Motion for Limited Remand

No. 10-50856

IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN THOMAS SHIPLEY,

Defendant-Appellant.

APPELLEE’S MOTION FOR EXPEDITED LIMITED REMAND

Appellee United States of America, by and through its undersigned counsel,

hereby moves this Court, under FED. R. APP. P. 10(e)(2), for an expedited limited

remand to the district court to hold a record-reconstruction hearing and make findings

thereon for this Court. In support of this motion, the United States would show the

Court as follows:

A. Summary

Through no fault of either party, and despite the government’s best efforts, a

written verbatim transcript cannot be obtained for one trial day that is the subject of

the above-captioned direct criminal appeal pending with this Court. Since May 25,

2011, the date the district court found that a verbatim transcript was unobtainable, the

Case: 10-50856 Document: 00511795923 Page: 1 Date Filed: 03/21/2012

Appellant has not taken any steps to rehabilitate the record, including the procedure

specifically reserved for him under FED. R. APP. P. 10(c). The need for record

reconstruction via FED. R. APP. P. 10(e)(2) became evident to the government only

when the Appellant revealed the significance of the missing transcription by

specifying the issues on appeal as raised in his brief filed on December 29, 2011.

Having reviewed those issues in light of the record and applicable legal

authorities, we now request that the Court direct an expedited limited remand under

Rule 10(e)(2) for the district court to conduct a record-reconstruction hearing

concerning missing portions of the trial transcript and to make findings thereon to this

Court so that it may determine whether an accurate nonverbatim reconstructed record

permits effective appellate review. The requested relief comports with Circuit

precedent; facilitates appellate review of several of the Appellant’s briefed issues; and

effectuates the district court’s stated intent to, if possible, avoid a retrial.

B. Background

1. Trial. With both parties concurring, the district court in the El Paso

Division of the Western District of Texas certified this case as complex and unusual,

inasmuch as the indictment covered a period greater than three years, encompassed

voluminous discovery compiled during an investigation that lasted more than one

year, and involved witnesses and transactions scattered throughout the United States

2


(1R. 42-53). A jury convicted Appellant Shipley, an FBI agent, on all six indictment1

counts: one count of dealing firearms without a license, four counts of causing a

firearms dealer to maintain false records, and one count of making a false statement

(1R. 16-23; 2R. 275).

During the eight-day trial in April 2010, the United States called 16 witnesses,

nine of whom came from outside the Western District of Texas–namely New Jersey,

North Carolina, Illinois, Oregon, California, and Arizona, as well as Houston and

Dallas, Texas (4 1 Supp.R. 199, 210; 5 1 Supp.R. 215, 225, 480; 6 1 Supp.R. 3, 17,st st st

520, 585, 597, 609; 1R. 112-13, 121). Of the defense’s 12 witnesses who testified

before the jury, two traveled from outside the Western District of Texas–Tennessee

and Wyoming (6 Supp.R. 733; 7 1 Supp.R. 996; 8 1 Supp.R. 1058, 1099, 1204; 9 1st st st

1 Supp.R. 1477; 1R. 112-13, 121). Admitted into evidence at trial were 130st

government exhibits consisting of numerous firearms and other items, including more

than 2,300 pages of documents (1R. 101-11; 4 1 Supp.R. 44-46, 66; 6 1 Supp.R. 734;st st

9 1 Supp.R. 1213, 1477), plus more than 150 defense exhibits (1R. 116-20; 4st

Parenthetical references herein are to the appellate record. “R.” refers to one of1

two record volumes, preceded by the volume number and followed by one or more pagenumbers. “Supp.R.”–identified as either 1 , 2 , or 3 –denotes a supplemental recordst nd rd

volume, preceded by the volume number and followed by one or more page numbers.

