Peterson v. United States
| Citation | 351 F.2d 606 |
| Decision Date | 28 September 1965 |
| Docket Number | No. 19885.,19885. |
| Parties | Kenneth Richard PETERSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Norman Ty Hilbrecht, Las Vegas, Nev., for appellant.
John W. Bonner, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.
Before HAMLEY, JERTBERG and MERRILL, Circuit Judges.
Following jury trial appellant was convicted of the crime of conspiring to steal Government property. In an earlier trial the jury had failed to agree upon a verdict. The sole error here assigned is the District Court's refusal to provide appellant, at Government expense, with a transcript of the proceedings upon the first trial.
Appellant as an indigent had proceeded from the outset with court-appointed counsel. After the conclusion of the first trial new counsel was substituted, who promptly moved the court for an order directing the United States to furnish the defendant with a transcript of the first trial at Government expense. The Government resisted the motion, and it was denied. When the case was called for trial, defense counsel renewed his motion and again it was denied.1
Appellant and his codefendant were charged with conspiring to steal an aircraft battery from Nellis Air Force Base, located near Las Vegas, Nevada. The defendants were civilians who had no access to the Base. The Government's case was founded on the testimony of one Hamilton, a member of the Air Force personnel stationed at the Base. He testified that he had been approached by the defendants, had thereupon reported the incident to Government authorities, had been encouraged by them to join in the conspiracy, and had done so.
Appellant emphasizes that the defense material sought by him was available not only to the United States but to every defendant able to pay the reporter's fees. He asserts that a refusal to provide it to indigents amounts to a denial of this defense material to the poor and a grant of it to all others. He contends that this runs counter to the holding in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955). He supports his position by pointing out that such is the rule of the state courts in the state of his arrest. State ex rel. Marshall v. Eighth Judicial District Court, Nev., 396 P.2d 680 (1964).2
The Government seeks to distinguish Griffin upon the ground that there the denial of a transcript amounted to denial to the right to appeal. Here, it asserts the transcript was not, as it was in Griffin, a prerequisite to use of the very machinery of defense since the defendant here could still defend himself upon trial.
But this begs the question. If denial of the transcript rendered the trial unfair by constitutional standards, the defendant has been denied access to the very machinery of defense for which the Constitution makes provision.
The Government asserts that Griffin does not require that the quality of an indigent's defense in all respects must equal that of the more affluent defendant. We have no dispute with this general proposition. As Justice Frankfurter, concurring in Griffin, stated at 351 U.S. page 23, 76 S.Ct. at page 592:
The Government need not then provide an indigent defendant with every advantage which money could buy for a litigant. The question is whether denial of access to this material in the circumstances of this case amounted, on the one hand, to a loss of mere advantage, or, on the other hand, to the deprivation of a basic essential of defense.
In our judgment, under any reasonable standard, earlier statements respecting the facts at issue made under oath by the...
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