02 Cr. 1237 (SWK).
July 25, 2007
OPINION AND ORDER
On July 12, 2005, following a ten-week jury trial, the defendants, Angelo DiPietro, Angelo Capalbo, Michael Pizzuti, Harold Bringman, and Joseph Genua, were convicted of various counts of extortion, attempted extortion, conspiracy to commit extortion, weapons possession, and obstruction of justice. In May and June 2006, the Court sentenced the defendants to terms of imprisonment ranging from approximately ten to sixty years. All of the defendants appealed their convictions and sentences to the United States Court of Appeals for the Second Circuit. The Court now has before it a motion filed by the Government to correct a single statement in the transcript recording the Court's jury instructions. For the reasons that follow, the Court grants the Government's request for relief.
On July 5, 2005, nine weeks into a ten-week trial, the Court delivered its instructions to the jury. The Court's oral presentation was based on a written jury charge, which had been the subject of extensive debate by the parties and thorough examination by the Court. In the trial transcript that memorializes the Court's instructions, the court reporter recorded that the Court made the following, obviously erroneous, statement concerning the Government's burden of proof: "The law does not require that the government prove each and every element of each of the alleged crimes beyond a reasonable doubt." (Tr. 6495, July 5, 2005 (emphasis added).)
The written jury charge, from which the Court read its oral instructions to the jury, did not contain the erroneous language quoted above; rather, it correctly stated that the law "does" require that the Government prove the elements of the charged crimes beyond a reasonable doubt. This written charge was distributed to attorneys for the five defendants and the Government in order to permit them to follow along as the Court instructed the jury on the applicable legal principles, and the Court later distributed the written charge to the members of the jury. (Tr. 6045, July 5, 2005.) Nevertheless, none of these individuals objected to, or raised questions regarding, the clearly erroneous instruction reflected in the transcript. Significantly, the attorneys present did raise numerous objections to other portions of the Court's jury charge after it was read, repeatedly basing their objections on explicit comparisons between the written charge and the charge read by the Court. (Tr. 6576-95, July 5, 2005).
The defendants have raised the erroneous language set forth in the transcript as an issue in their pending appeal. In connection with that appeal, attorneys for the Government and the defendants contacted the court reporter who produced the transcript. The court reporter reviewed the relevant portions of the transcript for accuracy, consulting his notes respecting the jury instructions, and certified that the transcript — as it is presently constituted — accurately reflects what transpired at trial. The Government now petitions the Court to exercise its authority under Federal Rule of Appellate Procedure 10(e) in order to modify the court reporter's certified transcript so that it reads: "The law does require that the government prove each and every element of each of the alleged crimes beyond a reasonable doubt."
Federal Rule of Appellate Procedure 10(e) vests authority in the district courts to settle disputes concerning the accuracy of the record. In exercising that authority, district courts must be mindful that a certified court transcript is "deemed prima facie a correct statement of the testimony taken and proceedings had." 28 U.S.C. § 753(b). Nevertheless, the very fact that a certified transcript is deemed "prima facie" correct "clearly implies . . . that the transcript is subject to correction." United States v. Carter, 347 F.2d 220, 221 (2d Cir. 1965); accord United States v. Bergmann, 836 F.2d 1220, 1222 (9th Cir. 1988); United States v. Smith, 433 F.2d 149, 151 (5th Cir. 1970).
This motion centrally concerns the kind and level of proof that is required to overcome the statutory presumption that a certified court transcript is correct. The defendants appear to contend that the Court, in deciding a motion under Federal Rule of Appellate Procedure 10(e), may rely only upon direct evidence of the transcript's falsity, in the form of the recollections of those present regarding what was and was not said. The Government takes a broader view of what constitutes competent evidence at this stage, contending that the Court is also permitted to consider any available circumstantial evidence. With respect to the level of proof required, neither party explicitly states the applicable standard, although the submissions of both parties seem to operate on the assumption that proof in excess of a mere preponderance may be necessary. For the reasons that follow, the Court holds that it may consider both direct and circumstantial evidence in ruling on a motion to correct the record under Federal Rule of Appellate Procedure 10(e). Moreover, without deciding precisely what level of proof is required in order to modify a certified transcript, the Court finds that the Government has provided clear evidence that the transcript is in error, which is sufficient to warrant alteration of the transcript to conform to what actually transpired at trial.
