United States v. Homer Lee Tucker

8 F.3d 673 UNITED STATES of America, Plaintiff-Appellee, v. Homer Lee TUCKER, Defendant-Appellant. No. 87-5090. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc June 24, 1993. Decided Oct. 29, 1993. Elizabeth N. Brancart and Christopher Brancart, Brancart & Brancart, Pasadena, CA, for defendant-appellant. Miriam A. Krinsky, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: WALLACE, Chief Judge, HUG, FLETCHER, NORRIS, BEEZER, KOZINSKI, NOONAN, THOMPSON, RYMER, T.G. NELSON, and KLEINFELD, Circuit Judges. WALLACE, Chief Judge: 1 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…

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…

concurring:

The majority holds that we may not use the supervisory power of the federal judiciary to remedy extreme appellate delay without a showing of trial prejudice. I write separately because, without analysis, the majority unnecessarily diminishes the supervisory power of the federal judiciary by accepting United States v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983), as controlling authority even though this is a case of appellate delay rather than trial error. In so doing, the majority effectively forecloses the use of supervisory power by the federal judiciary to remedy appellate delay without first considering whether this appeal can and should be decided on narrow prudential grounds.

The original panel relied upon United States v. Antoine, 906 F.2d 1379 (9th Cir.), cert. denied, 498 U.S. 963 , 111 S.Ct. 398 , 112 L.Ed.2d 407 (1990), in holding that we had the authority to use the supervisory power of the federal judiciary to dismiss Tucker’s indictment because he was subjected to extreme appellate delay through no fault of his own. The panel applied Antoine's four-part test for determining whether appellate delay violated due process and determined…