U.S. v. Devlin

• Decision Date: 12 January 1994
• Docket Number: No. 93-30000,93-30000
• Citation: 13 F.3d 1361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas James DEVLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1361

13 F.3d 1361

UNITED STATES of America, Plaintiff-Appellee, v. Thomas James DEVLIN, Defendant-Appellant.

No. 93-30000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided Jan. 12, 1994.

Roderick K. Ermatinger, Attorneys, Inc., P.C., Missoula, MT, for defendant-appellant.

Robert J. Brooks, Asst. U.S. Atty., Butte, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana (Missoula).

Before: GOODWIN, HUG, Circuit Judges, and McKIBBEN, ^* District Judge.

HUG, Circuit Judge:

Thomas James Devlin appeals his jury conviction and sentence for unlawful possession of firearms by a felon, 18 U.S.C. Sec. 922(g)(1). He argues that the district court erred (1) in denying his request for a transcript of his suppression hearing, and (2) in imposing an indefinite sentence. We agree that the denial of the transcript violated Devlin's equal protection rights, and reverse and remand for a new trial. Because we reverse on this ground, we do not reach Devlin's claims about his sentence.

I.

On October 18, 1991, police searched Devlin's home and found two firearms. Devlin, on probation for a state drug offense, was charged with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Before trial, he moved to suppress the evidence found in his home. After holding a suppression hearing at which four prosecution witnesses testified, the district court denied this motion.

Thereafter, Devlin, who is indigent, twice requested a free copy of the suppression hearing transcript in order to prepare for trial. Although the Government had obtained an extension on a filing deadline in order to obtain a copy of this transcript, the district court refused to give Devlin a free copy because he failed to provide adequate justification for it. The prosecutor also refused to give or lend Devlin a copy of his transcript.

Devlin therefore proceeded to trial without the transcript and was convicted. The district court sentenced him to 24 months imprisonment and ordered him transported to a federal medical facility for medical evaluation and treatment before beginning his federal incarceration. This appeal followed.

II.

We review de novo a claim that a court violated a defendant's constitutional right to prepare an adequate defense by refusing to provide a free transcript of a prior proceeding. United States v. Kirk, 844 F.2d 660, 662 (9th Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). If the court committed a constitutional error, we must reverse unless the Government establishes that the error was harmless beyond a reasonable doubt. Id.; United States v. Rosales-Lopez, 617 F.2d 1349, 1355 (9th Cir.1980), aff'd, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Applying this standard, we find that the district court erred in refusing to provide Devlin with a free transcript and that this error was not harmless beyond a reasonable doubt.

A.

The Supreme Court has held that a state "must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). The Equal Protection Clause prohibits disparate treatment by a state "between classes of individuals whose situations are arguably indistinguishable." Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974). "[D]ifferences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 196, 19 L.Ed.2d 41 (1967) Per Curiam. While "[t]he Fourteenth Amendment 'does not require absolute equality or precisely equal advantages,' ... [i]t does require ... that indigents have an adequate opportunity to present their claims fairly within the adversary system." Ross, 417 U.S. at 612, 94 S.Ct. at 2444. Although the Court has not defined the outer limits of this principle, "there can be no doubt that the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal." Britt, 404 U.S. at 227, 92 S.Ct. at 433. The Government argues that the court correctly denied Devlin's request because he failed to prove the transcript was needed for an effective defense. We disagree.

In Britt, the Court identified two factors relevant to determining whether a given transcript is necessary for an adequate defense: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." Id. With regard to the first factor, the Court stated that "[o]ur cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the specific case." Id. at 228, 92 S.Ct. at 434. Thus, "where a mistrial has occurred, courts have generally regarded a transcript of the prior trial as a tool 'reasonably necessary' to an effective defense and have deemed it error to refuse to provide the defendant with such a transcript." Rosales-Lopez, 617 F.2d at 1355 (citations omitted); United States v. Pulido, 879 F.2d 1255-57 (5th Cir.1989).

Applying the Britt factors to the instant case, Devlin has established a need for the suppression hearing transcript. Because prosecution witnesses testified at the hearing, Devlin had the same interest in obtaining copies of statements for impeachment purposes as he would in obtaining copies of statements made at a prior trial. The transcript was important enough that the Government requested a continuance to obtain it; basic fairness mandates that Devlin have a copy as well.

In addition, the Government has not shown that Devlin had alternative devices available. See Britt, 404 U.S. at 227, 229, 92 S.Ct. at 433, 434. The suggestion that he could have borrowed the Government's transcript is disingenuous: Devlin's counsel did ask the Government for a copy of the transcript and the Government refused to provide it. The Government did not offer any appropriate explanation for this refusal. The cost would have been minimal, and the transcript would have placed the defendant on equal footing with the prosecution.

We also reject the Government's arguments that Devlin's counsel was present at the suppression hearing and could have impeached the witnesses from his notes or asked the court reporter to read back relevant portions of the suppression hearing at trial. Courts have repeatedly recognized that counsel's memory or notes and access to the court reporter at trial are not adequate substitutes for a transcript of a prior proceeding. Britt, 404 U.S. at 229, 92 S.Ct. at 434; Williams v. Oklahoma, 395 U.S. 458, 459, 89 S.Ct. 1818, 1819, 23 L.Ed.2d 440 (1969) (rejecting suggestion that defense counsel could have relied on his memory). "A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight." Britt, 404 U.S. at 230, 92 S.Ct. at 435. To be most effective to Devlin, the transcript should have been made available before the trial so that his counsel could prepare his strategy. The transcript's value is lost if Devlin's counsel must rely on his memory or notes.

Neither fairness nor efficiency supports imposing a preliminary requirement that Devlin prove he had a particular need for the transcript. Se...