3


1 Supp.R. 66, 211; 5 1 Supp.R. 481; 6 1 Supp.R. 734; 7 1 Supp.R. 997; 8 1 Supp.R.st st st st st

1205; 9 1 Supp.R. 1478). st

2. Appellate counsel’s addition to defense team; sentencing; appeal. In July

2010, Shipley’s appellate counsel joined the defense legal team as co-counsel with

Shipley’s two trial lawyers (2R. 210-16, 245). Appellate counsel was not present

during any part of Shipley’s trial (11 1 Supp.R. 1567, 1569, 1582-83, 1589). Inst

August 2010, Shipley was sentenced to imprisonment totaling 24

months–downwardly varying from an applicable range of 41 to 51 months–followed

by three-year terms of supervised release (11 1 Supp.R. 1582, 1597). He wasst

permitted to remain on bond and self-surrender to the Bureau of Prisons (11

1 Supp.R. 1597-98). From the district court’s written judgment (2R. 281-87),st

Shipley’s sole appellate counsel noticed the instant appeal on September 3, 2010 (2R.

288).

3. Discovery of missing verbatim written transcription; government’s

recovery efforts. On November 3, 2010, the Appellant lodged his trial-transcript

request (1 3 Supp.R. 12 [docket entry 115]). As part of a motion for release pendingrd

appeal, Appellant’s counsel reported that, as of December 1, 2010, he was notified

that a written verbatim transcription for one trial day was unavailable and could not

be produced (1 2 Supp.R. 16, 21, 23-25). Seeking to recapture the missing data, thend

4


government swiftly requested and received from the district court an order compelling

the court reporter to preserve all of her records, notes, and equipment (1 2 Supp.R.nd

38-40, 44-45). At a December 22, 2010, hearing, a substitute freelance court reporter

testified that a computer equipment malfunction had prevented her from submitting

a verbatim written transcript of trial proceedings occurring on April 13, 2010 (2

3 Supp.R. 60, 62-85). At our urging, the district court authorized the government tord

subject the court reporter’s equipment to extensive forensic analysis in hopes of

retrieving the missing data, and it extended Shipley’s self-surrender deadline (2

3 Supp.R. 86-104; 1 3 Supp.R. 38-39, 42-43). The trial judge declared that, “in 19rd rd

years as a state and federal judge, I’ve never been confronted with a situation like

this. . . .I’m going to look at every avenue to try to avoid [a re-trial]” (2 3 Supp.R.rd

61).

The government’s several unsuccessful attempts at recapturing the missing

data–review by a computer forensic examiner with the Department of Justice’s Office

of Inspector General, examination by Kroll Ontrack computer forensics laboratory,

and further cooperation from and communication with the substitute court

reporter–are summarized in a nine-page pleading (1 3 Supp.R. 201-09, 188-89). Therd

negative result of those efforts was shared at a May 25, 2011, hearing before the

district court (3 3 Supp.R. 211-13, 219-21, 225). At the hearing, as a prelude tord

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record-reconstruction procedures outlined in FED. R. APP. P. 10(c) to obtain a fair and

accurate nonverbatim account of the untranscribed proceedings–which the

government repeatedly urged and to which the district court was receptive (3 3rd

Supp.R. 215-17, 220, 223-24, 226)–the government extended the Appellant the

opportunity to utilize his own experts to try to recover a written verbatim transcript

(3 3 Supp.R. 213-15). rd

After remarking that “it sounds like every conceivable effort has been made”

to try to obtain a verbatim written transcript (3 3 Supp.R. 213-14), and afterrd

appearing to express amenability to initiating nonverbatim record reconstruction (3

3 Supp.R. 226), Appellant’s counsel thwarted the operation of Rule 10(c),rd

representing that he would ask this Court to appoint an expert to assure that the

written-verbatim-transcript issue was fully resolved “to cover myself . . .so the U.S.

Attorney’s Office doesn’t use this as an appellate basis to attack my efforts” (3

3 Supp.R. 229-30). At the conclusion of the hearing, Appellant’s counsel requestedrd

and received the district court’s denial of an extension on Shipley’s June 10, 2011,

self-surrender deadline so that counsel could pursue with this Court bond pending

appeal and his contention that the missing verbatim written transcript entitled Shipley

to a new trial (3 3 Supp.R. 230) without having to deal with Rule 10(c) (3 3 Supp.R.rd rd

224-25).

