United States v. Homer Lee Tucker , 8 F.3d 673 ( 1993 )

WALLACE, Chief Judge:

We are called upon in this appeal to consider the limits on our supervisory powers. Tucker contends that we have the power and obligation to reverse his criminal conviction and dismiss the indictment against him because of excessive delay in hearing his appeal due to the failure of a court reporter to file a transcript of his trial in a timely manner. We hold that we may not exercise our supervisory powers absent a showing of prejudice. Because Tucker has not met this burden, we withdraw the panel opinion and affirm his conviction.

I

A federal grand jury indicted Tucker and Houtchens on eight counts of wire fraud, in violation of 18 U.S.C. § 1343, and two counts of interstate transfer of funds obtained through fraud, in violation of 18 U.S.C. § 2314. The indictment alleged that Tucker and Houtchens had concocted a scheme to induce California residents to invest in a fraudulent oil drilling venture in Texas. Houtchens failed to appear for trial three times, and the district court continued the trial. After Houtchens again failed to appear on January 27, 1987, the district court proceeded to trial against Tucker and Houtch-ens, the latter tried in absentia. Tucker was convicted on all ten counts and, on March 18, 1987, the district court imposed sentence.

Tucker filed a notice of appeal on the same day. Due to the repeated failures of the court reporter to meet the deadlines imposed by this court, Tucker’s counsel’s failure to pursue the preparation of the transcript adequately (see Fed.R.App.P. 11(a)), and this court’s failure to enforce the reporter’s deadlines sufficiently, the complete transcript was not filed until June 13, 1990.

A panel of this court concluded that the extreme delay in filing the transcripts effectively denied Tucker his right to a timely appeal. 964 F.2d 962 (9th Cir.1992), rehearing granted, 991 F.2d 1518 (9th Cir.1993). Exercising its supervisory powers, the panel reversed Tucker’s conviction and remanded to the district court with instructions to dismiss the indictment.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.

II

Although we have supervisory power, the circumstances under which we may exercise that power are substantially limited. United States v. Gatto, 763 F.2d 1040, 1045-6 (9th Cir.1985) (Gatto). We can, “within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury; and finally, as a remedy designed to deter illegal conduct.” United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983) (Hasting) (internal citations omitted).

Even within these limited grants of power, a federal court may not exercise its supervisory authority to reverse a conviction or dismiss an indictment absent prejudice to the defendant. In Hasting, the Seventh Circuit had overturned a conviction in order to discipline a prosecutor for commenting on a defendant’s silence. The Court disagreed and held that a federal court may not exercise its supervisory power to reverse a conviction when the alleged error is harmless. See id. at 505-07, 103 S.Ct. at 1978-79. The Court determined that “[supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” Id. at 506,103 S.Ct. at 1979. Further, the Court stated that the “integrity of the [judicial] process carries less weight” when an error is harmless because “there is no ‘reasonable possibility that the [practice] complained of might have contributed to the conviction.’” Id., quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Finally, the Court pointed out that “deterrence is an inappropriate basis for reversal ... where means more narrowly tailored to deter objectionable prosecutorial conduct are available.” Id.

The Court elaborated oh this analysis in Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (Bank of Nova Scotia), in which it held that federal courts “may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a).” Id. at 254, 108 S.Ct. at 2373. The Court rested its holding on the rule that an exercise of supervisory power “is invalid if it conflicts with constitutional or statutory provisions,” including Rule 52(a). Id. (internal quotation omitted). The district court had dismissed an indictment for prosecutorial misconduct in a grand jury investigation. The Court concluded that the defendants had not been prejudiced by the alleged prosecutorial misconduct and that, as a result, the district court was barred from invoking its supervisory powers to dismiss the indictment. See id. at 263-64, 108 S.Ct. at 2378. In observing that alternative remedies exist for errors which cause a defendant no prejudice, the Court stated in a passage relevant to this appeal that “[s]uch remedies allow the court to focus on the culpable individual rather than granting a windfall to the unprejudiced defendant.” Id. at 263, 108 S.Ct. at 2378.

We have also emphasized the. importance of prejudice as a trigger to the exercise of supervisory power. In United States v. Isgro, 974 F.2d 1091 (9th Cir.1992) (Isgro), cert. denied, — U.S. —, 113 S.Ct. 1581, 123 L.Ed.2d 148 (1993), for example, we held that before a court may invoke its supervisory power, it “must first find that the defendant is actually prejudiced by the misconduct.” Id. at 1094. We also observed that the Supreme Court has moved “toward a rulé that a court should not use its supervisory powers to mete out punishment absent prejudice to á defendant.” Id. at 1097 (emphasis in original). We pointed out that Hasting “unequivocally rejects the idea that a court may sanction the government for its misconduct without considering first the actual prejudice suffered by the defendant.” Id.

