DANIEL R. MIRRO, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-2059

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-6) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 3,
1988.  A petition for rehearing was denied on March 22, 1988.  The
petition for a writ of certiorari was filed on May 21, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the evidence was sufficient to support petitioner's
convictions for operating a motor vehicle while intoxicated and for
operating a motor vehicle without a valid license.

   2. Whether petitioner is entitled to a new trial where, because of
a partially inaudible tape recording of the proceedings before the
magistrate, there was no complete verbatim transcript made of those
proceedings.

                               STATEMENT

   Following a bench trial in the United States Magistrate's Court of
Alexandria, Virginia, petitioner was convicted of driving while
intoxicated (DWI) and of driving with a suspended license, both in
violation of Virginia law as it applies to federal enclaves through
the Assimilative Crimes Act, 18 U.S.C. 1982 ed. 13.  Because
petitioner's DWI conviction was his third within ten years, he was
subject to an enhanced penalty under Virginia law.  The magistrate
therefore sentenced petitioner to six months' imprisonment on the DWI
charge and indefinitely suspended his driver's license.  In addition,
the magistrate imposed a consecutive term of ten days' incarceration
on the suspended license count.  The district court (Pet. App. 1) and
the court of appeals (id. at 2-6) affirmed the convictions.

   1. The pertinent facts are set out in the court of appeals' opinion
(Pet. App. 2-3).  Petitioner and co-defendant David L. Hamilton were
arrested on the evening of February 9, 1987, while they were driving
north on U.S. Route One, which passes through portions of Fort
Belvoir, a federal military enclave.  The arresting officers were two
Fort Belvoir military policemen who first noticed petitioner and
Hamilton when the truck in which they were traveling pulled over to
the side of the road in the federal enclave near a gate to the fort
(id. at 10-11).  The officers saw a man -- identified as petitioner --
get out of the truck on the driver's side, walk unsteadily around the
rear of the vehicle, and climb into the passenger's seat.  At the same
time, they saw a second man get out of the truck on the passenger
side, walk around the vehicle, and climb into the driver's seat.  The
truck then drove off down Route One, weaving in and out of its lane.
After following the truck for a short period of time, the officers
pulled it over and asked the occupants to get out.  Hamilton climbed
out of the driver's seat, and petitioner got out on the passenger
side.  Both men smelled strongly of alcohol and had trouble standing.
Each produced a driver's license upon request, but petitioner's had
the word "REVOKED" stamped across it.  Id. at 3, 8-11.

   The officers took petitioner and Hamilton to the police station,
where they were given breathalyzer tests.  The machine showed
Hamilton's blood alcohol level to be .22 and petitioner's to be .17,
both in excess of the legal limit for the operation of a motor
vehicle.  A license check revealed that the licenses of both men were
under suspension.  Pet. App. 3-4, 11-13.

   2. Petitioner and Hamilton waived their right to trial before a
jury, entered pleas of not guilty, and consented to be tried together
before a federal magistrate.  At trial, the government introduced the
testimony of the arresting officers.  In addition, over the
defendants' objection, the government introduced copies of the
defendants' Virginia driving records (GXs 3-4), which revealed the
prior DWI offenses and suspensions, and documentation describing the
results of the breathalyzer tests (GXs 1-2).  The magistrate found
both petitioner and Hamilton guilty.  Pet. App. 11-12.

   At the time of petitioner's trial, the proceeding in magistrate's
court were tape-recorded pursuant to 18 U.S.C. 3401(e).  It was later
discovered, however, that a complete verbatim transcript of the
proceedings could not be prepared, because the tape recordings were
found to be partially inaudible.  Transcripts were made of the
portions of the tape recordings that were audible (see Pet. 9-10) and,
in addition, the magistrate prepared a written summary of the
proceedings (Pet. App. 8-13) in which she gave a witness-by-witness
narrative account of the evidence that was adduced at the trial.

