U.S. v. Renton

• Citation: 700 F.2d 154
• Decision Date: 24 February 1983
• Docket Number: No. 77-5779,77-5779
• Parties: 12 Fed. R. Evid. Serv. 1040 UNITED STATES of America, Plaintiff-Appellee, v. James Ray RENTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 154

700 F.2d 154

12 Fed. R. Evid. Serv. 1040

UNITED STATES of America, Plaintiff-Appellee, v. James Ray RENTON, Defendant-Appellant.

No. 77-5779.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 1983.

Jack Hill, San Francisco, Cal., Stephen M. Orr, Austin, Tex., for defendant-appellant.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WILLIAMS and JOLLY, Circuit Judges, and WILL ^*, District Judge.

E. GRADY JOLLY, Circuit Judge:

This appeal comes before this court following a November 11, 1974, conviction of the defendant by a jury for counterfeiting in violation of 18 U.S.C. Secs. 371 and 478. Finding no reversible error, we affirm.

In 1971 B.C. Lancaster contacted Elmer Cox about a scheme to counterfeit $100,000 Bank of Canada bearer bonds. Cox agreed to the counterfeiting scheme and converted By mid-summer of 1971, the preliminary work, most of which was apparently done on the weekends, had been completed for the printing process.

some buildings on his property in Austin, Texas, into a workroom. A printing press and special equipment were moved into the building. Cox lined up two printers from Houston, Texas--appellant Rick Renton and Scottie Ray Muckelrath. Both Renton and Muckelrath were employees at the Houston Chronicle newspaper. Renton's primary job was to etch the layout of the counterfeit bearer bonds onto the metal plates.

From the summer of 1971 through that Thanksgiving, over one thousand of the counterfeit bonds were printed. Upon examination, all but thirty of the bonds were destroyed, with Lancaster keeping the ones deemed usable. Renton, Muckelrath and Cox had been promised $50,000 each as soon as the bonds were circulated. Although at least some of the bonds were circulated, none of the conspirators was paid off by Lancaster.

On February 12, 1974, when Cox was with him, Lancaster was shot and killed. Cox suffered a heart attack that same night and was hospitalized. From his hospital bed Cox confessed to Secret Service agents about the counterfeiting scheme. Based on the information obtained from Cox, a search warrant was obtained and during the resulting search of Lancaster's house, the paraphernalia for the counterfeiting was found. Renton's fingerprints were discovered on the premises. ¹

Renton, Muckelrath and Cox were jointly indicted for conspiring to make, forge and counterfeit the bearer bonds. They were also charged with the crime of counterfeiting. Cox additionally was indicted for the murder of Lancaster. Renton and Muckelrath were tried and convicted by a jury on both counts.

Prior to sentencing, Renton fled and failed to appear for sentencing. The court issued a warrant for his arrest, and in May 1977, Renton was arrested in Denver, Colorado. After trial in Arkansas state court for an unrelated crime, ² Renton was returned to federal custody in San Antonio, Texas, in October 1977 for sentencing. He was sentenced to consecutive terms of five years and three years for a total imprisonment term of eight years. He timely appealed this conviction.

I. ISSUES

A. Do the omissions from the record resulting from the death of the court reporter require remand for a new trial?

B. Did the trial court err in limiting cross-examination of Elmer Cox or Mrs. Cox?

C. Did the court err in permitting Cox's guilty plea to be put before the jury?

D. Did the court err in denying Renton's Motion to Suppress regarding evidence seized from Lancaster's home?

II.

A. Omissions from the Record

As stated in the recitation of facts, Renton was "on the lam" for the period between November 1974 and May 1977. The following October he was sentenced upon the conviction herein and filed his Notice of Appeal eight days later on October 13, 1977.

