Willie Frank Brown v. United States

314 F.2d 293, 1963 U.S. App. LEXIS 6108

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 1963
• Docket: 17782
• Status: Published

Opinions

BROWNING, Circuit Judge.

Appellant was convicted of transporting Betty Joyce Lanuzza from Seattle, Washington, to Richmond, California, for the purpose of prostitution in violation of 18 U.S.C.A. § 2421. He seeks reversal upon two grounds.

I

Appellant argues that because Miss Lanuzza furnished the automobile and the money, she and not he “transported” the couple between the points alleged. From the government’s evidence at the trial, the jury might have concluded that prior to the trip in question Miss Lanuzza became a prostitute on appellant’s instruction, that appellant directed Miss Lanuzza’s activities, obtained customers for her, and received and used the proceeds of her efforts as means of support, that appellant decided that the trip would be made to get away from a man who was “bothering” Miss Lanuzza and interfering with her activities as a prostitute by “hanging around,” that the trip was made with the understanding that during the journey and while in California Miss Lanuzza would continue to support appellant and herself by prostitution, and that she*did so. In short, there was evidence from which the jury could have found that appellant directed and controlled Miss Lanuzza and was the effective cause of her immoral activities; specifically, the jury could have concluded that the will directing the transportation for immoral purposes was appellant’s, and that appellant therefore “transported” Miss Lanuzza though he provided neither the funds nor the physical means for the trip. See 18 U.S.C.A. § 2(b), and ¶ 8 of Reviser’s Notes to 18 U.S.C.A. § 2421. See also Wright v. United States, 175 F.2d 384, 387 (8th Cir., 1949); Wagner v. United States, 171 F.2d 354, 360, 363 (5th Cir., 1948).

II

Appellant asserts that the judgment must be reversed because the court reporter failed to record the closing arguments of counsel in violation of the statutory command that “all proceedings in criminal cases had in open court” be recorded verbatim. 28 U.S.C.A. § 753 (b) (1). Appellant has not suggested any error that may have occurred in the prosecuting attorney’s summation. The sole error specified is the failure to record the summations; this error, appellant argues, in itself requires reversal and a new trial.¹

We do not agree. In reviewing criminal convictions on appeal we are to disregard “error * * * which does not affect substantial rights.” Rule 52(a), Federal Rules of Criminal Procedure. If the closing arguments of counsel contained no error affecting appellant’s substantial rights, then failure to record those arguments would also be harmless error. Appellant argues that since the summations were not recorded we cannot be sure. But we are not compelled to set aside a valid conviction because of an error which may have been wholly harmless in order to be sure that we are not, through ignorance of the facts, denying relief for error which prejudiced appellant’s substantial rights. The trial judge, the prosecuting attorney, appellant’s trial counsel, the reporter, and the appellant himself are all available, as also, no doubt, are other witnesses to what transpired. The appropriate procedure is to vacate the judgment and remand for a nearing to determine whether appellant was prejudiced by the error in failing to record the arguments. If the_ trial court concludes that he was, a new trial may be ordered. If the court concludes that he was not, a new final judgment may be entered. See Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). See also Killian v. United States, 368 U.S. 231, 241-244, 82 L.Ed. 302, 7 L.Ed.2d 256 (1961); United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S. Ct. 245, 2 L.Ed.2d 234 (1957) ; Ogden v. United States, 303 F.2d 724, 737-738 (9th Cir., 1962).²

Appellant argues that in Stephens v. United States, 289 F.2d 308 (1961), the Court of Appeals for the Fifth Circuit adopted a rule which would require outright reversal in circumstances such as are presented here. We think Stephens is distinguishable. The court there stated that the defendant required the transcript of unrecorded proceedings to “properly present certain specified errors to this Court” (289 F.2d at 309); in the present case, appellant has specified no error to which the closing arguments would be relevant. It also appears from the briefs and record in Stephens that defendant represented himself at trial; appointed counsel entering the case for the first time on appeal. This circumstance materially enhanced the likelihood that substantial error occurred in the unrecorded proceedings (which included the impaneling of the jury as well as closing arguments), and materially reduced the likelihood that a reasonably accurate estimate of the possibility of prejudice could be arrived at in a hearing if the case were remanded for that purpose.

Vacated and remanded for further proceedings.

1 . Appellant’s argument would be without merit if presented in a collateral attack upon Ms conviction. Although the requirement of Section 753(b) (1) that “all” proceedings in open court in criminal cases be recorded is mandatory (Stephens v. United States, 289 F.2d 308, 309 (5th Cir., 1961)), we would think failure to record counsel’s summation, without more, though error, “is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure” (Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)), and failure to record counsel’s summation therefore would not, of itself, require the granting of collateral relief. However, if a denial of appellant’s rights in some other respect were alleged, the absence of a record might be a significant factor in determining whether in all the circumstances there had been a denial of fundamental fairness. United States v. Taylor, 303 F.2d 165, 169 (4th Cir., 1962). As the court held in Taylor, and as we indicated in Eddy v. United States, 256 F.2d 78 (9th Cir., 1958), one possibility to be explored in a hearing on such a collateral attack would be whether a record sufficient to permit fair consideration of the alleged violations of defendant’s rights could be reconstructed. Compare Macomber v. Gladden, 304 F.2d 487, 490 (9th Cir., 1962).

2 . As an appendix to its brief in this Court, the government submitted affidavits asserting that appellant’s trial counsel did not object to the failure to record the closing arguments, nor to anything which the prosecutor said in his summation. If properly established, these facts would be relevant, for although plain error affecting substantial rights may be noticed despite defendant’s failure to object (Rule 52(b), Fed.R.Crim.P.), “it is only where an error is seriously prejudicial that it will be noticed in the absence of objection.” (Himmelfarb v. United States, 175 F.2d 924, 950 (9th Cir., 1949)). “[Power to notice plain error not objected to will be exercised only to prevent a miscarriage of justice.” (Schumacher v. United States, 216 F.2d 780, 787 (8th Cir., 1954)). But they are not facts of record, and we may not consider them unless, and until, they are.

Judge Duniway’s suggestion that the procedure outlined in Rule 75 (n) of the Federal Rules of Civil Procedure was available to appellant by reason of Rule 39(b) (1) of the Federal Rules of Criminal Procedure is novel. It apparently did not occur either to appellant or to the government. Even if the suggested construction of the Rules were clearly correct, we think it would be inappropriate on direct appeal from a judgment of conviction in a criminal case to preclude review on the ground that appellant had conclusively waived error by failure to invoke so unfamiliar a remedy. The government has not contended for such a result. There is authority suggesting that even in a civil case, where the unreported portions of the record may be of substantial importance, the better practice is to remand under Rule 76(h) for supplementary proceedings so that the record “may conform to the truth,” rather than to ignore error or attempt review on an incomplete record. See United States v. Chesapeake & O. Ry., 281 F.2d 698, 701-702 (4th Cir., 1960).