A Cautionary Tale of Too Little Record on Appeal

U.S. v. Brody, 2013 WL 363021 (1/29/13) (Ut.) (Published) - The defendant loses any chance on appeal because his attorney did not provide enough of the record. In this non-CJA appeal, the attorney ordered a small part of the record because the plan was just to appeal the sentence and not pay for the entire trial transcript. But the attorney found out the government ordered the trial transcript on its own. So the defendant hoped to use the trial transcripts as part of the appendix and raise trial issues. Unfortunately the transcripts were not ready by the time the defendant had to file the opening brief. The 10th refused to allow more time for the brief or for the filling of an expanded appendix. The government didn't file a supplemental appendix. The 10th couldn't review the evidence sufficiency issue without a complete trial transcript. The 10th couldn't interpret the prosecutor's allegedly improper comment during closing argument without the context provided by the trial transcript. The defendant waived the statute of limitations claim because he provided no proof he raised that affirmative defense before the district court. The 10th couldn't just accept counsel's word for it.

The 10th says the challenge to the sentence length is moot because the defendant finished the sentence. It could not shorten the supervised release term by declaring the prison sentence too long. It didn't matter that the defendant was now incarcerated for violating his supervised release term. The 10th doesn't discuss its precedent that says an issue of prison term length would not be moot if the district court on remand could reduce the supervised release term. And, in any event, without the sentencing hearing transcript and presentence report, the 10th couldn't tell much about the propriety of the sentence.