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United States v. Johnson

United States District Court, D. Utah, Central Division

January 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMY JOHNSON, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO STRIKE

          David Nuffer District Judge

         The United States moves to strike Defendant Jeremy Johnson's proposed statement under Federal Rule of Appellate Procedure 10(c) and its associated filings “because (1) they are filed in disregard of this Court's clear prior order, AND (2) he has not followed the process set forth in Rule 10(c) for submitting a proposed statement to the United States, and (3) his proposed ‘statement' improperly asks this Court to make factual findings regarding prior proceedings.”[1]The motion to strike is GRANTED because Johnson has failed to comply with Federal Rule of Appellate Procedure 10(c) and because the court has already determined that Johnson's statement is unnecessary because a record of the September 25, 2015 meeting has already been established in the record.[2]

         DISCUSSION

         Proposed Statement Filings Do Not Comply with Rule 10(c)

         Rule 10(c) of the Federal Rules of Appellate Procedure states:

Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.

         This rule allows the appellant to prepare a “statement of the evidence or proceedings from the best available means, ” which may include “the appellant's recollection.”[3] Before appellant's proposed statement may be included in the record for appeal, appellant is required to serve the proposed statement on the appellee, “who may serve objections or proposed amendments within 14 days after being served.”[4] After the proposed statement and objections have been exchanged between the parties, then “the statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval.”[5] The proposed statement will not be made part of the record on appeal until after it is settled and approved by the district court.

         Johnson has failed to follow the procedures required in Rule 10(c):

1. Johnson's proposed statement was not served on the United States, as appellee, prior to being submitted to the court and filed on the docket.[6]
2. By failing to serve the United States prior filing the statement on the docket, Johnson also failed to follow the procedure to allow the appellee 14 days to make any objections or proposed amendments to the statement. Further, the United States cannot fully assess what objections or amendments are necessary because Johnson only served the highly redacted version of the statement, [7] which conflicts with Johnson's counsel's Notice of Conventional Filing statement that the documents filed under seal were served via email on the parties.[8]
3. Johnson never properly submitted the proposed statement along with any objections or proposed amendments to the court for settlement and approval as required by the rule. Instead, Johnson directly filed the statement on the docket in an attempt to create a record without court settlement or approval.

         Rule 10(c) provides a process to provide a statement of the evidence when the proceeding was not recorded or a transcript is unavailable. Johnson has failed to follow the process under the rule with each of his proposed statement filings. Accordingly, all filings associated with Johnson's proposed statement[9] will be stricken from the record. Any further attempts by Johnson to file a statement of the September 25, 2015 meeting on the docket shall be stricken as futile because a statement of the meeting already exists on the record, as outlined below.

         Record Contains Reliable Statement of the September 25, 2015 Meeting

         An earlier order on the subject of Johnson's proposed statement of the September 25, 2015 ex ...


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