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 556 (1977). Often the basis of the power is the need to insure that a defendant obtains a fair trial free from unnecessary disruption. See United States v. Schiavo, 504 F.2d 1, 6 (3d Cir.) (en banc ) (), cert. denied sub nom. Ditter v. Philadelphia Newspapers, Inc., 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974). See generally Sheppard v. Maxwell, 384 U.S. 333, 349-51, 86 S.Ct. 1507, 1515-16, 16 L.Ed.2d 600 (1966).
This case is similar to the facts presented in Columbia Broadcasting System. There, the district court issued an order prohibiting any sketching of the proceedings. Sketches were made by artists employed by the media for subsequent showing on television news programs. This court, while acknowledging the district court's power to control its proceedings, rejected the order as overly broad. "We are unwilling . . . to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive." Columbia Broadcasting System, supra, 497 F.2d at 107 (footnote omitted). As in Columbia Broadcasting System, we cannot understand how Ms. Marcantel's note-taking resulted in any disruption of the courtroom proceedings. There is no evidence that her work had any disturbing or disruptive effect. It appeared that her actions did not differ from the note-taking activities of the press covering the trial or of opposing counsel. Certainly, the note-taking did not interfere with or infringe appellants' rights to a fair trial as the task was performed on their behalf.
The district court placed great weight on the fact that Ms. Marcantel's notes were verbatim. There is no evidence, however, that this was true. Defense counsel stated that the notes were incomplete and that while Ms. Marcantel strived for accuracy, the notes were not always taken in question and answer form. Even assuming that the notes were verbatim, however, we do not believe that the district judge's action was proper. Note-taking at trial is an acknowledged function of paralegals, see W. P. Statsky, Introduction to Paralegalism 356 (West 1974). A court should not penalize a party on account of the proficiency of its paralegal's performance. The district court's concern for the sanctity of the official transcript is misplaced. While it is the court's responsibility to assure that the official transcript is prepared in accordance with the Court Reporter's Act, 28 U.S.C. § 753, see United States v. Garner, 581 F.2d 481, 488 (5th Cir. 1978), the Act explicitly states that "(n)o transcripts of the proceedings of the court shall be considered as official except those made from the records taken by the reporter." Moreover, defense counsel stated that they had no intention of relying on the notes as an official summary of the testimony. Thus, the district court was operating under the mistaken assumption that the paralegal's notes challenged the validity of the official transcript.
1 Because appellants were acquitted, the United States has not filed a brief in this case and claims no interest in the outcome. The Assistant United States Attorneys handling the matter moved this court to withdraw their appearances. The unopposed motion was granted on May 19, 1980.
2 The relevant colloquy between the district judge, Mr. Jeffress (attorney for appellant Leach), Mr. Fawer (attorney for appellant Cabra), and Mr. Lydick (Assistant United States Attorney), reads as follows:
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Doyle v. Couch, 76579
...additional certified reporter are not disruptive or take away from the decorum of the court room proceedings. See United States v. Cabra, 622 F.2d 182, 184 (5th Cir.1980). All the Justices ...