   After a hearing, the district court ruled that the partial
unavailability of a verbatim transcript of the trial proceedings
neither warranted the dismissal of the charges nor entitled petitioner
to a new trial.  Petitioner alleged that he was prejudiced by the
unavailability of a complete transcript because (1) he was unable to
contest the sufficiency of the evidence as to whether the offense
occurred on the premises of Fort Belvoir;  (2) he was unable to
contest the sufficiency of the evidence as to whether he was driving
the truck;  and (3) he was unable to contest the admissibility of his
prior DWI adjudications.  As the district court explained, however
(Pet. App. 15-16):

         The first error is one of jurisdiction.  I have read the
      magistrate's summary and I have read the defendants' statement
      of facts, and I really don't find in those two statements any
      conflict.  The magistrate has clearly set out * * * the
      testimony she heard.  And the evidence that she believed was the
      officers who said they were beside the gate to Fort Belvoir and
      that these defendants drove past the gate.  That direct evidence
      alone would be sufficient, it seems to me, absent some other
      evidence to the contrary, to show that the gate that has been
      marked there over some period of time was the boundaries that
      are in dispute.

         The second allegation of error deals with the question of
      whether or not (petitioner) was driving the vehicle.  The
      magistrate in her report indicates that there was direct
      testimony, eyewitness testimony, that the two defendants changed
      drivers, and she believed that evidence as opposed to whatever
      else was put on.  As far as this appeal is concerned, I am bound
      to view the Government's evidence in its most favorable light.
      And the magistrate in weighing the credibility of the witnesses
      believed that eyewitness testimony.

         The third assignment of error is that a transcript was
      received from the Division of Motor Vehicles that was a hearsay
      piece of evidence.  I would find from the record that transcript
      was a certified copy of the records that are contained in the
      offices of the Division of Motor Vehicles, and properly
      admitted.

   3. The court of appeals affirmed (Pet. App. 2-6).  In rejecting
petitioner's challenge to the sufficiency of the evidence, the court
first stated that the government amply proved that the offense
occurred within the boundaries of a federal enclave, since "(t)wo
experienced military policemen testified that they knew the boundaries
of Fort Belvoir and were certain that * * * they arrested (petitioner)
* * * within those boundaries" (id. at 5).  The court also held the
certified copies of petitioner's driving records -- which were found
to be admissible as self-authenticating documents under Fed. R. Evid.
902(2) -- were sufficient to establish petitioner's prior DWI offenses
(Pet. App. 5).  Finally, the court held that there was sufficient
evidence, based on the credited testimony of one of the arresting
officers, to show that petitioner had been driving the vehicle (id. at
5-6).  The court of appeals did not address the claim that petitioner
was entitled to a new trial because of the unavailability of a
complete transcript of the trial proceedings.

                               ARGUMENT

   1. Petitioner first contends (Pet. 11-13) that the evidence was
insufficient as a matter of law to establish that he was operating the
motor vehicle.  His claim is without merit.  As the court of appeals
stated, "It is undisputed that there were only two men in the truck.
One of the military policemen testified that he saw (petitioner) climb
out of the driver's seat immediately after the truck pulled over to
the side of the road, and that he saw Hamilton climb out of the
passenger seat at the same time" (Pet. App. 5-6).  The officer saw the
two men walk around the parked truck, switch positions, and then drive
off.  When the officers stopped the truck a short time later, Hamilton
was driving and petitioner was in the passenger seat.  That evidence
was more than ample to establish that petitioner was driving the truck
when it stopped and the passengers exchanged places.

   The evidence was also sufficient to establish that petitioner was
under the influence of alcohol when he was driving the truck.  In her
summary of the proceedings, the magistrate noted that the breathalyzer
test results were admitted at trial and showed that petitioner's blood
alcohol exceeded the legal limit in Virginia (Pet. App. 12).
Petitioner argues that the transcript of the trial does not reflect
that the breathalyzer test results were ever admitted at trial.  But
the magistrate's remark at the time the test results were offered was
inaudible on the tape recording and therefore could not be included in
the verbatim transcript (see id. at 17).  Under those circumstances,
the magistrate's statement in her summary of the proceedings that the
breathalyzer results were admitted as Government Exhibit 2 is
sufficient to establish that the evidence was admitted.