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Contrary to his assurance to the district court, the Appellant did not move this

Court for an expert forensic analyst so that the defense could satisfy itself about the

unavailability of a written verbatim transcript. Nor did Shipley ever attempt to

recreate the missing record under Rule 10(c)–the mechanism, as quoted to

Appellant’s counsel by the government at the May 2011 hearing (3 3 Supp.R. 223),rd

through which Shipley could have initiated record reconstruction–by submitting to

the district court a statement detailing the contents of the omitted testimony and

communications, including but not limited to a reiteration of the substance of his own

untranscribed trial testimony. See Pascouau v. Martin Marietta Corp., No. 98-1099,

1999 WL 495621, at *3 (10th Cir. 1999) (unpublished); United States v. Honken, 477

F.Supp.2d 1004, 1007-08 (N.D. Iowa 2007) (discussing Fifth Circuit Rule 10(c)

cases).

The Appellant’s uniform strategy before this Court and the district court has

been to do nothing to try to rehabilitate the record. As he has repeatedly told this

Court and the district court, Shipley has been content to rely on a line of cases from

this Circuit holding that, when appellate counsel was not trial counsel, missing

portions of a trial transcript deemed “substantial and significant” require reversal for

a new trial (Shipley’s December 2011 appellate brief, 37-40; Shipley’s October 2011

motion to this Court for summary remand for new trial; Shipley’s June 2011 second

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supplemental motion to this Court for release pending appeal, at pp. 4-6, 9; Shipley’s

December 2010 first supplemental motion to this Court for release pending appeal,

at pp. 3-5, 8; Shipley’s December 2010 motion to this Court for release pending

appeal ; 1 2 Supp.R. 19-20; 3 3 Supp.R. 214, 224-25). See United States v. Selva,2 nd rd

559 F.2d 1303, 1306 & n.5 (5th Cir. 1977) (citing cases).

This line of authority, however, does not consider records reconstructed via

Rule 10. Consonant with defense strategy thus far, Shipley has opposed the instant

motion for an expedited limited remand to the district court under Rule 10(e)(2). 4. Particular record gaps; their relation to appeal issues; suitability of Rule

10(e)(2) record reconstruction. The substitute court reporter’s handwritten notes,

supplied by the government at the May 2011 hearing, reflect that the missing trial-day

transcription encompassed 9:10 a.m. to 12:15 p.m., and 1:50 p.m. to 2:10 p.m., for a

total of three hours and 25 minutes (1 3 Supp.R. 186-87; 3 3 Supp.R. 215). Fromrd rd

December 2010 through October 2011, the Appellant provided the district court and

this Court with affidavits and information about the nature of the untranscribed

proceedings that were conflicting, tentative, and sometimes incorrect. 3

This motion (at p. 4), with emphasis added, refers to “reconstruction” of the2

record in the sense of obtaining “a verbatim account of the lost proceedings.”

In the first full paragraph and elsewhere in his December 6, 2010, motion to the3

district court for release pending appeal, Appellant’s counsel incorrectly contended thatsix witnesses in addition to Shipley testified before the jury on April 13, based on

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Now that Shipley has filed his Appellant’s brief, there appears to be no dispute

between the parties as to the general subject-matter covered at trial on April 13,

2010–at most, Shipley’s relatively brief remaining direct examination, his cross-4

examination, “any” redirect examination, and “any and all objections to the same”;

Shipley’s attached affidavit stating his belief in the same erroneous information (12 Supp.R. 16, 19, 26, refuted by 7 1 Supp.R. 883, 912, 936, 954, 966; 8 1 Supp.R.nd st st

1013; 3 3 Supp.R. 215, 223). The next day, in a supplemental pleading, Appellant’srd

counsel represented that “Shipley cannot now affirm that all other six witnesses testifiedon April 13 ,” and advised that he was “looking for records to substantiate who elseth

besides Mr. Shipley testified that day” (1 2 Supp.R. 33); Shipley’s attached affidavit:nd

repeated his earlier-stated erroneous belief that the case agent had testified before the juryon April 13; declared that he was “now not positive” that the other five witnesses he hadmentioned in his earlier affidavit had “actually testified that day” to the jury; and, thoughnot mentioned in his earlier affidavit, expressed his belief that his proposed characterwitness testified on voir dire before the district court on April 13 (1 2 Supp.R. 36, 26). nd

Both affidavits state without qualification that on April 13 Shipley provided testimony ondirect and cross-examination, while venturing a belief that he also testified on redirect (12 Supp.R. 26, 36). nd