This case is not identical to the opinions discussed above: it does not involve either pretrial or trial error or prosecutorial misconduct. Nonetheless, the rationale underpinning the Court’s decisions in Hasting and Bank of Nova Scotia applies with full force to cases of appellate delay. Ordinarily, where the claims asserted on appeal would not entitle the defendant to reversal, appellate delay does not result in prejudice. See Hasting, 461 U.S. at 5006, 13 S.Ct. at 1979. As with pretrial and trial errors, therefore, supervisory power is not needed to reverse a conviction in this circumstance. In addition, the concern for judicial integrity “carries less weight” where the delay on appeal is not prejudicial, id., and a court of appeals “may not disregard the doctrine of harmless error” in order to punish what it views as the misconduct of a court reporter. Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374. There is simply no reason that a federal court should exercise its supervisory power in a way that benefits a party that is not harmed by the delay. Cf. id. at 263, 108 S.Ct. at 2378 (dismissing indictment would grant an unwarranted “windfall” to unprejudiced defendant); Isgro, 974 F.2d at 1099 (same).

Ill

We turn now to the merits of this appeal. Tucker contends that the excessive delay in hearing his appeal denied him due process of law. He also contends that the district court committed plain error in trying him along with his absent codefendant. Tucker therefore asserts that his conviction must be reversed.

We have recognized that “extreme delay in the processing of an appeal may amount to a violation of due process.” United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990). We found four areas of inquiry helpful in evaluating appellate delay claims: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to appeal; and (4) the prejudice to the defendant. Id.

The fourth inquiry is the most important: “a due process violation cannot be established absent a showing of prejudice to the appellant.” Id. We have in turn analyzed this issue by focusing on three types of potential prejudice from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment of the convicted person’s grounds for appeal or of the viability of his defense in case of retrial.” Id.

As to the first, Tucker’s incarceration was not oppressive because his appeal is meritless. Tucker argues that the district court should have severed the trials of Tucker and his absent codefendant, Houtchens, though Tucker made no severance motion. We review for plain error, United States v. Sanchez, 532 F.2d 155, 158 (9th Cir.1976), and hold there is none. “[A] district court should grant a severance ... only if there is serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent a jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, — U.S.—,—, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). Tucker’s theory is that Houtchens’s flight would make him look guilty by association. But Houtchens’s absence also allowed Tucker to shift the blame onto Houtchens. Failure to move for severance may have been strategic. Thus, a joint trial did not pose a serious risk upon which the district judge should have acted sua sponte. The district court did not commit plain error in not severing, on its own motion, his trial from that of his absent codefendant. Cf. id. (stating that if defendant’s “conviction was proper, there has been no oppressive confinement; he has merely been serving his sentence as mandated by law”). As to the second kind of prejudice, Tucker “has undoubtedly experienced anxiety and concern during the protracted pen-dency of this appeal,” but has made no showing that it was to such a degree as “would distinguish his ease from that of any other prisoner awaiting the outcome of an appeal.” See id. at 1382-83. Finally, as we stated above, Tucker’s appeal lacks merit. Therefore, the third concern is not implicated because the delay has not impaired Tucker’s grounds for appeal or impaired his defense in the event of retrial. See id. at 1383. Had Tucker received timely decision of his appeal, he still would not have succeeded. He has not been prejudiced in any way by the court reporter’s unreasonable delay in completing the transcripts of the trial court proceedings.

Even assuming that the court reporter’s dilatory conduct violated some statutory right of Tucker, a right we have been unable to identify, Tucker was not entitled to have his conviction reversed and his case remanded for dismissal of the indictment. As we discussed above, a federal court may not exercise its supervisory powers to reverse a conviction absent a showing of prejudice. Tucker violated the law and was found guilty at a fair trial. Although his appeal took an unfortunately long time, Tucker received all he was due from the legal process. We cannot reverse this validly obtained conviction to punish a court reporter, even under the theory that we are merely cleaning our judicial house. The result would not be solely in our house; it would impact the government directly, if not exclusively. Separation-of-powers principles, therefore, are necessarily and unavoidably implicated. See Isgro, 974 F.2d at 1097; Gatto, 763 F.2d at 1046. In maintaining order in our own house, we should not needlessly trample on the interest of the prosecutor and of the public in securing proper, lasting convictions. Tucker was not harmed by the delay in hearing his appeal. In this circumstance, reversing his conviction and dismissing the indictment against him would undermine rather than preserve judicial integrity.

The prejudice requirement is clearly established by Supreme Court precedent. We are not free to ignore it. Because Tucker has not demonstrated that he was prejudiced by the delay in hearing his appeal, we must affirm his conviction.

IV

This is not to say that the federal courts are without power to rectify such a situation in the future. We undoubtedly have the authority to sanction dilatory court reporters. See In re Holloway, 884 F.2d 476, 478 n. 3 (9th Cir.1989). In Holloway, for example, we required the court reporter to pay a $250 fine and an additional $50 for every day beyond the deadline imposed by us until the transcripts were filed. Id. at 477-78. We also referred the matter to the United States Attorney “for a review of any representations made by [the court reporter] in obtaining employment as a reporter in this matter.” Id. at 478. The case before us also demonstrates the efficacy of alternative remedies: the court reporter here was quick to finish the transcripts after we entered an order instructing the United States Marshal to arrest and confine her if she failed to finish the transcripts within seven days. As the Court observed in Bank of Nova Scotia, “[s]uch remedies allow the court to focus on the culpable individual rather than granting a windfáll to the unprejudiced defendant.” 487 U.S. at 263, 108 S.Ct. at 2378.

AFFIRMED.