   2. Petitioner next claims (Pet. 14-16) that the unavailability of a
complete verbatim transcript of the trial denied him due process and
violated his rights under 18 U.S.C. 3401(e) and Rule 7(c) of the Rules
of Procedure for the Trial of Misdemeanors Before United States
Magistrates.  Section 3401(e) requires that "(p)roceedings before the
United States magistrates * * * shall be taken down by a court
reporter or recorded by suitable sound recording equipment," and Rule
7(c) provides that the record for an appeal to the district court
"shall consist of * * * any transcript, tape, or other recording of
the proceedings * * *." In this case, however, a complete verbatim
record of petitioner's trial could not be produced, because the tape
recording of the trial proceedings turned out to be partially
inaudible.  In light of that mechanical failure, the magistrate
prepared a detailed, witness-by-witness summary of the proceedings in
order to complete the record for possible review.  Petitioner claims
that that procedure was inadequate and that he is entitled to a new
trial because of the failure of the recording equipment.

   As a constitutional matter, criminal defendants are not invariably
entitled to receive a complete verbatim trial transcript in order to
pursue an appeal.  In Draper v. Washington, 372 U.S. 487, 495 (1963),
this Court recognized that the use of "(a)lternative methods of
reporting trial proceedings are permissible," including "a full
narrative statement based * * * on the trial judge's minutes taken
during trial." Similarly, not every failure of a court reporter to
comply with statutory recordation requirements results in per se
reversible error.  See, e.g., Addison v. United States, 317 F.2d 808,
810-811 (5th Cir. 1963), cert. denied, 376 U.S. 905 (1964).  Thus,
where, as here, a defendant had the same counsel at trial as on
appeal, the defendant must show some prejudice before he is entitled
to a new trial because of the absence of a complete verbatim
transcript of the trial proceedings.  See Bransford v. Brown, 806 F.2d
83, 86 (6th Cir. 1986), cert. denied, No. 86-6657 (May 18, 1987);
United States v. Taylor, 607 F.2d 153 (5th Cir. 1979);  United States
v. Ullrich, 580 F.2d 765, 773 n.13 (5th Cir. 1978) (missing exhibit).
That is especially true when, as here, the judge who had presided at
trial is able to reconstruct the record from his notes and memory.

   By statute, criminal proceedings in district court, like criminal
proceedings in magistrate's court, must be recorded verbatim, 28
U.S.C. 753, and the record on appeal includes the "transcript of
proceedings" in the district court, Fed. R. App. P. 10(a).  Despite
that mandatory language, Fed. R. App. P. 10(c) provides that in cases
in which no report of the proceedings at trial was made, or a
transcript is unavailable, the parties can reconstruct the record with
the assistance of the court.  When Rule 10(c) is used to reconstruct a
missing record, no new trial is required where it appears that the
accused has suffered no actual prejudice.  See United States v.
Smaldone, 583 F.2d 1129, 1133-1134 (10th Cir. 1978), cert. denied, 439
U.S. 1073 (1979) (reconstruction of record regarding the missing
testimony of three witnesses, including that of two co-defendants).

   There is no reason why the same principle should not be applied to
trials before a magistrate.  By furnishing the district court with a
detailed summary of the proceedings at trial, the magistrate
effectively followed the procedure set forth in Fed. R. App. P. 10(c).
 See United States v. McCulloch, 562 F. Supp. 103, 105 (E.D. Tenn.
1983) (Fed. R. App. P. 10(c) applied to case in which tape recorders
failed to operate during trial, but magistrate prepared extensive
summary of proceedings).  Although Fed. R. App. P. 10 is not by its
terms applicable to magistrates' proceedings, a magistrate is free to
apply the procedures established by that rule in appropriate cases.
Rule 57 of the Federal Rules of Criminal Procedure provides that "in
all cases not provided for by rule, the district judges and
magistrates may regulate their practice in any manner not inconsistent
with these rules * * *." Rule 10(c) of the Federal Rules of Appellate
Procedure, which is not inconsistent with any of the rules applicable
to magistrates' proceedings, is an eminently sensible means of
proceeding in cases such as this.  /1/