At the district court’s May 2011 hearing, Appellant’s counsel: persisted in theerroneous belief or surmise that six witnesses in addition to Shipley testified before thejury on April 13; made no mention of redirect examination of Shipley; and did notmention voir-dire testimony from the proposed character witness (3 3 Supp.R. 222-23). rd

When Appellant’s counsel acknowledged that the identity of the April 13 witnessesremained unsettled and needed to be “figure[d] out,” the government noted the ease withwhich that could be accomplished by Shipley through Rule 10(c) (3 3 Supp.R. 223).rd

In pleadings filed by the Appellant in this Court from December 2010 to October2011, Shipley appended and/or specifically referred to the same problem-plaguedaffidavits discussed in the first paragraph of this footnote (December 9, 2010, motion forrelease pending appeal, at p.3; December 13, 2010, supplemental motion for releasepending appeal, at p.3; June 2011 second supplemental motion for release pendingappeal, at p. 4; October 2011 motion for summary remand for new trial, at p. 3).

On the preceding day, Shipley’s direct testimony occupied 202 transcript pages (94

1 Supp.R. 1264-1402, 1414-76).st

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a proffered defense character witness who was examined on voir dire outside the

jury’s presence and excluded as a witness, “along with legal arguments, objections,5

and a Court ruling regarding the same”; and as yet unspecified requests, objections,

and rulings relating to jury instructions. See Shipley’s appellate brief, 19-21. 6

Until Shipley filed the Appellant’s 52-page brief on December 29, 2011,

identifying the issues on appeal, the significance of any record deficiency in

conjunction with the need for a Rule 10(e)(2) remand was not evident to the

government. Having reviewed the issues raised on appeal, the record, and applicable7

This subject was also discussed during transcribed proceedings on April 12 (95

1 Supp.R. 1413) and April 14, 2010 (10 1 Supp.R. 1484-86), during which the defensest st

completed its proffer and the district court explained its ruling.

If there were any in addition to those discussed during transcribed proceedings on6

April 12 (9 1 Supp.R. 1404-12) and April 14, 2010 (10 1 Supp.R. 1480). st st

The question of whether a verbatim transcript could be recovered was not7

completely settled, even after the May 2011 hearing, because Appellant’s counselrepresented to the district court that he would seek from this Court the appointment of anexpert to address that subject. At the May 2011 hearing, he also suggested amenability toinvoking Rule 10 reconstruction, which he also never undertook, even after this Court onNovember 8, 2011, denied his motion for summary remand for a new trial. Moreover, tothe best of our knowledge, prior to filing his Appellant’s brief, Shipley did not allege arecord deficiency with respect to a jury-charge conference or jury instructions, nor did heassert an intention to press an appeal issue relating to those subjects.

In addition to reasons already mentioned in this footnote, the government couldnot rely on Shipley’s prior pleadings for release pending appeal, in which he enumerated some of the issues he planned to raise on appeal, but never did–namely several non-forfeiture sentencing issues, as noted in his: December 6, 2010, motion to the districtcourt (1 2 Supp.R. 18); December 9, 2010, motion to this Court, at p. 6; December 13,nd

2010, supplemental motion to this Court, at pp. 6-8; and June 2011 second supplementalmotion to this Court, at pp. 7-9.

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legal authorities, the government has determined that, of Shipley’s 10 briefed

appellate issues, three appear to be affected by the missing transcription.

His sixth issue (at brief, 37-40) argues that he is automatically entitled to a new

trial because of the absence of a verbatim transcript for April 13. His seventh issue

(at brief, 41-43) suggests that a new trial is mandated because this Court may not be

able to evaluate the district court’s exclusion of Shipley’s sole proffered character

witness because a verbatim transcription of that person’s voir-dire testimony before

the district court is unavailable. Relatedly, in his eighth issue (at brief, 43-44),

Shipley argues that this Court cannot effectively gauge whether the district court

erred in failing to instruct the jury on evidence of his good character because the

record lacks a verbatim transcription of any jury-instruction requests, objections,

arguments, and rulings made on April 13.8

In contrast to his three aforementioned appellate issues, Shipley has not alleged in8

his appellate brief that the missing April 13 transcription impairs this Court’s ability toeffectively review his seven remaining appeal issues: 4 evidence-sufficiency issues(Shipley’s brief, 21-24, 27-32, 32-34, 34-36), as the entirety of the government’s case-in-chief is captured by a verbatim written transcript; an attack on a statute as void forvagueness (Shipley’s brief, 25-28), an issue that is purely legal or may secure anynecessary factual context from the government’s case-in-chief; claimed errors as toforfeiture (Shipley’s brief, 45-47), which should turn on a fully-transcribed sentencingand the government’s case-in-chief, as well as filed documents; and an assertion ofimproper closing argument by the government (Shipley’s brief, 47-51), which has beentranscribed verbatim in writing.

