United States v. Farley

• Decision Date: 21 July 1961
• Docket Number: No. 422,Docket 24577.,422
• Citation: 292 F.2d 789
• Parties: UNITED STATES of America, Appellee, v. Charles Leo FARLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

292 F.2d 789 (1961)

UNITED STATES of America, Appellee, v. Charles Leo FARLEY, Defendant-Appellant.

No. 422, Docket 24577.

United States Court of Appeals Second Circuit.

Argued June 21, 1961.

Decided July 21, 1961.

Bella V. Dodd, of Dodd, Cardiello & Blair, New York City (Charles Leo Farley, defendant-appellant, pro se, on the brief), for defendant-appellant.

James M. Catterson, Jr., Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.

CLARK, Circuit Judge.

Defendant appeals from a conviction for robbing the Bethpage Branch of the Hempstead Bank on March 21, 1955, and for putting lives in jeopardy in the course of said robbery. 18 U.S.C. § 2113(a, d). After a jury trial below, the court entered a judgment of conviction on the verdict on May 31, 1956. Since the issues in this case include the delay in presenting the appeal, and the difficulties in preparing an adequate trial transcript after the death of one of the court reporters, we think a review of the history of these proceedings is desirable.

On June 30, 1956, the district court denied defendant's motion for leave to appeal in forma pauperis, on the ground that he had failed "to show merit" in his appeal. He sought review of that order in this court, United States v. Farley, 2 Cir., 238 F.2d 575, as a result of which he was allowed to renew his motion in the district court with the aid of assigned counsel. This court affirmed the denial of this second motion, 2 Cir., 242 F.2d 338; but the Supreme Court reversed, holding that his allegations of error could not be evaluated without a transcript of the trial record or stipulated statement of the relevant facts. Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529. On June 24, 1957, therefore, the Supreme Court remanded the case for the purpose of preparing an adequate trial transcript. On August 12, 1957, he was assigned counsel for the purpose of settling the record pursuant to the Supreme Court's remand; and on September 27, 1957, we ordered the minutes transcribed.

On November 22, 1957, the United States Attorney informed defendant's counsel that Court Reporter Carey, one of the trial stenographers, had been dead since March 5, 1957. Further delay was then occasioned in securing a transcription of the portion of the minutes taken by this deceased reporter. At one point experts both in New York and in Utah were unable to undertake the task. On June 3, 1959, after these futile efforts, Judge Bruchhausen sent the notes to Colorado to be transcribed by one Clifford Gehman, a stenographic expert of long experience. After careful study of Carey's idiosyncrasies of penmanship, and of the shorthand system he had used, Gehman completed the process of transcription; and a copy of the minutes was forwarded to the defendant. In December 1959 defendant submitted an affidavit claiming that the transcription was inaccurate, and in February 1960 he submitted a statement of claimed errors to this court. He then moved for a hearing to settle the record; but Judge Bruchhausen, denying this motion, settled the record ex parte.

On June 13, 1960, defendant moved in this court to object to this ex parte settlement; and on September 1, 1960, we ordered that this objection be noted and considered as one of his points on appeal. Briefs were submitted on the appeal; but this court, without ruling on the merits, on December 8, 1960, remanded the case to the district court for settlement of the record with a hearing pursuant to Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. The directed hearing was held before Judge Byers, who, on April 3, 1961, denied most of defendant's claims of error. On April 19, 1961, defendant's motion to proceed in forma pauperis was granted; and we finally heard the appeal at our June sitting of the current judicial year. In addition to all this there were various interlocutory motions and rulings which we shall not bother now to recall.

The delay in hearing the appeal, occasioned principally by the difficulties arising from the reporter's death, does not constitute any denial of due process. This court's earlier order that the objection to an ex parte settlement be deemed a point on appeal did not imply that we would reverse the judgment of conviction if we believed that ex parte settlement was improper. Following our remand for settlement of the record, a full hearing was held, fully complying with the requirements of Chessman v. Teets, supra, 354 U.S. 156, 77 S.Ct. 127. Both defendant and his trial attorney testified as to their recollections of the disputed trial testimony. Clifford Gehman, the expert stenographer who transcribed the notes, testified as to his qualifications and as to the procedure which he followed. When first called to testify, he was unable to read Carey's notes; and he was given a day to refresh his recollection as to the peculiarities of Carey's penmanship and of his system of shorthand. Gehman then returned to the stand, and testified in detail with reference to his transcription and to the claimed errors. Defendant cross-examined Gehman and succeeded in revealing the difficulties that arise in transcribing notes made by another. Unlike Chessman v. Teets, supra, 354 U. S. 156, 77 S.Ct. 1127, no attack was made on Gehman's impartiality; and we find no error in the court's denial of a request for appointment of a second expert to assist defendant in cross-examining Gehman. In addition to the above testimony, the trial judge and the government attorney who tried the case testified as to their recollections, as did one of the witnesses at the original trial.

The procedure thus followed was an eminently fair means of settling the record in a difficult situation. In ruling on defendant's claims of error, Judge Byers gave weight to the assumption that an experienced court reporter such as Mr. Carey would not ordinarily omit to record portions of trial testimony or colloquy. This was an obviously natural position, in accord with the dictates of common sense and experience; and we do not feel that Judge Byers can be accused of unfairness in adopting this position or in generally rejecting defendant's testimony as that of a highly interested witness. Far from giving defendant "a perfunctory, inadequate hearing," as he charges in his brief, Judge Byers gave scrupulous attention to the various claims of error in a three-day hearing which produced a transcript of 409 pages.

Accepting the transcript as settled by Judge...