United States v. Moreno, 18-6218

In 2013 Moreno was convicted of drug- and communications-related offenses and sentenced; his direct appeal and a §2255 petition were unsuccessful.
On Nov. 16, 2018 Moreno (pro se) moved in the district court under the Court Reporters Act, 28 U.S.C. § 753, to obtain the court reporter’s original notes and backup trial audio recordings, alleging the transcript was unreliable.
The district court denied the motion on the merits without addressing jurisdiction, ruling Moreno may view notes but is not entitled to a free copy and that backup audio recordings are the reporter’s personal property absent a showing of mistrust in the transcript.
On appeal Moreno argued denial of the audio recordings violated his due-process right to meaningful appellate review; the government argued the district court lacked jurisdiction and that mandamus is the proper remedy.
The Tenth Circuit held the district court lacked jurisdiction because an indigent defendant seeking reporter backup tapes under §753(b) must pursue mandamus (per prior Tenth Circuit authority), vacated the district court’s order, and remanded with instructions to dismiss; related motions were denied as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court had jurisdiction to entertain Moreno’s motion to obtain reporter backup audio tapes	Moreno argued denial of the tapes deprived him of due process and meaningful appellate review; later invoked §1331	Government argued the district court lacked jurisdiction and that an indigent defendant must seek relief by mandamus	The court held it lacked jurisdiction; mandamus is the proper avenue for such relief and the district court’s order was vacated and remanded to dismiss
Whether Moreno was entitled to access backup audio recordings as part of the record	Moreno claimed the transcript was inaccurate and sought the backups to show discrepancies	District court held backup tapes are reporter’s personal property and Moreno’s bare recollections didn’t show sufficient distrust of the transcript	On jurisdictional grounds the appellate court did not reach the merits; it noted prior authority treating backup tapes as obtainable only via mandamus for indigent defendants

Sistrunk v. United States, 992 F.2d 258 (10th Cir. 1993) (defendant may view reporter’s notes but is not entitled to a free copy)
Smith v. U.S. Dist. Court Officers, 203 F.3d 440 (7th Cir. 2000) (backup audio tapes treated as reporter’s personal property; discusses federal common-law access to judicial records)
United States v. Mondragon-Avilez, [citation="263 F. App'x 691"] (10th Cir. 2008) (for indigent defendants seeking backup audiotapes under §753(b), mandamus is the proper remedy)
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (Federal Rule of Appellate Procedure 28 obligations apply to pro se appellants)