The leading Second Circuit case interpreting Rule 10(e) resolves any doubt regarding the parties' dispute over "competent" evidence. In United States v. Zichettello, the Second Circuit granted the Government's motion to correct the record on the basis of its consideration of both direct and circumstantial evidence, including evidence that "there were at least nine lawyers — three prosecutors and six defense attorneys — present when the charge was read, but none objected to it." 208 F.3d 72, 96 (2d Cir. 2000). In light of the Zichettello panel's reliance on a broad range of evidence, the Court holds that it need not limit its analysis under Rule 10(e) to a review of direct evidence, such as the recollections of those present regarding what was and was not said during the charge.
The case law offers less guidance on the level of proof required in order to justify the alteration of a certified transcript. Courts in this and other circuits have held that an appellate court must accept a district court's reconstruction of the record "unless it was intentionally falsified or plainly unreasonable." Id. at 93 (quoting United States v. Keskey, 863 F.2d 474, 478 (7th Cir. 1988)); accord United States v. Brika, 416 F.3d 514, 530 (6th Cir. 2005); United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir. 1993); United States v. Serrano, 870 F.2d 1, 12 (1st Cir. 1989); United States v. Mori, 444 F.2d 240, 246 (5th Cir. 1971); United States v. Reich, 420 F. Supp. 2d 75, 91 (E.D.N.Y. 2006). However, that appellate courts will normally defer to a district court decision to correct the record does not clarify what level of proof the district court should require before it takes such an action. Although the case law is largely silent on this issue, the Court holds that it may correct a certified transcript where there is "clear evidence" that the transcript is in error. See Zichettello, 208 F.3d at 97 ("On this record, therefore, it is plainly unreasonable to conclude that the challenged language was given to the jury. Indeed it is clear that it was not.") (emphasis added); Smith, 433 F.2d at 151 ("The appellant has shown no prejudice from the court reporter's error, and in the face of clear and convincing evidence we think it obvious that the presumption of correctness which clothes the court reporter's transcript was overcome."). Moreover, the Court finds that the Government has demonstrated clear evidence of an error in the instant case.
The erroneous statement at issue in this case — i.e., that the Government need not prove each element of a charged offense beyond a reasonable doubt — is an obvious misstatement of the law that would be apparent to all attorneys and most members of the public. The failure of any of the nine attorneys — two prosecutors and seven defense attorneys — who were present when the charge was read to object to that erroneous statement, and the corresponding failure of any of the members of the jury to question that portion of the Court's instruction, is powerful evidence that the Court did not make the statement in question.Zichettello, 208 F.3d at 96; Keskey, 478 F.2d at 478; Kirkpatrick v. Blackburn, 777 F.2d 272, 282 (5th Cir. 1985); cert. denied, 476 U.S. 1178 (1986). That evidence is only strengthened by the fact that the parties' attorneys, and later the jurors, were given written copies of the charge, which did not contain the erroneous statement at issue, so that they could follow the Court's oral instructions. Zichettello, 208 F.3d at 96. The attorneys and jurors would have been especially likely to notice and raise the Court's error, if indeed the Court had made such an error, because the Court correctly stated the Government's burden of proof several times in close temporal proximity to the erroneous statement. (Tr. 6493, 6494, 6496, July 5, 2005.) Moreover, the Assistant United States Attorneys who prosecuted this matter have both submitted affidavits to the Court indicating that they closely followed the reading of the charge and would have objected to the language in question if it had been delivered. (Gov't Letter Exs. C D, July 6, 2007.)
