Gerry C. DuBose v. John D. Kelly ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2979MN
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Gerry C. DuBose, *
*
Appellant, *
*
v. *
* On Appeal from the United
John D. Kelly, individually and as an * States District Court
agent of Hanft, Fride, O’Brien, Harries, * for the District of
Swelbar & Burns, P.A.; Jennifer L. * Minnesota.
Carey, formerly known as Jennifer L. *
Cook, individually and as an agent of * [Not To Be Published]
Hanft, Fride, O’Brien, Harries, Swelbar *
& Burns, P.A.; Hanft, Fride, O’Brien, *
Harries, Swelbar & Burns, P.A., *
*
Appellees. *
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Submitted: June 1, 2001
Filed: June 12, 2001
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Before BOWMAN, RICHARD S. ARNOLD, and JOHN R. GIBSON, Circuit Judges.
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PER CURIAM.
Gerry C. DuBose appeals various unfavorable rulings following a jury trial on
his 42 U.S.C. § 1983 claims against attorneys John Kelly and Jennifer Carey and their
law firm. For reversal, DuBose challenges the District Court’s1 denial of his motion
for a change of venue, the exclusion of certain evidence, the grant of judgment as a
matter of law in favor of Carey, and the entry of judgment upon the jury verdict in favor
of Kelly and the firm. The District Court granted DuBose’s request for limited portions
of the transcript at government expense.
Without a complete trial transcript, however, we cannot review the District
Court’s evidentiary rulings, the grant of judgment, or the sufficiency of the evidence
supporting the jury’s verdict. See Fed. R. App. P. 10(b)(2) (discussing appellant’s duty
to order transcript); Schmid v. United Bhd. of Carpenters and Joiners, 827 F.2d 384,
386 (8th Cir. 1987) (per curiam) (appellant’s failure to provide complete transcript
makes it impossible to review evidence presented at trial), cert. denied, 484 U.S. 1071(1988); see also DuBose v. Kelly, 187 F.3d 999, 1003-04 (8th Cir. 1999) (noting that
whether Dubose’s evidence--i.e., his eyewitness account of ex parte contact and
alleged agreement that malpractice trial would end in verdict for defendant--was to be
believed was matter for jury). In addition, assuming DuBose renewed his change-of-
venue motion during voir dire, the absence of a transcript of the jury-selection process
makes it impossible to review the necessity of a change of venue. See United States
v. Faul, 748 F.2d 1204, 1212 (8th Cir. 1984) (holding appellate court has duty to
examine independently voir dire testimony to determine whether impartial jury was
selected, thus obviating necessity for change of venue), cert. denied, 472 U.S. 1027(1985).
Accordingly, we affirm.
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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