United States v. Stephens

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 97-5010
HERBERT MURRAY STEPHENS, d/b/a
Cave Inn,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-78)
Submitted: June 28, 2002
Decided: July 22, 2002
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Herbert Murray Stephens, Appellant Pro Se. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STEPHENS
OPINION
PER CURIAM:
Herbert Murray Stephens was convicted on March 7, 1997, of five
counts of wire fraud and conspiracy, 18 U.S.C. §§ 371, 1343 (1994),
and was sentenced to forty-two months imprisonment on each count,
to run concurrently. Stephens appealed, pro se, raising five claims
challenging his conviction and sentence. A transcript of the proceed-
ings was ordered on November 10, 1998. However, despite all efforts,
it now appears that the transcript is unavailable and the court report-
er’s notes and backup tapes have been lost.
The Court Reporter Act, 28 U.S.C. § 753(b) (1994), requires a ver-
batim record of criminal proceedings in order "to safeguard a defen-
dant’s right to appellate review." United States v. Gillis, 773 F.2d
549, 554 (4th Cir. 1985). Although the requirements of § 753(b) are
mandatory, a violation of that statute constitutes reversible error only
if the defendant can show "that the missing portion of the transcript
specifically prejudices his appeal." Id.; see also United States v. Hug-
gins, 191 F.3d 532, 537 (4th Cir. 1999) (when a transcript is less than
complete, the "defendant must show that the transcript errors specifi-
cally prejudiced his ability to perfect an appeal").
We find that the absence of the entire transcript in this case pre-
vents us from reviewing the claims which Stephens raises on appeal.
Accordingly, we vacate Stephens’ conviction and remand to the dis-
trict court for a retrial. We grant the government’s motion to dispense
with oral argument because argument would not aid the decisional
process.
VACATED AND REMANDED