United States v. Pigg

• Citation: 471 F.2d 843
• Decision Date: 03 January 1973
• Docket Number: No. 18353.,18353.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Edward PIGG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.2d 843 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James Edward PIGG, Defendant-Appellant.

No. 18353.

United States Court of Appeals, Seventh Circuit.

Argued December 4, 1972.

Decided January 3, 1973.

Rehearing Denied January 29, 1973.

Lorraine Woods, Civic Federation, Chicago, Ill., for defendant-appellant.

Henry A. Schwarz, U. S. Atty., E. St. Louis, Ill., Jonathan J. Seagle, Asst. U. S. Atty., Danville, Ill., and Michael L. Levinson, Asst. U. S. Atty., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

CASTLE, Senior Circuit Judge.

James E. Pigg was convicted of causing the interstate transportation of a forged check in violation of 18 U.S.C. § 2314 and was sentenced to three years imprisonment. On this appeal, he raises the following arguments: 1) his conviction should be reversed because the death of the court reporter immediately after his trial prevented the compilation of an adequate transcript to allow meaningful appellate review of the proceedings in the district court, 2) the out-of-court identification of him made by a bank teller was so impermissibly suggestive as to taint his conviction, and 3) the evidence presented at his trial was insufficient to prove his guilt beyond a reasonable doubt.

On January 17, 1969 a man identifying himself as Jack Dorfman opened an account in the City National Bank of Hoopeston, Illinois. He appeared again on January 20th and submitted a deposit slip and a check in the amount of $8500 for credit to his account. This check was payable to Jack Dorfman and was drawn on the account of one Leonard R. Hoying at the Winters National Bank and Trust Company in Dayton, Ohio. On January 24th the same person appeared with a check for $6800 which he exchanged for a cashier's check for $6300 and $500 in cash. The $6300 check was cashed at the Busey National Bank of Urbana, Illinois the same day by a man identifying himself as Jack Dorfman.

The City National Bank sent the $8500 check through its banking channels for collection, and subsequently learned that the check had been dishonored by the Winters National Bank because Leonard Hoying had neither made nor authorized the making of the check.

James E. Pigg was arrested at his residence in Miamisburg, Ohio after the FBI had gained sufficient evidence to suspect that he was the person who had posed as Jack Dorfman. At his jury trial in November, 1969, the government introduced testimony from the teller at the City National Bank which established that Pigg had been in that bank on or about January 20, 1969 when the $8500 check was passed. An FBI fingerprint expert testified that he had found three of Pigg's fingerprints on the deposit slip that was presented with the $8500 check, and another FBI expert testified that the handwriting on the deposit slip, the $8500 check, the $6800 check, the back of the $6300 check, and the signature card signed when the Dorfman account was opened was all made by the same person. Other witnesses testified to the facts that the $8500 check had been sent from Illinois to Ohio where it was dishonored, that no Jack Dorfman had ever lived at the address listed on back records, and that Leonard Hoying had never authorized the making of a check to Jack Dorfman. The defendant did not take the stand. After less than one day of deliberation, the jury found Pigg guilty as charged.

The district court subsequently denied defendant's motions for a new trial and for acquittal on November 13, 1969, and defendant filed a timely notice of appeal on December 17, 1969. The court reporter who took notes of the testimony during the trial died on January 6, 1970, and defendant's trial counsel asked for an extension of time in which to transmit the record on appeal. Counsel ultimately withdrew his representation of the defendant, and, when neither this counsel nor the court of appeals was able to locate Pigg, his appeal was dismissed on October 19, 1970. On August 31, 1971, Pigg asked that his appeal be reinstated because he had not been able to pay the fee which his counsel asked for arguing an appeal, and his motion was granted. Defendant's new court-appointed counsel notified this court that the clerk's office of the district court was having difficulties in deciphering the notes of the deceased reporter, and on December 1, 1971, this court entered an order that a committee of experts be established to compile an adequate trial transcript in accordance with the procedure set out in United States v. Farley, 292 F.2d 789, 792 (2d Cir. 1961), cert. denied, 369 U.S. 857, 82 S.Ct. 937, 8 L.Ed.2d 15 (1962). After some delay, the transcript was supplied to defendant on May 15, 1972.

Defendant's primary contention on appeal is that the transcript that was furnished him is inadequate to permit an adequate appellate review of the proceedings leading to his conviction, and that accordingly his conviction should be reversed.¹ He argues that the transcript does not include many of the objections that trial counsel claimed he made in his motion for a new trial, including objections to the introduction of various crucial government exhibits, objections to the testimony of the bank teller who remembered seeing Pigg in the bank and of the federal agents who arrested him and examined certain handwriting samples, and an exception to the failure of the trial judge to declare a mistrial. Since it is therefore impossible to determine the grounds of these objections, the arguments of counsel in support of them, and the rulings of the court, defendant submits that the precedent of other cases which have reversed convictions because of the unavailability of a transcript should govern. See, United States v. Rosa, 434 F.2d 964 (5th Cir. 1970), United States v. Atilus, 425 F.2d 816 (5th Cir. 1970).

Defendant's objections to the completeness of the transcript are untimely and are made in the wrong forum. As the order of this court issued on December 1, 1971 provided, both parties were entitled to file any objections which they had to the contents of the transcript in the district court within a reasonable time after it was submitted to that court by the committee of experts. If any objections were filed, the district court was to conduct a hearing to settle the dispute over the transcript, and to transmit the results of the hearing to this court as a supplement to the record on appeal. The defendant's counsel failed to invoke this procedure to object to the completeness of the transcript provided, and defendant cannot avoid the consequences of his waiver by pressing his objections to the transcript in this court.

We doubt, however, whether defendant has been prejudiced by the failure of his counsel to file objections in the district court, for we find that the transcript prepared from the tape recordings of the proceedings and the notes of the deceased reporter is sufficiently complete to allow an adequate review of the defendant's trial. An affidavit of the present official court reporter for the Eastern District of Illinois who prepared the transcript states that his 120 hours of reviewing the tape recordings and notes produced a transcript which contains 95% of the testimony of the trial witnesses. The text of the transcript shows where the reporter could not decipher various questions and answers, and that most of the unintelligible portions of the transcript occur during the testimony of a bank official who was relating the procedures used in his bank. Since this testimony was merely peripheral to the government's case, and since defendant's post-trial motion assigned no error to the admission of this person's testimony, we cannot say that the omissions prejudiced the defendant. In addition, the record contains the government's response to the defendant's post-trial motions. We find that this response is an adequate record of the recollections of the U. S. Attorney as to the grounds asserted by defendant's counsel for his various objections during the trial.²

Defendant's second contention on appeal is that the district court erred in admitting the testimony of Mrs. Betty Russell, a teller at the City National Bank who took the $8500 check and a deposit slip from a man identifying himself as Jack Dorfman on January 20,...