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All three of these issues clearly call for a Rule 10 record-reconstruction

attempt. Upon limited expedited remand to the district court, the substance of the

missing transcription–part of Shipley’s testimony, the defense character witness’

proffered testimony, the jury-charge conference, and attendant objections, requests,

and rulings–should be readily ascertainable from such sources as the two defense

witnesses involved, Shipley’s trial lawyers, government counsel, and even the district

court itself. At the May 2011 hearing, mindful that part of Shipley’s testimony was

untranscribed, the government quoted Rule 10(c)’s invitation for the Appellant to

draw from “the best available means, including the appellant’s recollection” (3 3rd

Supp.R. 223). Also during the hearing, the government specifically referred to Rule

10 when advising the Appellant that he could recreate the proffered testimony of the

excluded character witness in various ways at a record-reconstruction hearing, such

as through testimony from the witness himself or a written version of that witness’

April 13 proffered testimony (3 3 Supp.R. 220). During the same hearing, therd

government reminded Appellant’s counsel that he also had resort to the recollections

of Shipley’s trial lawyers, who were officers of the court subject to subpoena (3 3rd

Supp.R. 223). Having ignored these important considerations, Shipley’s appellate

brief understandably neglects to even mention FED. R. APP. P. 10.

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C. Justification for Limited Expedited Remand under Rule 10(e)

1. To facilitate appellate review. When a defendant is represented by different

counsel on appeal than at trial, the absence of a “substantial and significant portion

of the record” is sufficient to warrant reversal for a new trial, even absent any

showing of specific prejudice or error. Selva, 559 F.2d at 1306. However, before9

passing on the merits of the appeal in Selva–which contained no transcription of the

closing arguments by both parties at trial–this Court first remanded to the district

court under Rule 10(e) for “remedial treatment” and “supplementing the record.” Id.

at 1304.

Except for the Fifth and Eleventh Circuits, almost every circuit to consider the9

issue of missing transcripts requires that the defendant demonstrate prejudice, whether ornot the defendant had different counsel on appeal than at trial. See United States v.Weisser, 417 F.3d 336, 342 (2d Cir. 2005) (citing cases). The majority rule avoids suchundesirable consequences as creating a “perverse incentive” for “defendants to dismisstrial counsel and seek new appellate counsel whenever questions arise over thesufficiency of the trial transcript.” See id. (citation omitted); United States v. Smith, 591F.2d 1105, 1109 n.1 (5th Cir. 1979) (noting that the “anomalous rule” in Selva “seems toinvite the manipulation of appellate causes to achieve unmerited reversals”).

In the Fifth Circuit, when appellate counsel also represented the defendant at trial,the appellant must show specific prejudice to his appeal from the missing transcription inorder to gain a new trial. See, e.g., United States v. Valdez, 861 F.2d 427, 429-31 (5thCir. 1988) (convictions affirmed; following remand, the district court concluded that itwas not feasible to reconstruct closing statements, the court’s jury charge, and much ofthe testimony for five and one-half days of an eight-day trial); United States v. Renton,700 F.2d 154, 157-59 (5th Cir. 1983) (convictions affirmed after Rule 10 reconstruction;record omissions included argument to judge about admission of coconspirators’statements, the ability of a witness to testify after having heard portions of the trial, adefense motion, testimony on the final day of evidence, jury arguments, and juryinstructions).

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Treating Selva as binding precedent, the Eleventh Circuit in United States v.Preciado-Cordobas, 981 F.2d 1206, 1213 n.7 (11th Cir. 1993), rejected defense

arguments that, when confronted with assertedly substantial and significant omissions

from the original trial transcript, the appellate court should reverse the convictions

without affording the district court the opportunity to remedy such omissions through

reconstruction. Instead, Preciado-Cordobas encouraged Rule 10(e) record-

reconstruction remands through its articulation of this appellate review standard:

“Whether there is a substantial and significant omission can be decided only after the

district court has attempted to reconstruct those portions missing from the transcript.” Id. at 1212 (emphasis added).

