*1 George Chattanooga, Carpenter, W. Tenn., defendant-appellant. America, UNITED STATES Atty., McDonald, Plaintiff-Appellee, P. Carl Asst. S.U. Bowers, Atty., John L. U. Chattanoo- S. ga, Tenn., Lloyd Jr., Stanley, W. Edward YOUNG,Defendant- Martin Marvin Wilson, Knoxville, Attys., E. Asst. U. S. Tenn., brief, plaintiff-appellee. No. 72-1373. KENT, Before McCREE and Circuit United States Judges, District Circuit. Sixth Judge.* 29, 1972. Nov. PER CURIAM. appeal from
This a conviction by jury. appellant after a trial charged receiving concealing a moving motor com- vehicle interstate knowledge merce with the vehicle stolen, violation of Title 18 U.S.C. 2318. § Appellant’s first trial ended on Decem- jury deadlocked, 8, 1971, ber with the acquittal. six for conviction and six for On December moved offered trial, and for a preliminary examination. At the of the second 23, 1971, which commenced on December denying appellant’s the trial request first trial examination, preliminary and of stated:
“I am of the mo- tion should be denied. present on that
date full be trial, in connection with that specifying without you was desired how sired it and am intended use it. I should that the motion be denied.” in the convic- The second trial resulted appeal tion from which this is taken. by Mr. Mar- Justice U. shall in v. North (1971): “Griffin v. Illinois1 establish Illinois, 1. Griffin v. 100 L.Ed. designation. Tennessee, sitting by *2 must, equal protection, opinion as a matter of of the are that the Su- provide indigent prisoners preme rejected the in Court Britt the basis basic tools of an or defense the trial court’s in comments this appeal, when those tools are case. The Court said 404 available at U.S. at price prisoners. other 92 at 434: the outer limits of are that rejected repeatedly “We have the clear, there can be no that doubt suggestion that in order render ef- provide the State must assistance, fective counsel must have a transcript fendant with a of perfect memory keep or exhaustive transcript when that testimony given notes of the at trial. needed for or an effective defense Moreover, we doubt would suf- that peal.” [Citations omitted]. provide fice to the defendant with reporter By limited to the court access an order entered on March during the course of granting the second trial. court, in motion approach aptly rejected That was purposes appeal, as of ‘too little and too in upon late’ United commented the denial of the tran- McMann, script ex rel. States Wilson v. (CA 1969).” 408 of the trial first at outset F.2d second trial follows: as we read a narrow opinion “The Court of the remains by the rule laid down that under the this circumstances of has been carved out the Su- denying case there was error preme Court. As out Mr. prelimi defendant a Justice Marshall at 404 at U.S. nary hearing govern or first trial at S.Ct. at 435: expense ment for use right “A defendant who claims the second trial. two trials were not, free does just ducted weeks The de cases, proving our bear burden represented by fendant was the same inadequate such as reporter counsel at all times. The suggested by conjured or any was available to read time back at up by hindsight. a court in In this any portion first case, however, petitioner has conceded might requested or deemed had available an informal al- only relevant. There were wit three appears ternative which to be substan- trials, nesses who testified both tially equivalent transcript.” having Government used four addi tional witnesses on the appellant’s second In the instant case which it did not use on the has not conceded “in that he had such Of the three witnesses who testified formal alternative.” The record does trials, in both any was no material not reflect that the trial court made testimony. availability variance in their Under reference to the of the court foregoing reporter to read back the Court remains the first trial until the order March denying error was committed entered almost three months defendant’s motion for a at after the conclusion of the second trial. government expense. Moreover, point in We out that the motion for tran overwhelming script of the clear prelimi first trial and the guilt, nary evidence of the defendant’s examination ruled was not any is of the until second denying recognizing period was harm that there awas beyond less Chap only elapsed a reasonable week doubt. one between man filing v. time of the motion for the (1967).” ruling the time App., pp. appear 2a-3a. made. It would appel position set order as the the same had denied because ex rel. Wilson lant reporter 1969), (2nd back to read McMann, Cir. 408 F.2d any any time the first best of circumstances under the and that might requested limited access he could have during deemed There reporter the course relevant. the court *3 who both trials witnesses testified at the second “. . . there was material [and] no 1972, 9, March In order of his testimony”. in their variance As was reviewing judge after recited that noted Britt v. North 404 U. ap- trials, “there of both trial notes 226, 431, 30 L.Ed.2d discrepancy in the pears no have been to (1971), this to fit situation would seem of witnesses exception requir- within the rule judges lawyers and trials.” Trial ing to an defendant long recognized that a have “availability where there is very .prior testimony tool useful is a transcript”. The sec- credibility mounting an attack ond trial was before same judge witnesses. counsel, with the same and the same discrepancies cannot no we have found reporter, court and the two trials were would conclude from that two weeks We do not know in the no material complete transcript whether a could ever have could non-indi- available even a ap- defense of in the found useful gent specified defendant within the time opinion that pellant. are of for the second but is indicated in Britt is carved out government that the no a benefit say case, we cannot plicable and to this advantage transcript; over the de- transcript of the lack a regard. fendant in this We would af- lack- law matter of was as a firm the lower court under we con- what ing prejudice to this authority spirit ceive to be the Britt, supra. We do not ascribe to this bewill The conviction situation that the alternative which is remanded to reversed case determined to have existed here proceedings. for further District Court merely fendant and his counsel was “conjured hindsight”. up court a Judge* (dis- Nor do we feel that neces case senting) . sarily Il determined linois, 351 U.S. 100 L. not direct a did (1956), principle Ed. 891 “there defendant for the equal justice can be kind where the original after trial December gets depends of trial a man (resulting mis-trial) since a has”, money (p. amount of prompt re-set matter p. 591). We cannot assume lawyer representing the with the same wealthy circum under these defendant for December defendant could or fur stances would have been defendant’s pro nished government expense December was made ceedings. Finally, present delay, indicating the evidence desire guilty jury designation ed which returned as to there was no since convincing clear as to parts verdict needed desired or guilt. If defendant’s there were trial with of so recent a transcript, feel it government having appeared we denial witnesses find do not error. We testify. harmless Tennessee, District of sitting by designation. the denial peculiar affected Young rights” of
“substantial defendant possibil
or that “there was a reasonable
ity” complained the error Chapman v.
tributed conviction. to the 386 U.S. 87 S.Ct. We therefore
respectfully per curiam from the dissent
opinion. *4 GREGORY,Appellee,
Earl H. SYSTEMS,INC., corporation,
LITTON
No. 26669.
United States Court
Ninth Circuit.
Dec. 1972.
Rehearing Denied Feb.
Joseph (argued), Joseph D. Mullender Ball, Baerwitz, Hunt, R. H. of Ball, A. Hart, Baerwitz, Long Beach, Brown & Cal., Kerrigan, Angeles, Thomas S. Los Cal., (argued), Edward M. Medvene Mi- Rogers, Simon, Sheridan, chael R. Murphy, Medvene, Thornton & Los An- geles, Cal., appellee. (argued), Charles Reisehel Marian
Halley, Equal Employment Opportunity Commission, Washington, C., D. Jack Greenberg, Ralston, Stephen Charles Williams, City, New York Oscar William Turner, Francisco, Cal., Bennet San Legal NAACP Defense and Educational Fund, Inc. amicus curiae.