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United States v. Hererra

December 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CLACY WATSON HERERRA, DEFENDANT.



The opinion of the court was delivered by: Honorable James F. Holderman Chief Judge

MEMORANDUM OPINION AND ORDER GRANTING GOVERNMENT'S REQUESTS TO SUPPLEMENT THE RECORD WITH MATERIALS PLACED IN THE RECORD AND CREATED POST-APPEAL

Before the court are two matters: (1) the "Government's Motion to Supplement the Record on Appeal" [673] filed on December 8, 2009; and (2) the "Addendum to Government's Motion to Supplement the Record on Appeal" [675] filed on December 14, 2009. The defense takes no position.

Federal Rule of Appellate Procedure 10(e) governs the Government's requests to supplement the record, and states:

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplement record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(C) by the court of appeals.

(3) All other questions as to the form and content of the record must be presented to the court of appeals.

Because the last provision of Appellate Rule 10(e)(3) requires that all questions as to the content of the appellate record be presented to the Court of Appeals, this court when it addressed the defense's request to supplement [659] allowed defense's Exhibit F, the only item of the eight defense-requested supplementing items that was created post-appeal. This court called Exhibit F "somewhat concerning" [668], but approved the requested supplementation so as to allow the Court of Appeals to determine the "content of the record," Appellate Rule 10(e)(3).

The same reasoning applies to these Government-requested supplementations [673-75], but in all this post-appeal flurry to submit documents that were not in the record and did not exist at the time of this court's decision on November 3, 2009 or at the time of the filing of the notice of appeal on November 5, 2009, the key issue in this case has been overlooked by counsel.

The question here revolves around the Government's failure to comply with this court's August 14, 2009 order stating that, "Any party intending to offer evidence under Fed. R. Evid. 702 must provide the required pretrial information by September 21, 2009." [607]. The record demonstrates the Government did not even pull the evaluated items at issue out of storage until that September 21, 2009 deadline had come and gone. [646]

The Government could have commenced its fingerprint analysis months before it did. The Government offered no justification for its choosing not to do so. All the information the Government needed to comply with the September 21, 2009 deadline was in the Government's care, custody and control, including Watson-Herrera's fingerprints, on June 25, 2009. Had the Government started its "three-step process" [658] the next day, on June 26, 2009, (it actually started over two months ...


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