Our Court of Appeals has relied on Preciado-Cordobas, observing that

“[t]here can be no substantial and significant omissions from a reconstructed record

if, taken as a whole, it accords effective review on appeal.” United States v. Rivera,

No. 09-41082, 2011 WL 4840960, at *4 (5th Cir. 2011) (unpublished) (quotingPreciado-Cordobas, 982 F.2d at 1213). “If the reconstructed record discloses an

accurate account of the trial so as to provide effective appellate review, the court of

appeals must then address the assignments of error raised by the appellant.” Preciado-Cordobas, 982 F.2d at 1213.

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Rule 10(e) procedures tend to “promote[] accuracy in appellate records” and

provide context that can be indispensable for appellate judicial decision making. SeeUnited States v. Jackson, 419 Fed.Appx. 666, 669-70 & n.1 (7th Cir. 2011) (citing

cases). For example, in Selva, at 559 F.2d at 1305, this Court’s Rule 10(e) remand

facilitated reversal of a conviction when the trial judge concluded that it was not

possible to reconstruct a sufficiently accurate account of the untranscribed closing

arguments. More frequently, Rule 10(e) record-reconstruction remands supply an

appellate court with sufficient confidence to determine that the record as rehabilitated

permits the defendant to receive effective appellate review of his trial.

One such case is Preciado-Cordobas. The appellate court ordered two limited

remands under Rule 10(e) after the appellants “declined to prepare their own

statement of the missing evidence as permitted by Rule 10(c).” 981 F.2d at 1209.

The first remand enabled reconstruction of the charge to the jury based on testimony

from the trial judge’s court reporter that the judge always read his jury instructions

verbatim from a prepared text that was made part of the appellate record. Id. at 1209,

1213. The second remand, focusing on the absence of transcribed closing arguments

from the prosecutor and four defense lawyers during a trial that lasted less than two

full days, id. at 1210, 1214, directed the district court to attempt reconstruction

through such sources as the notes of the trial judge and court reporter “and, of course,

15


the testimony of witnesses, including the appellant[s’] trial attorney[s],” id. at 1210.

The hotly contested reconstruction hearing yielded a partial transcript of a

portion of the prosecutor’s initial closing argument and part of the closing argument

of two defense lawyers, supplemented by the prosecutor’s trial notes and

recollections, testimony from the defendants’ trial lawyers, and trial notes from some

of the defense attorneys. Id. at 1210-11. The district court caused the aforementioned

evidence to be submitted to the appellate court without venturing an opinion about

whether the reconstructed closing arguments “provided an accurate account of what

transpired during the closing arguments sufficient to permit an effective appellate

review.” Id. at 1212. Since all the defense lawyers testified at the reconstruction

hearing, the appellants were “in almost the same position as they would be if they

were represented by their trial lawyers on appeal.” Id. at 1213. Although passage of

three and one-half years between the trial and the reconstruction hearing dimmed

memories of the participants, it did not prevent the appellate court from regarding the

reconstructed record as presenting a fair and accurate picture of what transpired

during closing arguments. See id. at 1213-14. “If a meritorious ground for appeal

was forgotten during that time,” the appellate court blamed “the appellants’ decision

to seek reversal based solely on Selva,” their failure to prepare a statement of the

evidence as envisioned by Rule 10(c), and their pointing out at the reconstruction

16


hearing “only one possible error that may have occurred during that stage of the trial.” Id. at 1213.

In Rivera, 2011 WL 4840960, at *3-5, this Court relied on Preciado-Cordobaswhen finding that, despite destruction of all nine defense exhibits and 25 government

exhibits, the reconstructed record rendered the loss of those exhibits insignificant.

Of like effect is United States v. Pace, 10 F.3d 1106, 1122-23, 1125 (5th Cir. 1993),

where following a Rule 10(e) reconstruction hearing on remand, testimony from the

court reporter, the jury foreman, and the defendant’s trial counsel yielded a

sufficiently reliable account of the lost jury charge.