Unfortunately, the court reporter who had transcribed the proceedings at Renton's trial died shortly after Renton's appeal was filed, before the proceedings had been transcribed from his shorthand and from the tape recordings of the trial. A substitute court reporter was appointed to transcribe the proceedings. Because of the idiosyncracies of the deceased court reporter's shorthand, however, the substitute reporter was unable completely to reconstruct a transcript. Beginning in November 1977, this court granted six stays for the filing of the transcript. On February 2, 1981, we remanded this case to the district court to determine when, if ever, a transcript would be prepared. In the spring of 1982, the transcript was completed, with gaps due to lost or indecipherable notes and tapes. At that point, this court remanded the case to the district court to permit the parties to review the trial transcripts and to serve objections or proposed amendments upon each other and to submit those objections to the district court for approval. No such objections were received from either Renton or from the government.

There are substantial portions of the record missing. Specifically omitted are portions of the argument to the judge concerning admission of co-conspirators' 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.

The principal case in this circuit concerning the effect of omissions in the appeal record is United States v. Selva, 559 F.2d 1303 (5th Cir.1977). In Selva, the court reviewed the pertinent sections in the Court Reporter Act, 28 U.S.C. Sec. 753. The Act requires that the court reporter "record verbatim by shorthand or by mechanical means ... (1) all proceedings in criminal cases had in open court ...." 28 U.S.C. Sec. 753(b). As was stated in Selva, "This language is clear, and its requirements are mandatory." 559 F.2d at 1305. Reviewing the pertinent case law, including the Supreme Court decision in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), we held that two dominant rules have evolved in cases involving record omissions:

The first holds that failure to comply with the Act is not error per se and will not work a reversal absent a specific showing of prejudice--i.e., appellant must show that failure to record and preserve the specific portion of the trial proceedings visits a hardship upon him and prejudices his appeal.... An examination of the second body of case law reveals that a different rule obtains in cases involving new counsel on appeal. When, as here, a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent a specific showing of prejudice or error, is sufficient to mandate reversal.... When a defendant is represented on appeal by the same attorney who defended him at trial, the court may properly require counsel to articulate the prejudice that may have resulted from a failure to record a portion of the proceedings. Indeed, counsel's obligation to the court alone would seem to compel him to initiate such disclosure. The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded. But when a defendant is represented on appeal by counsel not involved at trial, counsel cannot reasonably be expected to show specific prejudice.

559 F.2d at 1305-6.

At the trial here, Renton was represented by retained counsel, Jack Hill. Renton's co-defendant, Muckelrath, was represented by retained counsel, Stephen Orr. Hill was appointed to represent Renton on appeal. In a telegram to this court, however, Hill asserted that Orr was assisting him, Hill, on appeal, and in fact Orr filed Renton's brief and argued the case before this court.

Mr. Hill, who apparently no longer wishes to practice criminal law, filed at a late date a Motion to Withdraw and Substitute Mr. Orr on this appeal. In a ruling on this motion on January 20, 1983, we denied this motion, stating that it would "constitute a distinct and, so far as the record shows, an unwarranted advantage to the appellant." We specifically held that substitution of new counsel would allow the appellant to attack the transcript on the lesser standard set forth in Selva. Finding that this would provide the appellant undue advantage, we held that Mr. Hill could not abandon his responsibilities as attorney of record. ³

We are presented therefore with the situation discussed in Selva where the appellant must show specific prejudice. The appellant argues that because of the delay between the trial before the district court and the appeal, he should not be required to show specific prejudice. Rather, Renton argues essentially that the lapse of time necessarily brought about a lapse of memory, that errors which might have been committed during the trial which were not preserved in the record cannot be remembered, and that remand for a new trial is therefore necessary.

Even aside from the point that the omissions in the record occurred only because Renton fled, with the court reporter dying only shortly after his recapture, we do not believe that the lapse in the time between the lower court trial and the appeal necessarily requires remand. As we stated in Selva, counsel is "expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded." 559 F.2d at 1306. Counsel in this case did not file any objection to the proceedings when given the opportunity under Fed.R.App.P. 10(c) to review the reconstructed transcript. Counsel's case file apparently contained no notations regarding errors committed during closing argument or during the court's instructions to the jury.

In United States v. Bankston, 603 F.2d 528 (5th Cir.1979), the appellant urged that the omission in the record of defense counsel's objections to the court's jury...