United States v. Carter
| Decision Date | 10 June 1965 |
| Docket Number | Docket 29612.,No. 525,525 |
| Citation | 347 F.2d 220 |
| Parties | UNITED STATES of America, Appellee, v. Edward CARTER and Odessa Slater, Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
John R. Bartels, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Michael W. Mitchell, Asst. U. S. Atty.), for appellee.
Frederic A. Johnson, New York City, Rudolph Lion Zalowitz, Elizabeth, N. J., for appellants.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
After a five day trial a jury found appellants guilty of violating 21 U.S.C. §§ 173 and 174. Appellants seek reversal of the judgment of conviction entered upon the verdict and dismissal of the indictment upon a single ground: in summation defense counsel attacked the credibility of a narcotics agent on the basis that his testimony conflicted with that of a New York City detective also called by the Government. The transcript showed the latter to have testified: "I hailed a taxicab and went back to 145th Street and Seventh Avenue, where Bob, Lee and I entered my automobile * * *"; the narcotics agent had not included "Bob" among those present. At the end of the summation, Judge Sugarman, after checking his own notes and directing the court reporter to consult his minutes, reconvened court in the absence of the jury and notified counsel and the defendants that the transcript was in error. The reporter stated that his notes showed the detective to have used the word "whereupon" rather than the two words "where Bob"; that in dictating the notes, which were indistinct, he thought they indicated "where Bob"; but "the notes, on looking at them now, and if any other reporter would look at them, would show `whereupon.'" The judge having stated that he would so inform the jury, defense counsel moved for a mistrial. Judge Sugarman denied this but granted additional time for further summation.
The claim that the judge's action violated 28 U.S.C. § 753(b) is unfounded. When the statute says that the transcript certified by the reporter "shall be deemed prima facie a correct statement of the testimony taken and proceedings had," it clearly implies, as would be evident in any event, that the transcript is subject to correction. The Rules expressly authorize such correction in the preparation of the record on appeal, F.R.Civ.P. 75 (h), F.R.Cr.P. 39(b) (1), see United States v. Ross, 321 F.2d 61, 67 fn. 4 (2 Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11...
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