As for the instant case, the government pointed out at the May 2011hearing

that, once it is determined that a verbatim transcript is unavailable, “there’s another

set of steps” to go through under Rule 10 (3 3 Supp.R. 213). The government alsord

explained the virtue of a Rule 10(e) record-reconstruction remand to assist this Court,

at which both parties would have the opportunity to present documentary and

testimonial evidence–specifically including subpoenaed notes and testimony from

Shipley’s two trial lawyers (who served with Appellant’s attorney as co-counsel at

Shipley’s sentencing) and from the excluded defense character witness (3 3 Supp.R.rd

220, 223-24). At this juncture, less than two years have elapsed since the April 2010

trial–a shorter passage of time than in Preciado-Cordobas. As in Preciado-17


Cordobas, the delay is largely attributable to Shipley, who has relied exclusively onSelva and declined to follow Rule 10 procedures.

2. To effectuate the district court’s intent. A Rule 10(e) record-reconstruction

remand, to which the district court was receptive (3 3 Supp.R. 226), would furtherrd

the district judge’s resolve to “look at every avenue to try to avoid [a re-trial]” (2

3 Supp.R. 61). Naturally, an attempt at reconstruction may spare all concerned therd

considerable time, energy, and expense of a full-blown retrial. Before pronouncing

sentence, the district court expressed that it “agree[d] entirely with the jury’s verdict”

(11 1 Supp.R. 1589) and opined that Shipley, who rejected a government plea offerst

to one of the indictment counts (3 1 Supp.R. 29), “never should have gone to trial”st

(11 1 Supp.R. 1589).st

D. Conclusion and Requested Relief

Although the missing transcription is the fault of neither party, Shipley has

elected to do nothing to resolve the omissions on which he predicates his appeal.

This stems, in part, from Shipley’s decision to hire an appellate attorney who did not

represent him at trial. While this decision was unrelated to the discovery of the

transcript omission, it has served to eliminate any incentive for him to reconstruct the

record. See Footnote 9, infra, and the text to which it applies. Shipley has chosen to

spurn his opportunity under Rule 10(c) to initiate record reconstruction, which would

18


have rendered the instant motion unnecessary. Finally, the significance of the

missing transcription, in conjunction with the need for a Rule 10(e)(2) record-

reconstruction remand, was not evident to the government until Shipley identified the

issues on appeal in the Appellant’s brief filed on December 29, 2011.

At its first opportunity, having thoroughly reviewed the issues raised on appeal,

the record, and this Court’s precedents, the United States respectfully requests that

this Court order an expedited limited remand to the district court under FED. R. APP.

P. 10(e)(2), as occurred in Preciado-Cordobas, to conduct a record-reconstruction

hearing and make findings thereon to this Court. Consonant with Preciado-Cordobas, we request that this Court direct that the district court: (1) attempt

reconstruction of the missing transcription by conducting a hearing, during which the

district court should consider appropriate documentary and testimonial evidence; (2)

certify and forward to this Court the reconstructed record; and (3) make such findings

as it deems advisable, including whether the reconstructed record provides a fair and

accurate account of what transpired at trial on April 13, 2010, so as to permit

effective appellate review.

CERTIFICATE OF CONFERENCE

Opposing counsel, Mr. Leon Schydlower, was contacted on March 20, 2012.

Mr. Schydlower conveyed his opposition to this motion.

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FOR THESE REASONS, the United States respectfully requests that this Court

order an expedited limited remand to the district court under FED. R. APP. P. 10(e)(2),

as herein described. In the alternative, should this motion be denied, the United

States respectfully requests an additional 30 days from the date of the denial in which

to file its Appellee’s brief.

Respectfully submitted,

ROBERT PITMAN United States Attorney

By: /s/ Michael R. Hardy MICHAEL R. HARDY Assistant United States Attorney

CERTIFICATE OF SERVICE

This is to certify that on March 21, 2012, this document was filed with the Fifth

Circuit Court of Appeals using the CM/ECF filing system, which will cause a copy

of the document to be delivered to counsel for the Appellant, Mr. Leon Schydlower./s/ Michael R. HardyMICHAEL R. HARDYAssistant United States AttorneyWestern District of Texas601 N.W. Loop 410, Suite 600San Antonio, Texas 78216(210) 384-7090

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Documents

Motion for Limited Remand