Gary H. Holmes v. United States

383 F.2d 925

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 11, 1967
• Docket: 20042_1
• Status: Published

Opinions

BAZELON, Chief Judge:

Arrested in the early morning hours of September 14, 1965, appellant was charged with grand larceny and destruction of private property. Following a preliminary hearing, appellant was held for action of the grand jury. Although pre-trial bail was set, appellant remained in custody because he could not afford the premium on a bail bond. An indictment was returned and appellant stood trial on January 3, 1966. The jury acquitted him on the larceny charge, but found him guilty of destroying private property, a misdemeanor. 22 D.C.Code § 3112 (1961), now 22 D.C.Code § 403 (Supp. V, 1966). On February 11, 1966, the district judge imposed the maximum áix month sentence, and subsequently denied a motion to credit pre-trial custody against the sentence. Leave to appeal in forma pauperis was granted on March 7, 1966 and the trial transcript was ordered prepared at Government expense.

In accordance with our usual practice, we appointed counsel to represent appellant and provided that the time for filing appellant’s brief would not commence to run until the trial transcript had been docketed as a supplemental record. Thereafter, a frustrating series of delays was encountered,¹ and the transcript was not docketed until July 8th. On July 11th, appellant was released from jail having served his sentence.

We think it clear, and the Government does not argue otherwise, that appellant had a statutory right to a trial transcript, 28 U.S.C. § 1915, and that such right necessarily included reasonably prompt receipt of the transcript in order that prosecution of the appeal for which it is furnished would not be thwarted. The Supreme Court has recognized the essential nature of the transcript. Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 11 L.Ed.2d (1964), which Mr. Justice Goldberg called “the most basic and fundamental tool of [the] profession * * 375 U.S. at 288, 84 S.Ct. at 431 (concurring opinion). Delay in the preparation of transcripts is a problem we face with disturbing frequency.² We know from our discussions with district judges that there is a serious shortage of reporters and that they now labor under unusually heavy workloads. We are also advised that the District Court has recently added temporary reporters in an effort to ease the mounting backlog of transcripts which have been ordered but not prepared. The record does not show why this particular transcript was delayed, nor do we think it necessary to search for the cause. More than likely, delay in preparation of transcripts is an amalgam of many factors. But where we deal with a statutory right, even the most plausible of reasons cannot serve to. excuse outright denial of that right. It is only because of a jurisdictional objection interposed by the Government, to which we now turn, that we find it unnecessary to decide today whether reversal is the proper remedy for unreasonably delayed transcripts,³ or whether some other form of relief is appropriate.⁴

Citing St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L. Ed. 1199 (1943), the Government contends that appellant’s unconditional release renders the case moot. Although St. Pierre so holds, later cases have made it clear that a matter remains justiciable, even though the sentence has been served, if there is some collateral disadvantage which the party might reasonably be expected to incur by virtue of the conviction.⁵ We were unwilling to decide this issue on the scant data in the record and called for supplemental memoranda from the parties. The Government lists fourteen misdemeanor convictions which appellant has incurred in this jurisdiction since November, 1961, including a previous conviction for this identical offense. Appellant does not challenge the accuracy of the Government’s representation in this regard. In these circumstances, we find no collateral disadvantage which appellant might incur by virtue of this, his fifteenth misdemeanor conviction. Accordingly, we consider St. Pierre controlling, and hold that this case is moot.

This is not a result we comfortably reach for the record indicates that this appeal became moot simply because appellant lacked the funds to post a nominal appeal bond⁶ or to purchase a trial transcript. But the Supreme Court cases, resting as they do on jurisdictional grounds, seem to us to preclude an exception under the circumstances of this case. What we said in another context is apt here. “We are getting better at supplying legal aid to the poor. We are, it is true, gradually eliminating the disparities between the ideals and the realities of our system of justice. But the situation is far from tolerable.” Powell v. Zuckert, 125 U.S.App.D.C. 55, 58, 366 F.2d 634, 637 (1966).

Dismissed.

1 . The trial reporter originally estimated that the transcript would be completed about April 14th. On May 3rd, in response to a complaint from counsel, our Clerk wrote the reporter, pointing out that appellant was in custody, and urged prompt preparation of the transcript. The reporter assured the Clerk that the transcript would be ready by May 16th. On May 19th, counsel again complained of the delay in preparing the transcript and at our direction the Clerk again wrote to the reporter. On June 25th, the transcript still not prepared, counsel filed a motion seeking reversal on the ground that the reporter’s tardiness had infringed appellant’s right to a speedy disposition of his appeal. The Government’s opposition to this motion was filed on July 6th; appellant’s reply on July 8th. Thereafter, we held that motion in abeyance pending argument of this case on the merits.

2 . See Report oe the President’s Commission on Crime in the District oe Columbia 305-308 (1966).

3 . Cf. Whitt v. United States, 104 U.S.App. D.C. 1, 5, 259 F.2d 158, 162 (1958), cert. denied, 359 U.S. 937, 79 S.Ct. 652, 3 L. Ed.2d 637 (1959).

4 . Cf. United States v. Metzger, 133 F.2d 82 (9th Cir. 1943). Nor is it necessary to consider whether delay in preparation of the transcript would have speedy trial implications if reversal and a retrial were to follow in a given case. Manning v. United States, 125 U.S.App.D.C. 256, 371 F.2d 353 (1966).

5 . E.g., Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L.Ed.2d 963 (1960); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Morgan, 346 U.S. 502, 512-513, 74 S. Ct. 247, 98 L.Ed. 248 (1954); Fiswick v. United States, 329 U.S. 211, 220-222, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Wetzel v. Ohio, 371 U.S. 62, 83 S.Ct. 111, 9 L. Ed.2d 26 (1962) (Douglas, J., concurring); Parker v. Ellis, supra, at 577, 80 S.Ct. at 911 (Warren, C. J., dissenting); Dancy v. United States, 124 U.S.App. D.C. 58, 361 F.2d 75, 79-80 (1966).

6 . The district court originally set appeal bond at $1,000. A motion to reduce was granted and bail was reset at $500. Appellant was unable to find a bondsman willing to write even such a nominal bond. No application for release on personal bond or recognizance was made in this court, nor was a motion to stay judgment pending appeal presented. See St. Pierre v. United States, supra at 43, 63 S.Ct. 910.