Significantly, defense counsel raised various detailed objections to the Court's jury charge immediately after that charge was read. (Tr. 6576-95, July 5, 2005.) Some of these objections focused specifically on the Court's instructions regarding proof beyond a reasonable doubt. (Tr. 6578, 6583-87, July 5, 2005.) Other objections pointed to instances where the charge read by the Court differed from the written version, thereby resulting in an erroneous instruction. (Tr. 6578, 6580, July 5, 2005.) Yet, the defendants' attorneys failed to object to the obviously erroneous instruction appearing in the transcript, which strongly suggests that the instruction was not given. Moreover, the defense attorneys' explanation for their failure to object to that erroneous instruction only lends support to the conclusion that the instruction was not given. In particular, the defendants note that counsel for Angelo Capalbo, William Aronwald, objected that the parties were having difficulty hearing the Court just minutes prior to the delivery of the language in question. (Tr. 6493, July 5, 2005.) The defendants infer that they must not have objected to the language because they did not hear it. However, the more plausible inference to be drawn from this evidence is that the defendants' attorneys were following the Court's instructions closely, noting any relevant objections. Their failure to again complain that they could not hear the Court raises an inference that the Court spoke loudly and clearly enough to be heard. The tenor and detail of the defense attorneys' subsequent objections supports this conclusion. (Tr. 6576-95, July 5, 2005.)
One such objection demonstrates just how closely counsel followed the Court's reading of the charge. In the post-charge conference, Mr. Aronwald objected that one sentence of the Court's oral instructions omitted three words that had been included in the written charge. (Tr. 6578, July 5, 2005.) In fact, that particular sentence is reproduced on the same page of the transcript as Mr. Aronwald's interjection that he was having difficulty hearing (Tr. 6493, July 5, 2005), and just two pages before the language that is the subject of the instant motion (Tr. 6495, July 5, 2005). Although the final transcript includes the correct language (Tr. 6493, July 5, 2005), it is not clear whether that fact demonstrates that Mr. Aronwald's objection was without basis, that the court reporter inserted the omitted words after the fact, or that the court reporter erred in including those words in the original recording. Such opacity is to be expected in a system where the production of court transcripts relies largely on human recording, with its inherent fallibility, rather than on mechanical sound recording. However, it also demonstrates the importance of Federal Rule of Appellate Procedure 10(e) and the district courts' consequent authority to correct court records.
Finally, the Court notes that the instruction in question follows a series of sentences stated in the negative. The rhythm of these negated propositions could very easily explain how the court reporter could erroneously record the phrase at issue in the negative.
In light of the foregoing, the Court finds that there is clear evidence that the transcript certified by the court reporter is in error. Given the largely non-testimonial nature of the evidence relied upon by the Court, and that adduced by the parties, the Court finds that an evidentiary hearing would not assist its review of this matter. As such, the Court exercises its discretion to deny such a hearing. See Brika, 416 F.3d at 530 (affirming district court's refusal to grant hearing in connection with Rule 10(e) motion after reviewing that determination under abuse of discretion standard).
The defendants' request that the Court transfer this matter to another judge for the purpose of holding a hearing is completely misplaced. In the first instance, the Second Circuit has expressly stated that "parties should generally seek relief initially from the district court" that presided over the case whose record is in dispute. Zichettello, 208 F.3d at 93. Furthermore, at least one circuit court has explained that great deference is due to a district court's modification of the record precisely because that court observed the proceedings in question. Brika, 416 F.3d at 530. Moreover, because the Court has not relied on its own recollection in modifying the record in this case, the Court's testimony would not be required even if a hearing were granted. Thus, the concerns noted in United States v. Ianiello, 866 F.2d 540, 544 (2d Cir. 1989), regarding a judge's appearance as both witness and factfinder, do not come into play.
Given the Court's finding that the record is in clear error, the Court orders that the trial transcript at page 6495, lines 16-18, be modified to read as follows: "The law does require that the government prove each and every element of each of the alleged crimes beyond a reasonable doubt."