U.S. v. Tucker
| Citation | 964 F.2d 952 |
| Decision Date | 26 February 1992 |
| Docket Number | No. 87-5090,87-5090 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Homer Lee TUCKER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Elizabeth N. Brancart, Brancart & Brancart, Orange, Cal., for defendant-appellant.
Jean E. Gilliland, Asst. U.S. Atty., Major Crimes Section, and Steven E. Zipperstein, Asst. U.S. Atty., Chief, Criminal Appeals, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: CANBY, NORRIS, and LEAVY, Circuit Judges.
In this case we are called upon to decide whether our supervisory power should be applied to reverse a criminal conviction on the ground that extreme delay in filing a trial transcript resulted in a denial of the appellant's due process rights. We reject the government's argument that there was no due process violation and therefore no ground for exercising our supervisory power, and reverse the conviction.
On May 7, 1986, a federal grand jury handed down a ten-count indictment charging Homer Lee Tucker ("Tucker" or "appellant") and Edwin Dale Houtchens ("Houtchens") with wire fraud (18 U.S.C. § 1343, eight counts) and interstate transfer of funds obtained through fraud (18 U.S.C. § 2314, two counts) arising out of their scheme to induce California residents to invest in a fraudulent Texas oil drilling lease. Tucker entered a plea of not guilty to all ten counts, and trial was set for November 4, 1986.
When Houtchens failed to appear, the district court continued the trial to November 25, 1986. Houtchens' subsequent failures to show led to further continuances until, on January 27, 1987, Tucker proceeded to trial along with his codefendant, who was tried in absentia. The jury convicted Tucker and Houtchens on all counts. On March 18, 1987, the district court sentenced Tucker to a total of five years' imprisonment and five years' probation. 1 Tucker timely appealed.
We received the appellant's Transcript Designation and Order Form on June 12, 1987. On September 28, 1987, Court Reporter Pamela Daily ("Daily") filed a motion for an extension of time in which to file the transcripts. We granted the motion and set a due date of November 12, 1987, for the filing of Tucker's opening brief. On July 13, 1988, we ordered Daily to file within seven days either the transcripts or a motion for extension of time. We issued a similar order on March 10, 1989, and again on April 12, 1989. 2
On May 1, 1989, we ordered the substitution of appellate counsel for Tucker and extended the due date for the filing of his trial transcripts to July 12, 1989. On July 24, 1989, Daily filed a belated motion for extension of time, asking that she be given until August 28, 1989, in which to file the transcripts. We granted her motion, but by September 22, 1989, the transcripts still had not been filed.
Tucker thereupon filed a motion for summary reversal of his conviction, arguing that the court reporter's repeated failures to file his transcripts had effectively deprived him of his right of appeal and thereby denied him due process of law. On October 6, 1989, Daily filed yet another motion for extension of time to file the transcripts. We denied the motion and ordered her to file the transcripts within ten days of our order (filed December 4, 1989).
Daily eventually filed an incomplete transcript on January 30, 1990. On February 21, 1990, and again on March 30, 1990, we ordered her to file a complete transcript within seven days. Daily failed to comply with either order, and on June 6, 1990, we again ordered her to file the remainder of the transcript within seven days. Six days later Daily finally filed the complete transcript. 3
Tucker raised two arguments in his opening brief: First, he should be granted a summary reversal of his conviction because the court reporter's extraordinary delay in filing his transcripts effectively deprived him of his right to an appeal and thereby denied him due process of law; and second, the district court committed plain error by conducting a joint trial with an absent codefendant. On March 2, 1992, we ordered the parties to file supplemental briefs on the question whether, "in the exercise of [our] supervisory power over the administration of justice in this circuit, [we should] reverse appellant's conviction and order dismissal of the indictment against him due to the extreme delay in processing his appeal[.]" Both parties having now briefed this issue, we turn to a discussion of its merits.
As a general proposition, we have the express statutory authority to "reverse any judgment ... and ... remand the cause and direct the entry of such appropriate ... order ... as may be just under the circumstances." 28 U.S.C. § 2106. However, we also have the inherent supervisory power to formulate procedural rules not specifically required by Congress or the Constitution. United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). Despite the apparent breadth of the latter, we may exercise our supervisory power only "to implement a remedy for the violation of a recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and to deter illegal conduct." United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991).
As already noted, Tucker argues that the extreme delay he suffered in processing his appeal violated his right to due process and warrants the exercise of our inherent supervisory power in favor of a summary reversal of his conviction. His argument is grounded on the principle that, while a person convicted of a crime is entitled to an appeal as a matter of right, extreme delay in the processing of that appeal may constitute a violation of the appellant's right to due process. See Coe v. Thurman, 922 F.2d 528, 530 (9th Cir.1990).
In United States v. Antoine, 906 F.2d 1379 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990), we adopted the Fifth Circuit's four-part test for evaluating alleged due process violations resulting from appellate delay. 4 The four elements of that test are the length of the delay, the reasons for the delay, the defendant's assertion of his right to a timely appeal, and the degree of prejudice to the defendant. Id. at 1382.
With respect to the first three elements, we note that the length of the delay in the instant case is longer than that of Antoine, nearly all of this delay must be attributed to a dilatory court reporter, and it is undisputed that Tucker diligently asserted his right to the prosecution of his appeal. The fourth element, viz., prejudice, is more complex and in turn requires an examination of three factors: "1) oppressive incarceration pending appeal; 2) anxiety and concern of the convicted party awaiting the outcome of the appeal; and 3) impairment of the convicted person's grounds for appeal or of the viability of his defense in case of retrial." Coe, 922 F.2d at 532 (citing Antoine, 906 F.2d at 1382).
With respect to the first factor, we decline to hold that Tucker's incarceration was oppressive, because we find no merit to his contention that the district court erred by trying him jointly with his absent codefendant. Cf. Coe, 922 F.2d at 532 (); Antoine, 906 F.2d at 1382 (same). As for the second factor, Tucker's "undoubted[ ] ... anxiety and concern during the protracted pendency of this appeal [are] no more than [those of] any other prisoner awaiting the outcome of an appeal." See Coe, 922 F.2d at 532 (citation and internal quotation omitted).
Turning to the third factor, however, we note that element of prejudice. See Coe, 922 F.2d at 532 (citation and internal quotation omitted).
The government argues that, even if all four of the Antoine elements are present in this case, we should not exercise our...
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U.S. v. Tucker
...of this court concluded that the extreme delay in filing the transcripts effectively denied Tucker his right to a timely appeal. 964 F.2d 952 (9th Cir.1992), rehearing granted, 991 F.2d 1518 (9th Cir.1993). Exercising its supervisory powers, the panel reversed Tucker's conviction and remand......
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U.S. v. Foster
...that extreme delay in processing an appeal may amount to a violation of due process. Antoine, 906 F.2d at 1382. In United States v. Tucker, 964 F.2d 952 (9th Cir.1992), we exercised our supervisory power to reverse a conviction for a court reporter's three year delay in preparing transcript......