   Petitioner has failed to show that he was prejudiced by the absence
of a complete transcript of the trial.  He claims (Pet. 10) that the
magistrate's summary was inaccurate because it "fail(ed) to recognize
the inherent and critical disparity in testimony" of the two officers.
 That disparity consisted, at most, of a difference in opinion as to
whether petitioner walked in front of the truck or in back of the
truck when he changed places with Hamilton;  petitioner does not
suggest that there was any dispute between the officers on the
critical question whether the exchange took place.  Nor is the verdict
undermined by the fact that petitioner's co-defendant, Hamilton,
testified that he had been driving the truck the entire time.  The
magistrate could properly credit the testimony of the two sober and
experienced officers over the testimony of petitioner's co-defendant
who was drunk at the time of the incident and had a motive to protect
petitioner.

   In addition, petitioner contends (Pet. 10) that he was prejudiced
by the use of the summary of proceedings, because in her summary the
magistrate stated that she did not recall whether petitioner objected
to the admission of his Virginia driving records, while the transcript
subsequently showed that he did make such an objection.  Since the
transcript covered that point, petitioner could not have been
prejudiced by the magistrate's failure to recall whether an objection
was made.  In any event, as both the district court (Pet. App. 16) and
the court of appeals (id. at 5) observed, the records were properly
admitted whether or not an objection was made.

   Finally, the record does not support petitioner's claim (Pet. 10)
that, contrary to the magistrate's summary, "the transcription clearly
shows there was no admission of (the Certificate of Analysis)"
concerning his breathalyzer tests.  As the transcript shows (see Pet.
App. 17), the prosecutor moved for admission of the certificate, in
response to which defense counsel merely noted, "Subject to
cross-examination." The magistrate then made an inaudible response.
That exchange cannot be categorized as a "clear()" demonstration that
the certificate was never admitted.  To the contrary, the magistrate's
notation in her summary that the Certificate of Analysis was admitted
strongly suggests that her inaudible response to the prosecutor's
motion was to admit the certificate.  At all events, petitioner could
not have been prejudiced in this regard either.  As petitioner
acknowledges (Pet. 8), "(t)estimony was elicited that (his) test
indicated a blood alcohol count of 0.17%" and there was other
testimony -- both transcribed (see, e.g., Pet. App. 21) and as
recounted by the magistrate (id. at 10-11) -- that indicated that
petitioner was visibly intoxicated.  Thus, the certificate was merely
cumulative evidence that was not essential to his conviction.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Acting Assistant Attorney General

   ROBERT J. ERICKSON

   MAURY S. EPNER

      Attorneys

   AUGUST 1988

   /1/ Hardy v. United States, 375 U.S. 277 (1964), on which
petitioner relies, is inapposite.  Hardy did not deal with the instant
situation in which the trier of fact has provided a narrative summary
of the evidence in order to augment transcripts that are only
partially complete because of an inadvertent failure of the recording
device to produce a fully audible tape recording.  In Hardy, the trial
proceedings had been transcribed in their entirety;  the question was
whether an indigent defendant was entitled to access to a transcript
while pursuing his appellate rights.  As a matter of statutory
construction, the Court held that "where the requirements of a
nonfrivolous appeal * * * are met, or where such a showing is sought
to be made, and where counsel on appeal was not counsel at the trial,
the requirements placed on him (to render effective assistance of
counsel on appeal) * * * cannot be discharged unless he has a
transcript" of the trial proceedings (id. at 282).  The Court in Hardy
did not in any way suggest that the absence of a complete transcript
because of a technical recordation problem would automatically entitle
a defendant to a new trial.  Likewise, while petitioner is correct in
asserting (Pet. 15) that courts have held that the failure to make a
record of the proceedings in a trial before a magistrate can
constitute reversible error, the court of appeals cases on which he
relies involved the complete failure to make any record of the
proceedings, not a mechanical failure in the recording equipment
resulting in gaps in the record that are filled in by the magistrate's
summary of the proceedings.